After Marriage Equality Advances, Christian Right Leaders Back Away From Jail Time Pledges

The Christian Right is often long on style and short on substance. Depending on the day many of its leaders may cast themselves as the second coming of the Founding Fathers, the living legacy of Rev. Dr. Martin Luther King, Jr., or even as facing penalties for their beliefs as grim and spectacular as Christian martyrs in history.

Megachurch pastors Rick Warren (left) and David Platt (right) speak on a panel

Megachurch pastors Rick Warren (left) and David Platt (right) speak on a panel by the Southern Baptist Convention’s ERLC

Since at least the publication of the 2009 manifesto, the Manhattan Declaration, the culture-warring leaders of both the U.S. Conference of Catholic Bishops and of conservative evangelicalism have been threatening massive civil disobedience if they don’t get their way.  Some have called for “martyrs.” Still others have threatened outright religious war. For all of this rhetorical maelstrom one does not have to dismiss that there are real threats of political tension and violence to recognize that some top Christian Right leaders are humbugs and windbags.

Let’s take a look at some recent examples.

This past year we have seen the dark warning of government “persecution” border on self-parody. As we reported a few months ago, Russell Moore, president of the Southern Baptist Convention’s Ethics and Religious Liberty Committee, and megachurch pastors Rick Warren and David Platt put on quite a show on the eve of the denomination’s 2014 annual national meeting.

According to Warren, personal sacrifices will be necessary in the face of this persecution. “And,” Warren declared, invoking Martin Luther King, Jr., the matter of religious freedom “may take some pastors going to jail. I’m in. I willingly said it, I’m in.”

Platt added, “I hear Pastor Rick say, ‘I’m in,’ and I’m with you.  And I want to raise up an army, an entire body of members that says, ‘I’m in,’ who are in regardless of what happens in this case.”

While Warren and Platt were claiming that they were willing to go to jail in defense of their notions of religious freedom, Russell Moore said, “I’m doing everything we can to keep out us out of jail, but there is one thing worse than going to jail.  And that is staying out of jail and sacrificing the Gospel of Jesus Christ.”

As marriage equality has advanced, Moore has already begun to back away from any whiff of Christian martyrdom. He recently told evangelical columnist Jonathan Merritt that even if the Supreme Court legalizes same sex marriage nationally this year, it will not make much difference to evangelicals.

If the court were to “redefine marriage,” Moore said Christians should “be ready to offer an alternative vision of marriage and family” that doesn’t include same-sex unions. Interestingly, his vision would be promoted primarily within the church rather than changing laws through political action.

That is an astounding turn around for a signer of the Manhattan Declaration.

We also have Rick Plasterer, a staff writer on religious liberty for the neoconservative Institute on Religion and Democracy which is best known for its decades-long war of attrition against the churches of mainline Protestantism. His rhetoric may be stodgier than the aforementioned Christian Right leaders, but he is no less resolute in his call for civil disobedience.

“It is understood that conscience can have requirements that may conflict with the law,” he wrote on the last day of 2014, “but the requirement that we do not sin is an absolute duty to God, one not open to discussion, regardless of the pain it causes ourselves or anyone else, and regardless of the penalty to ourselves.”

Plasterer claims that religious opponents of LGBTQ people—and not just marriage equality—must be “willing to take whatever penalty is prescribed for however long it is prescribed.” He goes on to compare those who refuse service in public accommodations to LGBTQ people to “conscientious objectors,” who decline as a matter of moral conscience to fight in wars. And yet, he does not call for people to decline to fight wars—only to discriminate against LGBTQ people.

Parenthetically, it is worth underscoring the Manichean false framing that defines his view of religious liberty.

“In denying liberty of conscience,” he claims, “the cultural left (secularists, homosexual activists, and feminists) are demanding that those unbending religious requirements be given up by religious believers in the personal lives.”

In fact, many mainstream religious bodies support the rights of LGBTQ people, and embrace marriage equality. We reported last year, for example, on the landmark federal court decision overturning a North Carolina law which made clergy performing same-sex marriage ceremonies subject to criminal prosecution. The suit was brought by the United Church of Christ, and joined by, among others, the Alliance of Baptists as well as the Central Conference of American Rabbis. There are “secularists” who both favor and oppose marriage equality, just as there are religious people and institutions that favor and oppose it.

No one can require anyone to change their beliefs, but people can be required to obey non-discrimination laws.

