Such trans-absence as has been demonstrated above would, in any other context, be decidedly negative for transsexuals. However, this absence in this context should be, at least in retrospect, regarded as a positive - a mandate for such legislation not to be construed against transsexuals, whatever the initial inclination might be of those in a position to construe them against transsexuals. But, if all of that is not enough, once the FMA has become part of the U. Constitution , another nugget of history might seem useful to have to combat it — perhaps something akin to Louisiana State Sen.
Of course, as noted in Part II , there was no Federal Gender Transition Recognition Act and, even if there was, no one from the Congress of is around to form a Hainkel-esque nexus. One of many is the aforementioned Colorado Rep. Marilyn Musgrave. Still, the question remains: Will all of the above save transsexuals when the FMA becomes part of the constitution? But, what also must be asked is: Why was such a positive body of queer legal development forcibly tied down to a railroad track with both the DOMA and FMA locomotives speeding toward it? Part VI may offer some insight into this.
Transsexuals are no different though we also think of ENDA, but for political reasons. When he was not at work with the non-fictional grocery store chain Winn-Dixie, Peter Oiler, a married, heterosexual male, would go out cross dressed in public approximately one to three times per month. Judge Lance Africk described Oiler thus:. He shaves his face, arms, hands, and legs. He wears women's underwear and bras and he uses silicone prostheses to enlarge his breasts.
DUE PROCESS OF LAW | U.S. Constitution Annotated | US Law | LII / Legal Information Institute
When he is cross dressed as a woman, he adopts a female persona and he uses the name "Donna". He explained that he was not a transsexual and that he did not intend to become a woman. However, he told Miles that for a number of years he had been appearing in public at restaurants and clubs while cross dressed. He told Miles that while he was cross dressed, he assumed the female role of "Donna". Miles had a private meeting with Istre that same day in which Miles told Istre that Oiler was transgendered and had been appearing in public cross dressed as a woman. Istre subsequently contacted Winn-Dixie's counsel for legal advice.
On January 5, , when Oiler did not resign voluntarily, Winn-Dixie fired him. The reason [Oiler] was terminated was because he publicly adopted a female persona and publicly cross dressed as a woman. He was never told by any Winn-Dixie manager that he was being terminated for appearing or acting effeminate at work, i.
Nor did any Winn-Dixie manager ever tell [Oiler] that he did not fit a male stereotype or assign him work that stereotypically would be performed by a female. Precisely how big the grain of salt that the last two sentences should be taken with, is for the reader to decide. Of course, Winn-Dixie has its own motion. Despite the fact that the number of persons publicly acknowledging sexual orientation or gender or sexual identity issues has increased exponentially since the passage of Title VII, the meaning of the word "sex" in Title VII has never been clarified legislatively.
From through , thirty-one proposed bills have been introduced in the United States Senate and the House of Representatives which have attempted to amend Title VII and prohibit employment discrimination on the basis of affectional or sexual orientation. None have passed. In contrast to the numerous failed attempts by Congress to include affectional or sexual orientation within Title VII's ambit, neither plaintiff nor defendant can point to any attempts by Congress to amend Title VII in order to clarify that discrimination on the basis of gender or sexual identity disorders is prohibited. Neither party has identified any specific legislative history evidencing Congressional intent to ban discrimination based upon sexual or gender identity disorders.
Included therein was the denigration of the attempt to use Price Waterhouse to get out from under the two paragraphs quoted immediately above. The Court in Price Waterhouse implied that a suit alleging harassment or disparate treatment based upon nonconformity with sexual stereotypes is cognizable under Title VII as discrimination because of sex.
This theory would not bootstrap protection for sexual orientation into Title VII because not all homosexual men are stereotypically feminine, and not all heterosexual men are stereotypically masculine. But, under this theory, relief would be available for discrimination based upon sexual stereotypes. Perhaps he could have woven a rationale to support his view in spite of these decisions.
The plaintiff in that case may not have behaved as the partners thought a woman should have, but she never pretended to be a man or adopted a masculine persona. This is not just a matter of an employee of one sex exhibiting characteristics associated with the opposite sex. This is a matter of a person of one sex assuming the role of a person of the opposite sex.
