On June 12, 2016, forty-nine people were killed and fifty-three wounded in the Pulse nightclub shooting in Orlando, Florida. It was the deadliest single-person mass shooting and the largest documented anti-LGBTQ+ attack in U.S. history. Attacking a gay nightclub on Latin night resulted in over 90 percent of the victims being Latinx and the majority being LGBTQ+ identified. This act focused on an iconic public space that provided LGBTQ+ adults an opportunity to explore and claim their sexual and gender identities. The violence at Pulse echoed the 1973 UpStairs Lounge arson attack in New Orleans that killed thirty-two people. These mass killings are part of a broader picture of violence that LGBTQ+ people experience, from the disproportionate killings of transgender women of color to domestic violence and bullying in schools. There are different perspectives within the LGBTQ+ community about responses to hate-motivated violence. These debates concern whether the use of punitive measures through the criminal legal system supports or harms the LGBTQ+ community and whether more radical approaches are needed to address the root causes of anti-LGBTQ+ violence. This profile explores hate crimes as both a legal category and a broader social phenomenon.
What Are Hate Crimes?
Anti-LGBTQ+ hate crimes have had a simultaneously spectacular and invisible role in U.S. society. Today, hate crimes are defined as criminal acts motivated by bias toward victims’ real or perceived identity groups.[52] Hate crimes are informal social control mechanisms used in stratified societies as part of what Barbara Perry calls a “contemporary arsenal of oppression” for policing identity boundaries.[53] Hate crimes occur within social dynamics of oppression, in which othered groups are vulnerable to systemic violence, pushing marginalized groups further into the political and social edges of society. It is theorized that hate crimes are driven by conflicts over cultural, political, and economic resources; bias and hostility toward relatively powerless groups; and the failure of authorities to address hate in society.[54] Since the colonial period, violence against members of the LGBTQ+ community has been documented in the Western Hemisphere. Colonists drew on an interpretation of Judeo-Christian theology that viewed nonprocreative sex and gender nonconformity as sinful. Thus, violence toward people who did not conform to the colonists’ gender and sexual norms, along with social exclusion, was viewed as permissible.[55]
With the advent of sexual identities such as the “homosexual” in the late 1800s, anti-sodomy and related laws became increasingly used to target LGBTQ+ people in North America and Europe during the twentieth century. These same laws were also imposed on indigenous peoples throughout the world as a result of colonialism. Yet incidents such as the 1960s Compton’s Cafeteria riot and Stonewall rebellion demonstrated that LGBTQ+ people, particularly trans women of color, were no longer willing to tolerate police harassment that resulted in arrests and violence because of who they were (figure 5.7).[56]As the modern LGBTQ+ rights movement emerged, activists challenged the idea that they deserved to be targeted for violence because of their identities. Despite the long history of bias-based crimes, it took centuries for this to become understood and labeled as hate crimes.[57]
Prejudicial cultural norms perpetuate otherness, promoting prejudice and normalizing and rewarding hate, as well as punishing those who respect and embrace difference.[58] Cultures of hate identify marginalized groups as enemies through dehumanization and perpetuate group violence.[59] Perpetrators’ actions thus reflect an understanding and navigation of overarching social structures that separate the othered from the accepted. In the case of anti-LGBTQ+ hate crimes, heterosexism is an oppressive ideology that rejects, degrades, and others “any non-heterosexual form of behavior, identity, relationship or community.” It provides a complementary bias to cissexism, the oppressive ideology that denigrates transgender, gender nonbinary, genderqueer, and gender-nonconforming people.[60] Anti-LGBTQ+ hate crimes are based in a view of the LGBTQ+ community as a suitable target for violence.[61] Such crimes are often identified as hate based by such factors as that “the perpetrator [was] making homophobic comments; that the incident had occurred in or near a gay-identified venue; that the victim had a ‘hunch’ that the incident was homophobic; that the victim was holding hands with their same-sex partner in public, or other contextual clues.”[62] Importantly, anti-LGBTQ+ hate crimes intersect with hate crimes against gender, racial and ethnic, and other marginalized people.[63]
State-enacted or state-sanctioned violence against LGBTQ+ people has not been deemed a form of hate crime, though it draws on hatred toward a group of people. The hate-crime framework has focused largely on the acts of private individuals rather than addressing larger institutionalized forms of hate-motivated violence such as forced conversion therapy or abuse within the criminal and military systems. One estimate attributes almost one-quarter of hate crimes to police officers.[64] Anti-LGBTQ+ violence committed by police officers undermines LGBTQ+ victims’ willingness to report crimes, particularly after experiencing police violence firsthand or having communal knowledge that police officers may not view LGBTQ+ victims as deserving of appropriate services. Even when victims are willing to take the risk of reporting a hate crime, they can be unsuccessful. For example, despite a Minnesota state law requiring police to note in initial reports any victims’ belief that they have experienced a bias-motivated incident, responding officers fulfilled less than half of hate-crime filing requests between 1996 and 2000.[65] Because of bias, lack of training, and limited application, significant underreporting of sexual orientation and gender-motivated hate crimes at the state and federal levels occurs.
