Metro Weekly

Justice Department updates profiling ban to include sexual orientation, gender identity

Photo: Eric Holder. Credit: The Aspen Institute/flickr.
Photo: Eric Holder. Credit: The Aspen Institute/flickr.

Federal law enforcement agencies will be prohibited from profiling on the basis of sexual orientation and gender identity in most cases under new guidance issued Monday by the Justice Department.

The updated policy completes a review first launched by Attorney General Eric Holder in 2009 shortly after President Barack Obama took office and builds upon a 2003 policy created under Attorney General John Ashcroft prohibiting the consideration of race and ethnicity in federal investigations. The new policy protecting LGBT people also prohibits profiling on the basis of national origin, gender and religion.

“As Attorney General, I have repeatedly made clear that profiling by law enforcement is not only wrong, it is profoundly misguided and ineffective,” Holder said in a statement. “Particularly in light of certain recent incidents we’ve seen at the local level, and the widespread concerns about trust in the criminal justice process, it’s imperative that we take every possible action to institute strong and sound policing practices.”

According to the Justice Department, the new policy will prohibit federal law enforcement officers from acting on the belief that possession of one of the seven noted characteristics by itself signals a higher risk of criminality. The policy will also apply to state and local law enforcements officers assisting in a federal law enforcement investigation. 

“With this new guidance, we take a major and important step forward to ensure effective policing by federal law enforcement officials and state and local law enforcement participating in federal task forces throughout the nation,” Holder continued. “This Guidance codifies important new protections for those who come into contact with federal law enforcement agents. And it brings enhanced training, oversight, and accountability to federal law enforcement across the country, so that isolated acts of discrimination do not tarnish the exemplary work that’s performed by the overwhelming majority of America’s hard-working law enforcement officials each and every day.”

Although the review has been in the works for years, some advocates say remaining carve-outs for law enforcement activities undermine the goal of the updated policy. According to the ACLU, the guidance does not eliminate carve-outs permitting discrimination at the border by the Transportation Security Administration (TSA) and at the border by U.S. Customs and Border Protection (CBP). The organization also states profiling in the context of national security is still permitted.

Laura Murphy, the director of the ACLU’s Washington Legislative Office, said in a statement that while the guidance is an important signal of progress that should be celebrated, it is “not an adequate response to the crisis of racial profiling in America.”

“It’s baffling that even as the government recognizes that bias-based policing is patently unacceptable, it gives a green light for the FBI, TSA, and CBP to profile racial, religious and other minorities at or in the vicinity of the border and in certain national security contexts, and does not apply the Guidance to most state and local law enforcement,” Murphy said. “The President should compel all his federal police, as well as state and local agencies to adhere to the law and stop engaging in biased profiling now.”


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