Don’t Be So Hateful — The Insufficiency of Hate Crime Laws in Improving Trans Wellbeing

Violence against transgender people is a pandemic that is garnering some recognition by the Canadian government. You’ve probably heard of Bill C-16, which would add gender identity and gender expression as protected grounds in the Criminal Code’s hate crime provisions. The bill is a response to the alarming rate of violence faced by trans individuals in Canada.

The idea behind the Bill is that we can improve the well-being of trans people significantly by empowering criminal courts in meting out sanctions. Because there’s no clear strategy for further governmental responses, it would appear that the government believes that hate crime laws are one of the most effective solutions to anti-trans violence.

I disagree with this assessment, because anti-trans acts are not isolated and irrational events, but rather acts occurring under the multifaceted institutions of sexism and gender policing. Because of the complex social imaginary supporting transantagonistic acts, the government’s solution is ineffective in improving trans wellbeing. We can identify much more efficient courses of action within the sphere of action of the government. Governmental resources should be redirected away from hate crime laws, and towards those alternative avenues of action which have the benefit of addressing covert incursions on trans wellbeing which are not captured by a system concerned with isolated acts.

The story’s a fairly simple one, in its broad structure. Men who sleep with more cisgender women are seen as “winning”, and as having a higher social status; though there are emerging counternarratives, there’s a pervasive sense that it’s a positive thing in and of itself for men to sleep with more women, unlike women who are frequently shamed for sleeping with more men.

To facilitate the process of sexually engaging cisgender women, there lies a process for attributing availability to individuals, designating them as sexually available on the basis of appearances and demeanour. Short skirts and smiles are read not as enacting basic autonomy over one’s self-presentation or friendliness, but as indicating sexual availability. In this process of attributing of availability, gender presentation taken to be symbolic and communicative of one’s gender.

At the same time, the habitual attitude about gender tells us that the genitals we have at birth defines our gender. Whether you’re a man or woman depends on whether you have a penis, a vagina.

Bringing those two branches back together, we can understand how trans people are seen as deceivers, since they adopt a gender presentation that is communicative of a gender they are not understood to be. Multiple forms of transantagonistic violence follow from the ascription of deceit on trans bodies. Trans people symbolically threaten the process of attributing availability, and trans women particularly are perceived to threaten the heterosexuals status of cisgender men.

The man who brutally murdered Islan Nettles in 2013, claimed that he didn’t hate LGBT people, but said that his masculinity was in question: “I just don’t wanna be fooled. My pride is at stake.”

It’s not about hatred, but about heterosexist social status. This is the kind of rationale we are contending with: a highly regulated system of attributing value based on sexual access, which is threatened both symbolically and individually by trans people, leading to violent reactions.

Instead, Bill C-16 tells us that perpetrators are bad apples, and that their acts are their acts are calculated and malevolent. While these stories sometimes also concern themselves with agents who are not presumed rational in their decisional process — conjuring tropes of mental illness — hate crime laws as deterrents are primarily geared towards people for whom threat of punishment is an effective deterrent. In this sense, the decisions are rational, although their motivations are not. It paints transantagonism as a set of aberrant, irrational, and exceptional attitudes, and views the problem with transantagonism solely in terms of the resulting violence. Solving the problem is about blocking those aberrant attitudes from materializing in tangible, isolated behaviour: we must act at the level of choice. This process erases the systemic nature of transantagonism.

Yet, perpetrators of anti-trans violence aren’t typically individuals who coldly balance the risks of punishment with their hatred. The archetypical cases are rather ones in which impulsivity reigns, and emotions are judiciously informed by pervasive social structures. They are motivated by a perceived threat to the perpetrator’s status as a heterosexual man, or by their perception of trans people as subhuman.

Even if we limit ourselves to reformist critiques, hate crime laws fall short. Violence against transgender people is less investigated. Perpetrators are less frequently apprehended and face reduced punishment. Police officers frequently misgender trans victims, assault them, and blame them for crimes committed against them.

The inadequacy of hate crime laws runs much deeper than the reformist critique suggests. Their inadequacy has been extensively highlighted by critical scholars. Trans, queer, feminist, and critical race scholars have criticised these laws for their inefficiency in deterring violence against disenfranchised groups, and for reducing marginalised experiences to a single axis of oppression, despite the interrelatedness of oppressive systems. “Discrimination and violence against people of color have persisted despite law changes that declared them illegal,” has observed Dean Spade.

Hate crimes are impulsive. Quoting Dean Spade again, transantagonistic offenders “do not read law books before committing acts of violence and choose not to engage in bias-motivated violence because it carries a harsher sentence.” In the vast majority of cases, they are fully aware that their actions are illegal and can be punished extremely harshly. Yet their motivations are stronger than any immediate concern with punishment — after all, their personal status is at stake. In the case of murder, even the risk of a life sentence is not sufficient to dissuade them.

It bears repeating: hate crime laws have not had measurable impacts on violence against protected groups. Changing societal perceptions and public outcry, in this respect, motivates with a heavier hand.

At its worst, arming prejudiced agents of the state with further discretionary powers exacerbates the discriminatory impacts of the current justice system, and contributes to the growing over-incarceration of Black and Aboriginal populations in Canada. Such laws create a schism between white liberal trans people and trans people of colour. Given the emancipatory power of solidarity and empathy, this schism further disempowers trans communities as well as communities of colour while failing to provide concrete protection. Collaboration with oppressive institutions within the justice system — most notably the police and imprisonment, but also our acutely classist civil legal system — is often welcomed as indicia of progressiveness. We must resist this cooptation.

