Rutgers Journal of Law & Public Policy


Gay Bashing, Trans Slayings, and the Reasons Why LGBTQ Philadelphians Remain Woefully Unsafe in 2014

Gay Bashing,[1] Trans[2] Slayings, and the Reasons Why LGBTQ Philadelphians Remain Woefully Unsafe in 2014

By: Alexi Velez

I.  Introduction

            On September 11, 2014, an alleged “gay bashing” of a Philadelphia couple sent shockwaves through our community;[3] the echoes of which rippled through social media sites and the Internet, generally.  Media coverage was extensive, and the alleged perpetrators were identified, in part, due to a combination of public outcry and their images being shared over social media by concerned citizens.[4]  Truly, the jobs of local law enforcement were made easier by tenacious non-violent online vigilantism.[5]  Currently, three suspects have been identified and charged.[6]  In a press release from the Philadelphia District Attorney’s Office dated September 23, 2014, the charges were articulated as follows:

            The District Attorney’s Office has approved arrest warrants in connection with the assault of a gay couple on the 1600 block of Chancellor Street in Philadelphia on September 11, 2014.   The individuals to be charged are 24-year-old Philip Williams, 26-year-old Kevin Harrigan, and 24-year-old Katherine Knott.  All three defendants are from Bucks County.  Each will be charged with two (2) counts of Aggravated Assault, two (2) counts of Simple Assault, two (2) counts of Recklessly Endangering Another Person (REAP), and one (1) count of Criminal Conspiracy.[7]

            The alleged perpetrators are accused of brutally beating the Philadelphia couple, while calling them “dirty fags” among other gay slurs.[8]  A Philadelphia Police Department Affidavit of Probable Cause, generated for the purpose of obtaining an arrest warrant for suspect Kevin Harrigan, describes the events as follows: “Kevin Harrigan called the complainants ‘faggots’ several times.  A heated argument developed and, during the resulting altercation . . . Phillip Williams, punched Complainant #1 in the face an undetermined number of times.”[9]  The Affidavit goes on to say that Complainant #1 was severely injured, requiring tens of stiches and having a broken orbital bone.[10]  Additionally, the social media profiles of the accused contain circumstantial evidence supporting the allegation that their actions, if convicted, were motivated by anti-gay animus; namely, one of the accused’s Twitter profiles contained hashtags of hate speech.[11]

            Many news outlets called the attack a “hate crime,” but it is unclear what “hate crime” means, when crime is a creature of law, and there was[12] no hate crime law that proscribes what occurred,[13] at least not in Philadelphia.[14]  It might be more accurate to say that the attack— if it occurred as alleged—should be proscribed by hate crime legislation and benefit from the enhanced sentences provided for by hate crime legislation.[15]

            Current Pennsylvania hate crime legislation does not apply to gay bashings; it does not protect victims targeted due to sexual orientation or gender.[16]  In the wake of this vicious assault, Pennsylvania legislators have considered expanding the scope of the current statute accordingly.[17]  In the last month, a bill proposing that the law be revised to include sexual orientation and gender identity was approved by the Pennsylvania House Judiciary and will now advance to the full House.[18]  However, the Pennsylvania Legislative Session has since come to a close, and there is still no inclusion of LGBTQ protections under state law.[19]

            After the September 2014 attack, two Philadelphia city councilpersons proposed “a bill that seeks to ‘close a hate-crime loophole that currently exists in the Philadelphia code.’”[20]  Fortunately for the Philadelphian LGBTQ community, on October 30, 2014, the Philadelphia City Council unanimously approved a measure to criminalize violence against people based on gender identity, sexual orientation, or disability.[21]  Philadelphia’s Mayor Nutter is expected to sign the measure into law in the coming weeks.[22]

            Pennsylvania’s state hate crime legislation did cover individuals targeted on the basis of gender identity and sexual orientation at one time, but the Pennsylvania Supreme Court struck down those provisions in 2008.[23]  Accordingly, the accused from the September 11, 2014 attack only face prosecution for the assault-related charges enumerated above, and will not be subject to the increased sentencing provisions of most hate crime laws.[24]  Neither does federal hate crime legislation apply.  Federal legislation limits hate crimes to those attempts to cause death or bodily injury “through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device.”[25]  Additionally, due to the constitutional limitations on the federal government,[26] the federal statute only applies when either the victim or defendant had engaged in interstate or international travel, or the attack occurred “using a channel, facility, or instrumentality of interstate or foreign commerce.”[27]  For example, had the victims or the accused been visiting from out-of-state, or had a weapon been used in the assault that had been purchased out-of-state, or arguably if the assault had occurred on a Greyhound Bus rather than on the street, there might have been an argument for federal prosecution.  Here, the facts are seemingly unavailing to the federal statute.  

