Released Feb. 8, the opinion clarified a state statute that gives courts the ability to enhance a punishment, or sentence, against someone who was motivated to commit a crime against someone else because of gender bias.
“For purposes of the hate-crime enhancement, a crime committed against a person because that person manifests a gender that is different than his or her biological gender at birth — i.e. a crime committed against a person because he or she is transgender — is thus necessarily committed because of, at least in part, the person’s gender,” Slatery’s opinion stated.
Max Savage, with pro-LGBTQ group PFLAG Tri-Cities, said it was exciting to finally see Tennessee accomplish something positive for the transgender community.
“It is exciting, but also, it hasn’t been used in a case so there is sort of an apprehension about how this will play out. Will it actually stick? How much can it be challenged?” Savage said.
During the past legislative session, state Sen. Sara Kyle, D-Memphis, filed a bill that would have specifically added gender identity and expression to the hate-crime enhancement law, but the bill ultimately stalled in committee.
“I would have been more thrilled had the legislation that Sara Kyle put forward actually asking to include gender identity expression be included. I feel like that’s pretty foolproof,” Savage said. “But we’ll take this for now and keep pushing for more.”
This past fall, state Rep. Mike Stewart, D-Nashville, requested the opinion from Slatery after a discussion spurred by Kyle’s bill about whether the existing law protects transgender individuals.
“What we said was, ‘Well, if that’s the case, then let’s make that official. So we started talking about how we would do that, and we talked it over,” Chris Sanders, executive director of the Tennessee Equality Project, said. “We’re very pleased with the result obviously.”
Sanders also said he thought a court test of this opinion will be very important.
“The benefit of the attorney general opinion is that a district attorney and prosecutors can use this as a basis for going forward if a hate crime against a transgender person goes to trial,” Sanders said.
“In this increasing climate of danger and hate for the LGBTQ community, this is another tool.”
For example, Sanders said the opinion could have been beneficial in 2016 when a Cookeville transgender woman’s truck was vandalized with spray paint and caught on fire, allegedly because she had pro-LGBTQ stickers on the truck’s back windows.
The state’s hate crime enhancement law covers crimes against property and people. It covers biases against people based on their race, religion, color, disability, sexual orientation, national origin or ancestry.
According to the latest Tennessee Bureau of Investigation Hate Crime report, there was just one crime reported between 2015 and 2017 that was motivated by an anti-transgender sexual bias.
A similar nationwide report issued by the FBI showed 119 incidents motivated by anti-transgender or anti-gender nonconforming biases.
However, Sanders believes most hate crimes committed against transgender people are underreported.
“(The TBI) releases a Hate Crime report every year, but that doesn’t mean every local jurisdiction is reporting their stats correctly to the TBI and the FBI,” Sanders said.
Savage also expressed concerns about law enforcement misidentifying transgender people, or overlooking the fact a person might identify as transgender when a crime is committed against them.
The 2017 TBI Hate Crime report also lists the number of crimes committed with an “unknown bias,” defined as those offenses thought to be bias-motivated but still under investigation. Among all law enforcement agencies in Tennessee, the Carter County Sheriff’s Department far surpassed all others in 2017 with 49 “unknown bias” offenses.