Contra Costa County District Attorney Mark Peterson should drop battery charges against transgender teenager Jewlyes Gutierrez. She was the victim of severe bullying at Hercules Middle/High School and last November, as we reported at the time, she and several other students were involved in an altercation. All participants, including Gutierrez, 16, were suspended and school officials and law enforcement conducted an investigation. Now, Peterson is charging Gutierrez, who acted in self-defense, but is not charging the students who allegedly attacked her. The incident, it should be noted, was recorded on cellphone video and went viral after it was uploaded to YouTube, showing disturbing footage in which other students can be seen pummeling Gutierrez as she tries to protect herself.
Adding insult to injury, the Hercules Police Department has misgendered Gutierrez, referring to her as male in police reports about the incident.
The Transgender Law Center and other groups are also calling for Peterson and senior deputy district attorney Daniel Cabral to drop the charges. Ilona Turner, TLC's legal director, said that while the DA's office has discretion to decide whether or not to bring charges, in this case those charges should be dropped and that an alternative means of resolving the conflict should be found.
We agree.
It serves no purpose to label Gutierrez a criminal because she stood up against her assailants. Her public defender, Kaylie Simon, told TLC that authorities should take a step back and "look at what are our community's needs and society's needs," suggesting that those needs would be much different than charging Gutierrez with battery, which would put her at risk for "becoming a delinquent in the court system."
"I also wonder what message does it send to people who bully when someone who is a victim is prosecuted," Simon added.
Rather than prosecute Gutierrez, the DA's office should look to alternative resolution processes, more commonly referred to as restorative justice. Such an approach, TLC noted, is consistent with school discipline guidance issued just last week by the U.S. Department of Justice and the Department of Education. The guidance cites research that links the increasing use of disciplinary sanctions such as referrals to law enforcement authorities with the potential for significant negative outcomes, including placing students in the "school to prison pipeline."
Trans students like Gutierrez face extraordinarily high rates of bullying and harassment in schools. In its 2011 National School Climate Survey, the Gay, Lesbian, Straight Education Network surveyed 8,584 students between the ages of 13-20. Of those, 705 identified as transgender. According to the survey, 12.4 percent of respondents reported that they had been assaulted at school because of how they expressed their gender and 43.9 percent felt unsafe at school because of their gender expression.
Gutierrez has the strong support of her family. Her sister, Valerie Poquiz, started a petition on change.org asking the DA's office to drop the charges. In the petition, Poquiz stated that Gutierrez turned to school officials for help but that the issue wasn't properly addressed. In our November report on the incident, we noted that the school district has anti-harassment guidelines but the policy in the 2012-2013 Student Handbook makes little mention of sexual orientation and does not mention gender identity. Former school district officials told us that enforcing the anti-harassment policy has been a challenge.
"Transgender people are very much in danger until we raise our cultural sensitivity and understand that people get to be who they are," former school board member Karin Fiffer, an out lesbian, told us.
George Ramsey, a 20-year school board member and its current president, said that schools within the district are very welcoming of every student. He is also against the DA's office charging Gutierrez, according to Poquiz's petition, which as of Wednesday had more than 120,000 supporters.
Gutierrez isn't the only trans student in the school district, and the physical attack on her should be a wake-up call to school officials that more needs to be done educating and sensitizing students as well as faculty and staff on trans issues.
Peterson, who has been mentioned as a possible candidate for the congressional seat being vacated by the retiring George Miller, must review the case and find a fairer, productive solution.