But for sheer rhetorical histrionics, it is it is hard to top the claims of Archbishop William E. Lori of Baltimore, chairman of the Ad Hoc Committee for Religious Liberty, of the U.S. Conference of Catholic Bishops. On the USCCB web site, Lori announced the annual Fortnight of Freedom, which next year will take place from June 21 to July 4, 2015. It is a campaign intended to highlight the alleged threats to the religious liberty of Catholicism in the context of the three themes of the Manhattan Declaration, life, marriage and religious liberty. It is scheduled, he says, at “a time when our liturgical calendar celebrates a series of great martyrs who remained faithful in the face of persecution by political power—St. Thomas More and St. John Fisher, St. John the Baptist, SS. Peter and Paul, and the First Martyrs of the Church of Rome.”

Unless Lori and his colleagues know something they are not saying, the sly comparison of today’s American Catholic Church to historical figures who were tortured and executed for their faith is beyond preposterous. The historian Tacitus reports that the First Martyrs of the Church of Rome, for example, were “Covered with the skins of beasts, they were torn by dogs and perished, or were nailed to crosses, or were doomed to the flames and burnt, to serve as a nightly illumination, when daylight had expired.”

And yet, for all the big talk and the false moral equivalences—as Christian Right figures like Moore, Warren, Platt, Plasterer, Lori, and their ilk fancy themselves and their constituencies as following in the tradition of the signers of the Declaration of Independence, the leaders of the Civil Rights Movement, and even those whose moral convictions required them to serve out jail sentences as conscientious objectors to war—these men by comparison lead remarkably comfortable lives.

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TDOR 2014 and the Right-Wing Roots of Anti-Trans Violence

Since 1999, Nov. 20th has been set aside as Transgender Day of Remembrance (TDOR). TDOR provides space to remember and honor those who have been killed due to anti-transgender hatred or prejudice. The annual event originated when trans activists and allies came together to mourn the loss of Rita Hester, a Black trans woman who was brutally murdered in Allston, Massachusetts on Nov. 28, 1998. Beyond a few transphobic mentions in the local media (the Boston Globe referred to Hester as “a man who sported long braids and preferred women’s clothes,” while the Boston Herald called her a “transvestite” and “a large man who lived as a woman”), her death garnered little attention, let alone outrage.

transgender day of remembrance PRA

While significant legal advances have been made for the LGBTQ community in the 15 years since Hester’s murder, trans people continue to experience horrific and disproportionate rates of violence. As the official TDOR website states:

“We live in times more sensitive than ever to hatred based violence, especially since the events of September 11th. Yet even now, the deaths of those based on anti-transgender hatred or prejudice are largely ignored. Over the last decade, more than one person per month has died due to transgender-based hate or prejudice, regardless of any other factors in their lives. This trend shows no sign of abating.”

Yet most media outlets, policymakers, and even the mainstream LG(BTQ) movement, have a long history—that continues to this day—of marginalizing the experiences, contributions, and needs of transgender people and people of color. The 1969 Stonewall Riots—often considered a pivotal moment in LGBTQ history—are frequently claimed by White, gay men as a triumph of their own doing, even though it was primarily trans women of color and homeless youth who led the charge. And whereas Rita Hester’s murder in 1998 was largely ignored, the murder of Matthew Shepard—a young, White, gay man—just two weeks later prompted nationwide vigils and helped lead to the eventual passage of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act in 2009. The legislation expanded the 1969 U.S. federal hate-crime law to include crimes motivated by a victim’s actual or perceived gender, sexual orientation, gender identity, or disability.

Indeed, disregard for the role of trans people and people of color has plagued the LGBTQ justice movement since its earliest days. Meanwhile, these are the members of our community who bear the brunt of the violence and oppression directed toward LGBTQ people.  In its annual report on hate-violence experienced by LGBTQ and HIV-affected persons in the United States, the National Coalition of Anti-Violence Programs (NCAVP) documented more than 2,000 incidents of anti-LGBTQ violence in 2013, and 18 hate-violence homicides. NCAVP’s findings also reflect the disproportionate impact of this violence: almost three-quarters (72%) of the documented homicide victims were trans women, and more than two-thirds (67%) were trans women of color.

TDOR interrupts this pattern of neglect, insisting that the LGBTQ movement—as well as our broader communities—acknowledge and mourn these lives.

Who Are The Architects of Anti-Trans Violence?

To a certain extent, talking about violence against trans people as a “hate crime” abstracts it from any social or political context, and suggests that these attacks are isolated incidents caused by rogue individuals. As Kay Whitlock has argued in a PRA discussion paper:

“While the hate frame may be powerful in terms of increasing awareness and mobilizing opposition to the threatening, violent actions of individuals and small groups directed against targeted communities, it also, paradoxically, obscures the relationship of such violence to its systemic underpinnings […] It’s so much easier to place the blame for violence directed against entire groups on criminal misfits, loners, and crackpots than to challenge the unspoken public consensus that permits broader cultures and structures of violence to exist.”

