The Fight for LGBT Hate Crimes Legislation Is Moving to the States

Five years after landmark federal legislation that expanded a previous hate-crime law to include sexual orientation and gender identity, advocates are zeroing in on state laws.

Five years ago today, the Hate Crimes Prevention Act expanded the scope of prosecutable hate crimes to include crimes motivated by sexual orientation, gender identity, and disability. While LGBT advocates considered the 2009 legislation a major victory, limitations in the application of federal law mean that it's up to states to cement hate-crime legislation. Some states have taken further steps, but many haven't—and that's where LGBT advocates are now focusing their efforts.

Some hate crimes can't be prosecuted as such in the absence of state-level laws, says Sarah Warbelow, legal director of the Human Rights Campaign. For one thing, the federal hate-crimes law is limited to violent crime, so property crimes like vandalism aren't covered by the 2009 act. Further, crimes that don't cross state boundaries—a requirement for federal involvement—are outside the law's jurisdiction. "Certain types of crimes, particularly those that take place on private property without the use of a weapon of any sort, are where the federal law just can't reach," Warbelow says.

A new report HRC published Tuesday shows how state-level hate LGBT crime laws are playing out. Fifteen states and the District of Columbia have laws that cover hate crimes based on sexual orientation or gender identity; 15 more cover only sexual orientation. Another 15 have hate-crime legislation, but don't address sexual orientation or gender identity, and five don't have any hate-crime legislation at all.

In states that don't include sexual orientation or gender identity in hate-crimes prevention laws, HRC lobbies to get them added to the list of protected classes, often working with other interest groups such as the NAACP, the Anti-Defamation League, and the National Council of La Raza. In states such as Wyoming and Georgia, however, which have no hate-crime legislation on the books, HRC tries to start "a more elementary discussion" about the utility of such laws.

In addition to pushing for state-level hate-crime protection laws, HRC is advocating for states to train law enforcement to identify and follow up on hate crimes, and to report detailed statistics about the hate crimes that occur there. Robust reporting laws help advocates track problem areas and assess progress, Warbelow says.

Opposition to these laws comes from groups like the Family Research Council, an influential conservative Christian advocacy and lobbying organization. The FRC opposes all hate-crime legislation, according to an online fact sheet, but the page singles out protections on the basis of sexual orientation and gender identity, saying that recognizing those as protected categories "shows contempt for" Americans' moral and religious sensibilities. The laws are unconstitutional, FRC says, as they violate the 14th Amendment's promise of equal protection of the laws, and punish "thoughts and not just actions."

Warbelow doesn't buy the constitutional argument. "The vast majority of the pushback is really less about hate-crimes prevention laws themselves, and it really is a reflection of some continued discomfort or animosity towards LGBT people," she says.

In the five years since the hate-crimes prevention bill was passed, Warbelow says she's seen "tremendous progress" toward protections for LGBT people. The federal government's action served as a trigger for many states, she says. Breakthroughs in other areas help the cause, too. As the fight for same-sex marriage gathers steam nationwide, says Warbelow, legislators and voters begin thinking about LGBT rights more generally, and advocates take the opportunity to start new conversations.

Although the fight now focuses on the state level, there's a renewed interest in pushing for change from Washington. FBI Director James Comey earlier this year indicated the need for better hate-crimes reporting, which HRC hopes to capitalize upon. "This is really sort of a new call and a new way of looking at things," says Warbelow.

But when it comes to laws that allow special prosecution of hate crimes, the focus remains on states. Even with maximum federal intervention, some hate crimes fall entirely within a state's jurisdiction and can only be prosecuted under state laws. After all the success they've had on a national level, LGBT activists are looking to finish their fight.