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![handle is hein.sag/sagtn0180 and id is 1 raw text is:
STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
February 8, 2019
Opinion No. 19-01
Sentence Enhancement for Hate Crimes Against Transgender Individuals
Ouestion
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.,](ViewImageLocal?handle=hein.sag/sagtn0180&div=1&collection=&method=preview&ext=.png&size=3)