(Originally posted by me in the GW Discourse blog.)
Ever since Matthew Shepard was brutally murdered in Wyoming in 1998 because of his homosexuality, LGBT rights groups have worked towards passing a federal Hate Crimes Prevention Act. 2009 saw the passage of this groundbreaking piece of legislation, named for Shepard and James Byrd, an African-American man who was murdered in 2005 because of his race. The Hate Crimes Prevention Act allows the federal government to provide money and resources to states that are not equipped to adequately prosecute hate crimes. It also allows the Department of Justice and the FBI to take over hate crimes investigations if states refuse to prosecute these crimes. Sexual orientation and gender identity (in addition to many other classes, such as race and gender) are both protected by this act.
This was a long-awaited achievement for the LGBT community, but there are problems that this law does not solve. First of all, states still need to be influenced to strengthen their own hate crimes legislation. Regardless of federal law, police officers in states with weak enforcement of state hate crime laws may refuse to report incidents as hate crimes due to their own prejudices, thereby minimizing the punishment that the attacker could receive.
Furthermore, even though gender identity is included in the Hate Crimes Prevention Act, the transgender community still does not have adequate protection, particularly in prisons. When trans-women (persons born male who have transitioned, via hormones, surgery, or both, to female) are placed into male prison facilities, they are obviously at high risk for sexual assault and other types of attacks because of their female appearance. Modern prison systems struggle with how to deal with the trans issue. The government is uncomfortable with recognizing transgendered persons as their “new” gender, as it complicates their normative view of gender as dichotomous and unchanging. But today, trans-women with female genitalia are still legally allowed to be placed in cells with male convicted rapists, and other felons with a history of sexual assault. Some prisons “solve” this problem by isolating trans prisoners, but this is just a different kind of discrimination on the basis of gender identity. Until the prison systems accept transgender persons as the gender they choose to present as, the transgender community will continue to suffer.
But the question still remains: Where should prisons place people who are still in the process of transitioning from one gender to another? If a person has breast implants, female hormones, and male genitalia, should they be placed in a male or female facility, or isolated from their peers? How can we better protect them, and the rest of the transgender community, from vicious hate crimes?