Members of the LGBT community and their allies are expressing outrage after a Bay Area transgender teenager was charged with battery after defending herself during a schoolyard fight two months ago.
Jewlyes Gutierrez, a 16-year-old sophomore at Hercules Middle/High School, was charged January 8 with battery by the Contra Costa County District Attorney’s office after an investigation into the November incident. Three girls who allegedly attacked her, meanwhile, have not been charged.
The decision by senior deputy district attorney Daniel Cabral has caused a firestorm and upset Gutierrez’s family, who are trying their best to protect her and want the DA’s office to drop the charges.
“I feel hurt and frustrated because [the other girls involved in the fight are] not getting charged and me getting charged battery for a crime,” said Gutierrez.
Her attorney told the Bay Area Reporter that she is “confused” by Cabral’s decision to file criminal charges.
“It’s confusing as to why Jewlyes is being further victimized when she’s the one who is already being harassed and tormented … due to her gender identity and then to have adults subject her to the court system,” said Kaylie Simon, a public defender at the Contra Costa Public Defender’s Office who was assigned to Gutierrez’s case.
“The district attorney’s office is supposed to represent the community and keep everyone safe regardless of sexual orientation or gender identity,” added Simon, who hopes Cabral will listen to the community.
Gutierrez is scheduled for a pre-trial conference in juvenile court February 5.
Simon is hopeful that Cabral will dismiss the case.
Cabral isn’t speaking about his decision to charge Gutierrez or why no action was taken against the other students involved in the fight. He became angry when the B.A.R. asked if charges were going to be filed against the other girls.
“I can’t speak about the case at all,” he said.
The Transgender Law Center and the Gay, Lesbian, Straight Education Network are among the organizations that have rallied to support Gutierrez. A change.org petition started by her sister has more than 120,000 supporters.
Assemblywoman Susan Bonilla (D-Concord) this week sent a letter to Contra Costa County District Attorney Mark Peterson asking that the charges against Gutierrez be dismissed.
Bias at play?
The family, community members, and LGBT activists suspect bias is at play because of Gutierrez’s gender identity.
Police reports from the November 13 incident are missing from the Hercules Police Department’s website, pointed out Jeff Koertzen, a gay man who is controller of the Contra Costa County Democratic Party and a member of the state party’s executive board.
The B.A.R. found that the police reports, excluding the week October 30-November 6, 2013, were indeed missing. An email to Connie Van Putten, reserve detective and public information officer of the Hercules Police Department, bounced. When the B.A.R. called and was directed to Van Putten’s voicemail, she responded immediately.
Van Putten blamed the department’s strong spam system for the bounced email, in spite of past email correspondence with the B.A.R. As for the missing police reports, she said she was on vacation from October 15-November 15, 2013 and couldn’t explain why the reports weren’t available on the website. She said someone else was taking the reports while she was out.
Investigative reporter Jennifer Lopez and the online TransAdvocate news site are claiming that Van Putten is prejudiced against transgender individuals.
Van Putten, a 70-year-old Republican retired police officer, told Lopez on December 4 that she recommended to the district attorney’s office that charges be brought against Gutierrez and the other students. She singled out Gutierrez because she is listed as “male” both on the police report and school documents, wrote Cristan Williams, editor of the TransAdvocate, who interviewed Lopez for an article published January 14.
Throughout the interview with Van Putten, she refused to refer to Gutierrez as female, reported Lopez and Williams. Because she perceived Gutierrez as male the incident didn’t fall under hate crime protections.
In the phone call with the B.A.R. , Van Putten didn’t dispute making recommendations for the district attorney’s office to file charges.
This isn’t the first time Van Putten was involved with a controversy in the LGBT community. In 1991, when she was acting police chief of the Union City Police Department, she defended the department’s tracking of people living with HIV and AIDS to protect officers after it was discovered, the Associated Press reported at that time.
Koertzen also called into question other similar incidents involving students at the high school where the district attorney didn’t press charges and allowed the school district to handle the incidents, he told the B.A.R.
Koertzen is working with a group of people to pressure Cabral to drop the case and possibly get California Attorney General Kamala Harris involved, he said.
Bullied for years
Gutierrez and her family sat down with the B.A.R. for an exclusive interview on January 12.
It was the first time a majority of the family discussed Gutierrez’s transition (Jewlyes is the name on her birth certificate), the bullying she’s endured throughout her life leading up to the fight at school, and the charges she now faces, they said.
The family was instructed by Simon not to speak about details of the case. They were, however, able to speak generally about the incident and the bullying Gutierrez has endured throughout her life.
Two years after Gutierrez, who is of Filipino and Puerto Rican descent, began her transition, her family still struggles with pronoun usage. They are open about their challenges and how much they’ve learned working with therapists and a social worker.
They have come to “realize that she needed to express herself,” said Debra Gutierrez, her aunt and adopted mother.
While Gutierrez said that she knew for certain that she was a girl, not a boy, around eighth grade, her birth mother, Diana Classen, 49, said she knew her daughter was different since she was 5 years old. She never wanted to play with boy’s toys or with the boys. She always played with girl’s toys and hung out with girls, she said.
Debra Gutierrez, a 53-year-old mother of three, adopted her sister’s two children, Elisha “Eli” Gutierrez, 18, and Jewlyes. Her ex-husband, Fernando Poquiz, 55, didn’t adopt either child, but he is still involved in the family.
In spite of still referring to Gutierrez as “he” at times, they treat her like their other daughters, teaching her how to dress and behave appropriately as a girl, they said.
Gutierrez is a typical teenage girl who likes to talk on the phone with her friends and practice putting on makeup. She refers to her uncle as her father, who jokingly added that “staring at herself in the mirror” is one of her favorite pastimes, as family members and Gutierrez laughed and smiled shyly.
While she enjoys studying politics, history, and chemistry, school hasn’t been the enjoyable experience she would like it to be.
On November 13, after years of harassment, and after reporting previous incidents to school administrators and teachers with no response, Gutierrez fought back, according to media reports. She allegedly hit one of her classmates, who days before “spit gum in her hand” that was “full of saliva” and “threw it in my face,” the teenager told ABC 7 News.
Three African American teenage girls allegedly chased and attacked Gutierrez. The incident was recorded on a cellphone camera by another student and uploaded to YouTube. Gutierrez’s brothers and sisters discovered it November 14, they said.
Gutierrez and the three girls were suspended for two days.
All of the girls have since returned to school, which has been uncomfortable for Gutierrez. She wanted to go on independent study, but her family, social worker, and therapist advised against it, they said.
The girls who were allegedly bullying Gutierrez haven’t touched her since, but that doesn’t mean they are allowing her to go to school peacefully either, she told the B.A.R.
“I feel negative attention and energy around them,” said Gutierrez, who takes the bus and has classes with the girls. Eli has begun taking the bus with his sister.
Debra Gutierrez simply wants her daughter to be safe at school.
“I just want my daughter to be treated fairly at school and to be safe at school as well as to succeed in school,” she said, pointing out that it’s not Gutierrez’s fault that her case is bringing the school’s bullying and harassment issues to light.
She hopes “it brings about changes to the school policy and fair treatment for people who are different.”
