New Protections for LGBTQ Americans, Many Challenges Still Ahead
Last fall, a reauthorization of the Violence Against Women Act took effect. The changes in the law will have strong repercussions within the lesbian, gay, bisexual, transgender and queer communities in North Carolina.
By Taylor Sisk
Violence occurs within intimate relationships in this country at a rate of about once every two-and-a-half seconds. It happens in couples of all persuasions.
According to a 2010 Centers for Disease Control and Prevention survey, the prevalence of rape, physical violence and stalking is roughly equal for heterosexual and same-sex couples. Just under 44 percent of lesbians reported having experienced intimate-partner violence, as compared with 35 percent of heterosexual women. For gay men, it was 26 percent, compared with 29 percent of heterosexuals.
But here’s where circumstances diverge: People who identify as lesbian, gay, bisexual, transgender or queer have not received equal legal protection from this violence. There are a number of reasons why.
Many LGBTQ victims choose not to report incidents of intimate-partner violence in the first place. They may fear being outed, can’t count on their family’s support or are convinced that the criminal-justice system will extend no justice.
That’s a system that has tended to categorized violent behavior between two women in a relationship as a “cat fight,” and violence between male partners as surely a fair fight, to be resolved man to man.
Issues arise with protective services as well. According to another 2010 survey, this one conducted by the National Coalition of Anti-Violence Programs, 45 percent of victims of violence who identified as LGBTQ were denied services when seeking help from a domestic-violence shelter and almost 55 percent were denied protection orders.
On Oct. 1, a reauthorized version of the Violence Against Women Act (VAWA) took effect. Included are provisions designed to address the disparity in justice that exists for the LGBTQ community. The reauthorization adds language stating that all VAWA-funded services and programs must be made available regardless of actual or perceived sexual orientation or gender identity. It also opens opportunities for grant money to promote education, training, services and outreach.
“Awareness of same-sex interpersonal violence is relatively new,” said Terri Phoenix, director of the LGBTQ Center at UNC. “Just in the past year and a half, it’s become more visible, and people are starting to pay attention.”
The VAWA reauthorization codifies those changes.
For the first time since VAWA was introduced in 1994, the law was allowed to expire at the end of 2012, in large measure due to opposition in the House of Representatives to protections for the LGBTQ community.
Legislators claimed that VAWA was being expanded to special interest groups, that LGBTQ advocates were expecting special privileges, said Deborah Weissman, UNC’s Reef C. Ivey II Distinguished Professor of Law.
“When, in fact,” she said, “we’re just making sure that the law properly covers all persons subjected to domestic violence.”
Advocates pushed, and with the persistence of a few notable members of the Senate, most particularly Patrick Leahy of Vermont, the reauthorization passed with the new protections intact.
“I think they thought that if they continued to push back, that we would take it all out,” said Debby Tucker, executive director for the National Center on Domestic and Sexual Violence, “and we just didn’t.”
Progress in addressing domestic violence has come in increments. The Violence Against Women Act was the first federal legislation that recognized domestic violence and sexual assault as crimes. It provided funding to address these issues within communities.
Reauthorizations in 2000 and 2005 provided legal assistance, prevention measures, housing protections and funding for rape crisis centers.
Researchers now know that in addition to the immediate consequences, domestic violence contributes to higher incidences of alcohol and drug abuse, compromised pregnancies, depression, suicide and much more.
But equal justice continued to elude those in LGBTQ partnerships.
‘Person by person’
Kat Wies, lesbian caucus leader for the N.C. Coalition Against Domestic Violence, knows how place-specific the implementation of protections for those who veer from the mainstream can be.
You’ll find advocates for LGBTQ folks in all pockets of the state, she said, even the most rural. The language now in VAWA that addresses these individuals’ protection will help those advocates convince judges that an arbitrary interpretation of the law probably isn’t, ultimately, a good idea.
“The advocate is now able to be, like, ‘You know, we could really take this case a long way if you discriminate against this person right now,’” Wies said.
“Just that simple mention in the back hall, ‘This could really be a big mess if you decide to act like you don’t understand it,’” she said, can be grist for the mill of justice.
These provisions, Tucker said, will “put it out there to law-enforcement officers, prosecutorial offices, judges and so on that there is an expectation that they afford the same protections regardless of the partner and the relationship, and that they redesign their strategies for intervening to take that into account.”
It’ll take awhile, she said, “but over time, what we should begin to see is policy, practice and training changes that support the effective implementation of this.”
Tucker agrees with Wies that it’s going to take a lot of handholding.
“So much of policy change becomes personal at the local level,” she said. “I’ve had judges say, ‘Oh, well, that’s not the law in this county.’ And so you have to help them sometimes to understand that there’s a wave here, and that they want to be a part of it, and that they want to do the right thing.
“I don’t like going person by person, but sometimes that’s necessary to get things done.”
Weissman stresses that legal protections are only part of addressing domestic violence.
“While VAWA is an incredibly important statute,” she said, “it really focuses on criminalization,” and those who’ve gotten no satisfaction from the criminal-justice system will remain wary.
Weissman believes that breaking down the walls of discrimination also requires the development of social policies that address poverty prevention and economic assistance and provide services where they’re most needed.
In a paper titled, “Law, Social Movements, and the Political Economy of Domestic Violence,” she wrote: “Under current economic conditions, including chronic under- and unemployment, declining wages, and diminishing benefits, consideration of these circumstances is vital to a fuller understanding of domestic violence.”
Meanwhile, day-to-day the challenges are considerable. Take domestic-violence shelters, for example.
“That’s a huge area, where we have some major challenges,” UNC’s Terri Phoenix said. “Trans-identified individuals really struggle with accessing shelters and feeling safe in doing that.”
Consider that you were born female, but now present to the world as male. Where do you turn for immediate safety from abuse?
“Anywhere that you have segregated services on the basis of sex or gender, that is really challenging for trans-identified individuals,” Phoenix said. “It’s challenging for lesbian and gay individuals, but in different ways than for trans-identified individuals.”
“How and whether shelters will deal with the challenges remains to be seen,” Weissman said. “And when they don’t, what sorts of avenues for redress will be available for individuals who are discriminated against?”
“No one is exempt from following the law,” she said. “Nondiscrimination is nondiscrimination; it doesn’t matter if you think you’re the good guy – you just can’t.”
‘Live and let live’
These challenges are now more regularly being addressed, Phoenix said, “and I think that this requirement that resources and services be inclusive will bring those even more to the forefront.”
Fundamental change takes time, Tucker said: “What we should begin to see is policy, practice and training changes that support the effective implementation of this. State coalitions and local domestic-violence and other kinds of helping agencies are going to have to get in there and support this and push for it to actually get implemented.”
Phoenix is on a UNC task force that addresses sexual assault, sexual violence and discrimination policy, and said the VAWA reauthorization will provide additional incentive to the university community to be inclusive in its approach to these issues.
“The reauthorization gives a backbone and a requirement to do that, whereas we did not have such a clear requirement before,” she said.
Tucker believes that the tide of tolerance in matters of gender identity and sexual orientation has turned: “I think there are people who are incredibly resistant still, but I think your regular, on-the-street person says live and let live …
“This is just a federal recognition that the world is changing.”