The evidence came in what may be a mostly-overlooked study of the New Orleans Police Department, but the shift in how the U.S. Department of Justice (DOJ) is now thinking about anti-LGBT bias represents a profound and very important shift, particularly for transgender people.
The 150+-page “Investigation of the New Orleans Police Department” covers anti-LGBT police bias only briefly, and doesn’t say much that the National Coalition of Anti-Violence Programs and our own people have been saying for years: there’s a lot of police bias against LGBT people, particularly when we’re African-American and/or transgender. What’s different is that DOJ is now viewing discrimination based on sexual orientation and gender identity as needing the same level of justification as that based on race and sex.
The MetroWeekly reported, “The report represented the first time that DOJ applied its Feb. 23 conclusion that sexual orientation government classifications are subject to heightened scrutiny [the analysis that led to the Obama Administration’s decision not to defend the constitutionality of the Defense of Marriage Act] in the course of using its investigatory authority to examine potential constitutional violations by state and local law enforcement.
“Additionally – and also for the first time – DOJ announced that the heightened scrutiny that it concluded applies to sexual orientation classifications also applies to classifications based on gender identity.”
MetroWeekly later goes on to say, “…DOJ spokesperson Xochitl Hinojosa told MetroWeekly that DOJ’s authority for investigating allegations of LGBT discriminatory policing came from ’42 U.S.C. Sec. 14141 using the 14th Amendment.’”
Here’s how MetroWeekly interprets the importance of that statement: “The Fourteenth Amendment is the provision of the Constitution that guarantees the equal protection of the laws, and the statutory provision referenced makes it illegal for any state or local government ‘to engage in a pattern or practice of conduct by law enforcement officers…that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.’”
“With this report, therefore, DOJ has established that it will apply heightened scrutiny not only to federal laws but also to state or local government laws or practices that discriminate based on sexual orientation or gender identity – and that it will investigate, and could potentially prosecute, those claims when it deems warranted.”
The article also quotes FORGE board member and National Center for Lesbian Rights’ staffer Shannon Minter on the importance of these changes. The article is available at http://www.metroweekly.com/news/?ak=6104; the New Orleans report itself is available at http://www.justice.gov/crt/about/spl/nopd_report.pdf.