            The fact that Pennsylvanian LGBTQ individuals can face persecution without protection from any hate crime legislation, unless federal law is triggered, is extremely problematic.  This article aims to touch on the scope of this problem, employ interdisciplinary analysis to address the underlying issues of basic inequity, and to begin to posit a collaborative and community-based trajectory for reform.  In short, the brevity of what follows does not stand for the proposition that the problem is small or that the solution is simple.  Rather, it represents an “early-ish” contribution in what must be a long and ongoing discussion.  

II.  Vulnerability to Hate-Driven Violence[28] Is Not New in Our City

            The September 2014 gay bashing was hardly the first time that Philadelphian LGBTQ individuals have been targeted— by virtue of gender or sexual orientation— and suffered the gravest persecution.  Transwomen of color are particularly vulnerable to hate-driven violence, [29] and Philadelphian transwomen have been no exception.[30]   

            In particular, this article focuses on the case of Diamond Williams, a transwoman who was brutally murdered and dismembered in 2013.[31]  Ms. Williams’ murder trial is currently ongoing, but has gone largely unnoticed in our city.  Certainly, her slaying did not elicit the moral outrage that the gay bashing did.[32]  News reports incorrectly and insensitively reported on Ms. Williams’ gender and name, and employed a rhetoric-driven device we see time and time again in the reports of trans slayings—they blamed the victim.[33]  Media did not remember Ms. Williams as a woman, beloved by her friends and family.  Instead, media chose to constantly remind that Ms. Williams was purportedly engaged in sex work, they printed HER “mugshot” alongside the story,[34] and they seemed to adhere to the dangerous notion that transwomen have an obligation to disclose their trans status to anyone, and that a failure to disclose makes them somehow partly-culpable in the event they are assaulted and or murdered.  

            The coverage, reaction, and law enforcement response could not have been more different than that of the gay bashing.  Why does there exist such a disparity between how the slayings of Philadelphian transwomen are investigated, reported on, and prosecuted compared to the September 2014 gay bashing?  Both are egregious, motivated by ignorance and bigotry, and amount to persecution; both exemplify a sickness within our society when it comes to love, equality, and tolerance—but still, these instances have not been handled in the same way.  The problem is nuanced, and the culprits of this injustice are many.  

III.  Identifying Failures in Protecting LGBTQ Philadelphians from Hate-Driven Violence

a.  Media

            At the forefront of the issue is that slayings of transwomen are often reported with deplorable insensitivity or ignorance[35] and news outlets tend to blame the victim,[36] fail or refuse to acknowledge the gender of the victims,[37] and rely on devastating narratives that imply victims are somehow responsible if they do not disclose their birth gender to their attackers.[38] If media both reflects and shapes culture,[39] the rhetoric employed by news outlets is significant in gauging the perception and treatment of transgender individuals in our society. In other words, if the media is not indignant about hate-driven murders of trans people, there exists support for the supposition that we are not, as a culture or society, incensed by the murders of trans people. Demanding accountability from purported news outlets not only contributes to shaping a culture more aware of trans issues, it would also, if successful, reflect a society that is more trans literate and equal. Demanding trans literacy, general competence, and ethics from journalists is an important first step. We can all become involved by favoring news outlets that conscientiously report on anti-trans violence, exhibit respect for trans victims, and abandon victim-blaming rhetoric.

b. Law Enforcement

            The second issue centers upon the adequacy, or inadequacy, of law enforcement regarding the investigations of the slayings of trans people and the underreporting of anti-trans violence. The former implicates the ineffectual investigations and propensity for trans slayings to go unsolved.[40] The latter is the result of the poor relationship between trans people and law enforcement.[41]

            In general, transgender individuals are more likely to interact with law enforcement than their cisgender[42] counterparts, because they are “more likely to be victims of violent crime, … more likely to be on the street due to homelessness … their circumstances often force them to work in the underground economy, and … many face harassment and arrest simply because they are out in public while being transgender.”[43] Police harassment centers upon the profiling of transgender women, particularly transwomen of color, as sex workers, and arresting them under solicitation statues without cause; these arrests have been articulated as the criminalization of “Walking While Transgender.”[44] Further, it has been well-established that trans and gender non-conforming people are likely to face a number of injustices while being detained or incarcerated.[45] It is no wonder, then, that 46% of the of the 6,450 transgender and gender non-conforming participants in the National Transgender Discrimination Survey reported being uncomfortable in seeking assistance from law enforcement. [46] The increased vulnerability of trans people to violence and homicide, coupled with the fact that nearly half of all trans individuals feel unwilling or unable to seek police protection or assistance due to negative law enforcement encounters—involving everything from harassment and profiling to inaction in homicide investigations[47]— illustrates the justice crisis faced by transgender individuals.

