Rush McKenzie lives in what seems like endless summer, just blocks away from the beach in Santa Barbara, California. His three-story apartment complex—with a stone courtyard and palm trees in every direction—is one of the few Section 8 complexes for low-income workers in a city that’s known to be prohibitively expensive. Many of the residents couldn’t move, even if they wanted to. But where his neighbors might joke that they’re trapped in paradise, McKenzie feels trapped in purgatory—harassed by his neighbors, he says, for being trans. He feels the legal system has sided with his harassers.
By McKenzie’s account, the residents in the apartment next door have stalked and harassed him for over a year. The problems reportedly started last Thanksgiving, when he began wearing men’s clothing. McKenzie, now 35, has been out to friends and family as transgender since he was a teenager. His father was in the Air Force, and like most military families, they moved around a lot, from Denver to Japan. After McKenzie settled in Santa Barbara in 2006, he decided to live publicly as the man he’d known himself to be for two decades. Last year, he started buying men’s t-shirts, as well as a white and green plaid flannel that still hangs in his closet.
His neighbors attend a local non-denominational church popular in the town, one that McKenzie attended prior to coming out, and he claims that the congregation didn’t respond well to his decision to live openly as a trans man. According to McKenzie, he was called everything from a “demon abomination” to a “child molester,” to his face.
McKenzie’s studio (which he shares with his calico, Katniss) shares a wall with two members of the church; he feels that the congregation’s anti-trans stance is an increasingly threatening presence in his life. In the past year, McKenzie claims that church members have threatened to have him evicted from his apartment, kidnap him, beat him, rape him, and murder him.
I spoke to a friend of McKenzie’s who asked to remain anonymous due to safety concerns. She told me that the two met a month and a half ago in a support group, and they talk on the phone regularly. During their conversations, she can hear his neighbors screaming in the background. She often drives McKenzie home after group meetings and walks him to his door to make sure he’s safe. “People stare out the window at us,” she said. She compared the palpable tension to “entering a war zone.”
McKenzie claimed that his landlord didn’t put a stop to the harassment. “He has not been supportive of me,” McKenzie said. “He has been supportive of them.” After nearly a year of constant threats, Mr. McKenzie reported the situation to the police, filing two restraining orders against members of the church on November 3. When the case went before a judge, his landlord showed up to endorse the defendants. McKenzie said he wasn’t surprised. “I’ve had a lot of trouble getting assistance and with people being respectful,” he explained.
The judge ruled against his restraining order, deciding not to extend it. Initially, McKenzie had been granted a five-yard restraining order, which would not restrict his neighbors from living in the apartment. But the judge didn’t feel continuing that order was necessary.
“She said that people are going to be intolerant,” he said. “Although the judge heard everything and believed that this was going on, she basically told me that I need to have thicker skin.”
Within that line of thinking is a dangerous, common implication: that his neighbors were right to see McKenzie’s transgender identity itself as a reasonable threat.
2015 brought two extremes in trans experience and highlighted the increasing gulf between them. At one end was pop culture visibility and media admiration of trans people, and on the other, widespread disenfranchisement within the legal systems that are supposed to protect them. The groundbreaking visibility of Caitlyn Jenner’s Diane Sawyer interview and the runaway success of Amazon’s hit series Transparent can seem a world separate from the way trans people—particularly trans women of color—remain extraordinarily vulnerable to abuse and violence.
In 2015, 23 transgender women were murdered in the U.S., and internationally, law enforcement and legal systems are failing them. In August, reports alleged that two military police officers in Brazil covered up the murder of 18-year-old Laura Vermont; they were subsequently released on bail. In June, two men attacked Stephanie McCarthy, 43, outside of a pub in Newtown, fracturing her eye socket and cheekbone. In December, her assailants were sentenced to just 100 hours of community service after leaving her partially blind.
These miscarriages of justice are profoundly normal for transgender people; many—like Rush McKenzie—learn firsthand that law enforcement and the legal system are more likely to work against than for them. I spoke to many advocates, legal experts, and transgender people in reporting this story, and I heard a common refrain: There is no justice for trans people. This is true whether it’s reporting harassment when you’re walking down the street, being treated fairly by jury members, or testifying before a judge who views your case impartially.
Jennifer Orthwein, who works as the Senior Counsel for the Transgender Law Center’s Detention Project, said over the phone that our legal system is “biased at every turn.” Hayley Gorenberg, the Deputy Legal Director of Lambda Legal, agreed, and argued that the system is stacked against transgender people “from the front end all the way through.” According to Gorenberg, this issue begins with local law enforcement.
“Police, in too many cases, aren’t seen as helpful,” Gorenberg said. “We have documented cases and multiple reports of assault—including sexual assault—by police officers. On the flip side, we have reports of police neglect, where the police are not being adequately responsive.”
