By Sarah Decker
Sarah Decker is a legal intern with the Lawyers’ Committee for Civil Rights Under Law. She is a rising 2L at Georgetown University Law Center, and a recent graduate of Bucknell University, where she received a BA in International Relations, Philosophy, and Arabic.
Green: States with hate crime laws that include sexual orientation and gender identity; Blue: States with hate crime laws including sexual orientation; Yellow: States with hate crime laws including only ethnic intimidation; Pink: States with no hate crime laws.
LGBTQ Rights, Post-Masterpiece
Earlier this summer, the Supreme Court released its decision in Masterpiece Cakeshop, a case that raised significant concerns regarding equal rights for all people in this country. The case began six years ago, when a gay couple, David Mullins and Charlie Craig, were refused a custom wedding cake by Colorado baker, Jack Phillips. Phillips claimed that he could not make a cake for the couple because of his sincerely held religious convictions against same-sex marriage. Mullins and Craig filed a complaint with the Colorado Civil Rights Commission, a bipartisan board tasked with conducting hearings regarding illegal discriminatory practices. The couple sued Phillips under the public accommodations law for the state of Colorado, which is one of only twenty states that prohibits discrimination on the basis of sexual orientation and gender identity. The case gained enormous traction among both the civil rights organizations and Christian-right activists, raising major First Amendment issues including questions concerning what constitutes compelled speech and the free exercise clause. Justice Kennedy, writing the majority opinion, punted on almost all of these issues, instead focusing on the “hostility” towards Phillips as a result of Commission’s procedure in reviewing the case.
On the surface, the 7-2 decision, limited to the specific facts of the case, appears to not be the catastrophic setback that many LGBTQ rights advocates and civil rights organizations had feared. The Court’s decision is based on the idea that select comments of some of the Commissioners, including the fact that slavery has been justified by religion, alongside “disparate treatment” in previous cases, indicated hostility towards Phillip’s religious beliefs.
The decision is not a sweeping religious exemption from anti-discrimination laws, and it does reiterate “the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.” However, the failure to make a clear statement declaring discrimination against LGBTQ individuals in this context unconstitutional, particularly at a time when LGBTQ people are confronting increasing discrimination and rising hate crimes, is devastating in and of itself. New research suggests that when a political authority, such as the Supreme Court or the Administration, condones or allows attacks on minority groups, the social norms of our country change in response. Social psychologists, Mark White and Christian Crandall, recently conducted a study exploring whether the defense of racist or hate speech serves as a justification for prejudice. The study revealed that explicit racial prejudice is a reliable predictor of the “free speech defense” of racist expression. Participants endorsed free speech values for singing racist songs or posting racist comments on social media, but participants did not endorse the same free speech values for speech that wasn’t connected to racist comments or songs. Indeed, high levels of prejudice did not predict endorsement of free speech values when identical speech was directed at coworkers or the police.
Essentially, this study indicates that people are inconsistent in their defense of free speech and that the use of the First Amendment to defend speech is often correlated to one’s political views, and is subject to their biases towards minority groups. In an offshoot of this study, as reported by NPR, Crandall asked participants to rank their feelings toward certain groups and then rank how permissible they thought it was to express those prejudices in the US. Crandall’s baseline statistics indicated that before Trump’s election, participants did not believe that expressing explicit bias against certain groups was permissible. However, just two weeks later, After Trump’s election as President, Crandall repeated this study, and found that the election of Trump changed people’s understandings of what America felt – that it must now be okay to have these prejudices. Their scores on the acceptability of prejudice went up, but only for the groups Trump explicitly targeted through his campaign – immigrants and Muslims. The election of Trump removed people’s suppression of their own prejudice beliefs, their “political correctness” and effectively changed social norms, allowing people to use the First Amendment to justify only the speech they personally approve of.
Although like all studies, Crandall’s results are limited in terms of real-life applicability, they indicate a potentially dangerous outcome of the Masterpiece decision – that people who hold LGBTQ prejudices will now feel it is acceptable to express their biases because they misinterpret the decision to believe that they are protected under the First Amendment and because an “authority figure” – i.e. the Supreme Court – has provided cover. Even though this is far from the narrow holding expressed in Kennedy’s opinion, which doesn’t change any civil rights laws, it has the potential to impact social norms and further endanger LGBTQ people in their everyday lives. In the days following the Masterpiece ruling, we have seen several egregious hate crimes against the LGBTQ community. At Utah pride festival on June 5th, the day after the ruling, four gay men were violently attacked and chased by over a dozen young white men who were yelling homophobic slurs. On June 6th, a same-sex couple was brutally attacked at a restaurant in Massachusetts. The two women were targeted by a man at the bar who saw them kiss each other hello and suffered severe injuries, including two torn ankle ligaments and a fractured cheekbone.
Although harassment and discriminatory behavior are a daily reality for LGBTQ people, it should never be accepted as normal. In states that have an all-inclusive hate crime law, protecting both sexual orientation and gender identity, the law can provide an avenue to address these crimes. In states that have either a limited hate crime law or no hate crime law at all, other legal avenues are available.
