The latest violent imagery to emerge from Border Patrol’s actions at the U.S.-Mexico border warrants not only outrage and immediate action, but also deep reforms to an entrenched culture of abuse at Customs and Border Protection (CBP), the federal law enforcement agency that includes the sub-agency Border Patrol. One video from Del Rio, Texas shows a Border Patrol officer telling a Haitian migrant, “This is why your country’s shit, because you use your women for this!” This abhorrent comment is not an aberration: CBP has long had a pervasive culture of cruelty and dehumanization of migrants that includes this kind of — often anti-immigrant and racist — verbal abuse. The Biden administration must ensure CBP personnel treat people with dignity and humanity.

Narrow investigations and hollow assurances are not an adequate response to Border Patrol’s horrifying treatment and verbal abuse of Haitian migrants in Del Rio, Texas. President Biden must immediately prioritize a systemic overhaul of CBP, including fundamental reforms of its use of force policies, hiring and disciplinary practices, and complaint mechanism. In light of Border Patrol’s long-standing failures, President Biden should oppose any move to reward the agency with increased funding. And Congress, for its part, should also be shrinking the agency’s budget, not contemplating any increase.

Every day, CBP carries out U.S. border policy and interacts with migrants through the filter of an agency culture steeped in cruelty, xenophobia and racism, violent inhumanity, and impunity. On rare occasions, the agency’s abusive actions are caught on camera. But images of CBP tear gassing families, surveillance video of a child dying on the floor of a Border Patrol facility, or horse-mounted agents menacing migrants captured on camera tell only a small part of the long history of the agency’s violent actions, and the lack of accountability with which they have been met.

The Border Patrol, initially a small agency, was established in an anti-immigrant atmosphere in 1924. It employed white supremacists, including Ku Klux Klan members, from the outset, and its early history included regular beatings, shootings, and hangings of migrants. Now, after rapid expansion in the early 2000s due to unprecedented funding, Border Patrol’s ranks include nearly 20,000 agents, making it the nation’s largest law enforcement agency. It is also the least accountable.

At least 191 people have died following encounters with Border Patrol in the last decade. Six of these deaths were caused by Border Patrol agents shooting across the border into Mexico — yet no agent was held accountable for the killings. The agency lacks basic accountability practices: No agent has ever been convicted of criminal wrongdoing while on duty, despite deaths in custody and uses of excessive, deadly force. The agency’s discipline system is broken. As James Tomsheck, CBP’s former internal affairs chief, has described, the agency “goes out of its way to evade legal restraints” and is “clearly engineered to interfere with [oversight] efforts to hold the Border Patrol accountable.”

Between just 2019 and 2020, the ACLU filed 13 administrative complaints with internal oversight bodies, documenting hundreds of cases of CBP abuse–including of asylum seekers, families, pregnant persons, and children, among other misconduct. Existing accountability mechanisms have failed to prevent abuses or adequately hold agents to account in ways that would deter future misconduct.

Border Patrol’s abuses are also not limited to the border itself–and have particularly targeted communities of color in the United States. The agency deploys its massive police force across the country where agents profile, surveil, and militarize U.S. communities. Just last year, Border Patrol agents terrorized and kidnapped protesters from the streets of Portland after deployment to Black Lives Matter protests sparked by George Floyd’s murder, and sent sniper units to George Floyd’s burial service with authority to use deadly force.

Verbal abuse of migrants is not unique to the mistreatment documented in Del Rio. In 2019, the ACLU received reports from migrants that detailed verbal abuse by Border Patrol agents. The abuse included bullying, harassment, threats, racism, and misstatements about U.S immigration law. Reported abuse was in line with that in the Del Rio video: For example, migrants described Border Patrol agents calling them derogatory terms and making comments such as, “I’ve fucking had it with you, this is why you guys don’t advance in your country.”

As the disturbing videos from Del Rio show, verbal abuse often accompanies agents’ physical violence. For example, a Border Patrol agent who pleaded guilty in 2019 to repeatedly hitting a migrant with a truck sent text messages in which he described migrants as “disgusting subhuman shit unworthy of being kindling in a fire.” His attorney defended the xenophobic messages as “part of the agency’s culture” and “commonplace.”

Border Patrol’s abuse often targets those who are particularly vulnerable. In 2014, more than 50 children reported verbal abuse. “You’re the garbage that contaminates this country,” one agent told a child. Children have reported that CBP has called them a wide range of derogatory names Migrants also have reported numerous highly derogatory anti-LGBTQ comments.

The agency’s long-entrenched culture of violence and abuse toward migrants is completely contrary to the basic dignity and respect with which all migrants — and anyone who encounters law enforcement — should be afforded.