And so we must acknowledge—and then challenge—the architects responsible for manufacturing and perpetuating a cultural climate that justifies violence against trans and gender nonconforming people. 

Christian Right Church Leaders

Earlier this year, delegates at the Southern Baptist Convention’s annual meeting in June signed a “Declaration on Transgender Identity.” With 16-plus million members, SBC is the world’s largest Baptist denomination and the largest Protestant body in the United States (in terms of Christian organizations, only the Catholic Church manages to outnumber them). Consequently, SBC’s policy decisions carry tremendous influence.

Unfortunately, the declaration was far from affirming. It states that trans and intersex people are manifestations of “human fallenness” and “contrary to God’s design.” The resolution notes that SBC condemns “acts of abuse or bullying” (unlike many of the document’s other proclamations, the authors couldn’t seem to find any scriptural backing for this piece), but they are quick to note that SBC also opposes hormone therapy and gender affirmation surgery, as well as any legislative or cultural efforts to validate trans people as “morally praiseworthy.”

SBC’s policy arm, the Ethics and Religious Liberty Commission (ERLC), hosted a conference last month on “The Gospel, Homosexuality, and the Future of Marriage.” At the event, ERLC president Russell Moore—who was recently invited by the Vatican to speak at a conference on the “Complementarity of Man and Woman”—took the opportunity to offer advice to pastors ministering to trans people during a live “Questions & Ethics” session, saying “The people who are coming to you—that biologically male person who says ‘I think I’m a woman,’ or vice versa—that person really experiences that and believes that. … You don’t have to agree with that at all, and I would say we can’t. The Bible teaches us that God created us male and female.”

Right-Wing Parachurch Organizations

Focus on the Family explicitly opposes “the celebration of ‘transgenderism’ as one of God’s gifts.”

On its website, FOTF explains its position: “Because ‘transgenderism’ violates God’s intentional design for sex and sexuality, we believe that this is a cultural and theological battle that we must engage and win. The modern ‘transgender’ movement is systematically working to dismantle the concept of gender as the Bible and the world have always known it to be. If the transgender lobby succeeds, there will be striking consequences for marriage, family and society at large.” Those who fail to follow FOTF’s guidance are told, “[T]he problems associated with transgenderism, like confusion and pain, stem from a lack of parental involvement and guidance.”

Right-Wing Think Tanks & Legal Lobbyists

The Alliance Defending Freedom (ADF, formerly known as the Alliance Defense Fund), a right-wing legal ministry committed to “religious freedom,” has recently taken up the cause of isolating and shaming transgender students. Arguing against a Massachusetts school’s 2013 decision to allow transgender students to access facilities and recreation activities that aligned with their gender identity, ADF’s Jeremy Tedesco warned the policy created “an atmosphere that could result in sexual assaults committed by minors.”

In letters delivered last month to similarly progressive schools in Wisconsin and Rhode Island, ADF suggested that creating inclusive policies for transgender students would “seriously endanger students’ privacy and safety, undermine parental authority, violate religious students’ right of conscience, and severely impair an environment conducive to learning.”

The Family Research Council, a right-wing lobby group based in Washington, DC, similarly argues that gender identity protections would “purposefully threaten the public safety of women and children by creating the legitimized access that sexual predators tend to seek.”

Concerned Women for America has warned its members that the Employment Non-Discrimination Act (ENDA)—legislation that would prohibit discrimination in hiring and employment on the basis of sexual orientation or gender identity—could force “Christian businessmen” to allow transgender employees to wear male and female clothing alternately, and could “open bathroom doors for predators throughout the nation.”

As Peter LaBarbera, president of Americans For Truth About Homosexuality, put it, “These bills or policies are gifts to predators![emphasis his].

What’s Next?

Denny Burk, professor of Biblical Studies at Boyce College and co-author of the SBC’s anti-trans declaration, has warned that the trans justice movement is “the next phase of the LGBT revolution.” In actuality, the mainstream gay rights movement is already demonstrating a preference for other, international priorities in the post-marriage equality era.

Rita Hester

Rita Hester

Nonetheless, with leaders on the Right conceding defeat on the marriage front, we can expect to see them turning their sights toward other battlefronts, particularly ones they perceive to be winnable.

While it may seem that the trans community is that vulnerable, “winnable” target, what the Right doesn’t recognize is that the power of the gay rights movement—a movement that most would say has beaten the Right—was fueled first by trans women of color. These women—who find themselves at the nexus of White supremacy and heteropatriarchy—were fighting long before Stonewall, and they’ll continue fighting long after Gay Inc. closes its doors. They are fierce and formidable, and, as the Right will soon learn, they are undefeatable.

