Amicus Brief filed by Gender PAC et. al.

Case No. S-00-0022 Brandon Teena

Case No. S-00-0022

IN THE SUPREME COURT FOR THE STATE OF NEBRASKA

JOANN BRANDON, Personal Representative of the Estate of TEENA BRANDON, deceased,

Plaintiff-Appellant,

vs.

THE COUNTY OF RICHARDSON, NEBRASKA, and CHARLES B. LAUX, Richardson County Sheriff,

Defendants-Appellees and Cross-Appellants.

Appeal from the District Court of Richardson County, Nebraska The Honorable Orville L. Coady, District Judge

BRIEF OF THE GENDER PUBLIC ADVOCACY COALITION, AMERICAN ORTHOPSYCHIATRIC ASSOCIATION, AMERICAN PUBLIC HEALTH ASSOCIATION, ET AL. AS AMICI CURIAE SUPPORTING PLAINTIFF-APPELLANT

Charles B. Crisman, Jr., #10831
W. Mason Emnett, of counsel
1440 New York Avenue, N.W.
Washington DC 20005-2111
(202) 371-7000

Richard L. Parker, of counsel
Four Times Square
New York NY 10036-6522
(212) 735-3000

Attorneys for Amici Curiae

INTEREST OF THE AMICI CURIAE

Amici curiae, the Gender Public Advocacy Coalition, American Orthopsychiatric Association, American Public Health Association, Association for Women in Psychology, FTM International, Gender Education and Advocacy, Harry Benjamin International Gender Dysphoria Association, Inc., and Renaissance Transgender Association, are organizations actively involved in supporting, educating, and advocating on behalf of persons seeking to express their gender free of sex stereotyping. Brief descriptions of each amici is provided in the Appendix.

INTRODUCTION

The victim in this case was Teena Renee Brandon, a 21-year old female who lived his daily life as a man prior to his murder. Amici believe that Brandon was targeted for violence, and that Sheriff Laux discounted the danger Brandon faced, because Brandon experienced and expressed his gender in a way that conflicted with traditional stereotypes and social constructions regarding what it means to be a woman or a man in our society. Like all people who gender challenges sex stereotyping, Brandon not only was vulnerable to the hate-based violence that ultimately caused his death, but also to the discrimination that denied him his legal right to protection. As the trial court found, Sheriff Laux had a legal duty to protect Brandon despite any biases he may have had against Brandon. Yet when Brandon reported that John Lotter and Tom Nissen had viciously raped him and threatened to kill him if he reported the attack to the police, Sheriff Laux refused to arrest Brandon's rapists and, instead, subjected Brandon to a humiliating interrogation that pruriently focused on Brandon's appearance, gender, and sexual experiences. Despite this egregious breach of duty, and contrary to public policy, the trial court chose to shield Sheriff Laux and Richardson County from the consequences of the sheriff's failure to act by ordering them to pay a fraction of the ultimate amount of damages owed to Brandon's estate. The result - which compounds the tragedy of this case - perversely robs Brandon's estate of any meaningful remedy and undermines the very purpose of the duty to protect, namely to encourage victims, particularly those in vulnerable minority communities, to report crimes and cooperate with the police in their investigation. This result is unconscionable in this case and bad policy for the state of Nebraska.

ARGUMENT

People whose gender traits do not conform to sex-based stereotypes based on what it means to be a man or a woman often face rejection, discrimination, and, in cases such as Brandon's, extreme violence. At some time or another, often starting during childhood, many people are shamed, harassed, or made to feel afraid because they look, act, or dress in a way that does not conform to stereotypes based on their biological sex. The range of individuals singled out for such discrimination or harassment is strikingly broad, including for example: female professionals who are denied promotions because they appear too masculine, like Ann Hopkins, see Price Waterhouse v. Hopkins , 490 U.S. 228 (1989); young men who are targeted by attackers because they are young, sensitive, or slender, like Richard Oncale, see Oncale v. Sundowner Offshore Services, Inc. , 523 U.S. 75 (1998), or Matthew Shepard, see Wyoming v. McKinney, Wyo. (1999); school girls ostracized for being "tomboys" or school boys assaulted in the locker room for being "sissies," see , e.g. , Nabozny v. Podlesny , 92 F.3d 446 (7th Cir. 1996); as well as people like Brandon who cross gender lines to live in the opposite gender or who, like so many youth today, innocently experiment with social gender roles. In these and other cases, individuals may be discriminated against or assaulted - verbally, economically, physically, and/or sexually - as a means both to punish them for transcending gender stereotypes and to force them into socially-assigned gender roles. Kate Bornstein, Gender Outlaw 127 (1994).