The Biden administration cannot reward these kinds of human rights abuses by federal law enforcement officers nor allow them to continue. The administration must reject Border Patrol efforts for increased funding and must undertake a complete overhaul of CBP policy and practices, including:

• Reforming CBP’s use of force standards, including through public policies and robust transparency requirements for use-of-force incidents and investigations;
• A moratorium on new Border Patrol hires;
• Expanded training, particularly cultural competence and bias/anti-racism training;
• New public disciplinary guidelines that mirror best practices in other law enforcement agencies; and
• The creation of a publicly accessible national database of complaints and written resolutions.

We laid out these and other detailed recommendations before the start of this administration. CBP’s rampant abuses are doomed to repeat themselves absent robust reforms.

Agents domineered over migrants, menacing them with horses and lariats and making derogatory comments in Del Rio with the eyes of the country upon them. But agents have acted this way with impunity for many years out of the public view — and it is past time for these racist and anti-immigrant abuses to end.

When Tabitha Clay heard former Deputy Jeremy Barnes over the police scanner calling an ambulance for a 15-year-old special needs student he just tased at Española Valley High School, she was immediately alarmed.

At the time, in early May 2019, Tabitha was a reporter for the Rio Grande Sun, covering Rio Arriba Sheriff’s Office (RASO) activities and the courts. Tabitha wasted no time calling Sheriff Lujan, who she had a close professional relationship with, to inform him of the incident and tell him that she would need the reports. The sheriff agreed to grant her access, as was protocol at the time.

In late May, after she obtained lapel footage of the incident, she published her story. At first, nothing unusual happened. But after the incident made national news a couple of days later, sparking public outrage, everything started to change.

“The next day the sheriff said, ‘Look what you caused,’ Tabitha said. “And I told him, ‘I didn’t do this.’ I didn’t hire that deputy and I didn’t put him in the school.’”

But Sheriff Lujan didn’t see it that way. He quickly directed his office to stop providing Tabitha with records, including dispatch reports, and to stop speaking with her.

On July 1, when Tabitha arrived at the scene of a fatal accident in Rio Arriba County to report on the incident, Barnes, the deputy who Tabitha reported on, yelled at her to stay outside the perimeter, threatened to arrest her, and called out for someone to get him some handcuffs. Fearing she would be arrested, Tabitha left.

On another occasion, in September, Tabitha returned to her apartment in Santa Fe County after a long day to find two Rio Arriba Sheriff’s vehicles, one with former deputy Barnes, parked out front. The deputies were clearly out of their jurisdiction and drove off after Tabitha arrived.

“I pulled up and I knew immediately that one of them was the same one who tased the kid, and who had threatened to arrest me two months before,” Tabitha said. “It was scary. It was really scary.”

“It became increasingly clear that the sheriff and deputies were actively trying to silence me...I began to live in fear that they might actually harm me if I didn’t stop reporting on the department."

Two days later, after Tabitha published a story concerning the Rio Arriba County Sheriff’s failure to do in-service training since 2011, deputies refused to allow her to enter the Rio Arriba County Court with equipment she regularly used as a member of the press. RASO deputies only let Tabitha enter with her camera after the bailiff for the court came down and spoke with them, explaining that, as a member of the press, she was permitted to bring her equipment into the courtroom. Deputies still refused to allow her to bring in her phone or her laptop.

“It became increasingly clear that the sheriff and deputies were actively trying to silence me,” said Tabitha. “Their harassment didn’t just prevent me from doing my job. I began to live in fear that they might actually harm me if I didn’t stop reporting on the department.”

A free press is critical to democracy

Members of the press help keep government agencies and actors accountable to the people by serving as watchdogs and calling out abuse. The ACLU has vigorously defended freedom of the press for 100 years because we know that a healthy democracy depends on an informed citizenry.

Though the First Amendment guarantees a free and open press, maintaining it requires constant vigilant protection from local and federal government agencies, which work to keep many of their activities secret from the public.

In recent years, members of the press have faced increased threats and assault. During his presidency, Trump consistently demeaned the press, calling them “the enemy of the American people,” “human scum,” and “the fake news media.” He also worked to undermine their credibility and deligimatize them at every turn. These attacks, coming from the highest office of government, created a hostile environment for journalists to work in. So hostile, in fact, that in 2019, Reporters Without Borders dropped the U.S. to No. 48 out of 180 on its annual World Press Freedom Index. The three-notch downgrade took the United States from a “satisfactory” place to work freely to a “problematic” one for journalists.

"If reporters are afraid they are going to be retaliated against for doing their jobs, that poses a threat to everyone in the community."