After a review of the legislative history of Title VII and the authorities interpreting the statute, the Court agrees with Ulane and its progeny that Title VII prohibits employment discrimination on the basis of sex, i. While Title VII's prohibition of discrimination on the basis of sex includes sexual stereotypes, the phrase "sex" has not been interpreted to include sexual identity or gender identity disorders. The Oiler decision was never appealed not that the ultra-conservative Fifth Circuit would have been any more likely to acknowledge the existence of the case law that Africk ignored.
Still, the end result? So much for a Price Waterhouse path to transgender anti-discrimination protection — at least in Louisiana. Most states now have their own laws prohibiting employment discrimination based on sex and other aspects of personal existence, with many, though by no means all, filling gaps left by Title VII and other federal statutes. No female shall be employed in any mine, packing house, bowling alley, bootblack establishment, in the distribution of merchandise, in or about any place of amusement where intoxicating liquors are made or sold On the last day of its regular session, however, the Louisiana Legislature made its own attempt at enacting a broad-based equal employment opportunity law and passed a statute prohibiting intentional discrimination in employment on account of race, colour, religion, sex, or national origin.
There was no sexual orientation — either with the Minnesota or, more accurately as to what was in force then, Minneapolis definition or with the transphobic definition utilised in Maryland  and New York. Yet, a very strong case could be made that if Peter Oiler was not a cross dresser but, instead, a transsexual and if he had brought his case against Winn-Dixie under Louisiana state law rather than federal law, then the same reasoning which was used to reject his Title VII federal court case would have mandated a more favourable result for him under state law.
This is where the fiction of Part II proves its usefulness as an analogy. And, logically, that would have to include employment anti-discrimination legislation enacted by the Louisiana Legislature in — with or without any evidence of any mention of transsexuals during debate on the measure. Post- Oiler v Winn-Dixie , there would appear to be no protection for non-transsexual, non-intersexed transgendered people at all in Louisiana — at least outside of New Orleans, which has a transgender-inclusive civil rights ordinance.
Yes — particularly with respect to recognising the full, penumbral vitality of existing pro-trans sexual legislation. Certainly not — and with the anti-gay marriage backlash barrelling toward us, it may be an incredibly endangered species. Some states will move toward equality, while some will resist and even regress.
Transphobia is not the only form of intra-GLBT-community bigotry that has ever been observed or asserted to exist. Early on, there were more than a few complaints about misogyny. Both of the italicised quotes above appeared in the Advocate and are about the gay-led push for gay marriage — the first quote being from , the second from Both were uttered by the same person: Even Wolfson, one of the most visible pushers of the gay marriage agenda.
Certainly there ought to be laws that protect people based on gender expression. Since so many of us are attacked because of unimportant personal characteristics, we empathize with those who are discriminated against similarly. We should support transgender efforts to build their own, distinct political movement. A clearer gay demand for separate but presumably, though by no means certainly equal can hardly be envisioned.
While I have severe problems with the wording of the resolution — wording that, in my view, gives HRC ample room to continue to work against the best interests of transgendered people while publicly professing to be our champion.
If for no other reason, the significance of this resolution can be evidenced by the conservative gay media attacks on HRC — attacks which were swift and vicious. Abandoning common sense, the Human Rights Campaign announced in early August that it will no longer support federal legal protection for millions of gay workers unless the tiny number of transgendered workers get that protection, too.
The decision is a slap in the face to gay Americans, who generously fund HRC, and who will now have to wait even longer for federal employment discrimination protection. Where is this Dodo bird of an employer who loves gays but detests gender nonconformists? Jacques provides no real-world example, and I am aware of none. Well, for starters, the author of the above, gay Republican law professor Dale Carpenter, could start with conservative gay employers.