            In 2014, The National Coalition of Anti-Violence Programs released their report on “hate violence” perpetrated against lesbian, gay, bisexual, transgender, queer, and HIV-affected Americans in 2013.[48] “While NCAVP documented a decrease in homicides in 2013, the total homicides for 2013 remains amongst the highest ever recorded by NCAVP.”[49]  Moreover, “more than half (72.22%) of the homicide victims were transgender women, while 66.67% of victims of homicide were transgender women of color….”[50] At the 2012 Transgender Day of Remembrance (“TDOR”), established to honor the lives of murdered trans and gender non-conforming people, 13 transwomen had been murdered that year. Of the 13 victims, 8 of the homicides, or 62%, remained unsolved.[51]  The TDOR website explains, “[o]ver the last decade, more than one person per month has died due to transgender-based hate or prejudice, regardless of any other factors in their lives. This trend shows no sign of abating.”[52] Most homicides of transgender individuals remain unsolved,[53] reflecting a failure of law enforcement to protect the lives of and seek justice for transgender citizens. Aside from the distressing realities of police profiling, anti-trans discrimination, and the prevalence of general violence against gender non-conforming people, police inaction regarding the investigation and prevention of the murders of trans people reflects a true failure within our society.   

            Philadelphia, too, must demand law enforcement’s commitment to protecting LGBTQ lives, rebuilding the relationship with the trans community, and earning trust through equal treatment and diligent investigation of anti-trans violence.

c. Legislation

            The third issue is the shortcomings of both federal and state hate crime legislation. As mentioned above, The Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009, 18 U.S.C. § 249, protects a wider range of victims[54] than the Pennsylvania Ethnic Intimidation Act, 18 Pa. Cons. Stat. Ann. § 2710, but the federal legislation also has a number of restrictions and limitations on its applicability. The United States Department of Justice explains:

Subsection (a)(2) criminalizes acts of violence (and attempts to commit violent acts undertaken with a dangerous weapon) when motivated by the actual or perceived gender, disability, sexual orientation, or gender identity of any person. It will also apply to violent acts motivated by animus against those religions and national origins which were not considered to be ‘races’ at the time the Thirteenth Amendment was passed. This portion of the statute was passed pursuant to Congress's Commerce Clause authority. Thus, to obtain a conviction, the government must prove that the crime was in or affected interstate or foreign commerce.[55]

Of course, our U.S. Constitution limits the authority of the federal government to certain enumerated powers. While hate crimes motivated by racial or national origin-based animus may be reached without authority vested in the Commerce Clause, by virtue of the Thirteenth Amendment which vests Congress with the authority to “eradicate badges and incidents of slavery,” those categories of victims articulated in Subsection (a)(2)—including gender and sexual orientation—require a “jurisdictional” component that implicates Congress’s Commerce Clause authority.[56] In short, that means that the federal statute is only triggered when there is some correlation between the hate-driven violence and interstate commerce with regard to LGBTQ victims.[57] While the limitations on federal powers may make some inherent sense, there is less apparent explanation for the fact that the statute requires the use of a weapon or other dangerous device in the commission of the crime.[58] Both the Commerce Clause limitation and the requirement that weapons be used in order to trigger the LGBTQ provisions of 18 U.S. Code § 249 make it a difficult statute to employ.

            Unfortunately, the Pennsylvania statute offers even less, and fails to recognize LGBTQ identities as a protected class of victims;[59] Pennsylvania’s Ethnic Intimidation Act only offers protections to those targeted on the basis of “race, color, religion or national origin.”[60]

            As a result, neither the brutal gay bashing nor the senseless slaughter of Diamond Williams, both seemingly motivated solely by bigotry and ignorance, are within the reach of the federal statute. The gay bashing victims would not find redress under any hate crime legislation, even if the victims were beaten to death.[61] Regarding the gay bashing, the fact that murders employing weapons are distinguishable from murders by way of unrelenting pummeling is problematic, but not the only issue, as the incident does not meet the interstate commerce provisions of 18 U.S. Code § 249 (b)(i)(I)-(II), either. Seemingly, there was no discussion of whether or not Charles Sargent, the man who admitted to killing Diamond Williams, could be prosecuted under the federal hate crime law.[62] Sadly, while legislative reform may provide some redress if not protection to future victims of hate crimes motivated by LGBTQ identities, no state or federal hate crime law is or will be availing in the prosecution of the three charged in the gay bashing or is likely to be applied to admitted murderer, Charles Sargent.

