Trans Law & Politics on a Neo-liberal Landscape by Dean Spade, from pages 4-5 (added some paragraph breaks to make it more readable in this format)
Hate crimes laws are promoted under a related logic. Proponents point out that trans people are murdered at high rates and are subject to a great deal of violence. In many instances, trans people’s lives are so devalued by police and prosecutors that murders of trans people are not investigated, or trans people’s murderers are given extremely light punishment. Many people believe that hate crimes laws could intervene in this situation, making state actors take violence against trans people seriously.
There is also a symbolic element to the passage of these laws, a statement that trans lives are meaningful, often described by proponents as an assertion of trans people’s humanity. Additionally, proponents of both anti-discrimination and hate crimes laws argue that the processes of advocating for the passage of such laws, including media advocacy representing the lives and concerns of trans people and meeting with legislators to tell them about trans people’s lives, increases positive trans visibility and forwards the struggle for trans equality.
The data-collection element of hate crimes statutes, where the government keeps count of crimes that fall into this category, is touted by proponents as a chance to make trans people’s struggles visible.
The logic of visibility and inclusion surrounding anti-discrimination and hate crimes laws campaigns is very popular; yet there are many troubling limitations to the idea that these two reforms compose a proper approach to problems trans people face in both criminal and civil law contexts. One concern is whether these laws actually improve the life chances of those who are purportedly protected by them. Looking at other groups who have been included in these kinds of laws over the last several decades raises the question of whether these kinds of reforms have eliminated bias, exclusion, and marginalization. Discrimination, violence, and exclusion against people of color have persisted, despite law changes that declared discrimination illegal.14 The persistent and growing racial wealth divide in the U.S. suggests that these law changes have not had their promised effects, or that something about the structures of racism is not addressed by the work of these laws.15 Similarly, the eighteen-year history of the Americans with Disabilities Act demonstrates disappointing results.
Courts have limited the enforcement potential of this law with narrow interpretations of its impact,16 and people with disabilities remain economically and politically marginalized by systemic ableism. Similar arguments might be made about the persistence of national origin discrimination, sex discrimination, and other forms of oppression despite decades of government prohibitions on certain discriminatory behaviors. The persistence of wage gaps, illegal terminations, hostile work environments, and hiring disparities in all the groups whose struggles have supposedly been addressed by anti-discrimination and hate crimes laws invites caution when assuming the effectiveness of these measures.
Hate crimes laws, specifically, have never been argued to have a deterrent effect. They focus on punishment and have not been shown to actually prevent bias-motivated violence. In addition to their failure to prevent harm, many questions about enforcement and the problems of our legal systems exist. Hate crimes laws
strengthen and legitimize the criminal punishment system, a system that targets the very people that these laws are supposedly passed to protect. The criminal punishment system has the same biases (racism, sexism, homophobia, transphobia, ableism, xenophobia) that advocates of these laws want to eliminate.17 This is no small point, given the rapid growth of the U.S. criminal system in the last fewdecades and the gender, race, and ability disparities in criminal enforcement. Imprisonment in the U.S. has quadrupled since 1980 and continues to increase despite the fact that violent crime and property crime have declined since the 1990s.18 The U.S. has the highest documented rate of imprisonment per capita of any country.19
Significant racial, gender, ability, and national origin disparities exist in this imprisonment. One in nine black men between the ages of twenty and thirty-four are imprisoned.20 While men still vastly outnumber women in prisons, the rate of imprisonment for women is growing far faster, and many suggest that sentencing changes created as part of the “War on Drugs” are to blame. An estimated twenty-seven percent of federal prisoners are non-citizens.21
While accurate estimates of rates of imprisonment for people with disabilities are hard to find, it is clear that the deinstitutionalization of people with psychiatric disabilities without the provision of adequate community services, and the role of drug use in self-medicating disability account for a high and growing rate.22
Footnotes
14. See generally Angela P. Harris, From Stonewall to the Suburbs?: Toward a Political Economy of Sexuality, 14 WM. & MARY BILL RTS. J. 1539 (2006) (arguing that suburbanization defeated the post- Brown v. Board of Education goal of full racial integration).
15. Id.; see also Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007) (holding that racial balancing was not a compelling state interest for use of racial tiebreakers in elementary school placement); Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) (holding that racial imbalance alone does not establish a prima facie case of employment discrimination under Title VII); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) (holding that use of racial quotas in college admissions decisions was unconstitutional).
17. See Andrea Ritchie, Law Enforcement Violence Against Women of Color, in COLOR OF VIOLENCE: THE INCITE! ANTHOLOGY 140 (2006) (discussing biases of law enforcement officials).
18. See U.S. Dep’t of Justice, Bureau of Justice Statistics: Property Crime Trends, http://www.ojp.usdoj.gov/bjs/glance/house2.htm (last visited May 7, 2009); U.S. Dep’t of Justice, Bureau of Justice Statistics: Violent Crime Rate Trends, http://www.ojp.usdoj.gov/bjs/glance/viort.htm (last visited May 7, 2009).
19. ROY WALMSLEY, INT’L CENTRE FOR PRISON STUDIES, WORLD PRISON POPULATION LIST 1 (6th ed. 2007), available at: http://www.kcl.ac.uk/depsta/law/research/icps/downloads/world-prisonpopulation-list-2005.pdf.
20. Id.
22. LAURA MAGNANI & HARMON L. WRAY, BEYOND PRISONS: A NEW INTERFAITH PARADIGM FOR OUR FAILED PRISON SYSTEM (2006).
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