Take the remarks of an unidentified lesbian who was a hiring partner in a San Francisco law firm:. Its signalling something that makes you different. Yes, this quote is now over a decade old. Transgendered people in opposite-sex relationships can marry under the existing laws of many states. Should they be denied that freedom until same-sex couples can do likewise? Should heterosexual couples be prevented from marrying until same-sex couples can? It would be wrong and immoral for us to expect others to be treated unfairly until we are treated equally. He fails to mention that the number of states in which such opposite-sex couples can get married has been shrinking — solely because of the backlash against the gay marriage issue, which he has all-but-demanded that the entire GLBT movement join forces in pushing, to the exclusion of all else.
Although the subject could fill an entire book,  and though there is no single smoking gun, my feeling based on looking at gay discourse from the past three decades is that, however much gay organisations and the gay populace may now genuinely be embracing the concept that gender variance must be addressed in order for civil rights legislation to truly be inclusive and effective, those who control the gay rights industry still refuse to actually accept the reality of transsexualism.
Of course, there was an excuse for the latter; the FGTRA is fictional, created as an illustration for the theory I explore in this article. However, M. While not conclusive in and of itself, how the Advocate dealt with this opinion offers a stark depiction of the place of transsexual marital rights in the 'gay agenda' or even the more narrow 'gay marriage agenda' of the mid's - which is something essential to grasp prior to making any effort to interpret any anti-gay marriage statute enacted in response to that first modern push for same-sex marriage.
The published opinion in M. No mention is made of M. It is unclear when this issue would have gone to press - and, in all fairness, I do assume that a March 22nd court decision occurred too late to appear in the April 7th issue. This leaves the subsequent issue, that of April 21st, as the one in need of analysis. Although the largest single portion of the cover of that issue is dedicated to an interview with actor and former preacher Marjoe Gortner, the U.
S Supreme Court's March 29th decision in Doe v Commonwealth's Attorney ,  which rejected an appeal of a ruling upholding Virginia's sodomy statute,  is noted as being covered in the issue. However, these decisions occurred after M. Yet, the transsexual marriage decision is not mentioned. At this point, one might ask if marriage in general was not part of the Advocate 's agenda at the time.
Whatever its position on the agenda may have been, it certainly was present; even this April 21st issue contains in item about a gay man's announcement of his intention to run for a county commissioner's seat in El Paso County, Colorado. Another legitimate consideration is whether M. Certainly, if it went largely unnoticed even by mainstream media in a pre-Internet era, it might well be unfair to chide the Advocate for failing to notice the decision. Focusing just on New Jersey, J. To be sure, the word transsexual does not apply to all gender-variant people. However, transsexuals cannot be ignored — and neither can transsexualism.
Transsexuals exist — and transsexual-specific and, ore importantly, transsexual-positive law exists: 25 recognition statutes, a number of non-statutory pro-recognition birth certificate decisions, pro-transsexual criminal law decisions and — what should be the ultimate for an incrementalism-addicted, marriage-minded movement — marriage recognition, the vast majority of which has gone unchallenged for over a quarter-century. Above all else, however, to acknowledge the above, is to acknowledge that there is at least the slightest of possibilities that transsexuals are equal to gays and lesbians.
I firmly believe that this last acknowledgement is something that the organised American gay rights industry as opposed to incredibly transsexual-friendly individuals therein, even the organisations I criticise in this article — and there are indeed some has yet to show that it is capable of expressing. Considering the somewhat visceral yet, I feel, necessarily so tone of this section, I feel it wise to end it by noting that, in spite of the definitional differences between gays and transsexuals and in spite of the effort I have put into detailing again, necessarily so , the differences between gay marriage and heterosexual transsexual marriage, anti-transsexual bigotry by gays is not and has never been solely a concern for transsexuals and other transgendered people.
I had two lesbians come up to me and spit in my face, because they assumed I was like Brandon Teena. And , he was a gay man. In the spring of , John Lennon and Yoko Ono were in the United States - to deal with custody concerns over Ono's child from a previous marriage. However, they took advantage of their time in the US to appear on a number of talk shows. ABC didn't want to broadcast the segment in which Lennon and Ono perform the song but a compromise was struck in which Cavett inserted an advisory prior to the segment.
Prior to the actual performance of the song, Lennon explained where the idea for the song, and its title, came from - and why it should not be regarded as racially offensive. As part of this he read a statement from Rep. If you define niggers as someone whose lifestyle is defined by others, whose opportunities are defined by others, whose role in society is defined by others, then good news! You don't have to be black to be a nigger in this society.