d. Prosecution

            It is not a prosecutorial failure, by in large, but rather a legislative one that prevents perpetrators of hate crimes from being brought to justice. While law enforcement, generally, has been shown to be ineffectual in the investigation and prosecution of those suspected of murdering trans people,[63] in Pennsylvania there is no readily available legislative vehicle under which prosecutors may seek the increased sentences afforded by violations of hate crime legislation, unless the federal statute is otherwise triggered. As is apparent in the Assistant District Attorney’s comments regarding the potential for charging Charles Sargent with a “bias crime,” prosecutors seem reluctant or under-informed regarding finding applicability or jurisdiction under federal hate crime law.[64]  Here, the plea is that prosecutors carefully consider whether cases may implicate the federal statute, and are more creative in arguing for federal “jurisdiction.”[65]

IV. Conclusion

            Violence against gays and lesbians, generally, is finally garnering the attention it deserves, but it is important that trans identities (and, of course, all of the identities that are a part of the inclusive LGBTQ community) are not forgotten at this time. As lawyers and advocates, as concerned citizens, and as those who rely on media for information and law enforcement for protection, it is time we begin demanding accountability. The condemnation of those accused of the September 2014 gay bashing is not enough. We must vote in accordance with our demand of expanded Pennsylvania hate crime legislation.[66] We must follow the trials and investigations of accused perpetrators of crimes that might otherwise be described as hate crimes, like the ongoing trial of Charles Sargent.[67] We must demand the continued investigation of the murders of Stacey Blahnik Lee, murdered in 2010, and Kyra Kruz, murdered in 2012. We must demand trans cultural compentency and accountability from the news outlets we support, because harmful rhetoric employed in articles covering trans slayings perpetuates the violence and the problem.

            Finally, we must, all of us, make the commitment to always be cognizant of and champions for the proposition, nay, the truth, that the lives and safety of LGBTQ people matter. As obvious as that fact may seem, it is clear that our society, and the State of Pennsylvania, are in need of reminding. Now is the time to be that reminder.



[1] “Gay bashing” has been used herein to describe the September 11, 2014, attack on a gay male couple in Philadelphia, P.A.  Oxford Dictionary describes “bashing” as “a violent physical assault.”  See, Definition of BASHING in English, OXFORD DICTIONARIES, http://www.oxforddictionaries.com/us/definition/american_english/bashing (last visited October 23, 2014).  Oxford Dictionary explains that the noun is often used with a modifier, and proffers the example of “gay,” as in “gay bashing.” Id.  The term is used throughout, as it has been the favored term of news outlets covering the event.  

[2] The terms “trans” and “transwoman” are used throughout this article.  The National Center for Transgender Equality explains, “Transgender: A term for people whose gender identity, expression or behavior is different from those typically associated with their assigned sex at birth. Transgender is a broad term and is good for non-transgender people to use.  ‘Trans’ is shorthand for ‘transgender.’”  See Transgender Terminology, NATIONAL CENTER FOR TRANSGENDER EQUALITY, http://transequality.org/Resources/TransTerminology_2014.pdf (last updated Jan. 2014).  The author would take it a step further, and suggest that trans is no longer used as “shorthand,” but rather sufficient as a standalone.  Further, trans* has gained traction as an inclusive umbrella term that describes a number of gender-nonconforming identities.  Transwoman is used herein to describe a transgender individual who identifies as a woman. 

[3] See, e.g., Philip Ross, Philadelphia Gay Bashing: 3 Charged in ‘Vicious Attack’ on Gay Couple, INTERNATIONAL BUSINESS TIMES (Sept. 23, 2014), http://www.ibtimes.com/philadelphia-gay-bashing-3-charged-vicious-attack-gay-couple-1693870; Cherri Gregg, Hundreds Rally in Love Park to Denounce Gay Bashing, CBS LOCAL (Sept. 25, 2014) http://philadelphia.cbslocal.com/2014/09/25/hundreds-rally-in-love-park-to-denounce-gay-bashing/

[4] Philip Caulfield, Social Media Sleuths Help Police ID Philadelphia Gay Bash Hate Crime Suspects, NEW YORK DAILY NEWS (Sept. 17, 2014) http://www.nydailynews.com/news/national/social-media-sleuths-work-id-ph...

[5] Id.

