Alec Tabak

Due to an editing error, the original version of this story did not explicitly state that Bayna El-Amin was not, in fact, tried for a hate crime, only that his case was initially investigated as one. This omission insinuated deliberate, racially motivated interference resulting in a harsher sentence for El-Amin, and undermined the purpose of the article: to show the ways in which the social and political discourse surrounding hate crimes can reflect the differential application of protections to victims. We regret the error and have taken steps to prevent such mistakes from taking place again.

On the evening of Monday, June 13 — just two days after the Orlando shooting that took at least 49 predominantly black and Latinx lives in a gay nightclub — hundreds gathered for a second day of mourning at the Stonewall Inn. Part of a roster of celebrity speakers, Police Commissioner Bill Bratton stood behind a podium that read, “We are Orlando.”

“The NYPD, your NYPD, is here to keep you safe because you are NYC,” Bratton later tweeted.

For some, this promise seemed like a symbol of progress: the nation’s largest urban police force pledging its allegiance to the LGBTQ community. But for many others, Bratton’s presence at the vigil was an ironic reminder of just how selective police forces can be with their protection. “You’re saying you’re here to protect us now,” said Mitchyll Mora, an organizer from New York. “But what about when you stop and frisk us? When you arrest us for prostitution? When you deport us?”

Mora was at Monday night’s vigil as part of We Fight to Live, a recently formed volunteer collective that works to support LGBTQ people of color facing criminalization and discrimination. Despite hate crime laws intended to protect against sexuality-based discrimination, and notwithstanding increasingly pro-gay rhetoric from major police forces, the rates of violence against white LGBTQ people have fallen dramatically even as the rates against LGBTQ people of color have continued to climb. Over 80 percent of the LGBTQ people killed in 2014 were people of color.

One case in particular had brought We Fight to Live out that night: Bayna-Lehkiem El-Amin, a 42-year-old man from the Bronx, was due to be sentenced for attacking Ethan Adams and Jonathan Snipes, two gay white men, at the Chelsea Dallas BBQ. A group of mostly white gay men from Chelsea held a rally outside the restaurant just after the incident, calling for the apprehension and prosecution of El-Amin. A short iPhone video of the fight went viral, and El-Amin soon turned himself in. Today, convicted, El-Amin faces up to fifteen years in prison.

El-Amin, whom friends call Carlos, was caught on camera crashing a chair over Snipes’s head, leaving him with gashes on the right side of his face. It may have been an assault, but it was not, his friends and community members contend, a hate crime: El-Amin is queer. But he’s also big and black, making his story an example of the arbitrariness activists and scholars say is inherent in hate crime laws. “We’re praying for a reduced sentence,” said Sean Coleman, a friend of El-Amin’s. “Fifteen years. The rest of his life is at risk. We need folks to know how unfair this is. I’m not saying Carlos shouldn’t be held accountable. But this was a dispute. If he is accountable, then why aren’t all parties accountable? Why did they get support, and he didn’t?”

According to his accusers, El-Amin referred to one of the men as a “messy white fag” and subsequently hit one of them over the head with the chair. Snipes, Adams, and two openly gay, white New York City councilmen — Corey Johnson and Brad Hoylman — pushed the narrative that this was a hate crime assault, leveled at Snipes and Adams because of their sexuality.

In reality, El-Amin is a veteran of the historic House of Ebony in the South Bronx, where he spent nearly two decades as a parent figure to younger queer and trans people of color in the ballroom scene. El-Amin is also a registered HIV/AIDS tester who worked on issues of safer sex and protection with LGBTQ youth of color across New York. “They’re depicting him as this intolerant big brute,” Coleman, who met El-Amin through the House of Ebony community ten years ago, told the Voice. “He’s a proud, loving, gay black man.”

In New York’s tabloid media cycle in the aftermath of the incident, however, El-Amin was consistently referred to by way of his size and race, not his sexuality. The opening sentence of an article in the Daily News from May 25, 2015, read: “A Manhattan jury convicted a hulking brute Wednesday in a May 2015 attack on two gay men at Chelsea’s Dallas BBQ.” Coverage in the New York Post, the Villager, and the Advocate mirrored this language, listing El-Amin’s weight and height and only later alluding to his sexuality by stating that he “claimed to be gay.” All told, the media portrayal of the dispute at Dallas BBQ last May created a simple scenario with binary roles — perp and victim — not what, according to El-Amin’s friends and supporters, might just have been an ordinary barroom fight.

And yet from the start, the story of El-Amin’s attack foreclosed the possibility it could have been for any reason other than homophobia. Coleman, among other friends, was in touch with El-Amin in the days after the dispute. El-Amin told his friends Snipes drunkenly spilled a drink and then, believing El-Amin to have referred to him as a “messy white fag,” went up to El-Amin, called him a racial slur, and slapped him across the face with his purse. El-Amin hit back, and Snipes allegedly produced a knife from the table. El-Amin lost his temper, striking both men over the head with a chair. At the urging of a waitress, El-Amin immediately fled. Snipes later admitted he “wasn’t sure” it had been El-Amin who had made the comment.

Though El-Amin was never formally charged with a hate crime, his case tracks with what some see as the fatal flaw of hate crime legislation — that its oversimplification of fault into a strict binary does not fix the underlying problems that lead to the crimes in the first place. “In addition to their failure to prevent harm, they must be considered in the context of the failures of our legal systems,” wrote the legal scholar Dean Spade in the seminal work Normal Life. Spade writes that because of socioeconomic factors, the definition of what a hate crime even is tends to favor those who can afford to plead their cases in court. In other words, hate crime laws are as susceptible to selective application as the rest of the American legal system.

What little data there is suggests some truth to this theory. Of the 5,479 hate crimes law enforcement agencies clocked in 2014, the latest year for which data is available, people of color were found responsible for nearly half.

And because people of color are often chosen for the role of villain at a rate that may not mirror reality, they’re exposed to even further violence, says Reverend Jason Lydon, the founder and national director of Black & Pink, an organization that supports LGBTQ prisoners. “There is a cultural story that dangerous men of color harm innocent white gay victims,” Lydon told the Voice. “That underlying false story has given strength to the racist prosecution and conviction of El-Amin…the judge and prosecutors are claiming to be protecting white gay men, but they are putting a gay man of color in prison where he is at risk for violence.”

“As a big black man, your instinct is that they’re never going to believe you,” Coleman said. “He was scared. We were all scared. But we told him to turn himself in because there was no other option. Lo and behold, he was right. They didn’t believe him.”

We Fight to Live was the first collective or group to attempt to work with, and on behalf of, El-Amin’s case. At Tuesday’s hearing, El-Amin’s loved ones offered gratitude to the organizers, whom they felt were the first LGBTQ activists outside themselves to push for El-Amin’s freedom.

So far, their organizing has been a relative success: The group put together a petition on change.org, written by Lydon of Black & Pink, seeking signatures asking the judge for leniency. With five hundred signatures gathered in just two days, El-Amin’s sentencing was successfully postponed. El-Amin’s next hearing is scheduled for June 28, but it’s likely he won’t be sentenced until July. He still faces up to fifteen years in prison and continues to be held at Rikers, where he has been for nearly a year.

“The courts, the media, they all acted like Bayna-Lehkiem wasn’t a part of an LGBTQ community,” Mora said after the successful postponement of the sentencing. “But we are here with him. We need signatures. We need letters. We are showing the court that we stand with Bayna-Lehkiem.”