Most of the people in America are niggers. Inspired by that, I have long been tempted to entitle a law review article Transsexual is the Nigger of the Gay World. Defined as to who we are. Defined as to how we must act when it comes to asking for relief from the religionist-inspired bigotry that limits the lives of not just GLBT Americans but the vast majority of all Americans. Transgendered people are told to wait for legal protections while gays, lesbians and bisexuals are granted the protections which the transgendered are denied.
Transgendered people are told that gays and lesbians will help add them to the laws which were initially written either to ignore, exclude, or pre-empt the rights of transgendered people. Yet, time and again, after seeing gay-only employment laws enacted it is seen that the next item on the agenda never becomes adding transgendered people to the existing employment law but instead the establishment of same-sex marriage  or, as was the case in the early 's, gays in the military.
Yes, transgendered people are told to wait — but gays and lesbians have refused to wait for their day on issues which unquestionably face more opposition than employment anti-discrimination protection for transgendered people. It may well have had more of an impact on the American presidential election than the fraudulent reasons put forward as justification for war with Iraq.
When white men use violence, violence is good. When blacks use it, they are considered animals. However, it so happens that the blacks have exposed the tricks of language, as they have exposed religious tricks, legal shams and social deformities. It is evident that recommending non-violence to blacks is an effort to retain the Christian vocabulary which has kept them imprisoned in passivity for so long.
That is violence. Asking blacks in America to be non-violent means that whites are demanding a Christian virtue which they themselves do not possess. That means that whites are once again trying to dupe the blacks. Similarly, gays and lesbians, by poking the sleeping dogs of American anti-gay-marriage sentiment and anti-gays-in-the-military sentiment before that before utilising their political machinations to aid transgendered people in securing basic protections, have demanded the virtue of patience from the transgendered that they themselves have shown that they do not possess.
It is a demand for the same things that gays and lesbians have no problem demanding for themselves. And, by so detailing, we are doing what little we can to save our lives — and our identities, not just from religionist hatemongers but also from an element of the traditionally-disaffected world of sexual minorities that should know better than to marginalise the weak into oblivion.
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The interpretational trend of DOMA legislation has created a very real sense of urgency to publicise the truth of how little input transgendered people — transsexuals in particular - have had in the gay rights movement, and that is a critical element in any analysis of any law which opportunistic conservative activist judges might want to apply to gays, lesbians, bisexuals and transsexuals. I strongly assert that the examination of transgender — and transsexual — legal history heretofore missing from gay rights discourse, will open eyes that need to be opened and fill gaps that make the entire GLBT legal framework far more solid.
Just as this article does not purport to be a full exploration of that history, it does not purport not to be a visceral statement regarding how transsexuals have been treated both by our enemies and by many who claim to be our friends. I do, however, hope that it serves to prevent future disasters in transgender law and to open the eyes of transgendered people as well as gays and lesbians to the type of pro-transgender law that actually does already exist and that could be put to good use for transgendered people if we are given a platform within the well-funded gay rights movement to sound the clarion call.
In short, I hope that it will benefit all transsexuals, all transgendered people and, yes, all gays, lesbians and bisexuals. Believe it or not, my aim is to unite, not divide.
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- The Next Challenge (Tales of New Hope Book 2);
- Between the Woods and the Water: On Foot to Constantinople from the Hook of Holland: The Middle Danube to the Iron Gates.
- Nightbred: Lords of the Darkyn?
I realise that, after the past four years, such a phrase coming from someone associated with Texas I no longer live there but I was born there and am still licensed to practice law there may seem unbelievable. I assure all, however, that my desire is genuine. Some people who claim to be from Texas actually are from Texas — and some of us can actually tell the truth.
The author would also like to thank the following individuals who helped in various ways at various stages of the writing of this article: Sandy Stevens, Gwen Smith, Ethan St. This bill would expand the prohibition on sexual discrimination and harassment by including gender, as defined, in the definition of sex. The bill would permit employers to require employees to comply with reasonable workplace appearance, grooming, and dress standards consistent with state and federal law, provided that employees are allowed to appear or dress consistently with their gender identity.
