NY Trans and Queer Activists Criticize Gender Employment Non-Discrimination Act

An excellent statement from the Sylvia Rivera Law Project, FIERCE, Queers for Economic Justice, the Peter Cicchino Youth Project and the Audre Lorde Project, about how hate crimes legislation is a bad idea, as is incarceration as a solution to violence in our communities:

SRLP announces non-support of the Gender Employment Non-Discrimination Act!

April 6, 2009

Dear members of the GENDA coalition and all allies in the struggle for trans liberation:

We write to you today because we are deeply concerned with the version of the Gender Employment Non-Discrimination Act (GENDA) that was recently introduced in the New York State Assembly. We are members of transgender and gender non-conforming communities of color, allies to these communities, and representatives of organizations that work to advocate for and increase the political voice of these communities. As written, the GENDA bill adds gender identity and gender expression to the protected categories of NY anti-discrimination law by adding it to the State Human Rights statute.

We are excited and heartened by progress on this front, as many of us have struggled to end discrimination against trans people for years. Unfortunately, the GENDA bill also includes gender identity and gender expression as a “protected” category under the NY hate crimes statute. We want and deserve legal protection from discrimination in the workplace, in housing, and in public accommodations.

Transgender people in New York are frequently fired from jobs; kicked out of housing, restaurants, restrooms and hotels; and harassed in schools and public institutions. It is essential that we have legal recourse to take action when trans people are discriminated against in this way. It is also essential that this form of discrimination is publicly declared unacceptable—in our state, in our society, and across the world.

It pains us that we nevertheless cannot support the current GENDA bill, because we cannot and will not support hate crimes legislation. Rather than serving as protection for oppressed people, the hate crimes portion of this law may expose our communities to more danger—from prejudiced institutions far more powerful and pervasive than individual bigots. In New York, the hate crimes portion of the penal code adds automatic penalty enhancements to certain crimes that are deemed to be hate crimes: crimes based on a person’s race, color, national origin, ancestry, religion, religious practice, age, disability, or sexual orientation.

If a particular crime is deemed a hate crime by the state, the supposed perpetrator is automatically subject to a higher mandatory minimum sentence. For example, a crime that would carry a sentence of five years can be “enhanced” to eight years. As GENDA is currently written, if passed it would further expand this law, providing additional grounds for penalty enhancement.

As a nation, we lock up more people per capita than any other country in the world; one in one hundred adults are behind bars in the U.S. Our penalties are harsher and sentences longer than they are anywhere else on the planet, and hate crime laws with sentencing enhancements make them harsher and longer. By supporting longer periods of incarceration and putting a more threatening weapon in the state’s hands, this kind of legislation places an enormous amount of faith in our deeply flawed, transphobic, and racist criminal legal system. The application of this increased power and extended punishment is entirely at to the discretion of a system riddled with prejudice, institutional bias, economic motives, and corruption.

Trans people, people of color, and other marginalized groups are disproportionately incarcerated to an overwhelming degree. Trans and gender non-conforming people, particularly trans women of color, are regularly profiled and falsely arrested for doing nothing more than walking down the street. Almost 95% of the people locked up on Riker’s Island are black or Latin@. Many of us have been arrested ourselves or seen our friends, members, clients, colleagues, and lovers arrested, often when they themselves were the victims of a violent attack.

Once arrested, the degree of violence, abuse, humiliation, rape, and denial of needed medical care that our communities confront behind bars is truly shocking, and at times fatal. In popular conception, hate crime laws were enacted to protect oppressed minorities against bigots who would seek to terrorize a community through violent crime: racist lynchings, gay-bashing, anti-Semitic violence, and so forth. Unfortunately, the popular imagining of the operation of hate crime laws does not bear out in reality. Hate crime laws do not distinguish between oppressed groups and groups with social and institutional power.

Compared to white men, Black men are disproportionately arrested for race-based hate crimes. The second-largest category of race-based hate crimes tracked by the FBI is crimes committed against white people. Every year, the FBI reports a number of so-called “anti-heterosexual” hate crimes—incidents where members of the LGBT community have been prosecuted for supposedly targeting straight people with criminal acts.

If GENDA is passed with the hate crime component intact, trans people could be subject to “enhanced penalties” for crimes against non-trans people. The possibility of hate crime charges could arise in any dispute that involves gender identity or expression. In the case of the “New Jersey 4,” a group of young queer women of color were incarcerated for defending themselves against the homophobic attacks and slurs of a straight man, who accused them of committing a “hate crime” against him. It is all too easy for a prejudice-motivated attack to become a fight for survival, and for a fight to be turned against oppressed communities.

There might be some cold comfort in “enhanced sentencing” if it actually benefited our communities in any way. Unfortunately, the harsher penalties of hate crime laws have not been shown to prevent or deter hate crimes. It is hard to imagine that someone moved to brutally attack a trans person would pause to consider that they might get a longer sentence. In fact, there is some evidence that longer sentences actually increase the chance that an incarcerated person will repeat a crime after they are released. Incarceration does nothing to address the root reasons why someone was violent or hateful; it only plunges them into deeper poverty, further isolates them from their community, and subjects them to further violence and trauma.