The United States Supreme Court has long recognized that discrimination based on sex stereotypes and perceived gender roles is unacceptable. For example, in Price Waterhouse the court held that the insistence that individuals of a particular biological sex exhibit traits stereotypical of that sex constitutes discrimination under the Civil Rights Act of 1964. 490 U.S. at 250-51. That case involved a female manager who was denied a promotion because she was too masculine - she failed to "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry." 480 U.S. at 235. Price Waterhouse , however, simply confirmed a long line of cases in which the court made clear that stereotypes based on assumed gender roles cannot be tolerated. See, e.g. , Caban v. Mohammed , 441 U.S. 380 (1979) (sex-based distinctions between unmarried mothers and unmarried fathers under state domestic relations are unconstitutional since maternal and paternal roles are not invariably different in importance); Stanton v. Stanton , 421 U.S. 7 (1975) (statutory distinction between males and females, resulting in liability for child support for a daughter to age 18 but for a son to age 21, unconstitutional); Weinberger v. Wiesenfeld , 420 U.S. 636 (1975) (law granting survivors' benefits to widows but not widowers grounded on impermissible gender-based generalization that men are more likely than women to be the primary supporters of their spouses and children); Schlesinger v. Ballard , 419 U.S. 498, 507 (1975) (upholding disparate treatment of men and women in Naval promotion schedules because such treatment was based on legitimate reasons and not "archaic and overbroad generalizations" about the relative abilities of men and women); Frontiero v. Richardson , 411 U.S. 677 (1973) (striking down statutes granting automatic presumption that wives of male uniformed service members were economically dependent on their husbands for purposes of obtaining increased quarters allowances and health benefits but that spouses of female members were not so dependent).

As the U.S. Supreme Court has recognized, sex stereotypes are largely based on assumed gender roles - the belief that, as a man or a woman, each person should conform to generalizations and expectations about what members of each sex are supposed to look like and behave. Price Waterhouse , 480 U.S. at 250-51. Yet, as the court further recognizes, gender and sex in reality are distinct and should not be equated with one another: "the word 'gender' has acquired the new and useful connotation of cultural or attitudinal characteristics (as opposed to physical characteristics) distinctive to the sexes. That is to say, gender is to sex as feminine is to female and masculine is to male." J.E.B. v. Alabama , 511 U.S. 127 at 157 n.1 (1994) (Scalia, J., dissenting). Thus, while sex refers to the biological status of being male or female, gender refers to the particular role each person plays in society - a role that varies culture by culture. Mary Anne Case, Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Practice , 105 Yale L.J. 1, [47] (1995). It is a person's gender, not sex, that indicates whether a person considers himself or herself as masculine or feminine. Id.

Each person expresses gender, as distinguished from sex, through a series of non-verbal cues, such as the choice of clothing or hair style, or through particular behaviors, such as how one stands, walks or gestures. Gordene Olga MacKenzie, Transgender Nation 1 (1994) ("The way we look, the way we act, dress talk, walk, wear our hair, think about ourselves, communicate with others and desire comprise our gender schema."). In this way, gender constitutes an implicit signal to others about how one feels inside, how one sees oneself, and how one wants others to see the person as an individual - irrespective of biological sex. Indeed, the expression of gender can, and often does, conflict with stereotypes regarding what a person of a particular sex should be like. Transgender people - those that manifest the clothing, appearance, behaviors, and/or self-identification typically associated with persons of the opposite sex - perhaps best personify those who are sex stereotyped in this way. For example, although anatomically female, Brandon lived as a man during the period prior to his death, identifying himself as Brandon rather than Teena, wearing traditionally masculine clothing, and referring to himself as "he." (112: 7-15). While it is not clear whether Brandon truly considered himself transgender, Brandon did identify himself as a man in the years prior to his death and, as such, amici refer to Brandon herein using masculine pronouns.

