Whereas demarcating a category in the law for crimes animated by a desire to inflict some form of harm on a member of a group characterized by its racial heritage or religious beliefs may rest comfortably with most Americans, who tend to react negatively against racial or religious bias, the inclusion of sexual orientation and gender identity as categories has proved more challenging, perhaps because of the ambiguous social status of gay men, lesbians, and persons in American society, or, in the case of gender, the question of whether it is appropriate to consider crimes of rape or domestic violence, already fairly well-delineated in the criminal law, as hate crimes against women.

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Although the categories sexual orientation and gender identity do not specify which orientations or identities are protected (and indeed all orientations and identities are covered when such categories are included in hate crimes legislation), it is often assumed that such categories convey some kind of "special" rights on homosexuals or transgendered persons.

The challenge has been to persuade Americans that crimes against gay men, lesbians, or transgendered people, when motivated by animus towards all homosexuals or towards homosexuality in general, or toward all transgendered people, merit condemnation, just as do crimes motivated by racial or religious animus.

The Problem

The problem of violence directed against gay men and lesbians and those who do not conform to gender expectations is a serious one. Gay bashing is pervasive in many areas of the world and in the lives of most glbtq people.

The National Gay and Lesbian Task Force released a report in 1984 that documented the extent of violence directed against glbtq people in the United States. Based on a survey of nearly 2,000 gay men and lesbians in eight cities, the report indicated that almost all of the respondents had experienced some form of verbal, physical, or property-related abuse.

Gay men, lesbians, and transgendered people are less likely to report abuse than other groups, largely because of fear of police brutality or public exposure. Some sources indicate that as much as 90 percent of all antigay crime goes unreported.

In response to the problem of violence directed toward members of the glbtq community, many organizations, usually in larger cities, have formed anti-violence task forces and patrols, aimed at creating safe spaces for members of the community, opening dialogue with police authorities, and gathering statistics regarding the prevalence of hate crimes in the glbtq community. Others have monitored courtrooms to make certain that individuals charged with hate crimes are prosecuted fully. Still others have campaigned for hate crimes legislation.

Although the move for hate crimes legislation began in the mid-1980s, some particularly graphic examples of hate crimes against glbtq people in the 1990s gave urgency to the movement, especially the gruesome murders of lesbian crossdresser Brandon Teena in 1993 (the subject of Susan Muska and Greta Olafsdottir's documentary The Brandon Teena Story [1997] and Kimberly Peirce's feature Boys Don't Cry [1999]), Wyoming college student Matthew Shepard in 1998, and Alabama textile worker Billy Jack Gaither in 1999.

Although these brutal murders were all too familiar to glbtq people, they garnered a great deal of media attention. They thereby made the problem of antigay violence real for the larger public.

Today, 29 states and the District of Columbia have hate crimes statutes that include sexual orientation. Eight states also include gender identity protection, while another 17 states have hate crimes statutes that do not include either sexual orientation or gender identity. Four states have no hate crimes legislation whatsoever.

Federal Hate Crimes Legislation

Perhaps the most important development in hate crimes law is the adoption of federal hate crimes legislation.

The Hate Crimes Statistics Act took effect in 1990, having been signed into law by President George Bush at a public ceremony in the Rose Garden of the White House, the first ceremony there officially to include members of the gay and lesbian community.

This law asks local law enforcement officials, on a voluntary basis, to gather and maintain statistics on the incidence of hate crimes, including those motivated by bias on the basis of sexual orientation, so as to ascertain the extent of the problem and whether to legislate further hate crimes laws. In 2001 there were 9,730 hate crimes reported by the F. B. I. in its Uniform Crime Report, about 14% of which were based on sexual orientation.

The Hate Crimes Sentencing Enhancement Act took effect in 1994, and provides for perhaps the most controversial aspect of any hate crimes legislation, an enhanced penalty for convicted perpetrators of hate crimes, but it did not cover sexual orientation, gender, or disability as categories to be protected.