“You come in here wanting to be angels. I got news for you. You gotta be devils!” This was an idea a medical instructor here in Orange County attempted to drive into her students. Her message: alleviating suffering is secondary and so is the actualization of every aspiration. What matters instead is to protect one’s self from being sued.
What she said can’t be dismissed altogether. People who try to make trouble don’t just have to come up to their victims with weapons for the purposes of robbery or murder. This society has grown to be one of the most litigious in history. Got a firearm for self protection? That’s nice. But if you so much as point it at anyone you can be charged with a crime and the onus is upon you to prove that the one against whom you point it has threatened your life. Short of an intruder doing a home invasion you will have a pretty hard time proving anything, especially if you’re alone.
It isn’t that you don’t have the right to self-defense. You do. But any self-defense claim has to be proven when all evidence shows that somebody got shot or otherwise harmed. That makes it difficult for anyone who enjoys solitude. That makes it doubly difficult for a stigmatized people like transfolk.
Consider the case of CeCe McDonald, a transwoman under attack in 2012, face sliced open from being struck with a glass of alcohol. She defended herself with the first item she could find: a pair of scissors she found in her purse. She plunged the scissors into the chest of her attacker, killing him. She was arrested, convicted of manslaughter, and sentenced to 41 months in prison.1 This sparked vehement protest from the trans community. One protester who was arrested for “property damage” was Leslie Feinberg,2 the author of Transgender Warriors.3
So while one has the right to self-defense, much has been put in place to undermine that right. In California, the rules are particularly restrictive. As a former Los Angeles police officer explained it to me, if someone comes at you with a knife you cannot defend yourself with a gun. A defender must be very careful to never use a weapon of a higher caliber than that of an assailant when claiming self-defense. Of course, in actual battle it’s preposterous to worry about comparison of weapons. When an attacker springs upon a victim the defender has no time to verify the level of weaponry. Tough totems. In California the added risk falls upon the defender.
California law starts with the idea that an assailant must have the means, opportunity, and intent to inflict harm upon you and that ends the moment the threat subsides.4 But beyond this, interpretations make the issue of self-defense very murky. Not all failures at self-defense claims result in felonies. Some get prosecuted as misdemeanors. Steven Levine, a past Los Angeles County District Attorney said concerning brandishing:
You don’t have to be waving it [a knife] around. If you have a knife in your waistband and you lift up your shirt and say, “Look, I have a knife”—that’s brandishing. The other person simply has to know that you have a knife because you showed it to him. But who cares? Brandishing is a misdemeanor. The real issue is using force on another person. And I’m telling you, most people do not succeed with self-defense claims in California.5
What happens is that the advantage legally falls to the attacker and attackers often know it. Such a person can take pleasure by inflicting harm by physical means or by legal means. It really makes no difference to the malicious.
One day I considered what the odds were of a defender prevailing under different conditions when both attacker and defender have equal capabilities. If only attacker and defender are involved in an incident the odds fall thus:
- The attacker wins outright: 25%
- The defender wins outright: 25%
- A draw happens after any given amount of blows: 50%
The summary of all this is that the attacker really wins 75% of the time. After all, the attacker doesn’t need to walk away with a total victory in which the defender ends up dead or beaten to a pulp. It’s enough to leave the victim shaken, intimidated, bruised, or harmed in any way.
But if police become involved, the numbers rise to 87% in favor of the attacker. The reason is this: an attacker doesn’t care how he harms his victim. Whether or not the defender can gain the upper hand in an altercation, the simple fact of involvement will result in some degree of detention of both parties and possible arrest. An attacker probably won’t care about detention. A defender will. Since the burden of proving self-defense is upon the defender the chance of a defender being arrested becomes alarmingly high.
If others witness the altercation and come forward to police the odds moderate. But they still stack in favor of the attacker.