Despite this potential conflict with sex stereotypes, it is only by openly and honestly expressing gender that people can interact authentically with coworkers, friends, and loved ones. That is, since gender identity is fundamentally linked to how people wish to be perceived by others, individuals cannot change their expression of gender without changing the implicit signals that they wish to send to others about who they believe themselves to be - a forced conformance that can lead to emotional stress and social withdrawal. Paradoxically, much of the stigma associated with not conforming to sex stereotypes is based on an underlying belief that non-conforming individuals are being deceptive with regard to their true gender and that, if only they would conform to sex stereotypes, they would not have to suffer discrimination or societal rejection. Given that gender identity is tied to how people wish to present themselves, however, it is the hiding of their true gender identity that is false and deceptive. See Ken Cooper, "Practice with Transgendered Youth and their Families," reprinted in Social Services with Transgendered Youth 111, 125 (Gerald P. Mallon, ed. 1999). Only by a person's open and honest expression of gender can people genuinely communicate how they feel about themselves and become full and authentic social actors. Kate Bornstein, Gender Outlaw 59-65, 127-28 (1994). This desire roughly parallels the increasing numbers of gay people who feel that only by being open about their sexual orientation can they contribute in an authenticate and honest way to their families, workplaces and communities. See Gregory M. Herek, "Stigma, Prejudice and Violence Against Lesbians and Gay Men," in Homosexuality: Research Implications for Public Policy at 60, 74 (1991); Brian McNaught, Gay Issues in the Workplace (1993).

Yet many people who attempt to express gender in ways that conflict with sex stereotypes are subjected, like Brandon was, to severe discrimination or physical attack as punishment for crossing stereotyped gender lines. Recent studies confirm that people who people who are sex stereotyped are at significantly increased risk of violence. Sixty percent of all transgender people have been victimized by hate violence. Transgender Equality at iii. National crime studies indicate that the incidence of rape or attempted rape of transgender people is 20 times higher than the incidence of rape or attempted rate of non-transgender women. 1997 Violence Study at 13 (reporting 2.7% of transgender people, as compared to .13% of non-transgender women, reported rape). Transgender people report being physically assaulted twice as much as non-transgender people, id. at 13-14, with almost half of transgender people reporting being assaulted at some point in their life. Id. at 14. Moreover, 95% of the incidents of violence and harassment reported by transgender people involved 2 to 3 perpetrators. Id. at 25. The majority of these incidents occurred in public spaces - visible to both potential perpetrators and potential victims. Id. at 18. Thus, even those individuals who have not experienced such violence directly are witnesses to these attacks and live in fear that they could be the next victim or, worse, are led to believe such attacks are publicly sanctioned.

Fear of such violence and stigma is particularly prevalent among transgender youth. The United States Department of Health and Human Services has concluded that transgender youth and young adults "are perhaps the most outcast of all young people and face a grave risk of suicidal feelings and behavior." "Report of the Secretary's Task Force on Youth Suicide," reprinted in Death by Denial , Gary Remafedi, Ed. at 15, 38 (1994). This is not surprising - transgender youth are at high risk of being scorned, attacked, or locked into or thrown out of their homes simply for trying to honestly express their gender identity, leading one author to conclude that such youth "are among the most neglected, misunderstood groups in our society today." Christian Burgess, "Internal and External Stress Factors Associated with the Identity Development of Transgendered Youth," in Social Services with Transgendered Youth 35, 42-43, 75-76 (Gerald P. Mallon ed., 1999) [ hereinafter "Identity Development of Transgendered Youth"]. Compounding these problems, youth whose gender does not conform to sex stereotype often believe they must deal with these problems alone, feeling shunned by the traditional social institutions that routinely provide emotional support, positive reinforcement, and protection for others, such as families, religious organizations, schools, and peer groups. "Identity Development of Transgendered Youth," supra at 66.

This case is yet another example of a young person targeted for violence because of sex stereotyping. John Lotter and Tom Nissen learned that Brandon was biologically female ... That Brandon crossed gender lines and lived as a man angered Lotter and Nissen, so much so that they raped and brutally beat Brandon in an apparent attempt to punish him for not conforming. Making matters worse, when Brandon worked up the courage to report the attacks, Sheriff Laux - the public official charged with protecting Brandon [cite trial court] - discounted the danger facing Brandon and instead subjected him to a demeaning, extended inquiry regarding his gender. The sheriff coldly referred to Brandon as an "it" (104:2-12) and asked at different times: "why do you run around with girls instead of guys being you are a girl yourself," (E8, 14:22, Vol. 5), "do you run around once in a while with a sock in your pants to make you look like a boy," id . at 82, and "the girls that don't know about you... Do you kiss them?" Id. at 22. Rather than focusing on protecting Brandon and prosecuting his attackers, chose to further humiliate Brandon for living as a man.