In many cases, incarceration may worsen prejudices and make people more likely to be alienated and violent when they are released. Worst of all, when our society incarcerates someone who truly hates trans people, we provide them more opportunities to commit anti-trans hate crimes while incarcerated. Our many transgender community members in prison face intimidation, harassment, and violence on a daily basis.

Hate crime laws are an easy way for the government to act like it is on our communities’ side while continuing to discriminate against us. Liberal politicians and institutions can claim “anti-oppression” legitimacy and win points with communities affected by prejudice, while simultaneously using “sentencing enhancement” to justify building more prisons to lock us up in. Hate crime laws foreground a single accused individual as the “cause” of racism, homophobia, transphobia, misogyny, or any number of other oppressive prejudices. They encourage us to lay blame and focus our vengeful hostility on one person instead of paying attention to institutional prejudice that fuels police violence, encourages bureaucratic systems to ignore trans people’s needs or actively discriminate against us, and denies our communities health care, identification, and so much more.

Anything that expands the power of a system that damages our communities so severely is against our long-term and short-term interests. Any legal weapon that’s created to make our justice system more harsh and punitive cannot be trusted in the hands of institutions that have shown their prejudices and corruption time and time again. Because of the way this legislation has been turned against the communities they were intended to protect, we regard “sentence enhancement” hate crime laws as one of the greatest follies of late-20th-century liberal politics.

Some of us have expressed this concern to (other) members of the GENDA Coalition after we became aware of the hate crime aspect of the proposed bill. We know that this coalition of many organizations and hard-working community members has been working for years to make anti-discrimination law a reality in our state and we respect their dedication to this work. We were happy that some of us had an opportunity recently to engage in dialogue about the hate crimes provisions of GENDA with them. We left the conversation with the shared knowledge that the United States criminal legal system is deeply flawed, that it would be entirely possible to leave out the hate crimes portion of the GENDA bill when it was re-introduced this session, and that making such a change could mean that it would take more time to get the bill passed because of the need to educate our elected officials about these issues.

We are deeply disappointed that, with this knowledge, the majority of the GENDA Coalition decided that they would rather “come back to hate crimes legislation later” and still actively work to pass a version of the bill that would expand hate crime laws now. Trans communities know all too well what it’s like to be told “we’ll come back later to protect you.” One argument made in our conversation was that because so many other groups are covered by the New York hate crimes statute, trans people should not be “the sacrificial lamb.” Unfortunately, because “sentence enhancements” actually make communities more vulnerable to prejudice in the criminal legal system, it is the many other “protected classes” that have already been sacrificed on the altar of hate crimes.

The real victims who are liable to be thrown to the wolves in this case are the most marginalized members of trans and gender non-conforming communities: poor people, people without jobs or housing, people who resort to survival crimes in order to get by or access health care, people with substance abuse problems, sex workers, youth, people with disabilities, and so many more who are disproportionately targeted for violence, harassment, prejudice in the courts, and incarceration. These are the same people our community must mourn every year at the Trans Day of Remembrance. Can we really continue to shed tears and flowers for the dead if we eagerly hand the state more power to crush the same people?

The signatories to this letter cannot and will not support this version of the bill. We can not help pass a bill through the state legislature that could further endanger our communities. We hope and plead for a better GENDA bill that will make the hard-fought dream of anti-discrimination law a reality for all trans and gender non-conforming people in New York state, without sacrificing the most endangered members of our community. We also commit and ask others to join us in our commitment to work on real ways to address hate violence.

When thinking about responding to hate violence, we believe the most important question is not “who is the perpetrator and how can we punish them?” Rather, we want to ask “how can we help the survivor(s) and the community heal from this violence? How can we prevent it from happening again?” Many people and organizations in New York and around the world are doing creative, transformative work to find real solutions to these questions. Some organize communities to intervene in violence without relying on law enforcement.

Some develop alternate ways to resolve conflicts. Some help break down prejudice and fear with public education and training. Some help make sure that our communities have access to basic necessities in life and are not forced to be in situations where they are particularly vulnerable to violence. Some fight to hold the state accountable for violence it perpetrates against our communities. Some educate community members about ways to defend themselves and deescalate confrontations. Some provide services, advocacy, and support for survivors of violence.

These are just a few of the strategies that we have used and seen others use locally to develop the approaches to hate violence that we and our loved ones need and deserve.Please join with us in working to make New York State a safer and more just place for trans and gender non-conforming people. Please join us in supporting an improved version of GENDA that will provide much-needed legal protections against discrimination without endangering our communities and strengthening the prejudiced system of criminal punishment.


Sylvia Rivera Law Project
Queers for Economic Justice
Peter Cicchino Youth Project
Audre Lorde Project


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