Three strike laws dramatically increase prison sentences for persons convicted of two or more serious or violent felonies. Premised on enhancing criminal punishment for repeat, violent offenders, thereby increasing public safety through incapacitation and deterrence, these laws gained traction in the 1980s and 1990s when many states were adopting tough-on-crime approaches. More than half the people sentenced under three strikes laws, however, are serving time for nonviolent crimes.

California enacted its “three strikes, you’re out” law in 1994, in response to public outrage over the murder of Polly Klaas. The law imposed an indeterminate life sentence on any person convicted of a felony who had previously been convicted of two or more serious or violent felonies. Initially, any felony could serve as the final, triggering offense. In 2012, proposition 36 amended the law to require that the third strike be a violent felony.

The United States Supreme Court considered the constitutionality of California’s three strikes law in Ewing v. California (2003). There, Gary Ewing challenged his sentence of 25 years to life in prison on the ground that California’s three strikes law, as applied to him, violated the Eighth Amendment’s prohibition against “cruel and unusual” punishments. Ewing was on parole from a nine-year prison term in 1999 when he was arrested for stealing three golf clubs and charged with grand theft. Ewing had four prior serious convictions: three burglaries and one robbery, all of which were committed prior to the enactment of California’s three strikes law. 

Ewing argued that his sentence was cruel and unusual because the prison term imposed was disproportionate to the shoplifting offense he committed. This argument was not entirely novel. The Court previously considered similar proportionality arguments in the context of the Eighth Amendment in its 5-4 decision in Solem v. Helm (1983) and its plurality opinion in Harmelin v. Michigan (1991). In Solem, the Court held that the Eighth Amendment prohibits sentences that are disproportionate to the crimes committed. There, the Court struck down a life sentence without the possibility of parole imposed under a state recidivist statute upon a person convicted of writing a check from a fictitious account (his seventh violation). The Court applied a three-factor test to determine that Helm’s sentence was disproportionate: (1) the gravity of the offense versus the harshness of the punishment; (2) sentencing in the same jurisdiction; and (3) sentencing in other jurisdictions. Eight years later, in Harmelin, the Court limited the Solem proportionality test to death penalty cases only and noted that “strict proportionality” is not required in sentencing, as long as the sentence is not extreme or “grossly disproportionate” to the offense committed. 

Against this backdrop, the Court denied Ewing’s “cruel and unusual” claim, thus validating the three strike law. In a plurality opinion authored by Justice O’Connor, the Court stated that although the theft of three golf clubs is relatively minor, “Ewing’s sentence is justified . . . and amply supported by his own long, serious criminal history.” Justice Scalia wrote a separate concurring opinion to reiterate his continued opposition to any sort of Eighth Amendment proportionality principle. Justice Thomas concurred separately because, although he agreed with the plurality’s holding and with Justice Scalia’s concurrence, he did not believe that Solem was good law. Justices Souter, Stevens, Ginsberg, and Breyer all dissented. 

Though the plurality in Ewing discussed California’s interest in public safety and deterring repeat offenders, studies show tough-on-crime policies, such as three strike laws, do not work to effectively deter criminal activity. Rather, these laws lead to exceptionally high incarceration costs without lowering rates of recidivism. Though laws of this sort were originally enacted with the advertised intent to promote public safety by removing violent offenders from society, many defendants still languish behind bars for committing nonviolent offenses—despite more recent efforts to narrow what qualifies as a third strike both at the state and federal level. 

In addition to ineffectiveness, these types of laws disparately impact communities that are introduced to the legal system at disproportionate rates—Black men, statistically, are most impacted. Black men are more likely to be arrested and charged, particularly with felonies, than their white peers. Further, upon release, Black men are statistically more likely to experience factors leading to recidivism. Black men have the highest rates of recidivism in the United States; thus, three strike laws affect them at disproportionate rates.

This overview merely scratches the surface of one criminal sentencing tool used to perpetuate oppression and extreme class divides. “Three strikes” and similar repeat offender laws are only one facet of criminal sentencing that leads to disparate outcomes for historically disenfranchised people. People in these communities also disproportionately suffer from mandatory minimums, sentencing guidelines, and disparities in drug offenses. Resources spent on further increasing mass incarceration should instead be reinvested in underserved communities.

L. Moose

Further Readings:

Polly Klaas Was Our Sister: We don’t Want Unjust Laws to be Her Legacy 

The Story of Ewing v. California: Three Strike Laws and the Limits of the Eighth Amendment Proportionality Review

10 Reasons to Oppose “3 Strikes, You’re Out”

The History Behind Mandatory Minimums

Society validates incarceration through theories of deterrence, rehabilitation, and incapacitation. The United States has warped its criminal justice system to reflect such extreme versions of these principles that each has proven inefficient. These bases are weaponized to perpetuate an incredibly problematic cycle with a particularly oppressive impact on historically disenfranchised communities. 

Responding to criminal activity leads to a seemingly logical understanding that punishment, e.g., imprisonment, deters people from committing crimes. However, this is fallacious reasoning. “Crimes” are often the result of socioeconomic necessity; the criminalization of those who struggle with mental illness, particularly people who struggle with substance dependency; or extreme racial targeting. These factors can not be sufficiently “deterred” by prison. Further, statistically, someone convicted of a crime is not deterred from future offenses by facing a prison sentence. Prison sentences increase the likelihood of a future offense. Considering crimes of necessity—direct attacks on people who struggle with indigency—incarceration further impoverishes people. For people who struggle with mental illness, symptoms are typically exacerbated by time spent in prison leading to further behavior criminalized by the legal system. 

This failure to deter crime also fails to rehabilitate. Without addressing the overcriminalization of offenses targeted at historically disenfranchised communities, rehabilitation is impossible. High rates of recidivism are caused by a lack of societal support upon release and the long-term effects of poor living conditions within correctional facilities. 

The general argument for incapacitation is concern for public safety. While a worthy goal, and reasonable to assume a person cannot commit further criminal activity to harm the public during their term of incarceration, incapacitation has little-to-no long term effect on public safety. 

Another theory behind the criminal justice system in the United States is retribution via punishment. Not only does this theory fail to offer a productive result, as seen by excessive rates of recidivism and lack of deterrence, it is exceptionally costly. The United States spends nearly $300 billion every year to police and incarcerate people. 