One could easily look at the math and feel immediately like a sitting duck. If one is transgender, struggling to live against discrimination on a daily basis, the odds become harsher yet. The numbers used derive from a case of an attacker and defender with equal capabilities but say nothing about enhanced capabilities in terms of being able (or permitted) to fight. Nor do they say how prejudice on the part of law enforcement personnel may skew the issue.
Here’s the kicker: any aggressor knows how prejudice skews those odds… including religious aggressors. Who are police more likely to believe, and “upright” God fearing church goer or a transgender person who could easily be regarded as mentally impaired or a sex pervert? Reddit Hudson stated thus concerning police practices and race:
“On any given day, in any police department in the nation, 15 percent of officers will do the right thing no matter what is happening. Fifteen percent of officers will abuse their authority at every opportunity. The remaining 70 percent could go either way depending on whom they are working with…
‘…That remaining 70 percent of officers are highly susceptible to the culture in a given department. In the absence of any real effort to challenge department cultures, they become part of the problem. If their command ranks are racist or allow institutional racism to persist, or if a number of officers in their department are racist, they may end up doing terrible things.”6
We can easily expect the same when it comes to police profiling transpeople as well, a system that has institutionalized not only racism but anti-trans sexism.
This leaves a clear path for baiting, the practice by which one intimidates or threatens another into a defensive posture and encourages its transformation into an act of violence in order to use that defensive act to inflict harm through litigation or prosecution. One group noted well for this is the Westboro Baptist Church, famous for vitriolic protests at funerals, marches, and other events related to LGBT people or allies. Through insult, shouts of damnation, obstruction, and every expression of hate they can muster, they reputedly love to bait victims into a position in which they could sue them, and according to Business Insider they make a tidy profit through litigation. Lawsuits against individuals and municipalities not only could become useful to fill church coffers they can be used as leverage to compel “conversion” or acceptance of a so-called “conversion therapy” program. More than that, they take legal action against any municipal entity that tries to deny them the opportunity to conduct these activities. 7
Another notable case involving a transperson was that of reporter Zoey Tur, sued by the right wing Ben Shapiro for assault in an altercation sparked by transphobic slurs made against Zoey, most specifically, “What are your genetics, sir?” This was a clear case of inflammatory speech in which the victim took the bait, exposing herself to prosecution.8
So where does this leave vulnerable minorities like transgender people? Fortunately, the vast majority of adults act like the adults they are, either befriending us or simply leaving us in peace. But there will always arise that minority who will make trouble in schools, the workplace, medical facilities, or even on the street. Here’s a case in point out of my own experience:
On a Sunday in one Orange County in 2013 I was bicycling home. I reached an intersection where the street markings were such that it would be too dangerous for me to hold a position in a center lane that would take me straight ahead westward. So I decided to walk the intersection and pressed the pedestrian button. After a minute a couple with a toddler in a stroller approached as they crossed the street from the southeast corner to where I was waiting. I could see in the corner of my eye that they were holding religious tracts. Everything about them read like they were members of an Evangelical church. The man called out to me yelling in a sarcastic and aggressive tone of voice, “Can I help you?” I remained silent, ignoring him.
But ignoring, accepted by most people, ignited his wrath in which he intentionally misgendered me. “I’m gonna bash his face in for not answering me!” He was about 4 feet away and closing in on me.
I stepped away, turned and held my bicycle in front of me at arms length as a barrier. He was not going to get an easy swing at me. My action infuriated both of them even more.
“Hey, man! I’m gonna call the police!” he said while ostentatiously removing his cell phone from his hand. The wife likewise joined in, saying, “Get away from our child! This monster is out to hurt the baby!” They moved to attack me from my left side. I stepped back again and repositioned the bicycle as a barrier. Their hateful tirade continued, telling me how I was going to go to hell for “harming babies.”
Again they tried to move to my left and again I stepped back and repositioned the bicycle. Meanwhile the toddler was smiling, waving to me, and saying, “Hi! Hi!” The mother said to the child, “Don’t look at that abomination!” She roughly grabbed the child’s head and snapped it forward.
All this time I said absolutely nothing to anyone. The only one uttering any threats were that couple.
