As government officials across North America sound the alarm at rising reports of anti-LGBTQ2S+ violence, advocates and legal scholars alike question whether hate crime laws are the best tool to stem this continuing tide of violence.

According to Statistics Canada, the number of reported hate crimes based on sexual orientation increased by 69 percent last year, continuing what Warren Silver, national training officer with the Canadian Centre for Justice Statistics program at Statistics Canada says is a years-long trend of growing numbers of reports dating back to 2021.

And data from the U.S. Federal Bureau of Investigation details that reports of anti-LGBTQ2S+ hate crimes in the U.S. have indeed risen as well—with hate crimes based on sexual orientation increasing by more than 20 percent in 2023. Attacks based on gender identity increased 16 percent. This data, released by the FBI in late September, is the most recent data available.

But before efforts can begin to address this violence, experts agree that understanding its scope is a crucial—but complicated—task.

In particular, hate crime statistics in the U.S. are replete with flaws. The FBI collects hate crime data but relies on local law enforcement agencies—thousands of whom say they have no reported hate crimes—to compile their own statistics.

While U.S. federal hate crime law was expanded to include actual or perceived gender, sexual orientation, gender identity or disability in 2009, state laws are a complex and incomplete patchwork of legislation.

Less than half of states’ hate crime laws explicitly include both sexual orientation and gender identity, and nearly a dozen states don’t include gender identity in hate crime laws, according to the Movement Advancement Project. Other states have no hate crime laws at all.

Additionally, a recent report by advocacy organizations Lambda Legal and Black & Pink states that hate crimes frequently go unreported to police for reasons including distrust in law enforcement and fear of harassment by police.

“A lot of people are scared to speak about the [violence] as a queer or trans person that police as a whole have done to them,” says Jennifer Love, a Black & Pink board member and NYC chapter organizer. “And who do you go to, the police? Where are you supposed to go and make a report?”

But legal experts including Bennett Jensen, director of legal at Egale Canada, say that phenomenon isn’t unique to the U.S.

“That’s exactly the case in Canada as well,” Jensen says. “[Because of] generations of mistrust, situations of police abuse and a history where queer identities and trans identities have been largely outlawed or criminalized.”

Hate crime statistics are slightly more trustworthy, though still imperfect in Canada, where StatCan says roughly one in five hate crimes are reported to police, who by law report those numbers to the federal government. But multiple factors make hate crime charges difficult to prosecute, including the will to endure the difficult legal process or the political will of prosecutors themselves, resources to pursue investigations and lacklustre evidence of a personal bias against the person targeted.

And given the continued rise in anti-LGBTQ2S+ hate crimes across North America, experts like Jensen argue that hate crimes laws are a poor deterrent for what they say is largely a social problem that won’t be solved through the carceral system.

A landmark report about hate crime laws in the U.S. also argues that the laws essentially punish discrete acts of violence that are motivated by bias but do little to address the bias itself. And these acts of violence typically follow or frequently echo statements and actions by powerful public officials who go largely unpunished. For example, following the election of Donald Trump in 2016, civil rights experts noted a dramatic uptick in reports of racist, misogynistic, anti-LGBTQ2S+ incidents.

“There’s increasing criminal activity that’s bias-motivated or hate-motivated, but people are also living in a culture that is increasingly hostile to their existence,” Jensen says.

Rising hate crime reports come as anti-LGBTQ2S+ rhetoric and legislation have reached a fever pitch across North America. According to the Trans Legislation Tracker, which studies anti-trans legislation in the U.S., more than 650 anti-trans bills have been introduced in state and federal legislatures across the U.S. in 2024, including 274 that were carried over from last year.

According to the tracker, this makes 2024 the fifth consecutive year of record-high levels of anti-trans legislation, which commonly target students’ autonomy in schools, gender-affirming care, participation in sports and other basic civil rights. But that trend has crossed borders to Canada, where officials have begun their own efforts to restrict the rights of trans youth in particular.

