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Rethinking “Trans Panic Defense” Policies

The National LGBT Bar Association put forth a resolution in 2013, urging federal, state and local governments to outlaw the “gay panic” and “trans panic” defense strategies, which attempt to reduce sentencing for a person accused of killing an LGBT person. These strategies are used by defense attorneys to argue that their clients’ crimes were not pre-meditated but a reaction to an unwanted sexual advance from an LGBT person or to the “discovery” of a person’s trans status, thus they warrant lighter sentencing. Such tactics have been in play as mitigating factors in sentencing since the 1960s. Today, California is the first state to have banned them; the National LGBT Bar Association is hopeful that other jurisdictions will follow in its footsteps. On May 31, 2017, the Illinois House of Representatives approved a Senate bill banning the defense. The bill is expected to be signed into law by Governor Bruce Rauner. A similar bill was introduced in the District of Columbia in February 2017.

While banning the trans and gay panic defenses seems to move in the direction of justice for LGBT people, legal scholar Cynthia Lee thinks this is the wrong approach.

Lee explains that banning the gay and trans panic defenses does not fundamentally challenge the roots of violence against LGBT people, nor does it eliminate bias in juries. To Lee, these defense strategies ask juries to consider extending empathy to men (predominantly the defendants in these cases) who react violently to alleged unwanted sexual advances from other men or to the discovery the woman they are interested in is transgender, so banning them makes the animating logics behind the crimes invisible. Lee suggests instead that prosecutors should be trained to break down the defense’s arguments, challenging the inherent homophobia and transphobia embedded in them.

Lee’s intervention, then, underscores the role of bias in courtroom decisions and could represent an important step toward denaturalizing violence against LGBT communities. However, this approach must be part of a broader policy initiative that challenges the roots of violence before it occurs.

Murder and violence against LGBT people, especially against trans people, is a growing problem in the United States.

As of July 2, there have been fifteen reported murders of trans people, the majority of them young black trans women, in 2017. From 2013-2016, there were 74 reported killings of trans people (click on map below for more details on each). Of those, 93% were people of color, 90% were women, and 75% were aged 35 or younger. The New York City Anti-Violence Project has described violence against trans women of color in the U.S. as an epidemic—contagious and excessively prevalent. But this violence is not new. It is rooted in the long-standing devaluation of the lives of black, female, gender non-conforming, queer, disabled, and poor people in this country. A policy that bans the trans and gay panic defense strategies does not fundamentally disrupt violence against these communities—it only changes the conversation after an LGBT person has been victimized, and it silences and buries embedded biases.

To combat these legacies of violence, organizations should push for policy changes that address the structural inequalities that influence violence, such as the criminalization of sex work, drugs, and non-violent crime in communities of color. Decriminalizing sex work, for its part, would increase safety for trans sex workers. A 2015 Open Society Foundations report explains, “Fear of arrest and police abuse limits the time and methods that sex workers can use to conduct safety screenings of clients without detection by police.” Because sex work is criminalized and stigmatized, clients and police alike can take advantage of sex workers’ vulnerable status to harass and abuse them. With this change, even trans women who are not sex workers may be protected, because so many are assumed to be sex workers (as Monica Jones was in 2014). Decriminalization of sex work would help proactively rather than reactively value trans lives.

A second cultural shift must seek to lessen the stigma attached to sexual attraction toward trans women.

In June 2015, in the midst of the worst year on record for trans homicides, trans actor and activist Laverne Cox remarked that men who date trans women are “probably more stigmatized than trans women are.” When straight men are encouraged to reject, rather than desire, trans women, their shame can lead to violence. Cultural shifts, of course, require a number of concurrent and coalescing forces—education, purposeful and positive media representation, and institutional condemnation of violence against trans people—but policies can be enacted to move these shifts along. For instance, where the emergence of “bathroom bills” has served to stigmatize trans women in particular (and allow for public debate over the alleged risks their bodies pose), policies that preemptively protect trans bathroom access could reduce some of the stigma against trans women. Alongside multiple other interventions in spheres large and small, we might see an aggregation of acceptance.

While banning the trans and gay panic defense strategies may send a message that violence against these communities is unacceptable, it may also enable homophobic and transphobic biases in jurors to prevail in deliberations.

Arguments for hate crime laws draw upon a similar justification: proponents of the designation “hate crime” allege that these laws send a message that crimes enacted out of discrimination or hatred toward a particular group are not condoned. However, hate crime laws may not reduce violence against marginalized people—there is even evidence that they may increase violence in multiply marginalized communities, such as communities of color that are also queer, trans, immigrants, disabled, and so on. Cynthia Lee’s suggestion for prosecutorial training is a step in the right direction to reduce cultural acceptance of trans homicides, though her criticism of the National LGBT Bar Association’s strategy has not halted jurisdictions from attempting to ban the trans and gay panic defense strategies nor spurred the implementation of anti-LGBT bias trainings for prosecutors. National LGBT civil rights organizations and legislators should be concerned about the rise in trans homicides and critically examine the roots of this violence, enacting policies that proactively improve the lives of trans people and destigmatize desire for trans women. Their very lives depend on it.