One of the major issues is that police routinely stereotype trans people as sex workers. “Being profiled as a sex worker means being profiled as engaging in a crime,” Ms. Gorenberg said, bringing up the phrase “walking while trans.” “There are many trans women who have gotten targeted by police just for being out on the street, regardless of what they’re doing,” she explained.
A 2012 report from the National Coalition of Anti-Violence Programs found that profiling and police brutality disproportionately targets trans folks, who are three times as likely to experience mistreatment from officers than cisgender people. Transgender women of color also faced the highest rates of violence overall. Despite accounting for around .02 to .03 percent of the population, 2014 estimates from NCAVP showed trans folks make up an astounding 18.8 percent of hate crimes, while people of color account for 80 percent of all LGBTQ homicides.
Gorenberg said that recognizing the intersectional dimensions of this issue is vital: “We find a compounding effect of gender identity and race—so that if people have multiple marginalized identities, they tend to add up to even worse experiences at the hands of the criminal legal system.”
Miss Diamond, a 37-year-old trans activist and community organizer, said that every trans woman—especially women of color—has their own story of what it’s like to deal with law enforcement or the courts. In our phone interview, she recalled a dispute with her husband (“his voice was a little loud”) in which neighbors called the police. Instead of asking about her safety or questioning her, she was ignored. “They asked him, ‘Are you okay? Are you safe?’ like I was abusing him,” Diamond said.
This dismissive conduct is common when police are responding to domestic complaints or intimate partner violence. “[Trans people] know they are going to be treated with bias,” Jennifer Orthwein said. “They know how people perceive them.” Miss Diamond said that she’s unlikely to call the cops if she feels threatened, harassed, or unsafe. “I feel they are not for us,” she said. “It makes you not even trust the system.”
Miss Diamond’s struggles to be treated fairly by police mirror her experiences with the justice system itself. In 1999, Diamond was convicted of armed robbery and given a sentence of five to 20 years in jail; she would go onto serve time for a decade in a Michigan men’s prison, while her co-defendant—who was cisgender—got a far lighter sentence. “I was judged beyond the crime,” she said. “I was judged for being immoral.”
Miss Diamond claims that breaking the law was a road left open where others had been closed, a way to make ends meet or to fund the high price of transitioning (the cost of gender-reassignment surgery and hormones is commonly around $20,000). “Employment? Forget about it,” she said. “That’s why a lot of trans women go into prostitution—because the workforce isn’t very inviting. If you’re not passable, then you’re not hireable. You get the bad end of the deal.”
A perfect storm of factors leads to high trans rates of economic dislocation and struggle. According to UCLA’s Williams Law Institute, trans folks are four times more likely than the average American to live under the poverty line (earning less than $10,000), while nearly 20 percent have experienced homelessness. Trans people also experience the highest rates of suicide, as they are nine times more likely than the average population to attempt to take their own lives.
Diamond notes that it can very well be difficult for judges to understand the effects of this web of barriers, and this is why she argues that it’s important to elect trans women to these positions of authority. “If there’s a judge, then there should be a girl like me that’s a judge as well,” she said.
There are exceptions to the rule. Within days of each other, Victoria Kolakowski and Phyllis Frye became the first openly transgender judges to serve openly in the United States. Kolakowski was elected on November 17, 2010, while Frye was appointment by Houston mayor Annise Parker the following day. Meanwhile, there are a handful of trans police officers across the U.S., in cities like Austin, Texas, and Louisville, Kentucky. But in their respective professions, these trailblazers remain exceptions, and many courts and police departments lack crucial representation that could lead to greater understanding.
Those blind spots extend to the jury system itself. States like California have banned the “panic” defense, in which attorneys may suggest that a crime was “justified” if the assailant had a heat of the moment reaction due to an irrational fear of violation from a queer or transgender person. That defense was recently used in the case of Joseph Scott Pemberton, a U.S. marine who was convicted of killing a 26-year-old Filipino woman, Jennifer Laude, in a Manilla motel room after learning of her trans status. In his testimony, Pemberton’s attorney called him “a victim of the fraud committed by a sex worker.”
Such explanations have been effective in past cases, and even when trans panic isn’t asserted explicitly in criminal proceedings, it’s often implied in jury reactions. “It often seems jurors perceive transgender people’s gender expression as a form of fraud,” Jennifer Orthwein said in an email. “That seems to impact their perception of the transgender person’s credibility. Transgender people have little chance with a jury of their ‘so-called’ peers whether they are the plaintiff, victim or defendant.”
The underlying implication in these common transphobic defenses is an inhumane one: that trans people are inherently deserving of punishment.