[6] See, George Rodriguez-Jimenez, Police Chief’s Daughter Among Three Charged in Philly Gay Bashing, THE ADVOCATE (Sept. 24, 2014), http://www.advocate.com/philadelphia/2014/09/24/police-chiefs-daughter-among-three-charged-philly-gay-bashing.  

[7] Philadelphia District Attorney Press Release, available at http://www.phillymag.com/g-philly/2014/09/23/three-people-charged-center-city-gay-bashing/ (last modified Sept. 23, 2014).  

[8] Randy LoBasso, ‘Gay Bashing’ Not Defined as Hate Crime in Pennsylvania, PHILLY NOW (Sept. 17, 2014) http://phillynow.com/2014/09/17/gay-bashing-not-defined-as-hate-crime-in-pennsylvania/Center City Gay Bashing Suspects Not Due Back in Court Until December, NBC 10 PHILADELPHIA (Sept. 30, 2014), http://www.nbcphiladelphia.com/news/local/Center-City-Gay-Couple-Beating-Court-277617881.html

[9] Affidavit of Probable Cause, Affiant Det. Ralph Domenic, available at http://www.phillymag.com/g-philly/2014/09/26/gay-bashing-kathryn-knott-faggots-affidavit/ (last visited Oct. 23, 2014).   

[10] Id. 

[11] Gay Bash Suspect Posted Homophobic Slurs on Social Media, PHILLY.COM (Sept. 24, 2014), http://www.philly.com/philly/blogs/dncrime/Gay-bash-suspect-posted-homophobic-slurs-on-social-media.html.  “Kathryn Knott thinks "jazz flute is for little fairy boys," #gay is #ew and whisky is awesome.” Id.  Further, “[i]n tweets on Knott's Twitter account posted in 2012 and 2013, Knott used homophobic hashtags like #dyke, whined about hangovers.” Id. The article states that the quote about “jazz flute” is from the film “Anchorman.” Id. However, the use of the slurs like “dyke,” and hate speech like “#gay is #ew” remain unexplained.   

[12] Claudia Vargas, City Council approves hate-crime measure, moves to regulate the use of drones, THE PHILADELPHIA INQUIRER  (Oct. 30, 2014), http://www.philly.com/philly/news/politics/20141031_City_Council_approves_hate-crime_measure__moves_to_regulate_the_use_of_drones.html

[13] Of course, there are crimes that prohibit aspects of what occurred, such as the PA assault statute, inter alia, that the suspects were charged under.  The assertion is that there is no hate crime legislation that is availing to the facts as alleged.  

[14] See, Josh Middleton, PA Legislative Session Ends with No LGBT Hate Crimes Law, PHILADELPHIA MAGAZINE (Oct. 23, 2014) http://www.phillymag.com/g-philly/2014/10/23/pa-legislative-session-ends-lgbt-hate-crimes-law/.  “The Pennsylvania legislative session has come to a close for the season and, much to the chagrin of PA LGBT advocates, there has been no action taken to include LGBT people in state hate crime laws.” Id.   

[15] See, e.g., US: Pennsylvania Hate Crime Bill Advances to Full House, PINKNEWS (Oct. 6, 2014) http://www.pinknews.co.uk/2014/10/06/us-pennsylvania-hate-crime-bill-advances-to-full-house/

[16] Pa. Stat. Ann. § 18 Pa.C.S.A. § 2710 (a):

Offense defined.--A person commits the offense of ethnic intimidation if, with malicious intention toward the race, color, religion or national origin of another individual or group of individuals, he commits an offense under any other provision of this article or under Chapter 33 (relating to arson, criminal mischief and other property destruction) exclusive of section 3307 (relating to institutional vandalism) or under section 3503 (relating to criminal trespass) with respect to such individual or his or her property or with respect to one or more members of such group or to their property. 

[17] Walter Perez, PA Lawmaker Comes Out as Gay Amid Push to Change Hate Crime Law, ABC ACTION NEWS PHILADELPHIA (Sept. 23, 2014), http://6abc.com/politics/pa-lawmaker-comes-out-as-gay-amid-push-to-change-law/320830/

[18] US: Pennsylvania Hate Crime Bill Advances to Full House, PINKNEWS, (Oct. 6, 2014) http://www.pinknews.co.uk/2014/10/06/us-pennsylvania-hate-crime-bill-advances-to-full-house/.  

[19] Middleton, supra note 14.  “The Pennsylvania legislative session has come to a close for the season and, much to the chagrin of PA LGBT advocates, there has been no action taken to include LGBT people in state hate crime laws.” Id.

[20] Id.