There are other viable and less-costly options to the current system. Diverting funds to public-housing, food security, and healthcare will help prevent criminal activity related to indigency. Decriminalizing the manifestations of mental illness, particularly substance abuse, and focusing solely on treatment will substantially reduce issues of overcrowding in incarceration facilities. Implementing restorative justice programs in lieu of the punitive theories of Westernized culture will greatly reduce costs of the criminal justice system as a whole. 

Despite the proven failure of the United States criminal justice system, and despite available alternative options, the United States continues with the same structure. Why? The criminal justice system directly profits those in control of it. 

The Prison Industrial Complex addresses the closely intertwined interests of those enforcing the criminal justice system with industries that directly profit from mass incarceration. Though the monetary cost of mass incarceration is astronomical for families and taxpayers, the cost of perpetuating this system benefits law enforcement and private industries. 

Policing budgets increase in tandem with harsh-on-crime policies. When law enforcement agencies advocate for budget increases they point to statistics of criminal activity to justify the worth in policing. More criminal activity equates to more money for law enforcement. This creates an inherent conflict. Generally understood purposes of policing include public safety and combating criminal activity, but for police to perform these purposes there must first be criminal activity. Less crime means less use for police. 

Even in public prisons, private companies capitalize on the excessive number of inmates. Companies find easy profit in reaping lucrative benefits from prisons’ use of commissaries to provide basic necessities, expensive phone calls, difficult to access medical services, secure cell furniture, etc. Further, and even more grotesque, many private companies violate human dignity by profiting on prison labor. People who are incarcerated are paid mere cents an hour. When it comes time for criminal justice reform lobbying, private companies are incentivized to encourage the continuance of mass incarceration, thus continuing their profits.

It is undeniable the United States needs to reexamine its criminal justice system. It is unproductive, excessively costly, and it disproportionately impacts historically disenfranchised communities. As long as private industries are allowed to profit off this system, there is not much hope for change. Before we can successfully advocate for a criminal justice system that does not result in mass incarceration and failed rehabilitation, the privatization of the criminal justice system must be addressed. 

L. Moose

Further Readings

Even During Coronavirus Outbreaks, Prison Industry Profits

Penal Incapacitation: A Situationist Critique

Private Prison Companies Face Stock Crash, Credit Crunch

*A number of cited hyperlinks reference only women when discussing abortion and reproductive rights. The author and UM ACLU acknowledge and respect that not every person restrained by reproductive regulations identifies as a woman.

At the start of this month, Texas put into effect the most stringent abortion regulations in the country. Texas’s new abortion law bans any termination procedure, other than a “medical emergency,” after six weeks. Despite long standing precedent that prevents states from criminalizing elective abortions before the end of the first trimester (end of week 12), this law went into effect at the beginning of September this year. 

The constitutionality of the Texas law was challenged by the Department of Justice on September 9, 2021. The claims asserted include violations of the Supremacy Clause, the Intergovernmental Immunity Clause, and federal preemption. 

To make this new law more difficult to review and challenge under federal precedent, Texas deputized its citizens to enforce the law through civil litigation opposed to criminal prosecution. Texas citizens can now sue anyone who assists any pregnant person in getting an abortion, even a hired driver to a clinic, with the potential to recover $10,000 from each person found liable for “aiding and abetting” an abortion. These private citizens do not need to demonstrate a personal connection to the suit. This extra step of civilian deputization will follow a long history of abuse directed towards Black, Indigenous, and People of Color (BIPOC) communities.

White vigilantism is, and always has been, a part of this country’s culture. Slave patrols, the predecessor to our modern police system, became active in the early 1700s. These civilian-led patrols worked relentlessly to keep Black people subdued through abject terror in an effort to prevent revolts by enslaved persons. Slave patrols were not labeled as official law enforcement but were a government sponsored force paid to frequent areas that threatened revolution. Members of slave patrols were not bound by typical regulations on privacy rights. They were authorized to forcefully enter the homes of anyone they suspected of harboring enslaved persons. Though slave patrols technically ended with the conclusion of the Civil War, more aptly they were simply renamed. Slave patrols are still seen in action today every time a white person takes it upon themselves to forcibly regulate a member of BIPOC communities. This can be as simple as calling the police on a racist hunch, an action well-known to result in harm to BIPOC persons, to even more extreme examples of armed self-imposed “justice.” 

The Black Lives Matter protests, in response to the brutal treatment of BIPOC, particularly Black, persons by police, saw not only a harsh reaction from official law enforcement but additional attacks from self-proclaimed militia groups acting as civilian vigilantes. Though last summer these groups were featured more prominently in the media, this extreme action does not arise only from the last couple years. Since the 1980s, groups of civilians, largely made up of white persons, have taken it upon themselves to monitor the U.S. and Mexico border and forcibly prevent people from entering the United States. 

Reminiscent of slave patrols, this type of civilian regulation is sanctioned either by victim blaming and/or direct endorsement from law enforcement. The killing of two Kenosha, Wisconsin protestors in 2020 represents one of the more egregious examples of this, where police not only  encouraged the assailant to patrol the streets on the night of the incident but also donated to him afterwards. 

Beyond these obvious acts of racially motivated aggression, civilian policing takes the form of excessive 911 calls to law enforcement with reports of frivolous claims against members of BIPOC communities, particularly Black men, for unsubstantiated criminal activity. These non-emergency calls are statistically more probable to harm BIPOC persons than white persons and are a direct result of the white vigilantism embedded in our culture. 

Issues surrounding reproductive rights impact members of historically disenfranchised communities more acutely than white communities. Social and economic disparities, from mass-incarceration to birth parent and infant mortality rates, contribute to this unsettling reality. With the new Texas abortion ban this historic oppression will continue in tandem with the added threat of civilian deputization—a tool actively weaponized against BIPOC communities. The Texas abortion ban, and its associated sanctioned vigilantism, will have the same disproportionately negative effect civilian deputization has always had on the same communities that have always suffered from the consequences of civilian enacted “justice.”

Instead of rewarding modern versions of slave patrols, the monetary incentive to civilian deputization in Texas could fund more productive societal benefits such as food and housing security; access to medical insurance and healthcare; public education; and general financial stability for state citizens—particularly children. The policy behind this new law claims to value life, yet it was signed by the same governor who actively combats Covid-19 precautions as the pandemic rips through his state’s underage population, and it apportions government funds to active attacks on people’s livelihood. If preservation of life truly is the goal of Texas lawmakers, it cannot be achieved by civilian policing of BIPOC persons.

