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OPINION | JOHN BRUMMETT: Making hate feel at home

by John Brummett | March 11, 2021 at 3:28 a.m.

Seldom if ever has a governor's declared legislative priority been treated as disrespectfully as Gov. Asa Hutchinson's push that Arkansas become the 48th state with a law allowing penalty supplements for crimes shown to be committed from hate.

We've never had a Legislature so extremely right-wing that a solidly conservative governor couldn't get even a tepid round of perfunctory applause for a bill supported by the state's business giants like Walmart and Tyson Foods to modernize our laws into the national mainstream.

What happened is that the most extreme right-wing state senators, which is saying something--Trent Garner, Bob Ballinger, et al.--loaded themselves on the Senate Judiciary Committee to block the hate-crimes bill altogether, or at least excise special penalties for crimes of hate based on sexual orientation and gender identity.

The pseudo-religious group called the Family Council opposes that inclusion because it thinks inclusion makes homosexuals and transgender persons seem acceptable, which the Family Council says they must never be because they're sinners.

There has been no movement on the governor's hate-crimes bill as sponsored by Sen. Jim Hendren, now homeless in the Capitol as a newly declared convert from Republicanism to independence.

Last week Hutchinson signed the "stand your ground" gun bill but said he hoped legislators would mitigate some of his concerns about inordinate vulnerability for minorities by passing the hate-crimes bill.

Legislators reacted ... not at all. They shrugged and went on to the next bill discriminating against transgender persons.

It turns out, though, there is behind-the-scenes movement on the issue, but not with anything resembling optimism.

The plan from the Hutchinson administration, it seems, is to write a hate-crimes bill that takes out the special penalties for crimes of hate based on gender identity--because transgender persons freak out right-wingers. But the revision would leave in sexual orientation on the thinking that gays and lesbians don't freak out right-wingers so much anymore. And it would add the words "sex" and "gender" as victim categories warranting hate penalties on the thinking that it all might amount to the same thing.

That's based on a U.S. Supreme Court ruling in 2019 written by conservative justice Neil Gorsuch that held that "sex" can mean more than gender and extend to sexual activity and identity.

I am told that the Democratic caucus--irrelevant except that Hutchinson might need it to get to 51 and 18 votes on such a revision--will not go along with excising gender identity. Transgender persons are the ones most vulnerable to hate and violence. As one Democrat put it, a so-called hate-crimes bill should not make concessions to hate in order to achieve passage.

Beyond that, whether "sex" in a state hate-crimes law would cover sexual activity or gender identity is an unsettled question.

The Gorsuch ruling found that federal civil-rights law preventing discrimination on the basis of sex applied not only to gender, male or female, but to sexual activity and transgender persons. He and the court majority found that to discriminate based on sexual orientation or gender declaration was to discriminate on the basis of the sex of the person, in a manner not applying if the sex was different, and therefore was covered.

The Democratic caucus is said to be averse to passing a hate-crimes bill on the mere hope that a court might rule similarly in this circumstance, probably only after someone had been victimized and gone to the expense to file suit.

Democratic opposition would leave a situation in which the governor's office would try to pass the watered-down finesse with only reasonable Republicans, of which there may not be 51 in the House or 18 in the Senate.

Either way, Senate sources tell me it's all dead on that end of the Capitol.

And that reminds me, or, more specifically, Kathy Webb, the Little Rock city director and former legislator and budget chairman, reminds me in a post on her Facebook account: In 2011, Arkansas became the first Southern state and 11th state nationally to pass anti-bullying legislation for schools. The bill specifically protected sexual orientation and gender identity.

It was passed by the then-Senate by 35-0.

I wondered who might have been in the Senate in 2011 joining that 35-0 vote protecting transgender children from school-ground bullying.

The roll call of "ayes" included Sens. Jason Rapert and Missy Irvin, now possible combatants for the Republican nomination for lieutenant governor and leading right-wing voices in anti-gay and anti-transgender legislation.

It just goes to show that 10 years was an eternity ago in Arkansas politics.

Rapert and Irvin were young then, inexperienced and perhaps not yet clear on conservative thinking about when it is punishable hate and when it is not when someone gets beaten up or worse for who they are.

John Brummett, whose column appears regularly in the Arkansas Democrat-Gazette, is a member of the Arkansas Writers' Hall of Fame. Email him at [email protected] Read his @johnbrummett Twitter feed.


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