Who Gets to Decide What Constitutes a Hate Crime?

"Without incorporating systematic oppression into hate crime discourse, hate crime legislation can end up protecting oppressors."
A crowd of mourners hold candles and photos of Matthew Shepard at his candlelight vigil.
Steve Liss/The LIFE Images Collection/Getty Images

Content Warning: Details of violence based on sexuality and race ahead.

2017 was the deadliest year on record in recent American history for the LGBTQ+ community, and it’s likely not a coincidence that Trump was inaugurated in the beginning of the same year.

But queerphobic hate crimes, of course, predate the Trump administration. On October 6, 1998, 21-year-old university student Matthew Shepard was abducted by two men and then beaten, tortured, and left to die on the rural outskirts of Laramie, Wyoming. Six days later, he passed away from trauma related to the incident in Fort Collins, Colorado. Following his tragic death, Shepard’s community, especially his family and friends, advocated for LGBTQ+ rights nationwide. By continuing his legacy as a visible gay man, he soon became part of a national movement against hate crimes.

The same year, on June 7, James Byrd Jr. was murdered by three white supremacists in Jasper, Texas. He was lynched-by-dragging on an asphalt road for three miles. Shepard and Byrd’s murders later gained recognition in the fight towards federal protection against marginalized people through the Matthew Shepard and James Byrd Jr. Hate Crimes Protections, passed in 2009 — 11 years later — by President Obama.

Under the Shepard/Byrd Act, the Department of Justice defines a hate crime as a crime committed because of the victim’s actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability. Prior to this law, there wasn’t any comprehensive federal protection against hate crimes. While states may have had their own laws protecting marginalized people against targeted violence, not all states did, including Wyoming and Texas. However, it took until 2010 for anyone to be charged with a hate crime under the Shepard/Byrd Act, when three men were indicted for branding a swastika into a disabled Navajo man’s skin.

Meanwhile, Merriam-Webster defines a hate crime as “any of various crimes (such as assault or defacement of property) when motivated by hostility to the victim as a member of a group (such as one based on color, creed, gender, or sexual orientation).”

While this definition makes it clear that a hate crime is rooted in hostility towards a victim based on race, gender, or sexuality, it doesn’t incorporate systematic oppression. Hate crimes not only stem from violence against a particular group of people, but people who face violence rooted in their marginalizations — just like people who are killed for being gay, like Matthew Shepard, and who are killed for being Black, like James Byrd Jr. The list goes on.

With the conflicting DOJ and Merriam-Webster dictionary definitions, this brings up the question: What and who gets to decide what is and isn’t a hate crime?

Discussion of hate crime legislation often lacks a broader consideration of systemic oppression in America. This is unsurprising, given that the American state is an active perpetrator of violence against marginalized people, whether it’s physical brutality of Black, Latinx, and Indigenous people by law enforcement or economic exclusion keeping transgender people from receiving affirming healthcare.

In fact, without incorporating systematic oppression into hate crime discourse, hate crime legislation can end up protecting oppressors under the guise that they are oppressed: take Blue Lives Matter laws that protect police officers. HuffPost reports Louisiana was the first state to enact such legislation in May 2016, which followed similar bills gaining traction in several other states, including Kentucky and Mississippi.

Following the Ferguson and Baltimore uprisings, former President Obama enacted the Blue Alert Act, “which require[s] instant nationwide ‘Blue Alerts’ to warn about threats to police officers and help track down the suspects who carry them out” in May 2015, according to USA Today.

Despite the aftermath of the killings of Nia Wilson, Trayvon Martin, Korryn Gaines, Sandra Bland, Michael Brown, Eric Garner, Tamir Rice, Philando Castile, Freddie Gray, and so many more, few laws have been passed that protect Black civilians at the level Blue Lives Matter laws protect cops, including Black cops. A reactionary movement, which never existed until the Black Lives Matter movement, has influenced a wave of added federal and state protections for law enforcement officers. And this is indicative of what power structures exist in America and who is kept in power because of them. After all, we wouldn’t have Blue Lives Matter if we never had Black Lives Matter.

While queer and trans people obviously aren’t the only ones targeted for hate violence in America, queer and trans people of color, especially Black queer and trans people, face extremely high rates of targeted violence. Trans women of color, especially Black trans women, are at a particularly high risk. According to a joint 2017 report by the Human Rights Campaign and the Trans People of Color Coalition, 75 of 102 documented transgender hate crime victims — in which the hate crime resulted in the fatality of the victim — have been Black or African American, while 10 have identified as Hispanic or Latinx. Additionally, at least 88 were transgender women.

Because the so-called “criminal justice” system wasn’t created to serve marginalized people, incidents of hate crimes (that fit the legal DOJ definition) often go unreported, much like sexual assault and harassment.

The same people who decide what is and isn’t a crime are the same people who perpetuate, and are complicit in, the power structures that keep oppressors in power and certain groups of people marginalized. Although Matthew Shepard and James Byrd Jr. were brutally murdered for their identities 20 years ago, we still have a long way to go in protecting marginalized people from targeted violence.