Subsequently, the California Legislature passed a bill which tidied up diverse provisions of the FEHA and the Labour Code — all of which now include the trans-inclusive language. In fairness to the Governator, he did sign this bill. AB , enacted as, CAL. LAWS Ch. However, the disparity between jurisdictions where gays, but not transgendered people, are afforded a right of redress against discrimination and those that have full inclusion is, over three decades after Stonewall, still depressingly staggering. According to information on the website of the Human Rights Campaign HRC , the ratio of jurisdictions with sexual orientation protection to those with both sexual orientation and gender identity is to Moreover, even now some localities propose and pass anti-discrimination ordinances which leave out the segment of the GLBT community that is most in need of anti-discrimination protection.
Minnesota, in , and New Mexico a decade later both were transgender-inclusive in the first instance. See MINN.
Though favourable in that it rejects older anti-transsexual federal case law, it nevertheless leans on sex stereotyping rather than transsexualism in its own right. Judge Posner of the Seventh Circuit also has indicated strong doubts regarding the expansiveness of Price Waterhouse v Hopkins. Hamm v Weyauwega Milk Products, Inc. Progress has been far more evident in both the UK and Australia.
In re Kandu , No. However, a number of anti-gay-marriage backlash statutes and constitutional amendments are being drawn broadly enough so as to inspire worry that they may wipe out non-marital domestic partnership rights. The Leber court noted that Businger. He had a predilection for female activities and, obeying irresistible impulses, dressed himself as a woman whenever possible: he was ill at ease in masculine garments and considered the obligation to wear them both disagreeable and coercive.
From the physical point of view there was nothing feminine about Businger. He had normal masculine genital organs, but he held them in such abhorrence that he attempted self-mutilation. It was to prevent this that the surgeon deemed it necessary to castrate him. Here we are dealing with a human being who, while possessing male genitalia, had in his psychological constitution cells which functioned in two ways, some in a masculine way and others in a feminine way. Psychically he was more woman than man, but physically he was a combination of man and woman.
His desire to change his civic status and name was so strong that he threatened to commit suicide unless his wish was granted. Cauldwell but was later popularised by Harry Benjamin. Notably, twelve years after Ms. Leber's legal gender transition, Dr. And, was less than a decade after the Legislature, spurred by court decisions, repealed mandatory school racial segregation provisions.
ACTS Ch. This actually should not necessarily be viewed as offensive; more than a few MTFs who attended all-male institutions pre-transition have made similar comments about themselves. Any person born in Louisiana who has sustained sex reassignment or corrective surgery which has changed the anatomical structure of the sex of the individual to that of a sex other than that which appears on the original birth certificate of the individual, may petition a court of competent jurisdiction as provided in this Section to obtain a new certificate of birth.
Knowledge is good. More knowledge is better — if it is reasonably accurate. She did, however, cast a vote in for a bill that added language to an adjoining section of the vital statistics act, so she should be presumed to have at least cast her eyes near the language of a transsexual birth certificate statute. See ARIZ. LAWS p. Notably, although the governor who signed this provision into law was a Democrat, both houses of the legislature that passed the measure were controlled by the Republicans.
Darnell v Lloyd , F Supp. The decisions have never been overturned by statute or subsequent court decision. Moreover, Connecticut has since amended its vital statistics statutory framework to address "gender change," CONN. The then-non-transsexual-specific birth certificate statute in Massachusetts was construed in an attorney general's opinion to be inclusive of transsexuals' identity rights. AG Op It was amended to be transsexual-specific in the year after long-time opponent of including the transgendered in federal employment antidiscrimination legislation Barney Frank left the Massachusetts legislature to go to Congress.
However, there is no indication whatsoever that either enactment — or the recently-enacted constitutional amendment — had any target other than homo sexual relationships. Civil marriage in this state shall consist only of the union of one man and one woman. In this state no effect shall be given to any public act, record, or judicial proceeding of any other state, territory, or possession of the United States, Indian tribe, or foreign nation, respecting a relationship of any union other than a union of one man and one woman that is treated as a marriage under the laws of such other jurisdiction, or a right or claim arising from such a relationship.