To eliminate transantagonism in all its forms, governments must devote efforts to address the broader social system within which transantagonism is implicated, as well as engage with its own complicity in creating and maintaining various systems of oppression.

This means understanding that transantagonism doesn’t arise from individual animosity against trans people, but through a social imaginary that promotes and facilitates sexual access to cis women’s bodies and reproductive capabilities, incidentally overvaluing cis existence and devaluing trans existence. We must plan more effective legal reform strategies and resistance opportunities by organising around manipulative heterosexuality. Instead of acting at the level of the offender’s choices, we must act at the level of desire, radically altering the normative underpinnings of our social organisation.

The question remains. Can we do better than hate crime laws? I think we can.

Jointly with the analytical lens developed throughout the term essay, we can elaborate three broad avenues of resistance: knowledge, empowerment, and healing. Knowledge seeks to prevent anti-trans harassment, discrimination, and violence by identifying and nullifying the systems of social belief which generate transantagonistic attitudes. Empowerment seeks to create conditions within which trans people can escape harassment, discrimination, and violence without having to forego social benefits and socioeconomic resources. Healing seeks to alleviate the ills of transantagonistic acts after the fact by meeting victims’ psychosocial and material needs.

Drawing an exhaustive list of suggestions flowing from those three avenues of resistance would be excessive. I’m sure some ideas came to your mind as I was summarily describing the three categories. Still, I want to highlight a few specific proposals that I think would be most effective.

We need educational curricula that reflect the existence and value of trans people. We can’t eliminate transantagonism and continue teaching the distinctions between boy’s bodies and girl’s bodies in a way that reifies cisgender embodiments. Trans women’s bodies are women’s bodies just the same, trans men’s bodies are men’s bodies just the same, and intersex people need a place in our education system. We can’t eliminate transantagonism and keep teaching sex ed solely around penis-in-vagina intercourse either.

The prison-industrial system is large enough. This is especially true with regards to people of colour who are disproportionately targeted by hate crime laws due to prosecutorial discretion. Instead of prison sentences, people who commit transantagonistic acts should benefit from extensive education on trans realities as well as trans-positive therapy or counselling in the hopes of preventing recidivism. All non-prison alternatives should first be explored. Instead of punishing people for following the social script of manipulative heterosexuality, a script that’s pushed on all of us from a very young age, we should take them where they are and bring them to where we want them to be: allies, accomplices to trans communities.

At the level of empowerment, trans folks need more opportunities to avoid environments where they are particularly vulnerable. This means decriminalising sex work and HIV non-disclosure, supporting exit initiatives for sex workers, providing meaningful employment opportunities for low-income trans people, increasing access to government-subsidised medical care, and abolishing immigration enforcement.

At the level of healing, we should increasingly fund organisms that provide support for victims of transantagonisic harassment, discrimination, and violence. Transantagonism is a pervasive ideological field which must be disrupted if trans victims of violence are to recover their self-worth. We can defuse the fundamental hostility of the world by helping victims see that it is transantagonism that is wrong, rather than their being trans. This may seem like it goes without saying, but when you’re subjected to constant invalidation and hatred, it is challenging not to internalise others’ attitudes towards you. Healing affirms the emancipatory potential of trans people by denaturalizing transantagonism and planting the seed of radical consciousness.

In the words of Ta-Nehisi Coates: “The hammer of criminal justice is the preferred tool of a society that has run out of ideas.” My take-home message is this: we have yet to run out of ideas. Hate crime laws are woefully inefficient in improving trans wellbeing and addressing the problem of violence against trans people. No amount of fine-tuning will do. So let’s stop trying, and redirect the resources dedicated to legislating and enforcing those laws towards those alternatives which address manipulative heterosexuality and the varied roots of trans vulnerability. Legislative and activist agendas should be guided by material conditions, not legal abstractions.

This isn’t to say it’ll be easy. The complex social nature of transantagonism creates new challenges for lawmakers, whom are required to move beyond legalistic approaches to social progress. It’s much easier to pass anti-discrimination and hate crime laws. I understand the appeal, and there is certainly a room for anti-discrimination laws and non-carceral variants of hate crime laws. However, we shouldn’t dedicate an inordinate amount of resources on them. Let’s follow the example of the Quebec legislature, which added gender identity and gender expression to the Charter of human rights and freedoms as a secondary section of a bill extending rights to trans minors.

Given the distinct relationship between transantagonism and misogyny, anything short of the elimination of sexism and a radical reordering of society will fail to eradicate transantagonism. This may seem radical. I mean, it is a radical reordering of society. But it is what is needed. Transantagonism penetrates all spheres of society. Far from an exception, it is an unavoidable experience for trans people. Limiting ourselves to hate crime laws would be a grave mistake. To engage trans realities, the fight against transantagonism must be led on two fronts: anti-neoliberal legal reform to meet our immediate needs, and radical activism in the hopes of fostering a better society for tomorrow. Both fronts must be informed by trans-led analysis of the roots of transantagonism.

Presentation given at the BLG Student Research Mini-Conference hosted by the Centre Paul-André Crépeau at McGill University on March 31st, 2017.