LGBTQ People of Color are at the Highest Risk
In 2017, the National Coalition of Anti-Violence Programs (NCAVP) recorded reports of 52 hate violence related homicides of LGBTQ people, the highest number ever recorded and an 86% increase in single incident reports from 2016 (28 not including 49 lives lost in Pulse). In 2016, of the 49 victims in the Pulse Nightclub shooting, 90% were LGBTQ Latinx youth. In 2017, 71% of the victims of hate-motivated LGBTQ homicides were people of color.
Fatal violence against LGBTQ people disproportionately affects younger transgender women of color. Since January 2013, the Human Rights Campaign and Trans People of Color Coalition have recorded at least 102 transgender people who were victims of fatal violence. At least 87 were transgender people of color, most were transgender women (88), most were victims of gun violence (61 including deadly force via police), and over 75% were under the age of 35, including four minors under the age of 18.
At least 25 transgender people have been killed in the US since the beginning of 2017; 84% were people of color and 80% were women. It is important to note that data collection is often incomplete or unreliable when it comes to violent and fatal crimes against transgender people because some victim’s deaths may go unreported while others may not be identified as transgender in the media. About 54% of hate crime victimizations were not reported to police during 2011-2015. Because the collection of accurate data is key to addressing hate crimes in vulnerable communities, reporting hate crimes and hate incidents is critical to ensure that hate crimes are prosecuted.
What is a hate crime?
A hate crime is generally defined as a crime against a person or property that is motivated by bias, prejudice, or hatred toward the personal, or perceived personal, characteristics of a victim, including: race, color, national origin, religion, disability, sexual orientation, gender, or gender identity.
All hate crimes are hate incidents, but not all hate incidents are hate crimes. A hate incident is any incident that is perceived by the victim or any other person as being motivated by prejudice or hate. It may or may not constitute a criminal offense. For example, if you have be the victim of hate speech concerning your sexual orientation or gender identity, depending on the circumstances, it may not constitute a crime, but would be considered a hate incident.
The definition of a hate crime differs from state to state, but always includes an underlying crime. Several states do not have separate statutes for crimes motivated by hate, but at a minimum, most states have enhanced penalties for crimes motivated by hatred based on the above characteristics. If state and local authorities do not sufficiently protect victims of hate crimes, then the federal government may step in and prosecute hate crime violations.
Seventeen states and the District of Columbia currently have hate crime laws that include crimes based on sexual identity and gender identity – protecting the full spectrum of LGBTQ individuals. Thirteen states have hate crime laws that include crimes based on sexual orientation, but not based on gender identity. Fifteen states have hate crime laws that do not include crimes based on sexual orientation or gender expression, and only protect victims of ethnic intimidation based on, for example, race, national origin, or religion. Five states do not have any form of hate crime law or penalty enhancement.
Use the map above to find out if your identity is protected under your state’s hate crime laws. Click on your state to access our State Hate Crime Overviews, which provide state specific information and additional resources, including how to gather information and report a hate crime.
My state’s hate crime laws do not protect my gender identity or sexual orientation. What are my options?
If you live in a state that does not have a hate crime law that protects your gender identity or sexual orientation, you may be able to bring a claim using either a federal hate crime law or another state civil law. There are several other civil laws that you can use to bring a case against someone who physically or emotionally injures you – even if the person’s actions do not rise to the legal definition of a hate crime or hate incident. For example, if you are punched, stabbed, receive threatening voicemail messages, or held somewhere against your will, you may be able to bring a claim under civil law. These civil laws are generally known as “torts” – wrongful acts that result in legal liability. Examples of torts include assault, battery, false imprisonment, intentional infliction of emotional distress, and trespass. You, as a private citizen, can bring these civil tort claims against a perpetrator using a private attorney. Detailed examples of your state’s civil tort claims and further explanation can be found in our State Hate Crime Overviews.
Depending on the circumstances of your case, the federal government may be able to bring a claim under one of the federal hate crimes laws, the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (HCPA)(18 USC § 249). The HCPA protects people who have been victims of a crime based on their actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability. However, the HCPA is only applied if that crime affects interstate or foreign commerce or if the crime occurs within federal special maritime and territorial jurisdiction. Additionally, if the offense does not result in death, due to the statute of limitations, the claim must be brought within seven years of the crime. Examples of crimes that may fall under federal law include if the perpetrator used a weapon that was purchased in another state, if the perpetrator crossed state lines in a car, if you were traveling and crossing state lines, or if you were in a special federal jurisdiction, like a national park.
Under the 2016 U.S. Sentencing Guidelines §3A1.1. (Hate Crime Motivation or Vulnerable Victim) provides a sentencing enhancement if the court finds “beyond a reasonable doubt that the defendant intentionally selected any victim or any property as the object of the offense” based on the victim’s race, color, religion, national origin, ethnicity, gender, gender identity, disability, or sexual orientation of any person.”
What are some LGBTQ resources in my community?
Center Link LGBT Community Center Member Directory: https://www.lgbtcenters.org/LGBTCenters
HRC Map of laws and policies that affect LGBTQ community: http://www.hrc.org/state-maps/hate-crimes