Commentary

A judge refused to recognize pro-trans law in a hate crime case. That’s judicial misconduct.

A gavel in front of a rainbow flag
Photo: Shutterstock

On July 23, 2018, Kimura Steuball went to a Mobil station on Seven Mile Road in Detroit. Upon arrival, she saw Deonton Rogers inside the station with a woman. When Steuball got in line to make a purchase, Rogers began talking to her using derogatory, transphobic language.

Rogers then began asking about her sex organs – specifically whether he could see “it.” Steuball tried to ignore him, but he persisted in calling her a man. Then he got violent.

Related: Utah just upgraded their ‘worthless’ hate crimes law, while Indiana passed a worthless one

He pulled out a gun and threatened to kill her. The woman with Rogers told him to leave Steuball alone and leave.  It was at this time that a child who had been in Rogers’ car entered the station. As Rogers began moving toward the exit, gun in hand, he walked threateningly close to Steuball, who reacted by grabbing at the gun to get it away from him.

A struggle ensued. The gun discharged.

Steuball was hit in the left shoulder.  Still, she did manage to grab the gun, after which Rogers’ companion took it – only to give it back to him as she, Rogers, and the child scurried away.

As for Steuball?

Her shoulder was shattered and she spent several days in the hospital.

Rogers was eventually apprehended and charged with being a habitual offender, discharging a firearm in a building causing physical injury and serious impairment, felonious assault, possessing a gun during a felony, felon firearm possession, and fourth degree child abuse.

And also ethnic intimidation.

At a preliminary hearing, Rogers objected to the firearm discharge charges, claiming a lack of intent. Notably, at the same hearing, the court found that “gender,” in the ethnic intimidation statute, included “transgender.”

At the next court level up, Rogers again sought to dismiss the building-firearm charges – as well as the ethnic intimidation charge, arguing not only that the prosecution had failed to demonstrate that he’d committed a malicious physical act accompanied by a specific intent to harass Steuball because of her gender but also that the Ethnic Intimidation Act – the state’s hate crime law – did not apply to trans people at all.

The judge there blamed the victim for initiating the physical contact that led to the firearm discharge and agreed with Rogers that trans people were strangers to Michigan’s ethnic intimidation statute.

The prosecution appealed this decision up to a panel of the Court of Appeals, which split 2-1 with the majority opinion being authored by Mike Gadola, a product of Republican former Gov. Rick Snyder’s administration (though, sickeningly, he was unopposed when he ran for a full term in 2016) and a member of the advisory board of the Michigan chapter of the Federalist Society.

21st century Republicans are well-professed law-and-order conservatives – but they have a tendency to stop caring about law and order whenever the order of the law stands poised either to hold Donald Trump and his henchmen accountable or to merely respect LGBTQ existence.

Gadola accurately pointed out that the Ethnic Intimidation Act, enacted in 1988, had no internal definition of “gender,” a fact which gave him permission to consult dictionaries.

You know what comes next.

I know what comes next.

Everyone knows what comes next.

Webster’s Ninth New Collegiate Dictionary, published in 1990, gives a one-word definition of the word gender, as follows: ‘SEX,’” Gadola wrote, noting that the same dictionary defined “sex” as being “either of two divisions of organisms distinguished respectively as male or female.” He then concluded that “the term ‘gender’ was synonymous with sex, being the biological roles of male and female.”

But no radical conservative judge engaging in judicial legislation ever stops with the rote, binary definitions of “sex” and “gender.”

Gadola didn’t disappoint. He cited to a 1993 opinion rejecting a “sexual orientation” claim under the state’s anti-discrimination law. “Plaintiff has failed to meet the requirement that the harassment be gender-based,” that appellate panel had opined.

Anyone who has ever dealt with transgender law in any way knows the words “sexual orientation” would never be interpreted to include transgender people.

But not only did that 1993 opinion make no reference to anti-trans discrimination but the same opinion actually did rule partially in favor of the plaintiff regarding “alleged specific homosexual advances directed to him by his supervisor. These actions were directly related to plaintiff’s status as a male, and thus render the act applicable.”

Gadola didn’t mention that part.

Instead, he said the 1993 opinion “suggests that gender, at least through the early 1990s, held the same meaning as sex, which has long been understood to denote biological sex (i.e., male or female)” and he went on to declare “There is simply no indication that the term gender would have been understood to encompass one who is a transgender person when this statute was enacted in 1988.”