This decision has not only never been overturned, but a statute specifying that New Jersey-born transsexuals can correct their birth certificates to reflect post-transition reality was enacted in Note: this newspaper is the same one referenced for the events; it simply no longer is referred to as the Morning Advocate. It should not be confused with the national gay newsmagazine also called The Advocate. Could an elderly gay man be denied a contract granting him next-of-kin visitation rights when his longtime partner is dying in a hospital?
Could an employer's decision to extend medical benefits to an employee's same-sex partner be nullified? Would the amendment affect custody rights of gays and lesbians? Apparently marriage was at least touched upon in , but not post-transition heterosexual marriages. Senate, Judiciary Committee 22 June testimony of Rep. Marilyn Musgrave audio recording on file with author. In fact, the biggest fight in the Louisiana Legislature in over gay marriage was not the amendment per se but whether or not the vote would be in September as ultimately occurred or on the day of the November general election, when the increased conservative Christian turnout for the anti-gay vote would benefit the Christian religionist incumbent president, George W Bush.
In other words, nothing is said about any purported pubic policy against recognition of out-of-state conformed birth certificates. Full disclosure: I was a signatory to the brief and contributed this portion of the legal argument therein. The settlement agreement was reached in late September Compare MD. Still, this represents roughly one-fourth of the statutes.
Although M. Baker v Wade , F Supp. Although there was one article about a transgendered person a prostitute in Miami , which actually appeared the day prior to the M. George Watson, Jr. Spaht, a Louisiana State University law professor, is a supporter of the Louisiana anti-gay-marriage amendment. Both Rep. Orrin Hatch, in the Senate Judiciary Committee hearing, led off their respective hearings by referring specifically - and only - to the then-ongoing Hawaii Baehr same-sex marriage litigation. J hereinafter Senate Hearing. Frye and another transgender rights activist were, however, allowed to submit prepared written statements with respect to the ENDA hearing.
The lobbyists all age by about 25 years and undergo sex-change operations, as the powerful replace the mere note-takers. Congressional Record, th Cong. The other two were references to inmate suits for SRS. S; and S Even the pre-ENDA Civil Rights Act amendment bills did not include housing, though many did include public accommodations, public facilities and educational opportunities. See generally, H.
Lynn Wardle emphasis added. Lynn Wardle. Bob Barr. In the June hearing where the other witnesses were Rep. Musgrave and Gov Mitt Romney of Massachusetts , in approximately 40 minutes of testimony and questioning, primarily by Sen. Hatch, Barr never mentioned transsexuals. Notably, during his colloquy with Barr, Hatch as he has in other committee hearings and on the Senate floor , utilised the following phraseology:.
And in this particular case, as your experience shows with DOMA, with 40 states basically approving it, I doubt that they could get this changed in the law of marriage — away from traditional marriage, to, to same-sex marriage - I doubt they could get that in any state in the union through the elected representatives of the people.
Also during this portion of the hearing, Sen. Barr, since the founding of this Republic, has ever voted to define marriage other than between a man and a woman. ACTS No. Notably, the Family Research Council, an organisation that Bauer headed at the time of the DOMA hearings, published a guide to model so-called pro-family legislation in Nothing is mentioned in the section accompanying the Ohio bill regarding the unclear status of transsexuals in that state.
More importantly, though, the book did not include, as one of its 'models', the Tennessee anti-transsexual birth certificate statute. However, the reporter informed me via e-mail that neither Birch nor Bauer mentioned transsexuals. Ernest Chambers. The beginning date was chosen simply to encompass any early discussion on the initiative that might appear.
The earliest item retrieved by the search is dated 14 September Taking this into account, there were no items about both the initiative and transsexuals. This lowered the number of items retrieved to , but the absence of any reference to transsexuals remains.