— Lars Z. Mackenzie is a PhD candidate in Feminist Studies at the University of Minnesota. You can follow him @larszmac

— Photo by Ted Eytan

Missed Opportunity to Support Retirement Equity

On May 17, 2017, President Trump followed the Senate’s lead, signing a resolution rescinding an Obama administration regulation allowing states and cities to automatically enroll private sector workers without an employer-provided retirement plan in Individual Retirement Accounts (auto-IRAs). These accounts use payroll deductions to create savings that grow tax-free until retirement – with contributions made using payroll deductions. And the administration’s move puts current and proposed state and local programs in jeopardy.

Research suggests that government-run auto-IRA programs could help address significant racial and gender disparities in retirement assets (which, themselves, are due in part to differences in access to employer-provided retirement savings plans), which see married women and all men better positioned, financially, for retirement than single women and people of color.  According to the US Department of Labor, of the 63 million wage and salaried women (age 21 to 64) working in the United States, just 44 percent participated in a retirement plan in 2015.  The 2016 Retirement Confidence Survey by the Employee Benefits Research Institute and Greenwald and Associates shows the roughly 55 million single women in the U.S. are in a far more precarious position than married women – and all men – when it comes to retirement savings.

There are some fairly straightforward explanations for these gaps. First, according to the US Department of Labor, women are more likely to work in part-time jobs that don’t qualify for retirement plans. And working women are more likely than men to interrupt their careers to take care of family members. Therefore, they work fewer years and contribute less toward their retirement, resulting in lower lifetime savings. According to the 2016 Annual Transamerica Retirement Survey, women’s retirement savings have remained flat over the past four years, while retirement savings for men have grown significantly over the same time frame (Figure 1).  Finally, on average, a woman retiring at age 65 can expect to live another 20 years, 2 years longer than a man who retires at 65. That is, women’s longer life expectancy means they have smaller savings that must be spread across more years.

Disparities at the Intersection of Race and Gender

Several studies have documented racial disparities in wealth and retirement savings, as shown in Figure 2. The gender pay gap is even larger for many women of color; and African American women and Latinas are more likely to live in poverty and more likely to care for children without financial support from a spouse, limiting their ability to save for retirement.  Thus women of color face a double disadvantage.

Segregation in low-wage work also effects access to retirement vehicles. African American women and Latinas are more likely to work in the service industry (20% white women, 28% black, 33% Latina) in jobs that, according to Global Policy Solutions, are “generally lower paying, seasonal, part-time and hourly… [and] often offer less in the way of workplace benefits and support.” Indeed, 68% of all workers have retirement plan benefits, compared to just 45% in the service sector. African American and Latino workers are much less likely than White workers to have a retirement account, in large part due to differences in access to a workplace retirement plan (Figure 3). As a result of all these factors, women of color are more likely than white women and all men to rely exclusively on Social Security during retirement (Figure 4).

States Turn to Auto-Enroll Solution

To help alleviate the retirement wealth gap for women, particularly women of color, five states (Illinois, Maryland, Oregon, Connecticut, and California) are in the process of launching a program, and, according to the Pension Rights Center, another 25 states are considering state-run Auto-IRAs. Without further legal clarity following the Senate and the President’s moves to remove explicit federal permission, the permissibility of auto-enroll undertaken by public entities is in question. The states may even be open to lawsuits. As Bloomberg summarizes: “Without the federal government’s blessing, it’s harder to surmise how courts might rule on state auto-IRA programs …the Obama administration eased some doubts by issuing the new regulations, bolstering the plans’ legal authority.” Even if states and cities prevail in court, Bloomberg continues, the lack of federal-level explicit approval will almost certainly discourage others from undertaking Auto-IRA programs.

The Obama-era regulation would have put workers contributing automatically to a retirement account run by the government on par with their private-sector counterparts whose plans have been covered by similar regulations since 2006 (with the passage of the Pension Protection Act, PPA, under President George W. Bush). While the PPA addressed several areas of retirement savings concerns, two of its provisions granted employers the authority to automatically enroll employees in a defined contribution plan (e.g., 401(k) plan) and provided protections for investment options for these funds so long as they met the Qualified Default Investment Alternatives condition (including the now-popular lifecycle funds that automatically balance investment risk based on an individual’s target retirement year).

