If Omar Mateen had been apprehended alive after the Pulse nightclub massacre, Florida prosecutors would have been able to enhance his punishments with state hate crime legislation. His misdemeanor and felony charges would all be bumped up a degree. Any of his first-degree misdemeanors would become third-degree felonies. He would already been guaranteed to spend life behind bars for murdering 49 clubgoers, of course, but symbolically speaking, adding extra centuries to his prison sentence would have sent a powerful message of protection to a badly-shaken LGBT community.
In the wake of the Pulse massacre, public attention has rightly turned to gun laws, with Democratic House members staging a sit-in over the House’s inaction on the issue. But after Orlando, it’s also obvious that state-level hate crime laws are also in dire need of strengthening.
For LGBT people living in the United States, hate-crime laws are a messy patchwork system. The majority of states have hate crime laws, but only some are inclusive of sexual orientation and even fewer cover gender identity.
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According to data from the Human Rights Campaign (HRC), 20 states do not enhance penalties for crimes motivated by a victim’s sexual orientation. Thirty-four states lack penalty enhancement for crimes targeted at transgender people. These figures include five states that have no hate-crime laws at all: Georgia, South Carolina, Wyoming, Indiana, and Arkansas.
The categories of race, religion, and ethnicity are protected in almost every state that has a hate crime law. But LGBT people are excluded in many — even though they are now the most probable target for hate crimes.
As the New York Times reported last week, FBI statistics from 2014 show that LGBT people are now more likely than Jews, Muslims, African-Americans, Asians, and Latinos to be victims of a hate crime. Black transgender women of color are especially likely to be killed. In 2015 alone, a record 21 transgender people were murdered in the United States, primarily young trans women of color. All together, one in five hate crimes reported to the FBI in 2014—the most recent year on record—were based on sexual orientation or gender identity. The picture is as clear as it is frightening: LGBT people are the most likely to be targeted with hateful violence, and the least likely to be protected from it.
The federal Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, which President Obama signed in in 2009, can sometimes provide assistance when states do not have the means to investigate or prosecute a hate crime.
For example, U.S. Attorney General Loretta Lynch brought hate crime charges against white supremacist and domestic terrorist Dylann Roof, who perpetrated the Charleston church shooting, last July. As CNN reported at the time, South Carolina could not charge him with a hate crime because it had—and still has—no applicable laws. But the Shepard/Byrd Act is far from a perfect solution for the many gaps in state-level legislation. The HRC perceives it as a “backstop,” not a replacement for state enforcement. And as the HRC notes, the Justice Department can only prosecute a tiny fraction of the thousands of hate crime cases reported to the FBI each year.
States could easily fill in the gaps on their own by simply adding categories to their current hate crime laws. But they still aren’t doing so.
As recently as this February, the Utah state legislature turned down a simple measure that would have enhanced penalties for crimes motivated by both anti-religious and anti-LGBT bias. Utah Governor Gary Herbert said of the measure, “If I kill you, you’re just as dead whether I hated you or I love you and killed you.” And in the wake of the Orlando shooting, most of the governors of the five states that have no hate crime legislation whatsoever merely offered “prayers.”
Much like requiring universal background checks for gun purchases, expanding hate crime legislation to include LGBT people is hardly controversial. As long ago as 2007, 68 percent of Americans supported fully LGBT-inclusive federal hate crime legislation, according to Gallup polling. More recent polling on that question is not available but CBS polling on the Pulse shooting suggests that the vast majority of Americans perceived it as a hate crime: 54 percent said it was both terrorism and a hate crime and an additional 25 percent said it was mostly a hate crime.
After the deadliest mass shooting in U.S. history was perpetrated in a gay nightclub on Latin night, there are no more excuses for state hate crime laws that protect some groups while leaving LGBT victims to rely on federal law.
Three Democratic U.S. senators announced on Tuesday that they want to boost funding to the Justice Department’s Civil Rights Division as a result of the Pulse massacre but, so far, with limited exceptions like Milwaukee State Senator Tim Carpenter, state representatives have been quiet about revisiting their hate crime legislation.
Making even slight changes to U.S. gun laws appears to be something of a brick wall, with the Senate voting down a background check measure just days after the Pulse shooting. In the meantime, it would be simple for states to respond to the tragic events of Orlando by expanding their hate crime legislation.
It is, quite literally, the least they could do.
