August 25, 2021 | Leslie McMurray | Transgender Education and Advocacy Associate
On the night of August 7th, a transgender woman was shot and killed at a homeless encampment near downtown. Dallas Police (DPD) told media they would be investigating this as a hate crime until otherwise determined.
OK – but there’s a lot to unpack here.
Under the James Byrd Jr. Hate Crimes Act, (which has been on the books in Texas since 2001) police could apply this statute if they could prove the shooter acted out of bias towards the victim’s perceived race, color, disability, religion, national origin or ancestry, age, gender or sexual preference – beyond a reasonable doubt. From 2010-2015 in the state of Texas, 981 cases of potential hate crimes were tried – only FIVE ended up in a specific hate crime conviction. That would be .5% (one half of one percent. Not a very good record.)
So, in this case, DPD could pursue a hate crime case against the shooter because the victim was Black. Or because she was a woman, or any of the other attributes listed…but not because she was transgender.
Transgender people are not protected under Texas hate crime law. The only avenue available would be to appeal the case to the United States Justice Department and the FBI to get the case prosecuted under the Matthew Shepherd/James Byrd Jr Hate Crimes Act. (To my knowledge, this has yet to happen in Texas – ever).
Regardless, the law itself doesn’t/wouldn’t protect trans people. We would still be insulted, assaulted and murdered – with or without protection under hate crime statutes. What would happen is that the suspect that is convicted of say a second-degree felony with a hate crime enhancement, would now be guilty of a first-degree felony. The difference in punishment is significant. A second-degree felony in Texas is punishable by 2-20 years in state prison. A first-degree felony would bump that to 5-99 years for the person convicted.
Hate crimes are notoriously difficult to prosecute because you have to prove what was in the suspect’s mind – his motivation to the crime beyond a reasonable doubt. But what inclusion of gender identity and expression WOULD do, is send a message to the trans community that our lives have meaning and are worth protecting from those who hate us for no other reason than who we are and how we identify.
There have been efforts in the Texas Legislature to add Gender Identity and Gender Expression to the James Byrd Jr. Hate Crimes Act, but all attempts have failed so far. Here’s hoping that one day we are protected in the state we call home…and while they are at it, how about correcting the whole “sexual preference” thing…it’s sexual orientation. If you are going to protect us, at least understand who you are protecting.