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Beyond the Headlines: What's Really in the New Hate Crimes Law?

By L. K. Regan

As you've by now heard, President Obama yesterday signed into law historic federal hate crimes legislation that for the first time makes sexual orientation and gender identity protected legal categories. In a moving statement at the signing, the president spoke of the U.S. becoming a place where "we're all free to live and love as we see fit." But at least as important as its symbolism is the law's reach—so let's get a little deeper into what it really contains.

The new law is named for gay hate crime victims Matthew Shepard and James Byrd, both of whom were violently murdered in separate incidents in 1998. Its simplest impact is to expand federal hate crimes to include those committed against people because of gender, sexual orientation, gender identity or disability. But beyond the protected categories, the law offers a radically increased degree of federal flexibility in prosecuting hate crimes, as well as greater support to local law enforcement.

The federal law is designed, first of all, to pick up where state and local law enforcement leave off (or just fail to even get involved). It does not alter the laws of the some 45 states that already have hate crimes statutes, whereby hate crimes are generally investigated and prosecuted by state and local officials. But it does broaden beyond the narrow range of actions which trigger federal involvement. According to the original, civil rights era laws (enacted in the wake of the Martin Luther King assassination), a hate crime must interfere in only certain kinds of contexts—such as attending school or voting—in order to qualify for federal involvement. The new law eases those restrictions, meaning the feds can get involved in more kinds of cases. And, it allows the federal government to act as a back-up, stepping in if the Justice Department certifies that a state is unwilling or unable to follow through on an alleged hate crime.

There are certain more specific provisions in the bill as well. For instance, the new law will let the Justice Department grant state and local officials up to $100,000 to cover the costs of prosecuting a hate crime. These crimes often polarize local communities and draw unusual media interest, both of which involve additional police and prosecutorial costs. Likewise, the bill includes provisions to train state and local law enforcement about hate crimes, and to try to end the sense that law enforcement refuses to intervene in cases of gay-bashing.

The bill also adds protected categories of persons beyond gays and lesbians. Transgender and disabled people are protected by the law, and will be impacted by its secondary provisions as well. For instance, the law expands the FBI's ability to track hate crimes, meaning that it may begin, for the first time, to track violent crimes against transgender people. Since 1990, the Hate Crimes Statistics Act has required the FBI to keep records on hate crimes in the U.S. According to those statistics, sexual orientation is the third most common provocation for a hate crime (at 15.9 percent of all hate crimes), after race (52 percent) and religion (17.1 percent). And within sexual orientation hate crimes, violence against gay men is the overwhelming majority—but there are no federal statistics on crimes against transgender people, though independent research indicates that they are on the receiving end of an enormous amount of abuse. Now their victimization will finally be quantified. "It's the first time that transgender people will be in federal code in a positive way," says Mara Keisling, director of the National Center for Transgender Equality.

While many complain that the new law may lead to a rash of prosecutions for "thought crimes," Kevin Cathcart, the executive director of Lambda Legal, an LGBT advocacy group, reminds us that the real aim of those pushing for this bill has been to see a day when it will no longer be used at all. "I don't have a goal for this law to be used over and over again many times every year," says Cathcart. "My goal would be for anti-gay violence to taper off and disappear." As President Obama said in the ceremony, the new legislation signals a change in American attitudes. "No one in America should ever be afraid to walk down the street holding the hands of the person they love... No one in America should be forced to look over their shoulder because of who they are, or because they live with a disability." We are all eager to see that day.