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Confronting Hate: Addressing Violence Against LGBTQ and HIV-Affected Communities

While the mainstream LGBTQ rights movement made historic progress in 2013, LGBTQ and HIV-affected people around the country still face appalling rates of prejudice-fueled violence and discrimination. During 2013, Manhattan alone—from Harlem to Greenwich Village—saw multiple, brutal attacks on LGBTQ and HIV-affected residents. These incidents, as well as the broader struggles of LGBTQ and HIV-affected communities around the country, point to the complex nature of violence animated by bias and call attention to the enormous work yet to be done to ensure social justice for all people—across race, class, gender, sexual orientation, and other vectors of identity.

image via COLORLINES

image via COLORLINES

Recently, the National Coalition of Anti-Violence Programs (NCAVP) published its 2013 report, which documents and discusses hate violence against LGBTQ and HIV-affected communities. The findings underscore the ongoing challenges faced by these communities, and shows how violence continues to shape their lives in troubling and pervasive ways.

In the study, “Lesbian, Gay, Bisexual, Transexual, Queer and HIV-Affected Hate Violence in 2013,” the NCAVP used data reported from its 14 member organizations in cities around the country and analyzed 2,001 reported incidents of hate violence, or violence motivated by the victim’s identity status, whether perceived or actual, in 2013. From analysis of its person-level data, NCAVP found an increased rate of hate violence against individuals with intersecting marginalized identities.

For instance, the report found that transgender people of color, when compared to other LGBTQ or HIV-affected people, were more likely to experience physical violence from law enforcement; more likely to experience sexual violence; more likely to experience violence in shelters; more likely to experience discrimination, harassment, threats, and intimidation; and were more likely to require medical attention as a result of hate violence. LGBTQ and HIV-affected people of color, when compared to the rest of the report’s sample, were also more likely to experience physical violence, discrimination, threats and intimidation, police violence, and violence in the workplace and public areas.

Moreover, when LGBTQ people try to report incidents to the police, they often face indifferent (28.81 percent) or openly hostile (32.2 percent) responses. This means that in more than 60 percent of responses to hate violence, police were either indifferent or hostile—a particularly sobering aspect of this report.

Undocumented members of the LGBTQ and/or HIV-affected communities are also often vulnerable targets of hate violence, the report asserts. In fact, while undocumented people make up about 3 percent of the LGBTQ community in the United States, they represent about 8 percent of hate violence survivors. Perhaps somewhat surprisingly, undocumented people were more likely to report incidents to police, which the report suggests may have to do with increased rates of hospitalization and increased outreach efforts in these communities. Still, undocumented people face particular challenges after experiencing violence, given the threat of arrest and deportation.

In its conclusion, the report calls upon policy makers and funders to “end the root causes” of hate violence against LGBTQ and HIV-affected people by ending poverty and discrimination. NCAVP urges these groups to use their resources and influence to increase public awareness of LGBTQ and HIV-affected issues, to denounce the culture of bias that produces hateful beliefs in individuals, to end police profiling of LGBTQ and HIV-affected people, to collect more data on these communities and their experiences with violence, and to increase funding for local and national violence prevention programs.

The Limits of Law Enforcement in Addressing “Hate” Violence

As the report’s discussion of law enforcement begins to suggest, LGBTQ and HIV-affected communities must navigate a fraught and complicated struggle in trying to live free from violence. For one, while law enforcement officials may ostensibly seek to establish safer communities, definitions of safety and security, and even of who “counts” as a member of the community, are often guided by dominant narratives and structures that are related to these “root causes” of hate violence. It is no accident that the report finds that cisgender white males were most likely to report hate violence and most likely to get a favorable police reaction.

The ability of the police and FBI to reduce, rather than exacerbate, violence is further called into question by the militarization of local police departments, which has been prominently documented by the ACLU.  It’s in large part a symptom of our fearful post-9/11 world, particularly among security professionals. Even the FBI’s principal defense of its hate crime policy invokes the specter of domestic terrorism:

“Investigating hate crime is the number one priority of our Civil Rights Program. Why? Not only because hate crime has a devastating impact on families and communities, but also because groups that preach hatred and intolerance plant the seeds of terrorism here in our country.”

The FBI’s numbers regarding instances of hate violence are also far below those of NCAVP’s reporting, even considering the fact NCAVP’s reports include instances of violence that are not reported to law enforcement agencies, local or federal. The difference is so stark—a discrepancy of 600 survivors or victims, with the federal numbers about 68 percent below NCAVP’s—that the report calls them “disconcerting.”   As the report states,

“Federal hate crime reporting guidelines require that a hate crime be classified as motivated by a single type of bias. Therefore, a hate incident which was motivated by racism and homophobia would be reported as motivated by race or sexual orientation, which fails to demonstrate and address the multiple forms of bias involved.”

