Be Killed or Be Caged?
BY Toshio Meronek
July 18 2013 4:00 AM ET
A Violent System
On November 20, 1999, in San Francisco, transgender people and their allies gathered at a vigil for Rita Hester, a transgender woman who was stabbed 20 times in an apparently transphobic attack in Allston, Mass., the year before. That gathering sparked the annual Transgender Day of Rememberance, which now, 15 years later, has grown to commemorate all known trans people killed in such attacks. Candles light up in hundreds of cities across the world as vigil-goers grieve the many transgender lives cut short due to anti-transgender bias each year. TDOR’s organizer, Gwendolyn Ann Smith, says her “original intent was to draw attention to, within the transgender community, the deaths that were going on. I was trying to show the community, which was not paying attention to all these deaths that were happening.” Awareness has grown beyond the trans community, but the killings continue. “You’ve got a trans person in the United States killed every couple of weeks,” explains Smith. “You’ve got a trans person around the world killed, give or take, every 48 hours. So it’s still very much an issue,” especially among young, trans women of color, says Smith.
Patreese Johnson's case is far from the only instance where queer people of color have been sentenced to jail time for what they say was self-defense. In the summer of 2012, CeCe McDonald (pictured above), a black transgender woman from Minneapolis, was charged with second-degree murder for allegedly killing a man who had a swastika tattoo, and according to witness reports had called out "nigger" and "faggot" prior to attacking McDonald. Likely partially due to widespread solidarity actions and criticism in the press, her sentence was reduced to manslaughter in a plea deal. She's currently serving 41 months in prison.
“I wish that situation had been different, and CeCe had not had to act in self-defense,” laments Smith. “She did have a chance to fight back in an attack. And it really sends the message — when we stand up for ourselves, when we actually fight back, we end up in prison. And if we don’t fight back, we end up dead. It leaves us in a situation where, what do we do?”
According to recent studies from the National Gay and Lesbian Task Force and the National Center for Transgender Equality, between 16 and 33% of transgender people have spent time behind bars, compared with less than 4% of the general U.S. population.
And LGBT prisoners face abuse at much higher rates than their straight counterparts. The Department of Justice’s latest survey, released in 2012, found about 5% of straight male former prisoners who reported they had been sexually victimized by prison staff. Among gay and bisexual male former prisoners, the number rose to nearly 18%. Even Michael Freeman, the prosecuting attorney who argued that McDonald should be locked up, admitted, "The criminal justice system is not built for, nor is it necessarily good at, solving a lot of society’s problems.”
Could more legal protections help? There are, after all, laws on the books that are intended to help self-defenders who end up arrested, like battered spouse defense laws. But with lots of criteria to meet, they’re tough to prove in court. “Stand Your Ground” laws, which allow people to use lethal force for self-defense when there’s “reasonable belief” of a threat, have come under fire for racial disparities: The Urban Institute found that in states that have such laws, when white shooters kill black people, 34% of the deaths are deemed “justifiable” in court. But when the roles are reversed — the shooter is black and the victim white — just 3% percent of the deaths are ruled justifiable.
“I think we need to be extremely cautious when advocating for additional legal protections, as they often serve to harm the very people they purport to protect,” says Matthew Luton, an attorney who works with the Transgender, Gender Variant, and Intersex Justice Project in San Francisco. He points to hate crime laws, which serve to funnel more people into a prison system where certain people, especially low-income, gender and sexual minorities of color, are overrepresented and face heightened rates of abuse.
“Currently the way the state responds to hate violence is only through penalty,” — often with a prison sentence — “and not through trying to support things that could prevent the violence from happening in the first place,” adds Chai Jindasurat, programs coordinator of the New York-based National Coalition of Anti-Violence Programs. “A lot of the people who are being killed at higher rates are often people of color, are often transgender women, and are often low-income or homeless.” With job discrimination against gender and sexual minorities still legal in many states, many people turn to “survival crimes” such as sex work to support themselves, Jindasurat explains. “So in addition to alternatives to incarceration, we think anti-violence strategies should also include things like anti-homeless strategies, like jobs programs targeted at certain communities…as well as things like removing barriers — things like access to assistance for people with criminal records.”