[21] Vargas, supra note 12. 

[22] Id.

[23] Angela D. Giampolo, Changing the State of Hate Crime Laws in Pennsylvania, THE LEGAL INTELLIGENCER (Sept. 29, 2014) http://www.thelegalintelligencer.com/id=1202671537351/Changing-the-State-of-HateCrime-Laws-in-Pennsylvania?slreturn=20140923231944.  “The Hate Crime Law was amended in 2002 to include sexual orientation, as well as gender identity and physical or mental disability, in the ethnic-intimidation statute, but the state Supreme Court struck down the expansion in 2008 on procedural grounds and they were all removed from the protection of Pennsylvania's hate-crime law.” Id.  See, generally, Marcavage v. Rendell, 936 A.2d 188 (Pa. Super. Ct.), aff'd, 951 A.2d 345 (Pa. 2008).

[24] See, e.g., 2011 Federal Sentencing Guidelines Manual, Chapter 3, Part A, §3A1.1. “Hate Crime Motivation or Vulnerable Victim.”  

(a)   If the finder of fact at trial or, in the case of a plea of guilty or nolo contendere, the court at sentencing determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property as the object of the offense of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, gender identity, disability, or sexual orientation of any person, increase by 3 levels. 

[25] 18 U.S. Code § 249 (a)(2) (a) – “Hate Crime Acts”

“(2) Offenses involving actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability.—

(A)  In general.— Whoever, whether or not acting under color of law, in any circumstance described in subparagraph (B) or paragraph (3), willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person[.]” 

[26] The authority of the Congress is limited to the enumerated powers of U.S. CONST. art. I, § 8.  More so, the Tenth Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  See U.S. CONST. amend. X.  Taken together, these provisions vest only limited powers in the federal government, with all remaining hours vested in the states.  

[27] 18 U.S. Code § 249 (b)(i)(I)-(II); The constitutional validity of this statute relies on the grant of Congressional authority under the Commerce Clause of the U.S. Constitution, and thus requires that interstate commerce be in some way implicated before the federal hate crime law can be invoked. Id.  One of Congresses enumerated powers is the authority “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”  See U.S. CONST. art. I, § 8, cl. 3. 

[28] “Hate-driven violence” is the term employed herein to describe an act of violence against a person, when that violence is motivated by gender or orientation based animus.  Hate crime is not technically applicable when there is no law that prohibits such violence in our context, so this article relies on “hate-driven violence” to refer to the underlying act AND motivation.  

[29] Lesbian, Gay, Bisexual, Transgender, Queer, and HIV-Affected Hate Violence in 2013, NATIONAL COALITION OF ANTI-VIOLENCE PROGRAMS (2014 ed.), available at http://www.avp.org/storage/documents/2013_ncavp_hvreport_final.pdf (last visited Oct. 23, 2014).  “While NCAVP documented a slight decrease in homicides in 2013, the severity of fatal violence against people of color, transgender women, and gender non-conforming LGBTQ and HIV-affected people remains alarmingly high and suggests these communities are at highest risk of homicide.”  Id. at 21.  

[30] Nizah Morris sustained a fatal head injury while in police custody in 2002.  See Mari Haywood, Philadelphia LGBT Community Asks What – or Who – Killed Transgender Woman Nizah Morris 10 Years Ago, GLAAD (April 23, 2013) http://www.glaad.org/blog/philadelphia-lgbt-community-asks-what-or-who-killed-transgender-woman-nizah-morris-10-years-ago.  There has been no arrest for the murder of Stacey Blahnik Lee, killed in 2010.  See Monica Roberts, Stacey Blahnick Lee Case Still Open Two Years Later, TRANSGRIOT (Oct. 11, 2012) http://transgriot.blogspot.com/2012/10/stacey-blahnik-lee-case-still-open-two.html.  There has been no arrest for the murder of Kyra Kruz (Kyra Cordova), murdered in 2012.  See Monica Roberts, Trans Sister Murdered in Philly, TRANSGRIOT (Sept. 11, 2012), http://transgriot.blogspot.com/2012/09/another-trans-sister-murdered.html.  Diamond Williams murdered in 2013, and Charles Sargent has been charged and is currently awaiting trial.  See Mari Haywood, Update: Diamond Williams, Transgender Woman Murdered in Philadelphia, GLAAD (July 23, 2013), http://www.glaad.org/blog/update-diamond-williams-transgender-woman-murdered-philadelphia#main-content.  