This single-bias requirement isn’t just a harmless bureaucratic restriction, it’s a sign of an ideological shortsightedness regarding the relationship between prejudice and violence. This procedural shortcoming is evidence that the intersectional and systemic components of violence against the LGBTQ and HIV-affected communities are at best considered inconsequential, and at worst unintelligible or not understandable, to the lens of law enforcement.

How are we to proactively address the root causes of homophobic, transphobic, racist, and sexist violence if the very institutions that promise to ensure physical security are stuck in a narrative of self-defense that requires its own “war” on crime and terrorism? Ultimately, the struggle for social justice and the holistic, subtle and violence-free vision that it requires is not the same struggle that criminal justice and law enforcement institutions are waging in their efforts to “combat” crime and terrorism.

Overall, all of these challenges suggest that the frame of “hate violence” is at best a limited one.  Kay Whitlock (whose 2012 discussion paper for PRA heavily influenced the framework of this blog post) talks about how the concept of “hate crimes” is arguably counter-effective in stopping violence against people with marginalized identities. She notes that the concept of “hate” cloaks the offender with a “fringe,” “extremist,” or outsider connotation, releasing them from any connection to “mainstream political, economic, social and religious institutions who seek to maintain traditional hierarchies of power.” Moreover, the “crime frame,” associated with the related term, “hate crime,” treats deviant or unacceptably violent behavior as psychologically, rather than historically, constituted. In this framework such activity is likely to be perpetrated by the very marginalized or “criminalized” populations who are supposed to benefit from hate crime laws, and renders rule breaking as addressable only by punitive measures and an increasingly reprehensible prison-industrial complex .

Instead, Whitlock urges us, if we really want to address the root causes of what the report calls “hate violence” against LGBTQ and HIV-affected communities, we must transcend the dominant narratives and approaches to security, the misleading label of “hate,” and the seemingly localized instances of and merely punitive responses to violence. As the report suggests, let’s work to dismantle “the homophobic, transphobic, and biphobic culture that fuels violence,” work to change police and criminal justice responses away from the punitive and towards the regenerative, and increase our efforts to provide local, safe, educational spaces in which to propel our society forward towards an inclusive justice.

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Cross-Post: Why Talking About Domestic Violence in the Transgender Community Matters

November 20 is the national Transgender Day of Awareness. The following is a an article that appeared on, cross-posted with permission.

Guest post by Darrick Ing, Asian Pacific Islander Legal Outreach  and Tiffany Woods, Tri-City Health Center

stop-domestic-violence-logoIn 2012, the National Coalition of Anti-Violence Programs (NCAVP) released the Intimate Partner Violence in Lesbian, Gay, Bisexual, Transgender, Queer (LGBTQ), and HIV-Affected Communities report. Among the key findings were that transgender people, people of color, gay men and people under 30 were groups that were most impacted by intimate partner violence.  The report found that transgender survivors were two (2.0) times as likely to face threats/intimidation within violent relationships, and nearly two (1.8) times more likely to experience harassment within violent relationships. “Transgender people face increased risk of violence because of their gender identity and transphobia within intimate partnerships,” said Aaron Eckhardt, Training and Technical Assistance Director at Buckeye Region Anti-Violence Organization (BRAVO) in Columbus.  Additionally, because domestic violence is rooted in power, control, and in many situations, reinforcing gender norms within a relationship, transgender people because of their lack of gender conformity, are particularly vulnerable to abuse.

The numbers are likely much higher for transgender people. Transgender survivors of domestic violence often choose not to report the abuse due to a number of factors, including a fear of compromising the privacy and safety interests if one is “outed,” denying access to medical treatment or hormones, or endangering one’s legal status if they are an undocumented immigrant, and a fear of the institutionalized transphobia within law enforcement and the judicial system.   Other abusive tactics used against transgender people include using non-preferred pronouns, eroticizing or fetishizing body parts, telling transgender people that no one else will ever love them, and threatening to take their children.

There are many examples of law enforcement failing to arrest or prosecute offenders after discovering the victim is transgender which have been documented by Transgender Law Center and other organizations working on domestic violence/intimate partner issues.  This has led to mistrust in the trans community to report incidences of domestic violence to the police.  As Aaron Eckhart explains, “To really address the needs of transgender survivors, we need to address transphobic laws, policies and institutions while also providing supportive programs that address transgender people explicitly and that engage transgender survivors in preventing this violence.”  This includes education and dispelling myths that women cannot be abusers, that men cannot be abused, and that the dynamics of domestic violence in a relationship involving a transgender individual is exactly identical to the dynamics of domestic violence in heterosexual relationships.  Other than community education, institutions such as law enforcement, courts, and hospitals should also receive LGBTQ-specific training on screening, assessment and intake.