L. Moose

Further Reading

Alliance Between Vigilantes and Law Enforcement: A US Tradition

Alternatives to Calling the Police

A Community Organizer Takes on White Vigilantism 

White People Calling the Police on Black People Is Not New

On March 23, 2021, the United States Supreme Court heard oral argument for United States v. Cooley—a case that originated in Crow country within the boundaries of Montana. The case challenged a tribal officer’s authority to investigate a non-Indian* pulled off on the side of a state highway that passes through reservation boundaries. The Ninth Circuit determined the tribal officer had the obligation to first identify the person’s Indian status before detaining him and searching his vehicle. You may read a more robust factual background of Cooley in a previous Criminal Injustice System post here.

On June 1, 2021, SCOTUS found tribal officers do have the authority to temporarily detain and search non-Indian persons within reservation boundaries. While the Court’s opinion acknowledges the danger an alternative holding presents to tribes, and it expressly considers the safety of tribal members, its analysis once again disregards the inherent sovereignty of tribes. Rather than accepting tribal investigatory authority as an inherent retained right, the Court regulates this authority to an exception and not the general rule. 

Tribes have the inherent authority to self-govern. This authority survived the initial treaty-making process with the United States but has since been attacked time and again by the federal government throughout various lines of Federal Indian law precedent. 

For a case such as Cooley, where potential repercussions deal heavily with criminal jurisdiction, it is important to start with Oliphant v. Suquamish. In Oliphant, SCOTUS severely limited tribes’ criminal jurisdiction despite a treaty understanding that this right was retained within their inherent sovereignty. Post Oliphant, the determination of tribal criminal jurisdiction depends on (1) the location of the crime, (2) the Indian status of both the perpetrator and the victim, and (3) the type of crime under investigation. Despite the limits placed on tribal sovereignty in Oliphant and the cases that follow, the Court never explicitly deprived tribal police of their basic investigatory powers on highways that pass through Indian country. The Court has repeatedly stated it “does not question the ability of tribal police to patrol the highway.” Strate v. A-1 Contractors; Atkinson Trading Co. v. Shirley. 

The regulatory and adjudicative authority of tribes has also been limited in the context of civil jurisdiction. The Supreme Court diminished tribes’ inherent power to exercise civil jurisdiction over torts committed by non-tribal members and reduced tribes’ power to regulate the conduct of nonmembers in Indian country. In a landmark case, Montana v. United States, the Court recognized two exceptions to the general rule that tribes lack inherent power to exercise regulatory and adjudicative authority over non-members: (1) a tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements; and (2) a tribe may retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. Thus, if a nonmember tortiously injures another nonmember on non-Indian fee land within a reservation, the tribe would lack subject matter jurisdiction over the resulting lawsuit absent one of the two Montana exceptions (i.e., a consensual relationship with the tribe or an activity that threatens the political integrity, economic security, or health or welfare of the tribe). See Strate v. A-1 Contractors. 

In Cooley, SCOTUS conflates long-standing civil and criminal jurisdiction analyses to piecemeal a response to the question of the somewhat gray area of tribal police authority. Because the Court had previously separated tribal police authority from criminal jurisdiction, a strict criminal jurisdiction analysis of these facts would be incorrect. Therefore, it made sense to analyze this issue under a different approach. The issue for tribal sovereignty arose when the Court’s different approach fit policing authority into an exception-based test instead of a retention of inherent sovereignty, as seen in its previous interpretation of investigatory powers. Strate v. A-1 Contractors; Atkinson Trading Co. v. Shirley. The Court missed the opportunity to clearly and explicitly reaffirm tribal police authority as an inherent right. Instead, this power was regulated to an “exception” under Montana. 

Notably, the Court implemented the second prong of the Montana test for the first time. Until Cooley, no set of facts met the standard required by this particular exception. Though tribal police authority does clearly deal with the health, welfare, and safety of tribes, this new precedent incorrectly requires compliance with an exception. Cooley offers a previously unknown understanding of the standard required to meet this exception, but using Cooley as an opportunity to define this exception infringes on tribal sovereignty. The analysis never should have made it to an exception because the issue involved an inherent right. 

Cooley, though a good end result, created a problematic precedent that identifies the exercise of tribal police authority as an exception. Accepting investigatory police authority as a retained inherent right is a more direct path to the same outcome and acknowledges tribal nations as sovereigns. The consequences of this mangled analysis could severely diminish tribes’ continued efforts to self-govern.

L. Moose
*This post uses the legal terms “non-Indian” and “Indian” and references federal Indian status. The author both acknowledges and condemns the origins of this term and the forced assimilation of Indigenous peoples by Western colonization.

Hello all!

Thank you for sticking with the Criminal Injustice System throughout this academic year. I am so grateful for your interaction and contributions to this project. 

This blog started as an effort to bring discussion on issues of race and social justice to the forefront of our community. Instrumental in this endeavor were Emily Bolan, Daniel Horton, and Professor King-Ries. The efforts of Emily and Daniel in creating this platform will leave a lasting impact long after they have graduated thanks to their firm commitment to raising awareness of these issues in this law school and surrounding legal community. I am very grateful to have worked with them on this project. I also extend the sincerest appreciation to Professor King-Ries for incorporating this platform into his 1L Criminal Law class and his unwavering support while we put this blog together. An additional thank you to everyone who has contributed written work to the Criminal Injustice System and all those who have put in time editing pieces. Your time is invaluable and I thank you for sharing it with all of us! 

Congratulations on making it to the end of this academic school year. To those of you who finished your final semester, an extra congratulations. Please allow yourself well-deserved pride in your accomplishments. Graduates, this platform always welcomes you as part of our community. 

We will start back on our weekly publication schedule at the beginning of the fall 2021 semester. If you would like to submit a post over the summer months you are welcome (and encouraged) to do so! I look forward to reading your work:)

For graduating 3Ls who will no longer be using their University of Montana email addresses, please provide me (lauren.moose@umontan.edu) with a different account if you would like to continue receiving weekly emails next year. 

Have a great and safe summer!

Thank you all for your time.

L. Moose

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This week’s post is brought to you by Garrett Miglin, a 1L at Alexander Blewett III School of Law at the University of Montana. Garrett is the secretary of OUTLaws and a member of the American Constitution Society at ABIII.  