[31] Queen Muse, Loved Ones Celebrate Life of Slain Transgender Woman, NBC10.COM (July 24, 2013), http://www.nbcphiladelphia.com/news/local/Loved-Ones-Celebrate-Life-of-Slain-Transgender-Woman-216696921.html.  

[32] Id.  One commentator stated, “every time a transgender or gay person is murdered its [sic] overlooked, and no one cares.”  Id.

[33] Philadelphia Trans Woman, Diamond Williams, Murdered & Further Violated by the Media, PITTSBURGH LESBIAN CORRESPONDENTS, (last updated July 22, 2013) http://www.pghlesbian.com/2013/07/philadelphia-trans-woman-diamond-williams-murdered-further-violated-by-the-media/.  

[34] Id.

[35] See, e.g., Tony Hanson, Trial Ordered in Murder of Philadelphia Transgender Man, CBSPHILLY (Oct. 8, 2014),

http://philadelphia.cbslocal.com/2014/10/08/trial-ordered-in-murder-of-transgender-philadelphia-man/. Transgender man is entirely incorrect, and refers to “a transgender individual who currently identifies as a man.” Id. See also, supra note 2.

[36] Media Resources for Covering Hate Crimes: About Hate Crimes Coverage, THE TRANSGENDER LEGAL DEFENSE AND EDUCATION FUND, http://www.transgenderlegal.org/page.php?id=60 (last visited Oct. 23, 2014). The Transgender Legal Defense and Education Fund (TLDEF) explains that media tends to rely on what they call a “blame the victim” narrative or strategy when reporting on crimes against transgender individuals. Id. TLDEF defines the blame the victim strategy as, “[t]he justification of an act of anti-transgender violence based upon the allegation that the victim “deceived” the attacker about the victim's gender. Id. This blames the victim of the hate crime instead of the attacker and appeals to potential bias against transgender people, suggesting that a violent (or even murderous) response is appropriate.” Id.

[37] See, e.g., Police: Man Charged With Killing, Dismembering Transgender Lover, MYFOXPHILADELHPIA.COM (Aug. 3, 2013), http://www.myfoxphilly.com/story/22890945/police-man-charged-after-killing-dismembering-transgender-lover. Despite the title of the article acknowledging that the victim, Diamond Williams, was transgender, the article states, “Sources say they believe the victim may have been a male prostitute.” (emphasis added). Id. Additionally, media statements like, “[p]olice say the victim in this deadly attack was his transgender lover, but Sargent is telling them they didn't know that a transgender lover was actually a man,” perpetuate transphobia. (emphasis added). Diamond Williams was not a man. Diamond Williams was a transwoman; Diamond Williams was a woman. Id.

[38] See, e.g., Michael Walsh, Philadelphia Man Busted in Killing and Dismembering of a Transgender Prostitute, NEW YORK DAILY NEWS, (July 20, 2013) http://www.nydailynews.com/news/crime/man-busted-killing-dismembering-cross-dressing-male-prostitute-article-1.1404460. The author refers to the victim, Diamond Williams, as a “prostitute,” “transgender prostitute,” and “hooker” at least three times before using her name.  Id. The article also perpetuates the problematic narrative that Williams’s non-disclosure that she “used to be a man,” is something that, as a matter of course, inspires retaliation. Id. While the author certainly does not excuse the behavior of the accused, the author’s focus on the victim’s trans status and purported sex work clearly undermines the perceived culpability of the alleged-murderer, seems intended to cast some penumbra of guilt on the victim, and makes Diamond Williams’s story about the offensive and archaic “she tricked me trope,” or what TLDEF calls the “blame the victim strategy,” rather than about a woman brutally murdered by virtue of some immutable aspect of who she is. Id. The author continues, “Charles Sargent, 43, thought he had sexual relations with a biologically female hooker and allegedly grew enraged after he found out that she was used to be a man.” Id.

[39] See, generally, REPRESENTATION: CULTURAL REPRESENTATIONS AND SIGNIFIFYING PRACTICES (Stuart Hall ed., SAGE Publ’ns Ltd., 1997). 

[40] About TDOR,  TRANSGENDER DAY OF REMEMBRANCE WEBSITE, http://tdor.info/about-2/ (last visited Oct. 15, 2014).

[41] See, NATIONAL COALITION OF ANTI-VIOLENCE PROGRAMS, supra note 29.

[42] Definition of CISGENDER in English, OXFORD DICTIONARIES, http://www.oxforddictionaries.com/us/definition/american_english/cisgender (last visited Oct. 23, 2014). “Denoting or relating to a person whose self-identity conforms with the gender that corresponds to their biological sex; not transgender[.]” Id.