Unfortunately, such incidents of public disregard of crimes committed against those who are sex stereotyped are not unique to Nebraska. In New York City, police refused to investigate the July 1992 death of Malcolm Michaels, a transgender woman living as Marsha Johnson, who was seen being harassed and verbally assaulted by a group of teenagers and was subsequently found floating dead in the Hudson River - not far from the location of the assault. GenderPAC, First National Survey of Transgender Violence , at 28 (Apr. 13, 1997). In Washington, D.C., medical service paramedics ceased rendering life-saving treatment to Tyra Hunter at the scene of an automobile accident upon discovering that Tyra was a man dressed in women's clothing, using derogatory epithets while bystanders attempted to provide alternate emergency care. Associated Press, Jury Gives $2.9 Million To Transvestite's Mother , N.Y. Times, Dec. 13, 1998, § 1 at 39. Such incidents send a chilling message to the transgender community - as well as to other targeted minority groups - that they also may suffer harassment and the impact of prejudice at the hands of the same public officials charged with protecting them. Indeed, many people who express gender in ways subject to sex stereotyping already do not report hate-based violence for fear that public officials will disregard their complaints or, worse, that they will be blamed for instigating the violence. National Coalition of Anti-Violence Programs, Anti-Lesbian, Gay, Transgender, and Bisexual Violence in 1999 2-3 (2000) available at www.avp.org/ncavp/index.htm

This damaged trust is precisely what the duty to protect is meant to correct. Cf. Schuster , 154 N.E.2d at 537 (without the duty to protect, "it might well become difficult to convince the citizen to aid and co-operate with the law enforcement officers."). The policy reasons underlying the duty to protect exception are clear: "The theory of these decisions stems in part from a concern that failure to impose a duty of protection would discourage citizens from cooperating with law enforcement officers." Morgan , 468 A.2d at 1312. Indeed, the duty imposed upon the police to protect witnesses and informers is viewed as reciprocal to the corresponding obligation placed upon the general public to cooperate with the police: "The duty of everyone to aid in the enforcement of the law, which is as old as history, begets an answering duty on the part of government, under the circumstances of contemporary life, reasonably to protect those who have come to its assistance in this manner." Schuster , 154 N.E.2d at 537. Without the reciprocal duty to protect, "it might well become difficult to convince the citizen to aid and co-operate with the law enforcement officers." Id.

The duty to protect can only have its intended result, however, if public officials are effectively held liable for breaching their duty. Given the policy reasons surrounding the duty to protect, the decision of the trial court is simply irrational - the duty was adopted explicitly to require officials to provide protection to cooperating citizens, yet if there is no liability for breaches of the duty then officials will have no incentive to follow through in providing citizens with much needed protection. Cf. Merrill Crossings Assoc. v. McDonald , 705 So.2d 560, 562-63 (Fla. 1997) ("it would be irrational to allow a party who negligently fails to provide reasonable security measures to reduce its liability because there is an intervening intentional tort, where the intervening intentional tort is exactly what the security measures are supposed to protect against."). By shifting liability away from appellees and apportioning damages to Nissen and Lotter, the trial court signalled to law enforcement officials that breaches of the duty to protect will not be treated seriously. Moreover, systematically relieving officials of liability for the breach of the duty to protect signals to the public they should not rely on the police for protection in cases where citizens cooperate in police investigations - a message particularly troubling for people subject to sex stereotyping, who already are reluctant to report gender-based crimes for fear of reprisal or discrimination. See Restatement (Third) of Torts: Apportionment of Liability § 14 cmt. B (2000) ("Yet when the risk of an intentional tort is the specific risk that required the negligent tortfeasor to protect the injured person, that result significantly diminishes the purpose of requiring a person to take precautions against this risk.")

The significance of the trial court's decision is not limited to this particular case. The trial court's shifting of liability - if permitted - will be repeated in every case involving the duty to protect, since the duty to protect is only implicated in cases where intervening tortfeasors have succeeded in their attempts to harm the person cooperating with the police. In each of these cases, courts and juries will have the opportunity, if not the obligation, to apportion liability to the intervening tortfeasors and thereby shift liability away from negligent public officials, exactly the way the trial court has done in this case. By allowing the trial court's apportionment of damages to stand, this Court will substantially undermine the effectiveness of the duty to protect for all future cases.