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It’s become a meme that all of Generation Z is a member of the LGBTQIAAGNC+ community. While that’s just a silly generalization, there actually is a place full of LGBT+ youths: juvenile detention facilities. The rate of LGBT+ youth in detention is double that of LGBT+ youth in the general population. If you pick two youths at random, one incarcerated and the other not, the incarcerated youth is twice as likely to identify as LGBT+. 

Many of the reasons fueling this disturbing statistic are readily understandable. The discrepancy is driven in part by social factors that many people already know LGBT+ youths experience—bullying and family rejection. This post explores three basic mechanisms by which these social pressures lead to disproportionate rates of LGBT+ youth incarceration. 

But first it’s important to note one other major discrepancy in juvenile detention: 85–90% of LGBT+ youth who are incarcerated are youth of color. Hence, “incarcerated LGBT+ youth” mostly refers to youth of color. This is due in part to the major racial discrepancies in youth incarceration generally. Black youth represent 40% of all incarcerated youth while composing just 15% of the general population. Rates of incarcerated Latino youth are about equal to the general population at around 25%. Rates of incarcerated white youth are just 33%, despite making up around 53% of the general population. The mechanisms underlying this disparity certainly deserve their own analysis. Nevertheless, the usually high rate of incarcerated LGBT+ youth of color is not merely a function of this racial disparity, or else 33% of LGBT+ youth would be white. The difference is further evidence that there are mechanisms working against LGBT+ youth that lead to their gross overrepresentation in the juvenile justice system. 

What are these social pressures pushing LGBT+ youth into juvenile detention? They are not mysterious. They are challenges that any LGBT+ youth may face growing up: family rejection and unsafe schools. Not entirely surprising; dozens of TV shows and movies explore the issues. But these challenges are potent because they drive so many LGBT+ youth into detention. As derivatives of the youth’s Sexual Orientation and Gender Identity and Expression (SOGIE), these pressures drive increased interactions with the police on a dimension that their cisgender, straight peers do not experience. They exist as an entirely separate lane by which LGBT+ youth become involved in the system, and therefore they have the overall effect of boosting the rate of incarcerated LGBT+ youth to double that of the rate of LGBT+ youth in the general population. 

Between one-quarter and one-half of homeless youth are LGBT+ youth. As the Department of Housing and Urban Development (HUD) defines a homeless youth as between 18–24 years of age, many social services are out of reach to runaways and homeless minors. (This lack of services can be particularly hard for victims of domestic violence.) Without access to shelters, homelessness for youth can mean couch-surfing, typically a cycle of two- to three-week solutions as they move from one couch to another. Even if they could find a landlord, minors cannot rent on their own in the many states where the age of housing consent is 18. 

Driving the rate of LGBT+ youth homelessness are family rejection and dearth of supports in the child welfare system. Unsurprisingly, a parent’s refusal to accept their child’s SOGIE leads some LGBT+ youth to leave or be kicked out of their homes. This is a SOGIE-specific cause of homelessness. This problem is prevalent in large, socially conservative areas. Additionally, family rejection is a risk factor for placement in the child welfare system. (Generally, youth involved in the child welfare system are two to three times more likely to become involved in the criminal justice system.) LGBT+ youth face special challenges in foster care and group homes. They may be subject to implicit bias or prejudice by their foster parents, caseworkers, or other adults whose job is to protect them. They are subject to bullying by their peers. They may be separated or isolated from other youth either for their own protection or because of a belief that the LGBT+ youth pose a danger to others. These unique pressures push some LGBT+ youth to leave their placement. This is another SOGIE-specific cause of homelessness. 

These SOGIE-specific causes help explain why LGBT+ youth are overrepresented homeless youth, comprising up to 20-40% of that population. Homeless youth sometimes shoplift to meet their needs. (Is that surprising?) Some may begin using illegal drugs or selling them for money. Others will exchange their bodies for money, housing, or other necessities. Any of these behaviors may result in police involvement. And LGBT+ youth are more likely to be stopped by police than their peers. 

Finally, unsafe schools are another causal factor for LGBT+ youths’ disproportionate detention. LGBT+ youth are more likely to be bullied in school. Approximately 33% of LGBT+ youth report being bullied in school, compared to 20% of their peers. Some youth will fight their bullies, others will begin to skip school, and others will decide to drop out. Both fighting and truancy can lead to contact with police, and LGBT+ youth are more likely to be expelled than their peers. Whether expelled or escaping harassment, LGBT+ students who leave school, at a minimum, lose a place to be during the day and a reliable place to eat. 

Lack of support from parents and caregivers leads many LGBT+ youth to leave their homes, bullying from their peers disrupts their schooling and foster placements—these are key reasons why LGBT+ youth, who are overwhelmingly youth of color, are incarcerated at twice the rate of their presence in the general population. In other words: at least half of the LGBT+ youth in juvenile detention facilities would not be there but for their queer sexual orientation or gender identity or expression. 

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Statistics derived from Unjust: How the Broken Juvenile and Criminal Justice Systems Fail LGBTQ Youth, a report compiled by the Center for American Progress and the Movement Advancement Project in 2016.  

Center for American Progress & Movement Advancement Project, Unjust: How the Broken Juvenile and Criminal Justice Systems Fail LGBTQ Youth, Aug. 2016, available at https://www.lgbtmap.org/file/lgbt-criminal-justice-youth.pdf.  

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On March 23 of this year, the Supreme Court heard oral arguments in United States v. Cooley. SCOTUS’s decision will determine the extent of a tribal officer’s authority to detain and search a non-Indian suspected of violating state or federal law within Indian country. If SCOTUS decides to limit tribal officer authority, it further infringes on the inherent sovereignty tribes possess to govern themselves. In a state as big as Montana (147,040 sq. mi.), the implications of prohibiting a tribal officer from detaining a suspect are especially drastic when considering the immediate safety of people on reservations in conjunction with the length of time it takes for a state or federal officer to arrive on scene. 

In Cooley, a tribal officer conducted a welfare check on a man pulled over on a public right of way within the boundaries of the Crow Reservation. Because the man “seemed” non-Indian, the tribal officer called for county officer assistance. Due to the man’s suspicious behavior (found parked off road in the middle of the night with a toddler crawling around the cab of his truck), visible firearms, and a myriad of other potentially dangerous factors, the tribal officer needed to detain him until other officers arrived. In response to the suspicious behavior, especially the visible firearms, the tribal officer investigated the contents of the vehicle and found methamphetamine and drug paraphernalia. The Ninth Circuit determined, without first making an effort to determine the man’s Indian status, the tribal officer did not have the jurisdiction to keep him and search his vehicle while awaiting transfer to officers of a different jurisdiction. If this decision is upheld by SCOTUS, not only will it further infringe on tribal criminal jurisdiction, it will greatly endanger the people living on reservations. 