[43] INJUSTICE AT EVERY TURN: A REPORT OF THE NATIONAL TRANSGENDER DISCRIMINATION SURVEY, 158, (Jamie E. Grant et al., National Center for Transgender Equality and National Gay and Lesbian Task Force 2011), available at http://www.thetaskforce.org/static_html/downloads/reports/reports/ntds_full.pdf (last visited Oct.15, 2014).

[44] Id.

[45] Id.

[46] Id. at 2, 6.

[47] Memphis- No Justice for Transgender Murder Victims, TRANS*VIOLENCE TRACKING PORTAL, http://www.transviolencetracker.org/index.php/articles/107-memphis-no-justice-for-transgender-murder-victims (last visited Oct.15, 2014).

[48] See, NATIONAL COALITION OF ANTI-VIOLENCE PROGRAMS, supra note 29.

[49] Id. at 22.

[50] Id.

[51] Diane Anderson-Marshall, 13 Transgender Americans Murdered in 2012, Advocate.Com (Nov. 20. 2012), http://www.advocate.com/politics/transgender/2012/11/20/13-transgender-americans-murdered-2012?page=full.

[52] About TDOR, TRANSGENDER DAY OF REMEMBRANCE WEBSITE, http://tdor.info/about-2/ (last visited Oct. 15, 2014).

[53] Id.

[54] The Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009, THE UNITED STATES DEPARTMENT OF JUSTICE- CIVIL RIGHTS DIVISION, http://www.justice.gov/crt/about/crm/matthewshepard.php (last visited Oct. 15, 2014) (citing 18 U.S. Code § 249 (a)(2)). The federal statute offers more expansive protection of victims; in that it also protects those targeted based on actual or perceived gender, sexual orientation, or gender identity.

[55] Id. (emphasis in original).

[56] Id.

[57] 18 U.S. Code § 249 (a)(2)(B).

[58] See, supra note 54..

[59] 18 Pa. Cons. Stat. Ann. § 2710 (a).

[60] Id.

[61] 18 U.S. Code § 249 (a)(2)(a).

[62] Tim Cwiek, Death Penalty Not Off Table in Trans Slaying, PHILADELPHIA GAY NEWS, (Sept. 11, 2014), http://www.epgn.com/news/local/7912-death-penalty-not-off-table-in-trans-slaying. “Sargent is charged with murder, abuse of corpse and possessing an instrument of crime, but not a hate crime.” Id. When Assistant District Attorney, Geoffrey W. MacArthur, was asked about whether the State would pursue a hate crime charge, after a scheduling adjournment of a preliminary hearing, he responded, “I’ll certainly research that issue, to determine if a bias-crime charge is appropriate.” Id. This occurred after Sargent’s mental competency hearing, where he was found competent to stand trial in July of 2014. Id. It seems, that pursuing hate crime charges is an afterthought, which has not even been researched or fully considered by the prosecutor in the case. Id.

[63] Victoria Law, Anti-Transgender Violence: How Hate Crime-Laws Have Failed, TRUTH-OUT.ORG (Sept. 18, 2011), http://www.truth-out.org/news/item/3320:antitransgender-violence-how-hatecrime-laws-have-failed. “Despite hate-crime laws, the combination of transphobia and racism makes transgender people of color more likely to encounter police indifference when reporting violence, and three times more likely to experience hate violence from police than white transgender or non-transgender people of color. The National Coalition of Anti-Violence Programs found that 8 percent of hate violence against transgender people of color in 2010 was committed by police officers.”

[64] Cwiek, supra note 62.

[65] See, supra note 54, where the Civil Rights Division of the United States Department of Justice discusses the applicability of the federal hate crime law, noting it only applies when the commerce clause has been implicated as a jurisdictional requirement.

[66] See, Voter Information for November 2014, EQUALITY PENNSYLVANIA, http://equalitypa.org/voter-information-for-november-2014/ (last visited October 24, 2014). “In spite of overwhelming support in both chambers of the legislature for nondiscrimination protections and a massive outcry for including LGBT people in hate crimes protections, the state legislature took absolutely NO action to protect LGBT people from discrimination over the past two years. That’s why we need leaders who will fight for us.” Id.

[67] For court updates on the Charles Sargent trial, see, Commonwealth of Pennsylvania v. Charles N. Sargent, Criminal Docket Number: MC-51-CR-0028140-2013, MUNICIPAL COURT OF PHILADELPHIA COUNTY, available at https://ujsportal.pacourts.us/DocketSheets/CPReport.ashx?docketNumber=MC-51-CR-0028140-2013 (For court updates on the Charles Sargent trial).