 

The Powerful Effect of Defaults

These two provisions of the 2006 PPA came in response to groundbreaking economics research showing the powerful effect of defaults—the outcome when no choice is made—on employee savings behavior. Madrian and Shea (2001) showed that changing the default provision guiding retirement plan participation from “opt-in” to “opt-out” increased participation by 50 percent among new hires. Individuals hired under opt-out rules were also more likely to persist at the default contribution rate (which was 3%) and the investment election (money market fund) as compared to those hired under the opt-in regime. Therefore, pairing automatic enrollment regulation with safe harbors for asset allocation (given that allocations with minimal risk, like money market funds, are unlikely to provide sufficient wealth for retirement) was seen as an important step in efforts to reduce later-life poverty.

Why is automatic enrollment so powerful? Retirement savings decisions are particularly vulnerable to inertia and procrastination. For most workers, retirement is something in the far-off future and has little bearing on financial decisions in the present. Interestingly, though, that long-horizon makes participating and saving early critically important for retirement readiness. Along with their penchant for procrastination, Americans systematically underestimate the power of compound growth (Goda et al. 2015). Consider the following scenario from a study by McKenzie and Liersch (2011):

Imagine that both Alan and Bill just started working and are going to retire in 40 years. Alan deposits $100 every month into his retirement account. Bill waits 20 years to start saving, but then deposits $300 every month into his retirement account. Both accounts earn 5% interest every year, compounded annually. Who has more money at retirement?

For this scenario, Alan would have more savings than Bill at retirement, yet only 36% of respondents thought Alan would have more.

 

Automatic enrollment likely mitigates the effect of procrastination and misunderstanding of compound growth, two widespread tendencies among Americans.   However, automatic enrollment also has a cost. As mentioned, in the study by Madrian and Shea (2001), workers who participated via automatic enrollment tended to persist at the default contribution rate and asset allocation. But if that default contribution rate is too low, the worker may not save enough for retirement.

An alternative route explored by researchers is financial education; while there is some evidence that financial education affects decisions (Song 2015, Goda et al. 2014), though, it is more expensive to administer than changing default rules.

 

Regardless, preventing states and cities from capitalizing on the power of automatic enrollment tends to place those workers who are not covered by employer-provided plans (disproportionately women and people of color) at a disadvantage compared to their peers with an employer plan. Opponents of auto-enrollment take issue with government involvement in this area and herald individual choice over mandated savings. Yet research shows that policymakers should focus on asset accumulation, particularly for never-married mothers, who are predominantly from communities of color and face compound barriers to building wealth.  Unfortunately, recent actions by Congress and the Trump administration create additional burdens and uncertainty for state and local governments that are defying Washington and moving ahead with their programs designed to increase economic security in retirement for more American workers – to the disproportionate benefit of women.

 

Colleen Flaherty Manchester is an associate professor in the Work and Organizations Department at the Carlson School of Management, University of Minnesota and Debra Fitzpatrick co-directs the Center on Women, Gender and Public Policy at the University of Minnesota’s Humphrey School of Public Affairs

— Photo by Terry Chapman

Net Neutrality: Too Neutral on Online Abuse

While the Federal Communication Commission in the U.S. debates the elimination of network neutrality (which will widen the “digital divide”), in the U.K., new Crown Prosecution Service guidelines, in effect since October 2016, allow for prosecuting online offenses such as the use of derogatory hashtags, images altered to humiliate people, and “mobbing.” In Germany, the lower house just passed a bill to fine social media that do not remove content that obviously violates national law within 24 hours of its posting, with the German secretary of justice saying that following such laws was a “prerequisite” for freedom of speech online.

In the U.S., abuse cases involving online spaces appear in U.S. news media as regularly as discussions about how law should deal with such abuses.

For instance, in a pioneering lawsuit in California in May 2017 former Playboy model Dani Mathers was convicted of invasion of privacy for posting on social media the nude photo of a woman with a body-shaming comment. Even more recently California’s revenge porn law is being put to the test with reality star Robert Kardashian’s social media posts of sexually explicit photos of his former fiancée. These cases at the state level are still rare but promising starts. Yet, at the federal level a backlash against a similar Ohio law to prosecute online harassment is already underway: a recent lawsuit (filed in the U.S. District Court in Cleveland in May 2017) alleges that free speech is at risk should a prohibition of online harassment be enforced. This prohibition was signed into law in 2016 by Ohio Governor John Kasich (Sub H.B. 151), “expand[ing] the offenses of menacing by stalking and telecommunications harassment and prohibit[ing] a person from knowingly causing another person to believe that the offender will cause physical harm or mental distress to a family or household member of the other person.”

Despite the inclusion of specific language to prevent harm to free speech in many new laws, American critics continue to charge that even abusive online speech online must be considered protected free speech. Their “arguments” overlook the gendered and raced dimensions of online abuse, which disproportionately affect women, especially younger women—dimensions that are more readily understood, it would seem, outside the U.S. In Germany, for example, the German Association of Women Lawyers endorsed the new bill on social media, pointing to women as disproportionately affected by hate speech.