Eventually they crossed the intersection westward. I changed my route immediately, riding northward out of harm’s way.
But if police had happened upon the scene, who would be arrested? The couple would not even though they were stereotypically Southern Blacks with an obviously Evangelical anti-trans axe to grind. I would have been arrested and charged. After all, any officer will accept the testimony of 2 against 1 transwoman no matter how outrageous and aggressors will always blame their victims. No testimony would have been taken from the toddler. The testimony of a transperson will be discounted more often than not because the stereotypical profile of a transperson is that of a mentally incompetent sex-crazed pervert. This would especially be true in a city like this one in which many officers wear their Evangelical connections on their sleeve. More than that, my use of a bicycle to disallow anyone to take a swing at me would have been treated as “brandishing a weapon.” I could count this incident as one in which I got away lucky.
So what’s left for any transperson to do?
- From my experience, one best defends by becoming elusive, blending in as much as possible, always watching for an out from any situation.
- If possible, be with a friend when going out in public. There’s safety in numbers.
- Finding any opportunity to show kindness cannot go wrong. Every kindness shown makes friendlier people. This isn’t the same as “being nice.” “Nice” is all about people pleasing and sometimes the kindest thing to do is to do what doesn’t please them but still does them a favor.
- Don’t take bait. Despite this particular aforementioned incident one should only speak as much as necessary.
- If approached, be ready to walk away if you can.
- Determine where friendly people will help you as much as you can.
So what about study in the martial arts? Do they avail? When it comes to police, such knowledge is an added liability. Hands can also be weapons. Superior understanding of how to fight will always be taken as an advantage over another in any court. Black belts beating crooks unconscious and breaking their bones with impunity is the stuff of Hollywood, not every day reality.
So in a real sense that medical instructor was right about the need to be devils, not because of a desire to do wicked things to other people, but to become savvy to the devices of malicious people. That’s part of the survival skills every transperson needs to learn, whether or not they have a goal of making it through transition, a goal that can become shattered by a crippling lawsuit that can dog them for years to come.
- Pasulka, Nicole. The Case of CeCe McDonald: Murder—or Self-Defense Against a Hate Crime? (May 22, 2012) Web: Mother Jones: http://www.motherjones.com/politics/2012/05/cece-mcdonald-transgender-hate-crime-murder. Retrieved August 31, 2016
- Allen, Mercedes. Leslie Feinberg Arrested In Solidarity With CeCe McDonald (June 5, 2012) Web: Bilerico: http://bilerico.lgbtqnation.com/2012/06/leslie_feinberg_arrested_in_solidarity_with_cece_m_1.php. Retrieved August 31, 2016.
- (n.a.) Transgender Warriors : Making History from Joan of Arc to Dennis Rodman (n.d.) Web: Amazon: https://www.amazon.com/Transgender-Warriors-Making-History-Dennis/dp/0807079413. Retrieved August 31, 2016.
- Harris, Sam. Self-Defense and the Law: A Roundtable Interview (August 13, 2013) Web: Sam Harris: https://www.samharris.org/blog/item/self-defense-and-the-law. Retrieved August 31, 2016.
- Hudson, Redditt I’m a black ex-cop, and this is the real truth about race and policing (July 27, 2015) Web: Vox: http://www.vox.com/2015/5/28/8661977/race-police-officer. Retrieved August 31, 2016.
- Brown, Jennings. The reviled Westboro Baptist Church makes a ton of money by suing communities that don’t let them protest ( June 24, 2015) Web: Business Insider: http://www.businessinsider.com/heres-how-the-reviled-westboro-baptist-church-makes-money-2015-6. Retrieved August 31, 2016.
- DeKoff, Derek. Right-wing reporter Ben Shapiro files lawsuit against transgender reporter Zoey Tur (July 21, 2015) Web: http://www.lgbtqnation.com/2015/07/right-wing-reporter-ben-shapiro-files-lawsuit-against-transgender-reporter-zoey-tur/. Retrieved September 1, 2016.