CeCe McDonald cites jury bias as a major factor in her decision to take a 41-month plea deal—following a racially motivated attack by a group of “Neo-Nazi drunk assholes,” as McDonald describes them. The incident, in which McDonald and her friends were threatened outside of a bar, led to the death of 47-year-old Dean Schmitz. As a means of self-defense, Schmitz was stabbed with a pair of scissors.
During the trial, McDonald said that her team knew the predominantly white and cisgender jury wasn’t siding with her. “These people weren’t going to let me win,” she explained to Rolling Stone. Even aside from issues with the jury, McDonald’s trial was a complete and total disaster. “Evidence of Schmitz’s swastika tattoo was deemed inadmissible,” the magazine reported. “Schmitz’s prior assault convictions were deemed irrelevant, and the judge would allow only limited testimony about the toxicology report showing Schmitz was high on meth, feeding his aggression.”
But McDonald believes that her case was decided from the moment that she flagged down a police officer for assistance. “When you look at any case involving a person of color, you know when asking for police help, it usually ends with them dead,” she said to me, over the phone. “They didn’t come to ask any questions.” On the night of the attack, the cops had their guns drawn from the moment that they stepped out of their vehicles—and they were directed at her. McDonald thought she was going to get gunned down: “That’s what the police do.”
Like Miss Diamond and Rush McKenzie, McDonald feels that she was put in a lose-lose situation. “If a trans person decides to protect themselves, we’re criminalized and demonized, but if a person attacks and kills a trans person, that’s their right,” she said.
Why don’t officers believe trans people who report being victims of crime? When trans people are the ones on trial, why don’t we view them as innocent until proven guilty—the same right afforded to every other American?
These were the two questions my conversations repeatedly returned to. When I interviewed Chase Strangio, the staff attorney for the ACLU’s LGBT and AIDS Project, he told me that the second-class status of trans citizens is still enshrined. “We don’t believe that trans people are as human as non-trans people,” Strangio said. “I don’t think that we, as a society, genuinely believe that trans women are women and trans men are men.”
Treating trans people as less than and viewing their very identities as a form of deception—as in the case of Jennifer Laude—makes it much easier to deny them rights. When we see people is less deserving of our empathy, it also makes them less deserving of our protection.
The American Psychiatric Association only declared that being transgender would no longer be classified as a disorder in 2012, and the American public is slow to catch up even to this low bar. Last year, voters in Houston struck down a bill that would have prohibited discrimination based on gender identity in city services, employment, and public accommodations. Opponents of HERO argued that it would allow sexual predators to prey on women’s bathrooms, reflecting what Strangio noted as the persistent idea “that trans people are just men dressed up as women who intend to harm cis women.”
Strangio added, “It’s so antithetical to recognizing the humanity of someone to think that their very existence compromises the privacy of other.”
And yet, there have been no reported cases of a cisgender person being attacked in a public bathroom by someone who is transgender. It’s trans people who continue to be endangered by society; their existence does not endanger it.
Strangio believes that fighting bias in law enforcement and the legal system needs to be part of a greater cultural shift, one that includes decriminalizing sex work and ending mass incarceration. But he argued that the most important thing is to further a culture of understanding. “The legal system will be an important tool, but we have to have robust movements organized around telling trans stories and trans histories,” Strangio said.
Stories like Caitlyn Jenner’s are a start, but Jenner is also white, wealthy, and famous—benefits that very few transgender people share. We are missing stories from the margins, which are worth teaching and learning from too. “It’s been really significant when members of the community have told their stories once they’re in safety,” said Hayley Gorenberg.
Gorenberg stressed that not everyone is able to tell their story—but that the ones who do are helping to create the possibility of a fair and just system. CeCe McDonald and Rush McKenzie are trying to do exactly this. The last time McKenzie and I talked, he was checking out of a local hospital, where he’s been receiving treatment for PTSD and anxiety. He explained that the frustrations of the past year have made him exhausted and angry, but he’s “tired of running.” When he returned home that evening, McKenzie posted a copy in his front window of the hate crime ordinance from the California Penal Code, as well as the state’s definition of what constitutes stalking.
But alongside the avalanche of legal paperwork, Rush McKenzie posted a handwritten note scribbled on loose-leaf notebook paper: “Trans Lives Matter.” It seems like a simple message, but that call for justice is still waiting to be heard.
Nico Lang is a Meryl Streep enthusiast, critic, and essayist. You can read his work on the Daily Dot, Salon, Rolling Stone, Vox, Washington Post, L.A. Times, BuzzFeed, Huffington Post, Mic, Daily Beast and the Guardian. He’s also the author of The Young People Who Traverse Dimensions and the co-editor of the bestselling BOYS anthology series.
Illustration by Tara Jacoby