That's the rub, it's a lot easier to sanction someone's actions, especially when that someone is a rather large figure (Gabe). What about that one person who spews garbage on the street just to be an asshat? It would be very hard to prove any ill intent when saying words because what they thought is theirs and theirs alone. There's no real way to prove/disprove thought. (Unless there's a thought police but I firmly believe humanity should stay as far away from '1984' as possible).
Looking at someone's prior history would be a solution, but I see two little problems with that. One, where do you draw the line between malicious and ignorant? If someone has never seen or heard of anything trans related, the idea may seem completely foreign to him/her which would lead to them saying things that would definitely come across as malicious, but with education, that person will have a very different outlook. This is the textbook example of ignorance, yet the opposite is in evidence. Second, what if someone is completely reformed, yet several years after their last incident, they makes an accidental faux pas. They would face legal apprehension for something they didn't even know they did. That seems just a tad too unfair in my eyes.
We have no problems interpreting intent when it comes to physical harm, why would emotional harm be any less different?
The slippery slope argument that "faux pas" and simple ignorance would get charged is that, just a fallacy. People don't get charged with assault if they accidentally hurt someone, unless it can be proven they did it through actual malice or depraved indifference. The concepts of "mens rea" (
http://en.wikipedia.org/wiki/Mens_rea) and "actus reus" (
http://en.wikipedia.org/wiki/Actus_reus) are applied successfully in criminal law every day, why would it be different with words? As far as "thought crimes" go, we charge people with sexual assault for people being creepers, even if the harm is purely emotional. Stalking is a chargeable crime, but if you're just walking near someone everyday by coincidence you wouldn't get charged for it. Intent to stalk has to be proven. I ask then, why would bullying not be OK to prosecute then? I would argue that bullying is a lot closer in nature to other crimes than people realize, and that we have no problems determining intent to separate malice from ignorance.
I think it should go without saying that the most important thing for preventing bigotry is increasing awareness and education. There are boundaries the law simply cannot cross, and even if it were realistically possible to prevent people from acting on their bigotry, they may remain bigots at heart, and that's no kind of solution. Not to say that existing laws don't have lots of room for improvement when it comes to preventing bullying and shit (nor am I saying they're completely ineffective). It's that it's difficult since there's not much you can do to prevent someone from abusing their freedoms short of simply taking the freedoms away from them.
I agree fully, which is why if we really want to tackle bullying, it's not just enough to punish bullies, but to remove the environment that raises bullies in the first place. Education and other public awareness programs, outreach programs to help in the childhood years. A lot of bullies become bullies because they themselves were bullied. It's a vicious cycle that needs to be broken, but it can't be broken just by punishing the bullies.
Something tangential I meant to ask about earlier:Just how would this work? Aren't the current separations in place for biological reasons?
A lot of it is outmoded thinking that thinks that girls are more fragile than boys and need to be protected and sheltered. While there are physiological differences that shouldn't be ignored, there's so much variety that it's very possible for a female bodied person to be just as strong as tough as any male. By continuing to segregate sports based on what body a person has, it keeps on reinforcing this notion that female bodies are inherently inferior. They're not, they can kick just as much ass as boys can, even in very male dominated sports (
http://www.nytimes.com/2012/09/03/sports/girl-is-pioneer-at-quarterback-for-florida-high-school.html)
On top of that, people who don't fit the socially accepted definitions of a male or female body are caught in between. There's a lot of fear and mistrust that transgendered folk would have an unfair advantage if allowed to compete in their proper gender. It's medically false. Any advantage I have from testosterone is gone now that I'm on HRT. Without testosterone any additional muscle mass gained by it is lost. If it was a permanent gain people would dope once and that'd be it and not risk continuously taking steroids and getting caught. Excuses about "bone density" and gaining "extra leverage" from having a male-bodied skeletal structure is also bunk, as again, there's just as much variation in cisgendered folk. And even if a transgirl isn't taking hormones, it's very plausible she doesn't have as much testosterone as her female-bodied peers. Testosterone is present in everyone in various amounts, male or female bodied, and there's a strong connection to low or non-existent testosterone levels during development as a potential factor in transgenderism.
And then there's a further fallacy saying that guys would claim to be transgendered in order to compete and dominate in female sports. Umm no? It's the same illogical fear that makes people freak out about transgirls getting the right bathroom, that creepers would sneak in to peek and just claim to be trans. There's pretty much no documented cases of such. It's just another hurdle where transpeople need to "prove" they are who they are, when cisgendered persons do not. Nobody questions a cisgirl if she's a girl. And again, all this is doing is reinforcing the notion that guys are inherently superior to girls, and that girls need to be coddled and protected. Fuck that, girls are just as tough as guys are.
So one of two things needs to happen. My preferred solution, gender segregation needs to go away entirely. Any physiological differences that gender may bring are completely ignorant of individual variation. All it's doing is reinforcing stereotypes that one gender is physically weaker or inferior to the other. If gender segregation in sports are going to continue, then transpersons should be allowed to play in their proper gender as there's no medical reason to deny them. The psychological security gained by being able to participate in the proper gender is immense enough that the risk of "pretenders" sneaking in is so farcical in comparison.
e:
Honestly, given the right circumstances, I do believe that one day women can compete with men even in football. The way the league is going (less violence) opens the door more than ever. It's just going to take a truly gifted, driven, hard-working individual who plays the sport from a young age and develops through their young life. That's something that I don't believe we've seen yet because I don't believe they are truly given the opportunity to do so (correct me if I'm wrong).
Pretty much. Girls are told they're weaker so they're not given access to resources to prove that they're not. Even in "violent" sports like football it's pretty much 95% heart and 5% actual physical talent at the high school and even collegiate level. It's not until the pros that physical talents start to exceed drive, and even then physical talent can't carry you if you don't have the mindset for it, whereas the mindset can accelerate mediocre talent to superstar level. And to add onto that, activities that are truly female dominated, such as dance, are not even classified as sports by society (and I personally think, as an end around on Title IX). You can't tell me a ballet dancer doesn't have to be just as fit and athletic as any football player.
Girls don't exceed at sports not because they're inferior, but because they're told they're inferior and aren't given the opportunities. Girls who are talented at sports are ridiculed and harassed in society, and are told they're unattractive if they're built like a guy. They're told that being competitive is not feminine, that being tough and muscular is not feminine, and that being athletic to a female should be tiny and graceful, not big and stompy. Fuck that noise, girls can be just as tough and brutish as boys. And boys can be just as tiny and graceful as girls. The patriarchy cuts both ways too. Because girls are seen as inferior, boys who are interested in girl-dominated sports and activities like gymnastics are seen as weak. Fuck that, a guy in gymnastics is manly as fuck! A guy doing ballet is manly as fuck!