If someone in Tennessee commits a crime against a person because that person is transgender, can the court use the hate-crime sentence enhancement under Tenn. Code Ann. § 40-35-114(17)?

Plain-English summary

A Tennessee legislator asked whether the state's hate-crime sentence-enhancement statute reaches crimes targeting transgender victims. Tenn. Code Ann. § 40-35-114(17) is one of the discretionary "advisory factors" that a sentencing court can consider when deciding the length of a sentence. It allows enhancement when the defendant "intentionally selected the person against whom the crime was committed . . . because of the defendant's belief or perception regarding the race, religion, color, disability, sexual orientation, national origin, ancestry or gender of that person . . . ."

The question was whether targeting a victim because the victim is transgender fits within the "gender" category. AG Slatery's answer was a one-word yes, supported by short reasoning: a transgender person is someone whose gender presentation differs from the sex assigned at birth (the AG cited the New Oxford American Dictionary and Sixth Circuit decisions in EEOC v. Harris Funeral Homes and Smith v. City of Salem for that definition). When a defendant targets someone because of that gender presentation, the defendant is targeting the person "because of" the person's gender within the statute's meaning.

The opinion does not address the statute's sexual-offense carve-out (which keeps the enhancement from applying to sexual offenses based on "gender selection alone"). The carve-out continues to apply on its own terms, and the AG's analysis here is about the broader hate-crime enhancement for non-sexual crimes.

This is a short interpretive opinion, but it has practical weight: it tells Tennessee prosecutors that they can argue for the hate-crime enhancement in cases where the victim was selected because of gender identity, and it tells defense attorneys that the State can pursue that enhancement.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What is the hate-crime "enhancement factor" in Tennessee?
A: Tenn. Code Ann. § 40-35-114(17) is one of several optional sentencing factors a Tennessee court "shall consider, but is not bound by" at sentencing. It permits enhanced sentencing when the defendant intentionally selected the victim because of the defendant's belief or perception about the victim's race, religion, color, disability, sexual orientation, national origin, ancestry, or gender. The General Assembly added the factor in 2000.

Q: Why did the AG conclude that targeting a transgender victim qualifies?
A: Because the statute uses the word "gender" and a transgender person is, by working definition, someone whose gender presentation differs from the sex assigned at birth. Selecting a victim "because of" that gender presentation is selecting the victim "because of" gender within the statute's plain language.

Q: Does the statute use "gender identity" or just "gender"?
A: The statute says "gender." The AG read "gender" to encompass selection based on transgender status. The opinion does not require the General Assembly to add the words "gender identity" before prosecutors can use the enhancement in transgender-targeted cases.

Q: What is the sexual-offense carve-out?
A: The statute says the enhancement "should not be construed to permit the enhancement of a sexual offense on the basis of gender selection alone." That carve-out keeps the enhancement from applying to a rape, sexual assault, or similar offense purely because the offense's victim has a particular gender. The AG opinion does not analyze the carve-out and does not change its operation.

Q: Does this opinion apply only to physical assaults or to other crimes too?
A: The enhancement applies to any underlying offense at sentencing, subject to the sexual-offense carve-out. So an assault, robbery, vandalism, harassment, or any other crime where the AG can show the victim was selected because of the listed traits could be subject to the enhancement.

Q: Does the enhancement apply automatically once the State shows the victim was transgender?
A: No. The statute makes § 40-35-114(17) an advisory factor that the court "shall consider, but is not bound by," and the defendant must have "intentionally selected" the victim "because of" the victim's gender. The court weighs the proof of that motive; it is not required to apply the enhancement.

Background and statutory framework

Tennessee's sentencing statute lists numerous "advisory" enhancement factors at § 40-35-114. A sentencing court considers them but is not required to apply them; the factors must also be appropriate for the offense and not already an essential element of the offense. The General Assembly added subsection (17), the hate-crime factor, in 2000 Tenn. Pub. Acts, ch. 896, § 1.