There is also no indication whatsoever that a Nebraska statute which actually is obviously anti-transsexual, namely the alignment in of that state's disability anti-discrimination law with the transgender-exclusion language of the federal Americans with Disabilities Act, NEB. It is fully within the bounds of legal logic for a state to recognise transsexualism as a legitimate medical condition and to recognise the logical end of a treatment regimen namely, a full change of sexual status , but, at the same time, decide that such condition is not necessarily cause for a transsexual person to be able to challenge employment discrimination based on transsexualism as a disability as opposed to sex.
Nebraska would not be unique. Prior to , California, despite its transsexual birth certificate statute, utilised the anti-transsexual language of the federal disability construct. Consequently, the Nebraska ADA should not be read in conjunction with Initiative to manufacture non-recognition public policy. After all, it was after it had adopted the anti-transsexual federal language that the Nebraska Legislature enacted its transsexual birth certificate statute! State constitutional provisions of the variety rendered unenforceable by Loving remained in existence into the 's, and even then the referendum to remove the provision passed by only a not-so-overwhelming margin.
However, the fact that such a decision occurred as recently as it did cannot be ignored. American Perspectives , above n Notably, in another such document from - this dealing with the proposed federal hate crimes law which contains language that some feel is inclusive of all transgendered people - this 'Policy Committee' clearly indicates that it knows the difference between homosexual and transsexual. In a footnote referring to a congressional committee report which included language expounding on the breadth of the word "gender" in the bill, the 'Policy Committee' summarised by stating that the congressional report gave "examples of crimes against persons dressed up as members of the opposite sex and against transsexuals, and indicat[ed] that the Kennedy bill would apply to those crimes.
As I stood with Mosby outside her former home on Labor Day weekend, I was struck by how different she appeared from her professional persona. There was also an unguarded ease about her that suggested a person in every way content to be home. When I arrived, she was settled in front of the television with her grandmother while Nick relaxed upstairs. Now, as she stood on the sidewalk around the corner, she seemed to brace herself for the inevitable rush of memory; we were on the spot where, as a young teenager, she watched her cousin die.
Mosby and I had spoken about Diron Spence before. Spence was killed on an uncommonly hot afternoon in August Mosby, who was 14, was in her bedroom when she heard the crack of gunfire. She shut the door, then opened it again. Standing on the site two decades later, Mosby was still visibly shaken. He was an honor student on his way to college. Investigators would eventually conclude that the killing was a botched robbery and a matter of mistaken identity.
I just remember seeing him laying in the street. There was a billiards table in the middle of the front room and beyond it a pair of French doors leading to a large indoor pool. Mosby comes from a police family in a way that few Americans can understand. Her mother gave birth at 17 and struggled with substance abuse, often leaving Mosby in the care of her grandmother, Marilyn Thompson. We found Thompson in the kitchen, watching television.
She is a sturdy woman with short gray hair, a shy smile and amused eyes. Why are you talking to me like that? As a teenager, Mosby plunged into political action. She became active in the student government and the school newspaper; she worked with a group called Weatoc, which raised awareness about issues of race and gender; she joined an organization known as Project Hip-Hop, which fosters appreciation of the civil rights movement — she walked the bridge in Selma, Ala.
In , she enrolled at the historically black Tuskegee University, where she met Nick. Their first evening together, they stayed up until all hours dissecting politics. He was determined to return to Baltimore and enter local politics. I asked Mosby if, during these years, she also began to see another side of the police; if like so many black Americans, she found herself stopped and questioned without cause. Back in the day, they strategized, they organized. Do you know how much of a difference you can make by being at the table?
For example, the whole Black Lives Matter — like, start enrolling in these police departments! As a woman of color, I represent 1 percent of all elected prosecutors in the country. As she spoke, it occurred to me that from a certain vantage, Mosby seemed almost perfectly groomed for the moment in which she burst into national attention. Mosby and I left her grandmother in the kitchen and settled to chat in the dim light of the dining room. Two of his neighbors used cellphones to record the scene as a pair of police officers on bicycles held him down, then dragged him to a van with his legs dangling beneath him.
