Congressman Barney Frank

LOWELL - Massachusetts Congressman Barney Frank is set to file a bill to expand federal hate crimes statutes that includes explicit protections based on gender identity.

Frank said that he and Reps. Christopher Shays, R-Conn., Tammy Baldwin D-Wisc., and John Conyers, Jr. D-Mich. will file the bill in the next week or so. According to the Human Rights Campaign (HRC), Florida Republican Rep. Ileana Ros-Lehtinen is also cosponsoring the proposed legislation, which has yet to be finalized. "We are going to have a bipartisan hate crimes bill," said the openly gay Newton Congressman during an exclusive interview at the state Democratic Party Convention in Lowell May 14. "It'll be the first federal legislation ever that is specifically transgendered-inclusive."

Shays was traveling and unavailable to comment for this story, but released a statement on the bill through his press secretary, Sarah Moore.

"In my judgment, violence based on prejudice is a matter of national concern that federal prosecutors should be empowered to punish if the states are unable or unwilling to do so," Shays stated. "Franklin Delano Roosevelt once said: 'We must scrupulously guard the civil rights and civil liberties of all citizens, whatever their background. We must remember that any oppression, any injustice, any hatred, is a wedge designed to attack our civilization.' That statement is no less true today than it was back then, and I will continue working to enact this important legislation."

The FBI, which keeps statistics on hate crimes committed based on sexual orientation, does not track crimes based on gender identity. But the imminent filing of Frank's bill comes on the heels of an April 26 report from the National Coalition of Anti-Violence Programs (NCAVP), an organization that compiles annual statistics on anti-GLBT violence from its member organizations around the country. The most recent NCAVP report, which included data compiled from 11 member organizations, showed a four percent increase in reported incidents of anti-GLBT violence, up from 1720 in 2003 to 1792 in 2004. Hate crimes based on gender identity and expression accounted for 11 percent of that total. Additionally, Frank's announcement comes as a retrial for the three alleged killers of Gwen Araujo, a 17-year-old transgender who was bludgeoned and strangled in October 2002 after she was discovered to be a biological male, gets underway in California. Last year's trial of Michael Magidson, 24, Jose Merel, 25, and Jason Cazares, 25, ended without a verdict when a jury could not decide whether or not to convict the accused of first degree murder or manslaughter. Defense attorneys had mounted what anti-violence advocates blasted as "a transgender panic defense," positing that Araujo's alleged killers, who had previously had sexual relations with her, were driven to their crime by the trauma of discovering Araujo's biological gender. The trio was also facing additional penalties under California's hate crimes statute.

Not surprisingly, news of Frank's hate crimes bill was greeted enthusiastically by GLBT advocacy organizations. "It's incredible," said Mara Kiesling, founding executive director of the National Center for Transgender Equality (NCTE), an organization that worked with Frank to craft the legislation. "It's historic. As the Congressman noted ... it'll be the first time that gender identity is explicitly listed as a protected class" in a viable hate crimes bill. "I think it should be very empowering to trans people." HRC, which also worked on the bill, is "unequivocally" supporting the legislation, said Chris Labonte, the organization's legislative director.

Frank said the trans-inclusive hate crimes bill, which would also add protections based on sexual orientation, is the best way to begin educating members of Congress about transgender issues. He has drawn criticism from transgender activists for refusing to support a trans-inclusive version of the Employment Nondiscrimination Act (ENDA), a bill to outlaw job discrimination based on sexual orientation, saying such a bill presents "a political problem," in that it would need to be re-written to give employers discretion to set regulations around transgender employees' access to spaces like locker rooms and bathrooms. Frank's stance on ENDA has put him at odds with national organizations such as the Human Rights Campaign and the National Gay and Lesbian Task Force, who have said they will no longer support ENDA unless it includes gender identity. Such legislation has yet to be introduced in Congress.

But Frank contends that it is easier to make the case for a trans-inclusive hate crimes law. "It's not a political problem to include transgender people in hate crimes. I said to [GLBT political leaders], why are you leading with our weaker thing? Let's lead with our strength and build from strength to strength rather than from weaknesses."