Criminalizing Hate
The Enforcement Act of 1871, also known as the Ku Klux Klan Act, addressed rampant anti-Black violence and marked the first effort at the federal level to criminalize hate crimes.[66] However, the Supreme Court’s United States v. Harris decision in 1883 greatly weakened the act and the ability of the federal government to intervene when states refused to prosecute hate crimes.[67] In the wake of the mid-twentieth-century civil rights movement and violence against activists, the 1968 Civil Rights Law covering federally protected activities was signed into law. It gave federal authorities the power to investigate and prosecute crimes motivated by actual or perceived race, color, religion, or national origin while a victim was engaged in a federally protected activity—for example, voting, accessing a public accommodation such as a hotel or restaurant, or attending school. The categories of identity named by the law were the key social categories of concern during this period and followed the language of the Civil Rights Act of 1964. However, the law excluded sex, reflecting an unwillingness to address gender-based discrimination fully rather than piecemeal through laws such as Title IX of the Education Amendments Act of 1972.
In 1978, California enacted the first state law enhancing penalties for murders based on prejudice against the protected statuses of race, religion, color, and national origin. State lawmakers took the lead in developing explicit hate-crime laws, and federal legislators followed suit in the mid-1980s.[68] The emergent LGBTQ+ movement gained traction in the 1980s as the HIV/AIDS epidemic, its toll on the community, and intolerance toward its victims galvanized activists. For example, New York’s Anti-Violence Project (AVP) was founded in 1980 to respond to violent attacks against gay men in the Chelsea neighborhood. A major concern for these groups was the lack of documentation of such crimes; without evidence that these incidents were part of a broader picture of violence, it was difficult to push efforts to address hate crimes. As a lead member of the National Coalition of Anti-Violence Programs, AVP has coordinated many hate-violence reports since the late 1990s.[69] Such groups also have pushed for governmental efforts to collect data and criminalize hate crimes.
In 1985, U.S. Representative John Conyers proposed the Hate Crime Statistics Act to ensure the federal collection and publishing annually of statistics on crimes motivated by racial, ethnic, or religious prejudice.[70] It took five years for the Hate Crimes Statistics Act to become law, in 1990, and it did so only after sexual orientation was explicitly excluded from the legislation. The text of the law emphasizes that nothing in the act (1) “creates a cause of action or a right to bring an action, including an action based on discrimination due to sexual orientation” and (2) “shall be construed, nor shall any funds appropriated to carry out the purpose of the Act be used, to promote or encourage homosexuality.”[71] Congress took great pains to emphasize that the legislation did not prevent discrimination against LGBTQ+ people nor did it support that community. The law reinforces that Congress was not treating sexual orientation as it did other social identities that were already protected under civil rights laws. The law resulted in the Federal Bureau of Investigation collecting data from local and state authorities about hate crimes, but there are major challenges to collecting accurate data. Police are not consistently trained at the local and state levels to address anti-LGBTQ+ hate crimes, and there continues to be stigma and risk associated with identifying as LGBTQ+ to such authorities. Reporting practices thus vary dramatically across contexts, but the law has assisted antiviolence groups in gaining official data to document violence.