Misogyny toward and abuse of women who speak publicly online remain major problems while major swaths of the American public, social media operators, and law enforcement trivialize and dismiss these attacks and threats as jokes and their regulation as an assault on free speech.

The reluctance to fight such abuse can only be understood in the context of specific gendered histories of geek culture, troll culture, and rhetoric. All three demonstrate how the authority to speak in public has been tied to voices residing in male bodies. This means online spaces re-create and re-enact oppressive, normative social structures. World wide web inventor Tim Berners-Lee’s call to “press for every country to develop a digital bill of rights to advance a free and open web for everyone” remains utopian when gendered, raced hierarchies migrate online and shape intertwined online-offline discourses.

An emerging line of studies demonstrates these dynamics in detail across countries with high internet penetration. For my doctoral dissertation, I interviewed 109 women bloggers in the U.S., U.K., Germany, and Switzerland in 2013 and 2014 about their experiences with blogging and social media. Their ages ranged from 22 to 69 years; they included women who were differently abled, of transgender identity, and had varying sexual orientations and ethnic backgrounds (though the majority were white and straight). The most salient finding was that these bloggers experienced high levels of online harassment: 73.4% (80 of 109 women) reporting an unpleasant encounter due to their blogging. Percentages varied across the countries, but were a majority in each.

Of these 80 bloggers, 69 said they had experienced insulting, sexually charged, or threatening comments, including being called a “Feminazi” or “bitch” or being told that they “just need to be raped/fucked right.”

Twenty-six had endured trolling and/or so-called shit storms (an overwhelming number of insulting or angry online comments to/about a person in a short period of time). Twelve had received rape threats, and eight said they had received death threats. Forty of the bloggers noted that online harassment was accompanied by vandalism at their homes and stalking in their workplaces, plagiarism, doxing (the release of their private information online without consent), and having fraudulent profiles set up on dating websites.

Of the 80 women with abuse experiences nine (one in Switzerland, two each in the U.K. and U.S., and four in Germany) said they went to the police after being seriously threatened online or because a stalker harassed them via phone or in person. Four said police helped to stop three stalkers and took a case of child pornography seriously. Five said police did not help or respond to requests. One 39-year-old white U.S. feminist described a catch-22 when she contacted the FBI’s cybercrimes division, which sent her to local police:

[T]he people who are doing [online abuse] aren’t local.…[S]o the local police are not going to be able to do anything about it. …I contacted the local police chief about it, and he never responded …because the laws haven’t quite caught up to the internetbut …it is not really true that the FBI cares about this thing or takes it seriously.

Ignoring or trivializing threats and harm leveled against women has a long history in law. As Danielle Citron describes in her 2014 book Hate Crimes in Cyberspace, intimate partner violence and workplace harassment have long been downplayed as part of daily life, “understandable” in specific environments, or ultimately the fault of the victims. Now online hate speech and insults are labeled “part of online culture” and something women need to be able to “handle” if they want to engage in the internet.

Cases in the U.S. and U.K. have occasionally allowed for jailing online abusers, but these are exceptional and have not set new precedent. Even in Germany, where the problem seems to be taken more seriously, only 2% percent of cyberstalking cases lead to convictions. Part of this may be owed to the historically blurred line between legally permissible hate speech and speech that incites violence or otherwise violates law (e.g., libel), but the new bill in Germany may show a new, clearer way to deal with different categories of speech. It distinguishes between speech that clearly violates existing law and speech that is ambiguous and needs to be further examined by a newly established independent commission. The latter cases may be fertile ground to point to the need to amend or create laws.

Meanwhile, in the U.S., targets of abuse are largely—and literally—left to their own devices.

They cannot rely on existing or (slowly) developing laws and law enforcement. Social media sites’ frequently changing buttons to ban and report abuse(rs) are an interim solution at best; they depend on the goodwill of private companies that benefit from click rates and even the publicity hostilities create.

Today, the internet is a crucial tool; the U.S. Federal Communications Commission even  declared the internet a public utility in 2015 (though this rule is under attack by the Trump administration). The rule, as it stands, lays the groundwork for regulating fraudulent and abusive internet interactions in the U.S., as, in the long run, the country has not tolerated the abuse of other public utilities. Bills like the one just passed in Germany may serve as examples for how to start a more serious national-level discourse about online communication and about when, how, and why damaging speech should be prohibited. The bill may not be perfect, but such legislation represents a first step for an international conversation on how to balance freedom of speech with protection against speech that violates law in borderless online spaces.

Stine Eckert, Assistant Professor in the Department of Communication at Wayne State University. Follow her on Twitter @stineeckert

— Photo by Georgetown Journal of International Affairs