Though the question is whether the officer had the right to detain and search the non-Indian, not if the tribe had the right to prosecute the non-Indian, to appreciate the gravity this decision carries it is important to keep in mind the gaps created by a patchwork of prosecutorial jurisdiction in Indian country. 

Tribes possess the authority to self-govern. This concept of sovereignty is inherent, it was not “granted” by the United States but instead reserved by the tribes during the treaty-making process. Despite the United States promising to recognize the inherent sovereignty of tribes in exchange for millions of acres of land, in practice, tribal sovereignty has been threatened or diminished time and again by the federal government. In Oliphant v. Suquamish, SCOTUS attacked the sovereignty of tribes when it limited their criminal jurisdictional authority. After Oliphant, when determining a valid assertion of tribal criminal jurisdiction three factors must be addressed: (1) the location of the crime (2) the Indian status of both the perpetrator and victim (3) the type of crime under investigation. 

Where was it? To answer this threshold question, one must understand what constitutes Indian country and the difference between criminal and civil proceedings. Statute defines Indian country, for the purposes of jurisdiction, as Indian reservations, dependent Indian communities, and Indian allotments which are still under Indian title. The difference between criminal and civil jurisdiction is the tribes’ criminal jurisdiction applies to all lands within the reservation. Civil jurisdiction does not, and a location analysis relies on further factors not applicable to Cooley. 

Who did it? For tribes to assert criminal jurisdiction, the perpetrator must have official Indian status. Defining Indian status is not an easy precise test. Tribes set their own standards for enrolled members. If both perpetrator and victim are officially recognized as Indians, the tribal courts enjoy exclusive authority over misdemeanor crimes. If the criminal activity falls within the Major Crimes Act (MCA), even if all parties are of official Indian status, the federal government may assert jurisdiction. An Indian perpetrator acting against a non-Indian victim creates concurrent jurisdiction between the federal government and the tribe. However, a non-Indian perpetrator acting against an Indian victim falls exclusively under federal authority, without tribal concurrent jurisdiction. 

What happened? The final consideration is the type of crime committed. Regardless of the first two parts of this test, the federal government has jurisdiction over crimes within the Major Crimes Act. 

Apart from a blatant disregard for tribal sovereignty, this framework is responsible for a notable gap in prosecution. Many of the crimes that should be addressed by federal jurisdiction slip through unprosecuted. These jurisdictional loopholes have a particularly harmful effect on Indigenous women. The Violence Against Women Act attempted to address this issue by allowing tribes to prosecute non-Indian perpetrators of domestic violence, violence against a partner, or violation of a restraining order if the violence occurred against an Indian within Indian country. However, this leaves tribes without authority to prosecute Indian victims of intraracial sexual assaults outside of established relationships. Since the overwhelming majority (at least 70%) of violence against Indigineous women comes from non-Indian perpetrators and an estimated 90% of Indigenous women who experience sexual violence are harmed by an interracial perpetrator, VAWA does not completely address the problem. The safety concerns of Indigenous women in between these jurisdictional gaps is only heightened if a decision in Cooley limits the ability of a tribal officer to detain and investigate. 

An officer cannot rely solely on appearance to classify someone as Indian. But it can take days to prove status. If tribal officers cannot detain and investigate an offender while this information is pending, the door opens for perpetrators to take advantage of Indian country. Additionally, if an officer is limited to investigating persons only of Indian status, the incentive to lie to law enforcement when questioned skyrockets, especially if an officer cannot search for tribal identification. Tribal authority is the quickest response to crimes within Indian country, but if they become reluctant to detain or investigate potential perpetrators for fear of retribution, the safety of tribal members and others living within reservation boundaries suffers.

The forthcoming decision in Cooley is incredibly important to the safety of Montana reservations. With respect to inherent sovereignty, tribes should have the authority to detain and investigate anyone within their reservation. But especially considering the safety of people within these reservations, tribal officers must be able to police the area within the boundaries of their reservations. This is how all other police jurisdictions operate, and there is no valid reason to hold tribes to a heightened standard. By further denying tribal authority the right to detain, investigate, and remove potential perpetrators from reservations, tribes are left with no means to adequately protect their own people. Indigenous people are already disproportionately victims to violent crimes, and a decision to further limit tribal authority only perpetuates this issue. 

– L. Moose

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Further Sources

United States v. Cooley SCOTUSblog

United States v. Cooley Turtle Talk

MMIW Sources for further consideration of the implications of this case

Somebody’s Daughter

https://www.facebook.com/CSKTMMIP/

http://www.charkoosta.com/news/cskt-takes-lead-in-mmip-crisis/article_05cf20be-9885-11eb-8415-cfd0efbbcb0e.html 

University of Montana School of Law Law Review Previews on United States v. Cooley

MLR Preview on United States v. Cooley by Shelby Danna

PLRLR Preview on United States v. Cooley by Jo Phippen 

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This Week’s post is brought to you by Danielle Pease, is a first-year law student at the University of Montana School of Law. While an undergraduate at the University of Montana, Danielle was raped, sparking a two-year process through the Missoula County Criminal Justice System. Danielle earned her B.A. in Political Science. She is a co-creator and chair of the ASUM Title IX Ad Hoc Committee, created ASUM’s Committee on Equitable Education, serves as a GPSA Senator on the Title IX subcommittee, and serves on the UMT PEACE committee, working on prevention education and Title IX and VII training compliance. Danielle runs a non-profit in Missoula which assists survivors in making dignified and educated decisions in the direct aftermath of sexual violence.

***Trigger Warning: this post discusses sexual violence and the experiences of survivors in the legal system.***

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As it stands, the criminal justice system is a problematic solution to violent crimes. “Punishment” is not a productive response—it fails both to deter and to rehabilitate. But in this current ineffective system, victims of violent crimes are not afforded adequate protection from the failures of an already flawed system.

Victim Experiences in the Criminal Justice System. Brock Turner raped an unconscious woman behind a dumpster in 2015. The victim, Chanel Miller, wrote a memoir of her experience in the criminal justice system and her efforts to cope with the implications of his actions. Her victim impact statement went viral in what has become a harrowing recollection of the ways in which the criminal justice system and its actors reaffirmed rape myths and disregarded her humanity. Her interactions with the legal system interfered with her ability to cope with her trauma. Miller was forced to constantly relive her experience in “excruciating detail” in order to prepare for invasive, aggressive, and manipulative attorney questioning. Her experience is not unique.

