UPDATE: Trans Teen Case Advances, May Move Out of Courts

The case of Jewlyes Gutierrez, the 16-year-old Bay Area trans woman whose charge of aggravated battery after defending herself from a schoolyard attack last November set off a firestorm against the Contra County District Attorney, continues to move through the court system and toward a pre-trial conference scheduled for Feb. 5. As her assailants were not charged, the senior deputy district attorney responsible for the charge, Daniel Cabral, is now facing accusations of trans discrimination and bias.

A Change.org petition started by Gutierrez's sister, Valerie Poquiz, has now reached 150,000 supporters since January, and the case has drawn the attention of the Transgender Law Center and the Gay, Lesbian, Straight Education Network, several news outlets across the globe, and Charles Ramsey, president of the West Contra Costa County Unified School District, who condemned the charge as "sending the wrong message." The Transgender Law Center in San Francisco is calling for the case to be dropped.

In a recent development, the attorney representing Gutierrez, Kaylie Simon, tells EDGE how she hopes the case will be transferred from the courts to the restorative justice system.

"The idea is that all individuals would be held accountable for their part in the incident and it would help go deeper into the underlying that caused this incident to happen in the first place," she said.

While some advocates say this, too, seems to put an unfair onus on Gutierrez, restorative justice would effectively remove the threat of conviction and imprisonment. Officially charged with a misdemeanor of aggravated battery, a conviction would mean Gutierrez hypothetically faces either the potential of a year in custody or being removed from her home for that amount of time.

"I don't think this will happen," says Simon, who cannot comment on an ongoing case. "But there is a chance."

What Is It?

Howard Zehr, Distinguished Professor of Restorative Justice at Eastern Mennonite University's Center for Justice & Peacebuilding in Harrisonburg, Va., explains the restorative justice process, which deals more with engagement than the adversarial defense/prosecution found in trials.

"When people are harmed, they have needs, so the first principle of restorative justice is about addressing needs, first of all to those who have been harmed, but also those who have caused the harm," Zehr, who is not involved with the Gutierrez case, explains.

"The second principle is of obligation," he says. "When we harm somebody, we have an obligation. So restorative justice is about trying to address those obligations, help people understand their obligations, and help those who offended to realize what they have done to other people. It has all the people involved as much as possible in the resolution."

Zero-tolerance programs, while passable on paper, now draw sharp criticism for their counterproductive and often unduly punitive results. While not a truth-finding process like a trial, restorative justice is now more commonly used in schools as an opportunity for all parties to talk about a particular incident, why it happened, and how it can be prevented in the future. It also indicates that at least one of the sides admits a degree of wrongdoing.

"Everyone can talk about their feelings, how they felt hurt and wronged, and what they would do differently in the future," says Simon. "I think it is dangerous when we bring in kids into the court system to deal with things that are much more complex, and should use education rather than the threat of incarceration."

"And personally," she continues, "while I want everything to be addressed, I don't think that penalizing anyone [in the Gutierrez case] will make the situation better, or will help Jewlyes to be less harassed at school. I think the focus should be on teaching tolerance and educating staff and other kids about homophobia and transphobia, rather than bringing the court system."

"The court system is win or lose," Zehr sums. "Restorative justice is a collaborative process in which we hope everybody wins to some extent."