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Was Shelby Tom's Death a Hate Crime?

Advocates say yes. But the fight to include violence against transgender people in hate crime law continues.

By Stephanie Law and Krystle Alarcon, 19 Oct 2011, TheTyee.ca

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March on Vancouver's Transgender Day of Remembrance.

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[Editor's note: This is the third article in a Tyee series about past crimes and unexpected consequences in Vancouver. Find an introduction to the series here].

Shelby Tracy Tom's dead body was found wrapped in a mattress cover and stuffed into a shopping cart behind a dingy motel in North Vancouver in May 2003.

Jatin Patel served a nine-year sentence in prison for killing Tom, a transgender sex worker.

They met on the night of May 27, in the North Vancouver Travelodge. Patel paid Tom $400 and started having sex with her, according to an agreed statement of facts entered into court records.

Patel allegedly panicked after he noticed Tom's sex-change scars. He choked her to death.

It is the most recently reported murder of a transgender person in Vancouver.

Friends described Tom as generous with her money and kind with children. They said she graduated with a history degree from Simon Fraser University the same year she died, and wanted to become a social worker to help transgender people.

While her life ended prematurely, her tragic, widely unreported death could provide evidence for current debates over laws, language and the need to make transgender and transsexual rights explicit.

The "gay panic" defence

Transgender advocates said Tom's murder was motivated by hate, but B.C. Supreme Court Justice Patrick Dohm ruled against a hate crime designation in 2005.

"This case is about a reaction to a sex trade worker's sexual identity," Crown prosecutor Craig Dykes told Dohm, in making the hate crime application. "It was a prejudiced or bias-based response."

However, Dohm disagreed that the crime was motivated by hate, and ruled that it was committed as a result of panic from being provoked.

"The accused acted on an impulse and became obviously angry to the point where he could not bring it under control and struck out at Miss Tom," Dohm said in his court ruling.

Jamie Lee Hamilton, an advocate for transgender sex workers and a friend of Tom's, said she was angry that Patel got away with what she considers a "gay panic" defence.

Defendants use the panic defence to reduce their sentences in assault and murder cases, claiming they "panicked" after discovering the victim's gender identity or sexual orientation.

New Zealand's parliament outlawed the panic defence in November 2009. Similarly, the State of California passed a bill in September 2006 to limit jurors and judges from considering the defence.

However, the defence remains legally valid in Canada, albeit with a low success rate.

"These types of crimes are not going unnoticed," Hamilton said. "The perpetrators need to be charged with hate crime."

Moves toward equality

That's why advocates of transgender rights are trying to amend Canada's Human Rights Act and the Criminal Code to protect the rights of transgender and transsexual people.

There are two bills in Parliament, Bill C-276 and Bill C-279, that would ensure crimes committed against people because they are transgender or transsexual are treated as hate crimes. The first was introduced by Liberal Party MP Hedy Fry and the latter by NDP MP Randall Garrison.

The bills also prohibit discrimination on the basis of 'gender identity' or 'gender expression' anywhere.

Both bills are re-introductions of another, Bill C-389, that had passed a parliamentary vote on Feb. 9, 2011. But that earlier bill failed to make it through Senate before Parliament dissolved for the May 2 election.

The result of Tom's trial might have been different if these amendments passed before her death.

"Minorities, especially those who haven't been clarified or who aren't recognized in Canadian law, often hesitate to report incidents when they are victims of hate crimes," said former MP Bill Siksay, who tabled the Bill C-389 in 2009.

Police reported no hate crimes in 2007 that were targeted based on sex or gender. They reported six both in 2008 and 2009, according to a 2011 report published by Statistics Canada.

"Police look at an incident and ask if it targets somebody for certain characteristics," said Warren Silver, analyst at the Canadian Centre for Justice Statistics. "So hate crimes against transsexuals and transvestites would fall under gender and not sexual orientation."

However, Siksay said that there isn't consistency in reporting these incidents among police organizations.

"I think there is an issue in Canada around the collection of hate crime statistics," he said. If the laws were amended, it would be "an opportunity to press for a change in how we gather statistical information about those kinds of crimes."

NDP MP Randall Garrison, who along with Hedy Fry had re-introduced the private member's bill, said he's optimistic the bill could make it through Parliament again.

"The challenge is to get it through the House of Commons with a Conservative majority," Garrison said. "I think it's possible." The bill passed the House last time around in a 143 to 135 vote. Of those who voted in favour, six were Conservative MPs.

"Based on the fact that some Conservatives did vote in favour of it last time, I think we can find the support," Garrison said. "And I'll certainly work as hard as I can to make sure of it."

As the bill heads towards its first vote, opponents will likely rejoin the debate and voice their concerns over its legitimacy.

"The terms 'gender identity' and 'gender expression' in the bill are unclear and we're not in favour of bills being passed that are open-ended in this sense," said Diane Watts, researcher with REAL Women, a national organization with over 55,000 members across Canada.

Nathan Cooper, assistant to the executive director of Canada Family Action, echoed Watts' concerns.

"We are obligated, as a country, to build public policy that is clear and concise so that the court of law can interpret it easily," Cooper said. "I don't think that individual feelings per se can be legislated or ought to be legislated."

However, the International Commission of Jurists and international human rights experts did formally defined the terms, outlined in the 2006 Yogyakarta Principles.

Gender identity is the gender a person feels or experiences regardless of their biological sex, and gender expression is how people portray themselves through the way they dress, talk and act, according to the principles.

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