“What we’re seeing in Canada over the past year are some political leaders really spreading mis- and disinformation about mainly trans and gender-diverse folks, but queer and trans folks overall and in our view, this is directly translating to hate on the ground,” Jensen says.

A glaring flaw in hate crime legislation is the reliance on law enforcement to meaningfully and respectfully investigate instances of hate-motivated violence—despite droves of examples of law enforcement perpetrating that violence themselves. That, coupled with the systemic flaws in the criminal legal system broadly, has pushed some legal advocates to seek out other methods to hold people and organizations accountable for the violence they foment.

Attorneys at the Lawyers’ Committee for Civil Rights Under Law, for example, still utilize the U.S. legal system to punish influential public figures and groups for the violence they perpetrate, but file civil litigation rather than advocating for criminal charges. Last year, a D.C. judge ordered the Proud Boys, a far-right fascist organization, and a number of its leaders to pay more than $1 million for a racist attack on a historic Black church that is just blocks from the White House. The lawsuit was filed by the Lawyers’ Committee and others in 2021.

“Our method of combating that has always been to use the civil rights statutes to bring not only the bad actors but the organizations for not only committing the hate crime but also for planning the hate crime,” says Anisa Sirur, senior counsel at the Lawyers’ Committee for Civil Rights Under Law. “So we sue the leaders, the members, the organization civilly and that has been our approach.”

This has allowed the Lawyers’ Committee to push back against those who stoke the flames of violence against marginalized people—in their case, Black and brown people in the U.S. Rather than punishing a single or group of bad actors through criminal prosecutions, using civil litigation allows Sirur and others to go after an organization’s finances and other means of operation, with the goal of dismantling their ability to foment and perpetrate violence. This also allows them to hold organizations accountable without relying on the flawed and deeply biased U.S. criminal legal system.

“Some of these hate crime statutes have been disproportionately used against the very community members that it aims to protect, history tells us that,” Sirur says. Experts say that incidents of Black people being charged with hate crimes against white people also call into question the efficacy and purpose of the laws to root out violence against vulnerable people.

And mirroring those efforts, queer people and those impacted by anti-LGBTQ2S+ rhetoric have increasingly turned to the civil legal system—typically in the form of defamation lawsuits—as a defence against rhetoric that can and has led to real-world violence. Experts like Jensen say this could be a powerful tool for fighting against rhetoric that often inspires acts of anti-LGBTQ2S+ violence.

In December, for example, the Ontario Superior Court of Justice ruled that the term “groomer” was an anti-LGBTQ2S+ slur and was not protected speech under Canadian law. The decision allows drag performer Caitlin Hartlen and Rainbow Alliance Dryden to pursue defamation litigation against a local man who argued on his public Facebook page that Hartlen and others at an all-ages drag show event in Dryden, Ontario, were “grooming” children.

In what may be the most public legal rebuke of anti-trans rhetoric, Algerian Olympic gold medalist boxer Imane Khelif named J.K. Rowling and Elon Musk in a harassment lawsuit filed with French officials after they and others falsely claimed that Khelif was trans after a fellow boxer quickly forfeited a match against Khelif during the Paris Olympics. Many highlighted the saga as an example of how cis people are not immune to the effects of anti-trans rhetoric and the harassment and abuse it can stir up.

And most recently, in early September, a South Carolina school teacher sued five people, including a local legislator, after being called a groomer in podcasts and on social media. The harassment began after the teacher passed out a survey to students that asked their names and pronouns, as well as their favourite after-school hobbies, movies and school subjects.

“No American deserves to be the target of disinformation, defamation, harassment and intimidation,” Meg Phelan of the Equality Legal Action Fund, which has taken up the teacher’s case pro bono, told local media. “So, what we are trying to do is show extremists that not all speech is protected under the First Amendment. We cannot use defamatory language with impunity.”