The 1998 beating and torture death of college student Matthew Shepard in Laramie, Wyoming, became a rallying point to address hate crimes more fully in the late 1990s. His murder received substantial media coverage and inspired political action as well as artistic works. As an affluent, white, gay young man, Shepard became a symbol of antigay violence. His attackers were accused of attacking him because of antigay bias but were not charged with committing a hate crime because Wyoming had no laws that covered anti-LGBTQ+ crimes. The attention to his death contrasted with the lesser attention given to Brandon Teena’s sexual assault and murder, which was immortalized in the film Boys Don’t Cry (1999), and to the untold number of murders of trans women, particularly women of color.[72] Although the particularities of the case have been debated, Shepard’s murder became iconic and served as a means of challenging U.S. lawmakers and society at large to address hate-motivated violence. The Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act was passed by the U.S. House of Representatives on October 8, 2009, and the U.S. Senate on October 22, 2009.[73] James Byrd Jr., a Black man, was attacked, chained to a truck, and dragged to his death for over two miles in Jasper, Texas. Both crimes received national attention, and there was public outrage that neither Texas nor Wyoming could enhance the punishment for these bias-motivated murders.[74] The act expanded protections to victims of bias crimes that were “motivated by the actual or perceived gender, disability, sexual orientation, or gender identity of any person,” becoming the first federal criminal prosecution statute addressing sexual orientation and gender-identity-based hate crimes.[75] It also increased the punishment for hate-crime perpetrators and allows the Department of Justice to assist in investigations and prosecutions of these crimes. On October 28, 2009, in advance of signing the act into law, President Barack Obama stated, “We must stand against crimes that are meant not only to break bones, but to break spirits, not only to inflict harm, but to inflict fear.” His words emphasized the broader social context of hate crimes, experienced as attacks on marginalized communities.[76]
Federal laws address constitutional rights violations, but states have—or don’t have—their own specific hate-crime laws.[77] Today, there are a wide range of laws regarding hate-crime protections across states, and they vary regarding protected groups, criminal or civil approaches, crimes covered, complete or limited data collection, and law enforcement training.[78] As of 2019, nineteen states did not have any LGBT hate-crime laws, and twelve states had laws that covered sexual orientation but did not address gender identity and expression. Twenty states included both sexual orientation and gender identity in their hate-crime laws.[79] The majority of these laws were created in the first years of the 2000s, gender identity and expression were included in following years.
Debating Hate-Crime Laws
The arguments supporting hate-crime laws note that offenders’ acts promote the unequal treatment of not only individuals but also the broader communities that victims belong to, cause long-term psychological consequences for victims, and violate victims’ ability to freely express themselves.[80] The creation of laws serves to “form a consensus about the rights of stigmatized groups to be protected from hateful speech and physical violence.”[81] This approach, however, centers on the perpetrator perspective and avoids a structural approach to oppression that acknowledges the numerous forms of bias and the overarching perpetuation of bias in society. Many scholars have criticized the term hate crime for its erasure of the broader structures that support hate violence and instead placing the blame for such acts solely on individuals assumed to be pathological and acting out of emotion.[82] Moreover, hate-crime laws primarily function at the symbolic level; crimes are reported at low rates, and statutes are not applied to such crimes by authorities.[83] Such laws focus not on prevention of crimes but rather on punitive measures to punish particular crimes.
With the existing high incarceration rates of LGBTQ+ people as well as people of color, hate-crime laws support rather than challenge mass incarceration.[84] Some activists argue for efforts to “build community relationships and infrastructure to support the healing and transformation of people who have been impacted by interpersonal and intergenerational violence; [and efforts to] join with movements addressing root causes of queer and trans premature death, including police violence, imprisonment, poverty, immigration policies, and lack of healthcare and housing.”[85] No universal consensus about the role of hate-crime laws in furthering the acceptance and inclusion of LGBTQ+ people in American society currently exists (figure 5.8). For many people such laws carry with them an emphasis on the value of their lives and help further their sense of belonging. Others, particularly LGBTQ+ activists engaged in broader social justice struggles, argue that such laws shore up a broken criminal justice system that is predicated on a violent logic that cannot truly benefit the LGBTQ+ community.