CONCLUSION

By clearly imposing on law enforcement officials an affirmative duty to protect in Brandon , 252 Neb. at 844, this Court took the initial step to ensure that all citizens will feel free to report crimes and cooperate with law enforcement officials. Only by taking the additional step of enforcing fully the duty to protect - including the imposition of substantially adequate damages for breaches thereof - can the Court ensure that law enforcement officers fulfill their official responsibility to protect equally all persons who participate in a police investigation or the prosecution of a crime.

Dated: September 27, 2000

Respectfully submitted,

Charles B. Crisman, Jr., #10831
W. Mason Emnett, of counsel
1440 New York Avenue, N.W.
Washington, D.C. 20005-2111
(202) 371-7000
(202) 393-5760 Fax

Richard L. Parker, of counsel
Four Times Square
New York NY 10036-6522
(212) 735-3000

Attorneys for Amici Curiae 
Gender Public Advocacy Coalition
American Orthopsychiatric Association
American Public Health Association
The Association for Women in Psychology
FTM International
Gender Education and Advocacy
Harry Benjamin International Gender Dysphoria Association, Inc.
Renaissance Transgender Association, Inc. 

Statements of Interest of the Amici Curiae
Gender Public Advocacy Coalition ("GenderPAC")
GenderPAC is a national organization working to ensure every American's civil right to express their gender identity free from stereotypes, discrimination, or violence. In order to do this, GenderPAC educates state and federal officials, tracks gender-based hate crimes and employment discrimination, carries out community-based research, and works to ensure fair, accurate, and inclusive representations of gender in the media. GenderPAC has taken a lead role in coordinating Amici's efforts in this case.

American Orthopsychiatric Association ("Ortho")
Ortho provides a common ground for collaborative study, research, and knowledge exchange among individuals from a variety of disciplines engaged in preventive treatment and advocacy approaches to mental health. Founded in 1924, Ortho's membership includes over 5,000 mental health professionals from around the world that share a commitment to scholarship and clinical expertise in the interest of informing professional practice and public policy. Ortho traditionally has played an advocacy role in cases of social injustice, particularly civil rights violations involving race, gender, and disability.

American Public Health Association ("APHA")
The APHA is the oldest and largest organization of public health professionals in the world, representing more than 50,000 members from over 50 occupations of public health. APHA brings together researchers, health service provides, administrators, teachers, and other health workers to respond to a broad set of issues affecting personal and environmental health. Whether APHA is proposing solutions based on research, helping to set public health practice standards, or working closely with national and international health agencies to improve health worldwide, its mission is to continue to strive to improve public health for everyone.

The Association for Women in Psychology ("AWP")
AWP is a not-for-profit scientific and educational organization committed to encouraging feminist psychological research, theory and activism, with an awareness of a responsibility to incorporate cultural diversity as well as a strong anti-racism position. Representing over 1,000 researchers, clinicians, academicians, and students, AWP fosters feminist psychological research on the effects of oppression on women's lives including sexism and heterosexism, develops theories concerned with alternatives to traditional gender roles, and encourages women to create individual sexual identities through which they may freely and responsibly express themselves.

FTM International ("FTMI")
FTMI is an international educational organization providing information and support to female-to-male transgender people and transexual men around the world. FTMI holds meetings and conferences, publishes newsletters and resources guides, provides general support and information to persons examining gender issues.

Gender Education and Advocacy ("GEA")
GEA is a national 501(c)(3) corporation with a focus on the needs, issues, and concerns of gender variant people in human society. GEA educates and advocates for all human beings who endure gender-based oppression in many forms, providing information services, educational materials, advocacy training, and technical assistance and working to advance the civil rights, health and well-being of all members of our diverse community.

Harry Benjamin International Gender Dysphoria Association, Inc. ("HBIGDA")
HBIGDA is a professional organization devoted to the understanding and treatment of gender identity disorders. HBIGDA has approximately 350 members from around the world, in the fields of psychiatry, endocrinology, surgery, law, psychology, sociology, and counseling. HBIGDA develops and publishes Standards of Care for the treatment of gender identity disorders. These standards are internationally accepted guidelines, designed to promote the health and welfare of persons with gender identity disorders.

Renaissance Transgender Association, Inc. ("Renaissance")
The mission of Renaissance is to provide the very best comprehensive education and caring support to transgender individuals and those close to them. Renaissance accomplishes its mission through offering a variety of carefully selected programs and resources focused on the factors affecting the lives of transgender individuals. To that end, Renaissance has an active interest in all cases involving discrimination and violence committed against people within the transgender community.