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CA traffic stop law unclear on LGBTs

by Seth Hemmelgarn

While a California law requires police to collect data on the perceived sexual orientation and gender identity of people involved in traffic stops, it still isn't clear what criteria officers are supposed to use to determine whether someone's LGBT.

Assembly Bill 953 - the Racial and Identity Profiling Act of 2015 - which was authored by Assemblywoman Shirley Weber (D-San Diego), requires agencies to submit whether the officer perceives the person is transgender, among other data. The bill was intended to combat racial and identity profiling by law enforcement officials.

AB 953 mandated the creation of the Racial and Identity Profiling Advisory Board to advise Attorney General Xavier Becerra's office and work with law enforcement agencies. The board issued its inaugural report earlier this month.

Beginning in July, law enforcement agencies will start collecting data and reporting it to the attorney general.

Among other provisions, the law requires agencies to collect "the perceived race or ethnicity, gender, and approximate age of the person stopped, provided that the identification of these characteristics shall be based on the observation and perception of the peace officer making the stop, and the information shall not be requested from the person stopped."

RIPA regulations developed by Becerra's office, law enforcement professionals, and others require officers submit data to the attorney general on "whether the officer perceives that the person is lesbian, gay, bisexual or transgender."

"We need to move beyond the rhetoric and the entrenched positions on this issue," said Weber in a November news release from Becerra. "It's time for us to address bias in policing from a policymaking perspective."

Becerra stated, "Public safety is a job for all of us - our peace officers, of course, but a cooperative citizenry as well. Trust is the glue that makes the relationship between law enforcement and the community work. This new RIPA data collection and reporting process is meant to strengthen, and in some cases repair, that trust."

Asked in an email how San Francisco police officers will determine whether someone is LGBT, and whether all officers are being trained, Sergeant Michael Andraychak, a police spokesman, responded, "The department will comply with the state law. At this time, we have not determined how we will collect that data. It is likely that we will utilize the 'App' being developed by the attorney general's office."

Sergeant Enrique Garcia, a San Jose police spokesman, said in an email, "We don't have to comply with AB 953 until January 2019, at which point our department will have a policy for the requirements."

Oakland police didn't provide a response to questions about AB 953.

Spokespeople for Weber didn't provide comment for this story.

In response to an email from the Bay Area Reporter asking how police officers are supposed to determine whether someone is LGBT, the attorney general's office said, "The question is a Yes/No question asking officers whether they perceive a person to be LGBT. If they have such a perception, they are required to indicate it. If they do not have any such perception, then they should state no. They are not expected to guess but simply to indicate any perceptions they may have."

San Francisco legislation
In September 2015, the San Francisco Board of Supervisors unanimously passed legislation meant to help gauge police interactions with trans people and others, following years of concerns about abuse of trans, black, and other communities at the hands of law enforcement.

The proposal, introduced by District 10 Supervisor Malia Cohen, originally would have required police and sheriff's officials to ask people about their gender identity, in order to track how often they were being held, but that provision was dropped when advocates worried it would have led to more harassment.

The legislation called on police to report how many complaints the Office of Citizen Complaints, which is now known as the Department of Police Accountability, says are based on gender identity or other factors.

It also required officers to record the race or ethnicity, sex, and approximate age of people detained in traffic stops and other encounters.

In an interview at the time her proposal was passed, Cohen said she removed the requirement that people's gender identity data be collected at the request of LGBT groups so as "not to place transgender individuals at an increased risk for discrimination, harassment, or violence."

She said she was "a little bit disappointed" at losing the gender identity data, but "I'm not looking to create an uncomfortable environment" for trans people.

Community United Against Violence, a San Francisco nonprofit that works with transgender people and others, is one of the agencies that expressed concern to Cohen about the legislation.

Carolina Morales, who at the time was CUAV's programs co-director and is now a legislative aide to District 9 Supervisor Hillary Ronen, said CUAV wanted gender identity dropped because it would have made "transgender and gender nonconforming people more vulnerable to violence" and "harassment from police."

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