Figure 5.8. A map of state policy tallies for hate-crime laws. (Courtesy of the Movement Advancement Project.)
Key Questions
Historically, the U.S. Constitution protected the rights of only certain groups of people. Why and how were married women, enslaved Africans, and sexual minorities deprived of rights that others enjoyed? How did LGBTQ+ people struggle to gain those rights?
What is an example of a legal victory in the struggle for LGBTQ+ equality that was later challenged? What historical and cultural events led to overcoming that challenge?
What was the basis for the expectation that the U.S. Constitution protected a right to sexual liberty, particularly with respect to same-sex sexualities? What role did the Ninth Amendment play in that process and in the idea of a fundamental right to privacy?
How was the Supreme Court decision in Bowers v. Hardwick a setback for LGBTQ+ equality before the law? What was the response of LGBTQ+ activists and academics to the decision? What Supreme Court decision overturned Bowers?
How does legal history contribute to our understanding of the struggle for LGBTQ+ rights in the United States? What role did marriage equality play in that struggle, and what advances and setbacks did activists encounter during that struggle?
Check Your Knowledge
Contributed by Has Arakelyan, Rio Hondo College
Multiple-Choice Questions
1. What made the Pulse nightclub shooting in Orlando, Florida, historically significant?
A) It was the first attack on an LGBTQ+ venue in the United States.
B) It was the deadliest single-person mass shooting and the largest anti-LGBTQ+ attack in U.S. history.
C) It resulted in new federal gun laws.
D) It was unrelated to LGBTQ+ identity.
2. What percentage of the Pulse nightclub victims were Latinx and LGBTQ+ identified?
A) Less than 50%
B) About 25%
C) Over 90%
D) None
3. According to Barbara Perry, what role do hate crimes play in society?
A) They are informal social control mechanisms used to police identity boundaries in stratified societies.
B) They are random acts of violence.
C) They are always prosecuted as federal crimes.
D) They only affect individuals, not communities.
4. What is a key debate within the LGBTQ+ community regarding responses to hate-motivated violence?
A) Whether punitive measures through the criminal legal system support or harm the LGBTQ+ community
B) Whether to ignore hate crimes
C) Whether to focus only on marriage equality
D) Whether to increase police presence in LGBTQ+ spaces
5. What historical event is echoed by the Pulse nightclub shooting in terms of anti-LGBTQ+ violence in public spaces?
A) The Stonewall rebellion
B) The Obergefell v. Hodges decision
C) The Compton’s Cafeteria riot
D) The UpStairs Lounge arson attack in New Orleans
Discussion Questions
Analyze the social and cultural significance of the Pulse nightclub shooting for both the LGBTQ+ and Latinx communities. How did this event shape public discourse on hate crimes and intersectionality?
Discuss the historical continuity of anti-LGBTQ+ violence from the colonial period to the present. How have legal, religious, and social norms contributed to the persistence of such violence?
Evaluate the effectiveness and limitations of hate-crime laws as a response to anti-LGBTQ+ violence. What alternative or complementary strategies might better address the root causes of such violence?
How do hate crimes function as mechanisms of social control and boundary enforcement in stratified societies? Use examples from both the Pulse shooting and earlier incidents like the UpStairs Lounge arson.
Consider the debates within the LGBTQ+ community about the use of punitive criminal justice responses to hate crimes. What are the arguments for and against relying on the criminal legal system, and what might a more transformative approach look like?
Multiple-Choice Questions - Answers
1. B) It was the deadliest single-person mass shooting and the largest anti-LGBTQ+ attack in U.S. history.
2. C) Over 90%
3. A) They are informal social control mechanisms used to police identity boundaries in stratified societies.
4. A) Whether punitive measures through the criminal legal system support or harm the LGBTQ+ community
5. D) The UpStairs Lounge arson attack in New Orleans