To victims of crime, procedural justice is often as important as a just result. More importantly, victims’ and secondary victims’ experiences within the system have quantifiable effects on their overall health, finances (funeral expenses, therapy, missed work for injury from the crime), and relationships. Post Traumatic Stress Disorder is heightened in survivors who have experienced procedural injustice and institutional betrayal. Access to Crime Victim Compensation Funds is tedious and likely to be declined. The relationships that victims have with others are often scrutinized and procedurally diminished. 

The History of Enumerated Victims Rights. In Linda R.S. v. Richard D., the Supreme Court held, “a private citizen lacks a judicially cognizable interest in the prosecution or non-prosecution of another.” Ten years later, President Regan established the President’s Task Force on Victims of Crime to “help crime victims receive the financial, medical, and legal help they need.” Around the same time, the Supreme Court, in Payne v. Tennessee, recognized crime victims are not nameless or faceless non-players in the criminal justice system. From there, the National Crime Victims’ Movement took off.

California led the way in enumerating victims’ rights. In June 1982, California passed Proposition 8,  which established enumerated rights for surviving families and direct victims of crimes. Prop 8 restricted plea bargaining in violent crimes, increased prison sentences for those same offenders, required the victim be notified of hearings on dispositions, granted the courts bail discretion and allowed the victim to give impact statements and receive restitution. 

In 1983, a college student, Marsy Nicholas was stalked and murdered by an ex-boyfriend. The court failed to notify the family that her perpetrator had posted bail. Less than one week after her funeral, Marsy’s mother ran into her daughter’s murderer at the grocery store.

The criminal justice system’s process had a profound effect on Marsy’s  family. By 2008, Marsy’s brother, Dr. Henry T. Nicholas III, drafted and helped pass California Proposition 9. This proposition expanded on Prop 8 and  required notice to victims of all hearings, consideration of a victim’s safety when setting bail conditions, and written notice to victims of their rights. After passage, Dr. Nicholas founded Marsy’s Rights For All, a national movement to enumerate basic rights for survivors of crime. Today, seven states have adopted Marsy’s law. (Image from, Marsy’s Rights For All)

Victims Current Rights in Montana. Between 2011 and 2013, the Missoula County Attorney’s Office committed gender discrimination in sexual assault cases, abused  prosecutorial discretion in rape cases, failed to notify victims of hearings and releases, and entered plea deals for lesser charges without notifying a victim or hearing their impact statement. The failures of the Missoula County Attorney’s Office spurred a Department of Justice investigation. This investigation resulted in a Memorandum of Understanding that required the Attorney’s Office to establish an SVU with specialized attorneys, create Crime Victim Advocate positions, facilitate in-person meetings with witnesses, and train prosecutors in dealing with these cases and victims.

The media circus, the book Missoula, and the election of a new County Attorney seemingly caused a shift in citizens’ opinions on victims’ rights in Missoula. In 2016, Montana citizens voted on Constitutional Initiative-116, Marsy’s Law. The law contemplated enumerated victims’ rights in the Montana Constitution, which would have become Mont. Const.  Art. II, § 36. The initiative overwhelmingly passed with 79% of voter support. However, in 2017, the Supreme Court of Montana held Constitutional Initiative-116 was voided because its passage violated the Court’s interpretation of the separate-vote requirement. The Court did not address the merits or purpose of the initiative. The aftermath of Marsy’s law’s failure left crime victims in Montana with minimal rights. Victims of crimes that involve actual or potential bodily injury have the right to be notified prior to disposition of a case. Crime victims also have the right to attend hearings, receive one copy of any publicly available document filed in the case, and have an advocate present while they are interviewed. Many of these rights are arguably not rights unique to a victim; rather, a right of the public. But without further enumerated rights, Montana still fails crime victims.

Who are Crime Victims? In the advocacy and history of the Victims’ Rights Movement, non-white victims are left out. There are several contributing factors, such as: (1) crimes that almost exclusively affect non-white persons are less likely to be considered crimes; (2) lack of broad language in hate crime statutes make penalty enhancements difficult for prosecutors to obtain; (3) the way in which media headlines are shaped makes research on the topic difficult and highlights perpetrators over minority victims; and (4) data analysis is rooted in inaccurate  numerical evaluation and quantity.

Violence against Black, Indigenous, and people of color (BIPOC) people is often not considered a crime. According to Max Weber, the state has a monopoly on violence. An example is the lack of classifying excessive force by a police officer, which disproportionately affects BIPOC individuals, as a violent crime on data reports. In some cases, qualified immunity acts as an excuse for violent officer conduct. 

Even when crimes are reflected in statute, hate crime penalty enhancements make it difficult to prosecute for a perpetrator’s specific selection of a victim based on race, gender, or sexual orientation. See Wisconsin v. Mitchell, 508 U.S. 476, 113 S. Ct. 2194 (1993); Dawson v. Delaware, 503 U.S. 159, 112 S. Ct. 1093 (1992); § 45-5-222 (Montana’s sentence endorsement statute, requiring 2 year minimum and 10 year max); § 45-5-221 (Note, Montana also recognizes hate crimes as Malicious Intimidation Or Harassment Relating To Civil Or Human Rights, which carries a 5 year max.) While Montana’s statutes may seem progressive, the practice of charging hate crimes and advocating for penalty enhancements is a different matter. The Netflix documentary, The Trials of Gabriel Fernandez exemplifies a prosecutor choosing not to charge a hate crime penalty enhancement, for victim selection based on sexual orientation because of the difficulty of proving to the jury it was a motivating factor.

Media and police portrayal of crime focuses on the impact on the offender’s life and fails to discuss racial motivation. On March 19, 2021, Delaina Ashley Yaun, Paul Andre Michels, Xiaojie Tan, Daoyou Feng, Soon Chung Park, Hyun Jung Grant, Suncha Kim and Yong Ae Yue, were shot and killed at their places of work. The media headlines describe the instance as a hate crime, however, the police department did not. Racially motivated violence has seen an increase in 2021 but is likely still underreported.

Data analysis is rooted in a numerical evaluation and quantity—white people account for the largest segment of the population, placing BIPOC persons at a lower “percentage of the population” having experienced victimization. Here is an excerpt from the Department of Justice website on crime victimization.