It is important to understand that survivors of domestic violence often remain in abusive relationships for a number of complicated reasons. Leaving the abusive partner is not always an alternative, especially for particularly vulnerable populations, like transgender people, who may already be facing systemic discrimination and rely on their abusive partner for protection, housing, and income.  At times, an abusive partner may even try to maintain the relationship with a transgender person who is HIV+ and receiving services such as housing/SSI/food vouchers for economic motives.  Sometimes, transgender people will remain in a violent relationship simply because they receive affirmation of their gender identity from an abusive partner.  As Leigh Goodmark in her 2012 article “Transgender People, Intimate Partner Abuse, and the Legal System” has noted, some transgender women may experience gender affirmation through the experience of being abused and identify with the traditional domestic violence narrative.  For transgender men, some may feel the pressure to subject their partners to abuse and idealized notions of gender conformity in a relationship because of their perception of stereotypical masculinity.

Passage of the trans-inclusive Violence Against Women Act (VAWA) (which also protects men) to allow federal funding to be directed to LGBT-related efforts to combat domestic violence is an enormous victory for the transgender community and will contribute to the scarce resources that currently exist for transgender survivors.  Under VAWA, many immigration remedies exist to assist immigrant survivors of domestic violence obtain legal status, a tool that is often used by abusers.  Certain transgender individuals in abusive opposite-sex relationships are protected under the law to exercise their ability to self-petition for legal status under VAWA and to qualify for Battered Spouse Waivers as spouses to U.S. citizens and legal permanent residents.  With the strike down of Section 3 of the Defense of Marriage Act (DOMA), now transgender individuals in abusive same-sex relationships can also qualify for these immigration benefits.

Post VAWA 2013, all domestic violence service providers, shelters, and hospitals who receive federal VAWA funding must implement inclusive policies that include and affirm gender identity, gender expression, and sexual orientation and ban discrimination. This is important because currently, social and legal resources may be difficult for transgender individuals to access.  For example, many shelters may be “male” or “female” only, which may create heightened privacy, security, and safety issues for transgender individuals who are trying to flee their abusers.  Many transgender individuals also fear losing custody of a child from fleeing their abuser and require family law resources.  It is particularly important that legal and social services address these issues, such as educating and encouraging services to create shelter policies that take transgender individuals’ concerns into account.  For example, do the shelter policies respect the individual’s ability to access the shelter without disclosing their transgender status or history?  Does the shelter allow the individual to access the right type of clothing, personal care items, and medications that they need?  We must continue to address domestic violence in the transgender community by increasing access and services. All individuals have the right to be safe from violence and abuse both in their homes and in their everyday lives.

Domestic violence is an issue that impacts many of the most vulnerable people, especially within the trans community.  Help spread awareness!

Read the full report:

FBI: Preventing Violence or Provoking It?

On March 16, David McKay goes on trial for a second time. The jury must decide whether an FBI informant named Brandon Darby induced McKay to make Molotov cocktails on the eve of the Republican National Convention.   The FBI’s use of informants in domestic intelligence operations raises critical questions – are we giving to much leeway to the FBI? What are the implications for civil liberties when paid informants provoke illegal activity?

There are pressures inherent in the role of informant.  Informants must choose between two roles: the passive observer who yields little information and influence, or the more active participant who produces more and better information but also affects what happens. Taking a more active role raises the chance of the informant’s possible complicity and entrapment.[1]  Brandon Darby clearly chose the more active role. And a previous jury evaluating the case of David McKay deadlocked and declined to convict him because of questions that Darby crossed the line and instigated lawbreaking.

Since 9/11, the FBI, Homeland Security, and Department of Defense have been keeping tabs on political protest under the guise of anti-terrorism.  Hundreds upon hundreds (if not thousands) of meetings and protests have undergone government “tracking” and “collecting” via intense, invasive monitoring.  But when the FBI infiltrates groups with informants, they easily slip from passive to aggressive action that can disrupt, discredit, and punish dissent.

I. David McKay – Entrapped by the FBI

For 18 months before the 2008 RNC, the government paid over $11,000 to Darby, a gun-toting, outspoken Texas radical to spy on fellow activists in Austin, then in St. Paul during the convention.  After being hired by the FBI, Darby induced McKay (22) and Bradley Crowder (23) to concoct eight Molotov cocktails.

McKay admits to assembling the Molotov cocktails with his friend Crowder (who entered into a forgiving plea bargain, and is currently serving a maximum of 30 months in prison) and storing them in his basement.

To find entrapment, the new jury must decide that Darby convinced McKay to commit the crime, and that McKay had no plan of making Molotov cocktails before he met Darby in March 2008.