The one difficulty he has encountered, however, is finding a Republican senator to sign on to the bill. "The Senate is having problems, because we can't even find a senate Republican who will be for including transgenders in hate crimes." Three previous versions of the hate crimes bill, none of which included gender identity, passed the Senate with support from Republicans Orrin Hatch of Utah, Gordon Smith of Oregon, Arlen Specter of Pennsylvania and Maine's Olympia Snowe, among others. In 2000, the House followed the Senate's lead in passing the gay-inclusive hate crimes bill - the only time both chambers have done so - only to see it killed by Republican House and Senate leaders.

Apparently, there may be no Democratic senators willing to sponsor Frank's version of the bill, either. Massachusetts Sen. Ted Kennedy is preparing to file a hate crimes bill with Smith, according to Kennedy spokeswoman Laura Capps. Capps declined to discuss the text of Kennedy's legislation, stating that she could not comment on the specifics of a bill that has yet to be filed. But according to Frank, Labonte, and Kiesling, Kennedy's bill does not explicitly include the phrase "gender identity."

"There's a fear that he and Gordon Smith have that this would cost them a lot of votes in the Senate," said Frank. While he disagrees with that assessment, he and Kennedy have agreed to file their differing versions of the hate crimes bills and see what happens. "So I'm going to do it with [gender identity] and he's going to do it without," said Frank.

Though it presumably lacks explicit reference to gender identity as a protected class, Labonte said Kennedy's bill does not necessarily preclude the prosecution of hate crimes based on gender identity. According to both Labonte and Kiesling, Kennedy will re-file the same hate crimes bill he cosponsored during the last congressional session, which protects hate crime victims based on "real or perceived sexual orientation or real or perceived gender." Some legal advisors, Labonte noted, have said such language sufficiently covers the transgender community. But both NCTE and HRC are more comfortable with Frank's bill.

"Senator Kennedy has from the very initial introduction of that bill argued that it is transgender inclusive and our debate with him is really one of degrees in some ways," said Kiesling. Attorneys from the GLBT movement, she said, "will tell you that with the wording of the hate crimes bill as it's been in the past will be interpreted sometimes to be inclusive and sometimes not. So it is less reliably inclusive than the version that Congressman Frank is talking about in the House."

Though she understands the political calculation behind using less explicitly trans-inclusive language, Kiesling said it's a painful irony. "There's a sense that you couldn't pass a hate crimes bill with us, which is interpretable easily - for me anyway - as we're too hated to be protected by hate crimes laws. And that doesn't feel so good." Hate crimes laws, Kiesling noted, are not only prosecutorial tools, they also empower victims to come forward, educate potential assailants and serve to educate law enforcement officers. "And the more explicit the bill is, the more likely that kind of educational moment will happen. That's why we fight so hard for the more explicit language that looks like it will be introduced in the House."

Asked if HRC would also support Kennedy's bill, Labonte replied that the organization is "strongly supportive" of the House version of the bill. "The House version explicitly covers the transgender community," he said, "and we're going to be working hard on that version."

Like Frank, Labonte acknowledged the difficulty in finding Senate cosponsors. "We have obviously been working to find anyone in the United States Senate to introduce a bill that covers the transgender community," said Labonte, nothing that advocates have had "lots of conversations" with both Smith and Kennedy about the bill. "But we're looking forward to the House version being introduced and we'll work on that legislation to move that."

With or without Senate support for a trans-inclusive hate crimes bill, Frank said he grew "tired of sitting back" and waiting for others to get on board.

He believes that there would be enough House votes to pass the bill but said it's unlikely to get far in the Republican-dominated Congress. "As long as the Republicans are in power, we probably can't pass it," he said. "But we can get a majority on record in favor of it, which means the next time [Democrats] take over, we can do it."

Labonte also acknowledged that passing any pro-GLBT legislation in the current Congress and White House administration is difficult, to say the least. But it's preferable to doing nothing. "I think as we continue to do this and highlight the real problems of violence against our community I think that's the only way we'll be able to dislodge this and get it to the president for his signature," he said. "But it is a difficult environment in which to do it."



Laura Kiritsy is the Associate Editor at Bay Windows. Her e-mail address is lkiritsy@baywindows.com.

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