Lessons Learned: The Fight to Pass Hate-Crimes Legislation

This story is the first in a series on challenges faced and victories achieved in the fight for LGBT equality. This battle continues, especially with Donald Trump as president-elect, but we won't win unless we learn from the past.

It was a tragedy that shocked the nation and spurred it to action: a 21-year-old gay college student, beaten nearly to death and left hanging on a fence, dying six days later.

The murder of Matthew Shepard in 1998 in Laramie, Wyo., attracted far more attention than most other hate crimes before or since. Perhaps it was the sheer viciousness of the attack; perhaps it was his small stature and vulnerability; perhaps it was his "relatability" -- which, to some people, arose from his being white and middle-class.

But in any case, Shepard's death renewed the call for hate-crimes laws that covered crimes motivated by the victim's sexual orientation, actual or perceived, and, later, led to a call for laws to include crimes based on the victim's gender identity. It resulted in Congress passing and President Obama signing the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, the first pro-LGBT federal law. The journey to getting the law passed, however, wasn't quick or easy.

It didn't make it through Congress until 2009, 11 years after Shepard's death, and calls for a gay-inclusive hate-crimes law had been coming from organizations such as the Anti-Defamation League for several years before his murder, notes Judy Shepard, Matthew's mother; one was even introduced in 1997 by Sen. Edward Kennedy of Massachusetts. She testified before Congress in 1999 about the need for such a law, and at the time thought because it had the support of President Bill Clinton, it would be an easy sell.

But no such legislation passed during Clinton's presidency, which ended in 2001. "I thought, initially, that if the president supports it, Congress will fall in line," says Judy Shepard, now board president at the Matthew Shepard Foundation, which she and her family set up to address hate crimes and other LGBT and social justice issues. "The lesson I learned is that you really do have to educate the constituents."

While learning that more than presidential support was needed, Shepard and her allies also saw that presidential opposition could be an insurmountable barrier. George W. Bush opposed expanding the federal hate-crimes law, so while several members of Congress introduced bills with this goal during his presidency, none of the legislation made it to his desk. The original federal hate-crimes law, passed in 1968, covered crimes motivated by the victim's race, religion, or national origin only.

Barack Obama's election as president in 2008 gave advocates renewed hope. "If ever there was a man who understood social injustice, it would be him," Shepard says.

New versions of an LGBT-inclusive hate-crimes bill were introduced in both houses of Congress in the spring of 2009. The bill, named in honor of Matthew Shepard and James Byrd Jr., a black man dragged to death behind a truck in Texas in 1998, passed both houses in October, as an amendment to a defense spending bill, and was signed into law by Obama that month. But it took more than presidential support to get it passed.

Several champions of the bill were well-known Democrats -- including Rep. John Conyers of Michigan, Sen. Patrick Leahy of Vermont, and Kennedy, who would die of brain cancer in August 2009, before the legislation's enactment. But it had Republican support as well, albeit in smaller numbers, mainly from moderates such as Rep. Charlie Dent of Pennsylvania and Sen. Olympia Snowe of Maine.

A notably conservative Republican who supported earlier versions of the bill but had left office by 2009 was Sen. Gordon Smith of Oregon, who once had the backing of the deeply antigay Oregon Citizens Alliance. "I'm something of an enigma to the gay and lesbian community," Smith told The Advocate in 2001, when one of the earlier versions of the bill was pending. "I'm someone who has evolved in this issue. I have always been and have remained a religious person myself [Smith is Mormon], someone who believes in and practices family values in a traditional sense. But my faith also teaches me the principle to love one another."

So what does it take to make lawmakers "evolve" on this issue? For one thing, making the tragedy of hate crimes real and relatable to them, Shepard says. "We have to make this personal and continue to tell our own stories," she says.

During the years it took LGBT-inclusive hate-crimes legislation to pass, she had to endure hearing many right-wing activists say it would create a category of "thought crimes" and result in punishment of, for instance, ministers who preach against homosexuality. (It didn't.) She knew, she says, that people who held this belief had never experienced what she and her family went through. Her response to them, she says, is that "Matt wasn't killed by words or thoughts -- he was killed by actions."

In practical terms, the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act empowers the federal Department of Justice to gather data on crimes motivated by sexual orientation or gender identity, and to help local law enforcement units investigate and prosecute such crimes, or handle the investigation and prosecution if local officials cannot or will not. Whether a hate-crime conviction leads to enhanced punishment is generally up to each state, and state hate-crimes laws are a patchwork when it comes to LGBT inclusion.

Passage of the Shepard-Byrd Act began a run of pro-LGBT actions by the Obama administration, including repeal of "don't ask, don't tell" and signing of executive orders banning employment discrimination by the federal government and its contractors -- and the appointment of two Supreme Court justices who were part of the majority decision for nationwide marriage equality. But soon Donald Trump, whose ideology is far different ideology from Obama's, will take office as president. "Never did I expect there to be a 180-degree turn in administrations," Shepard says.

She is understandably concerned that a Trump administration will seek to reverse the gains made in the Obama years. "I'm very worried, given his Cabinet picks," she says. "The gentleman he picked for attorney general [the staunchly anti-LGBT Sen. Jeff Sessions] -- could he have found anybody worse?"

Staying vigilant, personalizing the issues, and speaking out will be some of the ways to guard against going backward under Trump, she says. "We have to pay attention; we have to let our voices be heard," she says. She points to congressional Republicans' recent abandonment of plans to close the independent Office of Congressional Ethics, after much public outcry, as evidence that speaking out is effective.

"Everybody can make a difference," she says. "And everybody should try."