II. FBI Hires Veteran Activist with a Hero Complex

Any prosecutor has an uphill battle painting Darby as an innocent bystander.  Darby is the kind of character who might provoke others to violence.  It’s been roughly two months since he was publicly identified as the confidential source who reported on the Austin Affinity Group.  In that time, friends and long-time associates have painted a picture of Darby using terms like “charismatic,” “manic and reckless,” “divisive,” “paranoid,” “hero complex,” “volatile history with women,” “a strong authoritarian streak,” “manipulator,” “penchant for violent rhetoric.”

Then there’s my favorite by his long-time collaborator Lisa Fithian:  “He did a lot of Wild West shit – Mister Macho Action Hero.”[3]  This sums up the individual the FBI knew they were getting into bed with.

III.  Beware of Ideologically-Motivated Informers

Darby came to the FBI with a personal and ideological axe to grind.  After returning from a trip to Venezuela, Darby says he began to see major problems with certain actions that were being planned for the RNC, particularly by “anarchists” and the RNC Welcoming Committee.  Rather than share his concerns and conversion with his friends, he offered his services to the FBI.

After a requisite “suitability determination,” the FBI tasked Darby to spy on a range of Austin-area activists.[4] Keep in mind, Darby had been a self-identified revolutionary who slept with a gun under his pillow, according to friends.  He brought an AK-47 and a handgun with him to New Orleans to help rescue an old friend in a neighborhood inundated with muddy water and White militias in the aftermath of Hurricane Katrina.

Given Darby’s background, it is curious how the FBI could find such a person suitable for informing.  Factors in the FBI’s “Suitability Determination” include the person’s motivation and dangerousness.[5]

Sociologist Gary T. Marx’s study of agent provocateurs and informants suggests that the nature of informing may lead the informer beyond his or her assigned task, particularly when the motivation is personal or ideological.  In his study, Marx identifies potential motives of informants:  patriotism, coercion, financial reward, activist disaffection, double agents who want to assist the movement, converts who lose their zeal, and provocateurs who find success in the role by exceeding their mandate.[6]

Although the FBI paid Darby over $11,000 for his efforts, money did not appear to motivate Darby. Instead, it seems he was angry or resentful toward fellow activists.  According to reports, Darby felt that Malik Rahim and Common Ground Relief of New Orleans put him in a compromising position when they sent him to Venezuela on a mission to get funding for the residents of New Orleans.

Such motives may produce poor information.  Disgruntled informants tend to exaggerate or even lie:  “There is no limit to which people will go to get even for a real or imagined wrong.”[8]

Darby shared his employers’ assumptions that “anarchists” were determined to use violence.  “Such agents may thus feel free to encourage activists to take violent action or to report false information.  They may feel that the group poses such a severe threat that any means (even lying to superiors) are necessary to destroy it,” warns Marx.[9]

Exaggerating the importance of the group may make the provocateur feel that what he or she does is significant.  Further, wishful thinking may lead agents like Darby to confuse vague revolutionary rhetoric with specific plans.

As an informant, the FBI did not require Darby to shed his revolutionary fervor. Militant language and a reckless temperament remained part of his public persona. Darby’s contact agent or “handler,” Agent Timothy Sellers, asked him to get involved with the Austin Affinity Group’s plans to attend the RNC.  Agent Sellers cautioned Darby not to “take a lead role,” but such a directive was impossible to abide by under the circumstances.  The group sought out Darby’s leadership because of his credibility and reputation.  Darby proposed weekly meetings and told Crowder he would email him daily updates.

At the first meeting, he said, “I’m going to shut this fucker [the RNC] down” and “any group I go with will be successful.”   He lambasted protesters for looking like a bunch of “tofu-eaters” who needed to “start eating meat and bulk up” so they could fight.  Darby taught McKay and Crowder fighting techniques, such as head-butting and evasive jiu-jitsu moves.[10]  It comes as no surprise that Agent Sellers told Darby to keep his email reports shorter in the future.

There is no evidence that Darby toned down his rhetoric.  In fact, there was no reason for him to. His secret status may have freed him from the constraints that more prudent activists had to contend with.  He could act out his feelings of aggression or militancy without fear of reprisal.  As Frank Donner has observed, “the infiltrator’s secret knowledge that he alone in the group is immune from accountability for his acts dissolves all restraints on his zeal.”[11]

Moreover, the FBI did little to control Darby or keep tabs on him.  Agent Sellers did not include details of Darby’s words in his reports.  On the night that Darby wore a wire to transmit his conversation with McKay about the Molotov cocktails, Sellers took notes—no audio recording was made.

Really? It’s 2008 and the FBI didn’t record this conversation?