The percentage of violent victimization reported to police was lower for White victims (37 percent) than for Black (49 percent) or Hispanic victims (49 percent). The percentage of violent incidents that involved Black offenders (25 percent) was 2.3 time the percentage that involved Black victims (11 percent). The percentage that involved Asian offenders (1.0 percent) was 0.4 times that portion that involved Asian victims (2.3 percent).

The paragraph does not continue to discuss the rates of white offenders in relation to white victims. Nearly 50% of violent crimes in 2019 were against BIPOC  victims. This language shows BIPOC  victims face greater challenges to accessing “justice.” A victim’s identity, therefore, affects their involvement and treatment in our current criminal justice system. 

The criminal justice system profoundly affects victims and their families. While progress in Montana has been made, the privacy of victims is still not entirely respected. Victims should have a fuller right to privacy, “the right to refuse an interview, deposition, or other discovery request and to set reasonable conditions on the conduct of any interaction to which the victims consents,” and to pseudonyms used by all parties in written pleadings. See Perma | Section 36. Rights of crime victims, MCA. In our current system, this would give victims more control over the traumatic implications of someone else’s crime. Additionally, victims should have the right to be heard, through an attorney or advocate, on all matters that involve a victim’s potential exposure to re-victimization by the offender. Furthermore, victims should have the right to be notified of their rights, including the ability to retain the assistance of an attorney. To the extent necessary to protect their safety, victims should also have the right to be present at, and informed of, pleadings. Montana courts should also offer an opportunity to engage in alternative methods of dispute resolution for sex crimes if the victim so chooses. Even with these changes—Montana would still fail to address the additional concerns for BIPOC communities. Violence against BIPOC communities must be acknowledged to the same degree as violence against white people.

The Victims’ Rights Movement is necessary under our current system. We should challenge this problematic structure and instead consider a system which does not require private citizen involvement in the prosecution process and instead move towards a process which respects the rights of everyone involved. 

*The use of “victim” perpetuates  a negative social stereotype, particularly for survivors of sexual crimes and domestic violence. “Victim” is a title the United States criminal justice system imposes on individuals subjected to another’s criminalized harm. This post uses the word victim to reduce confusion. Sexual violence, domestic violence, and homicide have a profound effect on survivors and their families. The author acknowledges the humanity and vibrance of every individual behind the word “victim.”  

About Marsy’s Law – Marsy’s Law for All

Anti-Asian Attacks Higher Than Numbers Indicate, Group Says : NPR

California Proposition 8, Victims’ Bill of Rights (June 1982) – Ballotpedia

Englebrecht, Christine, PhD., Derek T. Mason PhD., and Margaret J. Adams EdD, The Experiences of Homicide Victims’ Families with the Criminal Justice System: An Exploratory Study, Violence and Victims, vol. 29, no. 3, 2014, pp. 407-21. ProQuest, https://search-proquest-com.weblib.lib.umt.edu:2443/scholarly-journals/experiences-homicide-victims-families-with/docview/1534085830/se-2?accountid=14593, doi:http://dx.doi.org.weblib.lib.umt.edu:8080/10.1891/0886-6708.VV-D-12-00151.

Final Report of the President’s Task Force on Victims of Crime | Office for Victims of Crime (ojp.gov)

German Lopez, There are huge racial disparities in how US police use force

History of Victims’ Rights – National Crime Victim Law Institute – Lewis & Clark (lclark.edu)

Missoula: Rape and the Justice System in a College Town, John Krakauer

missoula_settle_6-10-14.pdf (justice.gov)

Mont. Code Ann. § 46-24-104.

Mont. Code Ann. § 46-24-106

Montana Marsy’s Law Crime Victims Rights Initiative, CI-116 (2016) – Ballotpedia

Remembering The Victims Of The Atlanta-Area Spa Shootings : NPR

Say My Name, Chanel Miller

Wemmers, Jo-Anne,  Victims’ Experiences in the Criminal Justice System and Their Recovery from Crime, International Review of Victimology 19, no. 3 (September 2013): 221–33. https://doi.org/10.1177/0269758013492755.

Thomas Brooks, First Amendment–Penalty Enhancement for Hate Crimes: Content Regulation, Questionable State Interests and Non-Traditional Sentencing

Black Men Who Are Crime Victims Have Few Places To Turn : NPR

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This week’s post is brought to you by Everett Johns, a current 1L at University of Montana law school. Everett received his bachelors in Community Health from MSU Bozeman, and previously worked at Goetz, Baldwin, & Geddes. He serves as the president of OUTLaws and is also the 1L Rep for ACLU and Parents, Allies, & Caregivers (PAC), respectively. Everett is a transgender man. 

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When a baby is born, a healthcare professional typically takes a quick look between its legs, checks a box—‘M’ for male or ‘F’ for female—and that’s it. Such a seemingly trivial task has ripple effects on every aspect of the child’s life from that day on. One letter defines so much of our identity, whether we want it to or not. This is gender assigned at birth. Babies who appear to have a phallus are AMAB: Assigned Male at Birth; those who do not are AFAB: Assigned Female at Birth. If one’s gender aligns with that assignment, i.e. they are AMAB and a man, they are cisgender. If one’s gender does not align with that assignment, i.e. they are AFAB and a man, they are transgender. Trans is an acceptable shorthand for the word transgender.

Prior to white European colonization, Two-Spirit people were a celebrated part of North American Indigenous culture. Colonialism persecuted Two-Spirit people, as discussed in last week’s post. Western colonial culture enforces a strict gender binary. This binary ostracizes any identity beyond cisgender. Western colonial culture attaches different sets of traits to AFAB and AMAB people, and this is inherently harmful. AFAB people are expected to be polite and friendly, while AMAB people are supposed to be confident and direct. AFAB people may be vilified for being ambitious or assertive, while AMAB people face attacks for sharing their feelings or seeking emotional support. The gender binary harms people, both cisgender or transgender, in too many ways to consider in any one post.

Transgender people span the breadth of human diversity; the story of transgender people is the story of the human race. We have always been here. Though present in every race, culture, age group, profession, and sexual orientation, transgender people are persecuted in every community. This persecution is particularly profound at the intersection of multiple oppressed identities. According to the Human Rights Campaign and the Harvard Civil Rights Civil Liberties Law Review, Black trans women face disproportionate violence due to “the intersections of racism, transphobia, sexism, biphobia and homophobia”.

