Trans Advocates Won't Thank Sessions for a Hate Crime Prosecution

Last week, Attorney General Jeff Sessions assigned a federal civil rights lawyer to Burlington, Iowa, to help prosecute the murder of Kedarie Johnson, a genderfluid 16-year-old whose body was found in an alleyway in March 2016. Sessions had personally made the decision, surprising those who believe the attorney general, and the Trump administration more broadly, are instinctively hostile to trans people.

"This spring, the attorney general directed Civil Rights Division attorneys to dedicate themselves to proactively investigate a certain set of cases of individuals who were murdered because they were transgender," Department of Justice spokesman Devin O'Malley told me in an email. "This is just one example of the attorney general's commitment to enforcing the laws enacted by Congress and to protecting the civil rights of all individuals."

Sessions, who first publicly proclaimed his intent to prosecute hate crimes against transgender individuals in a June speech, noted that "hate crimes are violent crimes" and that he had met "personally" with leaders of the DOJ's Civil Rights Division "to discuss a spate of murders around the country of transgender individuals."

Though the move attracted headlines across the country, both LGBTQ advocates and Sessions's supporters warn not to interpret too much from his decision, which they say is an attempt to prosecute violent crime and to comply with the law, rather than a move forward in the fight for transgender rights.

Conservatives argue that Sessions is following the letter of the law and that moving to protect trans people from discrimination in the workplace, as Barack Obama's administration tried to do, is an overreach.

"This simply suggests that the Justice Department is going to be interpreting the law as it is written and not distorting the law to advance a political objective, which the Obama Justice Department did all the time," said Roger Clegg, a former deputy assistant attorney general in the Reagan and George H.W. Bush administrations.

Clegg said that the Hate Crimes Prevention Act of 2009 added gender identity to the categories encompassed by hate crimes—but other civil rights laws have not been updated to include gender identity. Clegg said Sessions had rightly denied transgender individuals employment and educational protections because the Civil Rights Act only explicitly protects people on the grounds of "sex, race, color, national origin, and religion."

"There is no good way to interpret those laws as covering discrimination of transgender individuals," said Clegg of Title VII (addressing employment) and Title IX (addressing education) of the Civil Rights Act. "I'd expect and hope that the administration is going to be interpreting all civil rights statutes as written."

LGBTQ advocates and former Obama administration staffers argue that that narrow reading of the law is incorrect and that the Civil Rights Act actually includes gender identity, since it is bound up in expectations of how people of a certain sex should act or identify. And they say Sessions offers little hope in his prosecution of Johnson's murder as a hate crime.

"Let's please not overstate the significance of this, particularly against the backdrop of what Sessions has been doing to lead an anti-LGBT crusade," said Vanita Gupta, the former head of the Justice Department's Civil Rights Division under Obama, who told me the hate crime prosecution would have no impact on transgender individuals' civil rights.

Gupta, now President and CEO of the Leadership Conference on Civil and Human Rights, noted that Sessions had instated one sweeping measure after the next to reverse progress made by the Obama administration protecting LGBTQ individuals.

Just this month the attorney general overturned the Department of Justice's policy providing employment protections to people based on their gender identity and issued a "protections for religious liberty" directive allowing people to deny LGBTQ rights on the grounds of their religious beliefs.

He's also sided with cake makers refusing to bake wedding cakes for same-sex couples in a Supreme Court lawsuit, and told the Christian Broadcasting Network last week the Christian baker had a "fundamental right" not to be "required to participate in a ceremony in some fashion that he does not believe in." And Sessions has reversed nondiscrimination policies for transgender students that guaranteed they can use the bathroom of their gender identity.

Critics say that what Sessions is doing is essentially defending trans people after they've been the victims of violent crimes—but not protecting them beforehand.

"The Attorney General's whole shtick is his focus on violent crimes but he refuses to connect the dots between the policies he's pushing that promote violence," said Gupta. "There's a direct line between discrimination and hate and that hate can sometimes lead to violence."

Some advocates say they've seen an increase of crimes against transgender individuals this year, which they link to anti-LGBTQ rhetoric and policies of the current administration.

Emily Waters, senior manager of research and policy for the New York City Anti-Violence Project, said her organization's legal department had seen a 24 percent increase in overall clients seeking legal services this year, including a 10 percent increase in clients facing hate violence.

"People feel more emboldened in their biases," said Waters of the tone under the current administration. Her clients' fear of attacks had also increased, which she said "has a very real impact on our communities."

"It's incredibly hard to believe this is anything but a ploy and in our mind what we fear is that this will be used as a way to push Sessions's pro-policing agenda," Waters told me. "If we are really going to be talking about addressing hate violence it's not going to happen by only increasing hate crimes prosecutions."

The ACLU's staff attorney for the LGBT and HIV Project, Chase Strangio, echoed Waters's dismay at Sessions's policies, claiming that there was "nothing to see here other than a law enforcement official believing in the power of punishment." Strangio said the DOJ's lack of protections for transgender people meanwhile perpetuated a lack of healthcare, housing, and employment for the population.

Mara Keisling, the executive director of the National Center for Transgender Equality, said Sessions's office had "made it clear from the beginning that they're interested in prosecuting murders," but that his prosecutions "did not ameliorate the damage" he had done to the transgender community. And Gerry Hebert, director of voting rights and redistricting at the Campaign Legal Center, who testified against Sessions's civil rights record when he was nominated as attorney general, said it was "too early to take one example and say it's an awakening" for Sessions's perspective on civil rights.

The DOJ declined to comment on the criticisms advocates made about the agency's treatment of LGBTQ civil rights.

The increase of hate crimes prosecutions combined with a failure to acknowledge civil rights hearkens back to the era of the Reagan administration, said Richard Cohen, president of the Southern Poverty Law Center.

"I think it reflects a pattern where we're going after the most egregious cases of hate and violence," said Cohen, "but ignore the more systemic problems against a vilified community."

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