Gray could be heard on the video screaming in apparent pain. By the end of the day, he lay in the hospital, in a coma, with three fractured vertebrae, a crushed larynx and his spinal cord nearly severed, while the videos of his arrest began to circulate on social media. Mosby is an avid Twitter user and saw a video that night. As she gathered with her staff the next morning for their daily meeting, she prepared a list of questions about what happened to Gray. This is routine for any situation in which prosecutors suspect that a crime might have taken place; part of their job is to coordinate with the police to draw out evidence necessary to consider charges.
But when Mosby and her staff met with police officials the next day, she said, her internal alarms started going off. She believed that the police investigators were not seriously considering the possibility of wrongdoing by other cops. So I need you to go send investigators out there and find out what the hell happened.
Although there was a metal partition separating the two men, the police told Mosby that Allen heard Gray intentionally smashing his head against the dividing wall. I need to know who this Donta Allen is. My suspicion was that he was. They can knock on doors, interview witnesses and request public documents, but in order to file a search warrant, they need police support. Mosby said that on a series of requests, she could not get the Baltimore police to comply. One of her requests was to execute a search warrant on the personal cellphones of the officers involved. Mosby told me that she knew the officers exchanged several text messages while Gray was in the van, and she believed that the content of those messages would be important to determine what happened.
It was just incredibly, incredibly frustrating. Mosby said she turned to the state police for help. Meanwhile, if you lived in Baltimore, you could feel the temperature of the street rising. Outrage in the city began to swell, and protests filled downtown. On Saturday, April 25, demonstrators clashed with overzealous officers in riot gear outside the baseball stadium, and on April 27, officials responded to a false report of incipient violence by shutting down lines of transportation near a local mall, which only fanned the outrage further: Fights broke out, cars and buildings were torched and police officers suffered injuries.
For example, Batts was undercounting the number of stops the police van made before delivering Gray to medical attention. Mosby also believed that the Police Department was in a rush to close the case. The investigation is not even complete. How are you going out to the public and saying you know for certain that this took place inside of the wagon?
He said he thought it was important to report progress in the investigation as it happened, even if some details were likely to prove wrong. In Dorchester, Mosby leaned back in her chair and sighed. While they argued over how much information to release and whether it was accurate, the streets of Baltimore were breaking down.
So I called the mayor, and I was livid. You did this, not me. Not me. And that was it. Just then, Nick wandered down the staircase in an old Orioles T-shirt. She said the A. Nick shot a worried glance at my tape recorder. A silence descended in the room, and after a while Nick continued to the kitchen. Marilyn and I spoke for a few minutes longer, then she walked me to the door.
We stood on the porch in darkness, and I asked if she felt any regret about the impact of her public profile on her private life. Mosby swallowed hard and looked away, and I walked down the street to my car. As I pulled away, she was still standing alone on the porch in darkness. A favorite parlor game in Baltimore these days, best undertaken with bourbon, is to enumerate the various errors and blunders in the Freddie Gray trials.
The most common mistake you hear attributed to Mosby is that she overcharged in the indictments, trying to establish such a profound degree of blame that it was impossible to prove. As the case proceeds and the standard of proof rises, the arc of a case is often a matter of prosecutors tailoring those early claims down.
To my mind, the more troubling aspect of the trials is the litany of small, strange choices that aggregated until you had to wonder what prosecutors were thinking. For example, in Maryland, a criminal defendant has the right to decide whether he wants to face a judge or a jury. When a police officer is charged with a criminal offense, she enjoys the same basic rights. Pretty much anyone in Baltimore can tell you that a cop will get more sympathy from the average judge than the average jury, so it was no surprise when most of the officers asked for a bench trial.
Mosby told me she believes that the right to a trial by jury is so basic to the American system that the defense and the prosecution should have to agree before it can be waived. If the Freddie Gray case had taken place in Atlanta, for example, a prosecutor could have forced the police officers to face a jury. As it happened, the trials took place in Baltimore. Police claimed that the knife was illegal and used it to justify his arrest. The problem with this position is that it fails to account for the murky space between a stop and an arrest.
Cops have a great deal of latitude — one might say too much — to detain a suspect, and if they find an illegal weapon during a search, they can escalate to an arrest. On the other hand, the level of intransigence that Mosby says she encountered from the Police Department is troubling.