Further, according to defense testimony at the first trial, Darby provoked McKay and Crowder to make Molotov cocktails.  Darby first helped police seize 35 homemade shields they had brought to St. Paul.[12]

The seizure of these shields was the tipping point.  According to McKay, Darby was livid that the police had seized the shields.  Darby created the idea that they, as an affinity group, create multiple Molotov cocktails.  He said, “We’re not going to take this lying down.  You’ve got to do something about it.”

The night after the shields were seized, McKay bought the makings for Molotov cocktails at Wal-Mart.  Darby claims that he urged caution and restraint, but in text messages to McKay while he was casing a police parking lot, Darby wrote, “It’s your call.  I support you making whatever choice you are comfortable with.  Be proud of yourself for your work and take a chill.”  When McKay expressed that there were too many cops around, Darby texted, “it’s all good, sometimes it’s best to fight another day … – it’s ok, I’ll support you.”

McKay’s defense is largely circumstantial, but compelling.  You have an informant with no apparent qualms about lying to his closest friends.  A charismatic leader with a reputation for defying authority who became ideologically opposed to the anarchists’ message and tactics, being handled by an agent untrained in handling informants.

Sounds like the perfect setting for an agent provocateur to thrive.

IV. Anna the Informer and Beyond

Brandon Darby should be considered alongside another recent informer who promoted violence among her targets, Anna.  Anna was recruited by the FBI in Miami to infiltrate twelve anarchist groups before she helped Eric McDavid purchase bomb making materials for a plot in California aimed at environmental targets.

The FBI paid Anna $76,000 from January 2004 to 2006 as she traveled from one protest to another, including the G8 and Organization of American States meeting in Georgia, the Democratic National Convention in Boston, the New York Republican National Convention, and Crimethinc in Des Moines.  Along the way, she tried to provoke conflict and spark violent incidents, according to many who knew her.

After she met McDavid and his friends, Anna taught them how to make bombs, provided funds, paid their rent, and repeatedly threatened to leave if they “didn’t do something.”  Anna pushed others to take more and more aggressive action.  So, is the FBI trying to prevent violence or provoke it?

V. Using Intelligence to Punish Dissent

The discovery of an informer can demoralize activists; violence can discredit and split the movement.  The McKay and McDavid cases illustrate how the FBI facilitates provocateurs.   McKay’s case is not yet over, but the failure of the FBI to win outright is reminiscent of the 2006 Sears Tower case, when a jury refused to convict seven Florida men of plotting to bomb the landmark after being egged on by an FBI informant.

When you combine legislation institutionalizing guilt by association with expanded domestic surveillance, a preventive philosophy of policing, and an ideology that conflates protest with terrorism, you get the pre-conditions for a return to the abuses of the FBI’s COINTELPRO program, which aimed to break the back of People’s movements during the Sixties.

Given the government’s dismal record of using spies and agent provocateurs at the 2008 RNC in St. Paul, the RNC in New York in 2004 and in Philadelphia in 2000 isn’t it time for the majority in Congress to exercise serious oversight for America’s domestic “security” agency to protect the right to expression free from government interference?

“so take care of your freedom
they’ll never know
yeah take good care of your freedom
they’ll never know”

– Flogging Molly, “Lightning Storm”

[1] Karmen, A, “Agents Provocateurs in the Contemporary U.S. New Left Movement,” Criminology: A Radical Perspective, in Gary T. Marx, “Thoughts on a Neglected Category of Social Movement Participant:  The Agent Provocateur and the Informant,” American Journal of Sociology 80 (Sept. 1974) at 422.

[2] Diana Welch, “RNC Aftermath,” The Austin Chronicle, January 16, 2009.  Crowder has not yet been sentenced.

[3] Diana Welch, “The Informant:  Revolutionary to Rat,” The Austin Chronicle, Jan. 23, 2009, p. 7.

[4] Diana Welch, “The Informant,” p. 7.

[5] CI Guidelines Sec. II(A)(1)(g), (m).

[6] Gary T. Marx, “Thoughts on a Neglected Category of Social Movement Participant” at pp. 415-421.

[7] Colin Moynihan, “Activist Unmasks himself as Federal Informant in G.O.P. Convention Case,” New York Times, Jan. 5, 2009.

[8] M. McMann, ‘The police and the Confidential Informant.” M.A. thesis, University of Indiana (1954) in Marx at 416, n. 17.

[9] Marx, 420.

[10] Darby admitted making these statements and incidents during his testimony at trial.  The Austin People’s Legal Collective provides unofficial notes of the trial based on verbatim note-taking, available at

[11] Frank Donner, The Age of Surveillance  (1971) in Marx at p. 434.

[12] Diana Welch, “The Informant”