Subsection (17) lists the protected traits the defendant cannot lawfully use as a target-selection criterion: race, religion, color, disability, sexual orientation, national origin, ancestry, and gender. The AG's analysis is straightforward statutory interpretation. "Gender" carries its plain meaning, which includes how a person presents and identifies. A defendant who attacks someone "because" that person is transgender has, in the AG's view, attacked them because of their gender.

The Sixth Circuit's reasoning in Harris Funeral Homes (884 F.3d 560 (6th Cir. 2018)) and earlier in Smith v. City of Salem (378 F.3d 566 (6th Cir. 2004)) is treated as authority on what "gender" includes. Both cases construe the federal Title VII concept of "sex," but the underlying analytical move (treating discrimination against a transgender person as discrimination because of sex/gender) is what the AG borrows.

The opinion is short because the analytical step is short: gender, as used in § 40-35-114(17), includes transgender status; selecting a victim because the victim is transgender is selection because of gender; therefore the enhancement applies.

Citations

• Tenn. Code Ann. § 40-35-114(17)
• 2000 Tenn. Pub. Acts, ch. 896, § 1
• EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018)
• Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004)
• Tenn. Att'y Gen. Op. 16-15 (Apr. 11, 2016) (definition of transgender)

Subject

Sentence Enhancement for Hate Crimes Against Transgender Individuals

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2019/op19-01.pdf

Original opinion text

Sentence Enhancement for Hate Crimes Against Transgender Individuals

Question
Tennessee Code Annotated § 40-35-114(17) authorizes a court to enhance a defendant's sentence if the defendant, among other things, "intentionally selected the person against whom the crime was committed . . . in whole or in part, because of the defendant's belief or perception regarding the . . . gender . . . of that person." If a defendant selects the person against whom he commits a crime because the person is transgender, may a court enhance the defendant's sentence under § 40-35-114(17)?

Opinion
Yes.

ANALYSIS

Tennessee Code Annotated § 40-35-114 provides that, "in determining whether to enhance a defendant's sentence," a court "shall consider, but is not bound by" various specified "advisory factors," as long as the factors are "appropriate for the offense" and "not already an essential element of the offense." In 2000, the General Assembly added a hate-crime factor to § 40-35-114, which permits the court to enhance a defendant's sentence when

[t]he defendant intentionally selected the person against whom the crime was committed or selected the property that was damaged or otherwise affected by the crime, in whole or in part, because of the defendant's belief or perception regarding the race, religion, color, disability, sexual orientation, national origin, ancestry or gender of that person or the owner or occupant of that property; however, this subdivision (17) should not be construed to permit the enhancement of a sexual offense on the basis of gender selection alone.

Tenn. Code Ann. § 40-35-114(17); see 2000 Tenn. Pub. Acts, ch. 896, § 1; Tenn. Crim. Trial Prac. § 28:27 (2018-19 ed.).

A defendant who targets a person for a crime because that person is transgender has targeted the person because of his or her gender within the meaning of § 40-35-114(17). A transgender person is "one who identifies with a gender other than that person's biological gender," Tenn. Att'y Gen. Op. 16-15 (Apr. 11, 2016) (citing New Oxford Am. Dictionary (3d ed. 2010)), and "who 'fails to act and/or identify with his or her gender,' i.e., someone who is inherently 'gender non-conforming,'" EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 576 (6th Cir. 2018) (quoting Smith v. City of Salem, 378 F.3d 566, 575 (6th Cir. 2004)), cert. petition filed, No. 18-107 (June 24, 2018).

For purposes of the hate-crime enhancement, a crime committed against a person because that person manifests a gender that is different than his or her biological gender at birth, i.e. a crime committed against a person because he or she is transgender, is thus necessarily committed because of, at least in part, the person's gender.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JONATHAN DAVID SHAUB
Assistant Solicitor General

Requested by:
The Honorable Mike Stewart
425 5th Avenue North
Cordell Hull Bldg., Suite 662
Nashville, TN 37243