This violence against transgender people, especially Black trans women, is rooted in the United States legal system. Consider the employment sector: until Bostock in 2020, there were no federal antidiscrimination protections for transgender people. Yet even the limited progress from the ruling in Bostock does not reach far enough, since at-will employment laws allow employers to fire trans workers for “any reason”—a policy which activists say permits outright discrimination against LGBT people. 

While the incarceral system in the United States locks up BIPOC people at alarming rates, the statistics of how Black trans people are affected is no less shocking. According to Lambda Legal, one in two Black transgender people have been to prison. Even worse, transgender women are often incarcerated in men’s prisons because the law refuses to recognize them as women. Imagine the fear and pain of a prison sentence, now compound it with the legal system knowingly incorrectly and inappropriately imprisoning in violation of gender identity.  Due to rampant transphobia, legally permissible discrimination, and institutional violence, transgender people are 13 times more likely to experience sexual assault in prison. 

There are numerous things the government could do to halt the violence against transgender people, and Black trans women specifically. Clear federal protections for transgender people is a great place to start; 31 states lack explicit protections for trans people. There is no place transgender people are safe. 75% of transgender students feel unsafe at school. School policies that force children to use an incorrect bathroom are one way transgender students are harmed. Students are beginning to see legal relief affirming the right to use bathrooms at school which align with their gender identities. Yet for many trans youth, this is too little, too late. More than half of transgender and nonbinary youth have seriously considered suicide. 

The military, an institution many members of oppressed groups are drawn to as a “last resort,” has long been a uniquely dangerous place for transgender servicemembers. When President Trump took office, there were nearly 15,000 transgender troops. Many of these servicemembers faced new challenges as former President Trump sought to ban transgender people from serving openly, a ban which President Biden recently repealed. Hailed as a progressive step forward, while the repeal may help current servicemembers who are transgender, it raises an important question. Is it progress to give transgender people a right to die for a country that, at best, ignores us, and at worst, sanctions our abuse?

There is something legal professionals at Alexander Blewett the III School of Law and in the state of Montana can do to start to aid transgender people. Make us part of the conversation. Welcome us into the legal community, so we may work to liberate ourselves and others. Give us a seat at the table and invite our perspective in discussion. Speaking accurately about gender, sex, and transgender people is radical harm reduction. Embrace that all women face oppression; this oppression is not always rooted in organs that can be made into cutesy hats. If you mean to speak only about the experiences of women with vaginas, say cisgender women. If you mean to speak about the experiences of all people with vaginas, be clear that this category includes men, too. Challenge your understanding of what it means to be a man or a woman. Recognize that you may not know whether someone is transgender on sight. 

There are many ways, big and small, transgender identity intersects with issues of racial injustice, resulting in extreme harm to historically oppressed people. While all Black people, all women, and all transgender people face unique oppressions, this is magnified when these identities intersect, as for Black trans women. While there are many ways legal professionals can help transgender people, the first step is to invite us to be part of the conversation.

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– E. A. Johns

Additional Sources

Frequently Asked Questions about Transgender People

Being a Good Ally to Trans People

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This week’s post is brought to you by Valan Anthos, a current 1L at University of Montana law school. Valan volunteers with several student groups and also volunteers with the Missoula Community Dispute Resolution Center (CDRC). Valan is a non-binary trans man.

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The history of transgender, intersex, and gender variant people is long, rich, and deep. Unfortunately, much of this history has been hidden, kept secret, or destroyed to maintain Western ideals of the gender binary and absolute sexual dimorphism in humans. It is no accident  many people think of “transgender” as some newer invention that only came to be in the last couple of decades. Both private and governmental institutions invested in maintaining the gender status quo have ensured  the average person is likely not aware of how common and even normalized these differing understandings of gender were in prior cultural contexts.

The common misunderstanding of absolute sexual dimorphism in humans, resulting in easily identifiable males and females, is largely a Western Eurocentric colonial invention. The gender binary gains power by presenting itself as ahistorical and inevitable, attempting to make itself unquestioning. It is enshrined in nearly every aspect of society, from IDs to bathrooms. The gender binary tries to obscure that around 1 in 1000 births is an intersex baby, possessing some mixture of both typical “male” and “female” characteristics presented by  different mixes of chromosomes, hormonal profiles, and genitals. Since the 1960s, Western culture’s insistence that everyone adhere to a strict binary has subjected intersex children to nonessential surgery or hormonal intervention before they can have any meaningful choice in the matter due. Non-binary or genderqueer is a modern term for someone who does not fit into traditional categories of man or woman and may feel  they embody a third gender or a mix of male and female. They may be intersex as well or they may simply feel a disconnection with their gender assigned at birth.

“On nearly every continent, and for all of recorded history, thriving cultures have recognized, revered, and integrated more than two genders” In the United States, many Indigenous Nations have special roles for individuals who are not considered male or female. Tribal Nations have their own unique terms for these people, though in modern times, the term two-spirit has become popular as a catch-all term to refer to all gender diverse Indigenous people. White settlers deliberately singled out two-spirit individuals for punishment and ridicule and imposed a strict gender binary on tribes through missionary work and boarding schools. This persecution caused much of the rich history of two-spirit individuals to go underground or be entirely lost. Today, two-spirit Indigenous people face the combined discrimination of racism and transphobia, leading to more intense levels of poverty and food insecurity than white transgender individuals.

Refusal to recognize transgender people as legitimate and entitled to basic rights and respect is a continuation of white settler colonialism that continues to disproportionately harm trans people of color. Transgender people are denied important legal protections from discrimination in housing, employment, and health care. This all stems from the Western legal system’s demand that everyone fit neatly into “male” or “female” and offers no recognition of the reality of many people’s lived experiences.

The legal system helped to entrench this false binary, but it can also play a role to help legitimize the struggle for transgender rights and equality. Recently, several states have allowed non-binary folks to have simply an “x” instead of male or female on their government ID, formally recognizing genders outside male and female. While an “x” on a driver’s license might not seem like much, this is a huge step in formally recognizing genders other than male or female. Activists continue to fight for legal protections for transgender individuals, ensuring they are not denied essential services and that they can access transition-related medical care if they need it. Our institutions, legal and otherwise, need to stop ignoring the history and legitimacy of transgender and non-binary individuals. The more trans history is known and told, the more our society shifts towards one that recognizes and respects the amazing diversity of human expression.

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– V. Anthos