Would have been understood by who?

Now, it was fair of him to point out that the term “transgender” was not in common use at that point. But he set out a definition of “transsexual” which he asserted “would then have been understood to mean someone who had physically transitioned from one sex to the other.”

There isn’t a source – from 1988 or three decades either side of it – which holds that the term “transsexual,” vintage word that it may be, can only apply to someone who has fully transitioned.

But if you think his leaning upon dictionaries is problematic, it only got worse when he delved into what he asserted is legislative history.

The bill that became the 1988 law at one point had included the category “sexual orientation.” But that was supplanted in favor of “gender.”

Therefore, according to Gadola, “To conclude that the term ‘gender,’ adopted in 1988 in place of the term ‘sexual orientation,’ included the modern-day understanding of what it is to be a transgender person, strains credulity.”

Perhaps at Federalist Society cocktail parties, but not in the outside world.

What will strain credulity is any inevitable claim by Gadola that he is not a partisan political hack whose opinion in People v. Rogers conclusively demonstrates judicial misconduct (either via incompetence, bias or perhaps a mix of the two) warranting his removal from the bench.

For he, too, blames the victim for how she identified herself.  Rogers’ actions, according to Gadola, “were not motivated by Steuball’s biological gender, but rather resulted from the fact that Steuball identified herself as a transgender person.”

Think about how likely it would be that Gadola would have ruled that Rogers experienced sex discrimination had the matter been an anti-discrimination case in which Steuball “identified herself” to a prospective employer as the biological sex designation chiseled onto her original birth certificate and she sued after that employer said, ‘I don’t care, but you’re transgender and that’s not covered under state civil rights law. I’m not hiring you.’”

You know how he would rule.

I know how he would rule.

Everyone knows how he would rule.

And everyone by now should be able to guess that nowhere in Gadola’s opinion is there any mention of the fact that ten years prior to enacting the Ethnic Intimidation Act the Michigan legislature had enacted a transgender birth certificate statute.

A statute that changed “sex” in Michigan.

Gadola concluded his opinion by asserting, “Our judicial oath simply does not empower us to amend the criminal law.”

That includes amending it by refusing to acknowledge a prior legislative enactment that can only logically be interpreted to impact the word “sex” throughout the state’s body of law (particularly when claiming that “sex” is the applicable definition of “gender”).

Judges can no longer be allowed escape sanction for refusing to acknowledge that the legislative bodies whose laws they claim to faithfully interpret have included recognition of the reality of transition among those laws.

Now, to be fair, this would also result in sanctioning the dissenting judge, Deborah Servitto.  She too felt no need to reference the 1978 trans birth certificate statute, though she nevertheless came to the proper conclusion.

She laid waste to the notion of using vintage dictionaries as interpretive guides as having legitimacy, pointing out what should be obvious: “[W]hen the Legislature does not designate a particular dictionary that it referenced in crafting a particular statute, it cannot be said that one dictionary is the best, let alone conclusive, determiner of legislative intent.”

And, as to the actual issue that was before the court, she also honed in in what should have been the only thing any court to hear the matter needed to say. “[A]pplying the term ‘gender’ in any sense, whether it is interpreted as equating with ‘sex’ or has a broader meaning, defendant engaged in harassment and intimidation of Steuball based on her gender. It is only when one wanders beyond the specific language in the statute that the opposite result can be reached. Very simply put, would this incident have occurred had the victim not been biologically assigned male? Undoubtedly not.”

Yes, Servitto should have mentioned the legislature’s recognition of the reality of transition, which necessarily includes the process of transition and not merely the completion thereof.  But she reached the proper conclusion, so only a minor reprimand is warranted.

No rational observer can conclude that Gadola approached this case with any intent other than to effectuate raw, naked 21st century Republican erasure of trans legal existence while masking it with the party’s patented veneer of faux compassion.  A few throwaway assertions that Rogers’ actions were “abhorrent” and “reprehensible” ring as hollow and deceitful as a pronouncement of innocence following a body of water not rejecting an alleged witch.

Michigan’s conservative legislature is unlikely to take any action against Gadola (hell, if it weren’t for his age, I’d assume he was on Trump’s federal judiciary short-list), but perhaps the Judicial Tenure Commission or the State Bar of Michigan will.

They certainly should.

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