In the summer of 2020, when protestors took the the streets to exercise their First Amendment rights in the aftermath of  George Floyd’s murder, Trump not only encouraged a violent response, he also mocked and endangered reporters covering the demonstrations. After an MSNBC reporter was shot with rubber bullets he referred to the attack as “a beautiful sight.” He also sent federal law enforcement to places like Portland, where they secretly surveilled and assaulted journalists covering the ongoing anti-racism protests. The ACLU of Oregon sued on behalf of multiple members of the media who were ​​attacked with flash grenades, rubber bullets, and tear gas while covering the protests.

The ACLU of Minnesota filed a class-action lawsuit on behalf of journalists who were targeted and attacked by Minneapolis and Minnesota police while covering protests the same summer. The lawsuit’s lead plaintiff, Jared Goyette, a journalist reporting on the demonstrations, was shot in the face with a rubber bullet.

In recent years, The Department of Homeland Security targeted journalists reporting on conditions at the U.S.-Mexico border on multiple separate occasions. Agents subjected reporters to secondary screenings, compelled them to disclose information about their sources, and searched their photos and notes. A secret government database leaked to the public in March 2019 revealed that the five journalists were specifically targeted as part of a concerted government effort to surveil people working at the southern border. In response, the ACLU national office, ACLU of San Diego and Imperial Counties, and the New York Civil Liberties Union sued.

ACLU lawsuit

When Tabitha approached the ACLU of New Mexico for help in the fall of 2019, Legal Director Leon Howard was immediately concerned and interested in her case.

“Now more than ever, our country needs journalists who are brave enough to expose the truth and to cover stories that the American people deserve to know about,” said Howard. “If reporters are afraid they are going to be retaliated against for doing their jobs, that poses a threat to everyone in the community. Residents depend on a free press to find out about government abuse and to call for transparency and accountability.”

Tabitha’s work is an example of the importance of journalism in holding public officials accountable. Her reporting on former deputy Barnes ultimately led to his terminiation with RASO and led the Attorney General’s Office to investigate and charge him with child abuse and battery.

“Now more than ever, our country needs journalists who are brave enough to expose the truth and to cover stories that the American people deserve to know about."

She’s now also fighting for the public’s right to information through her lawsuit with the ACLU of New Mexico.  After looking into the harassment and retaliation Tabitha faced, the ACLU began to build a case, filing a Torts claim in October 2019. Then, in  May 2021, the ACLU of New Mexico and Rothstein Donatelli LLP filed a lawsuit in the First Judicial District Court against RASO, the Board of County Commissioners, Sheriff James D. Lujan, and former Deputy Jeremy Barnes, for retaliation and violation of Tabitha’s First Amendment rights.

Tabitha has since moved to Colorado to care for her grandmother, but she is undeterred. She’s still committed to reporting on stories that expose abuse of power and hopeful that her lawsuit with the ACLU will bring change to the community she once lived in.

“I would really like to see this lawsuit send a very strong message to police that you can’t just go after people that are telling the truth. That’s wrong,” Tabitha said.“The First Amendment is the first for a reason. It matters. And you don’t just get to trample all over it and go home at the end of the day.”

We first heard rumblings that a sinister and discriminatory resolution banning trans youth from playing sports would be considered by the Alamogordo Public School Board during the Spring. In response to a growing wave of anti-trans legislation across the country, the school board had planned to take up the resolution, which was written by a lawmaker who failed to pass a similar law during this past legislative session. Initial press critical of the resolution seemed to stall progress on it, but in June the Alamogordo Public School Board put the resolution on their calendar for consideration.

We know all too well that discriminatory policies like this only harm trans kids and their families by creating an environment that is hostile to their very existence. So, we sprang into action. Ahead of their next meeting, The ACLU of New Mexico sent a demand letter to the school board advising that the proposed policy would violate both state and federal law.

"We know all too well that discriminatory policies like this only harm trans kids and their families by creating an environment that is hostile to their very existence."

The United States Supreme Court held in 2020, in R.G. & G.R. Harris Funeral Homes, Inc., v. Equal Employment Opportunity Commission that discriminating against someone on the basis of their gender identity runs afoul of the provisions of Title VII of the Civil Rights Act. The federal government, as of March 2021, determined the reasoning of this opinion logically applies to other provisions of the Civil Rights Act, like Title IX, which applies to schools. Similarly, the New Mexico Human Rights Act (NMHRA) explicitly states that gender identity and sex are protected from discrimination in matters of employment, housing, credit, union membership, and at public accommodations, such as extracurricular activities.

“Trans children already face extreme hardships that stem from coordinated attacks on their very existence and the continued discrimination they face at almost every turn.” said Ellie Rushforth, ACLU of New Mexico attorney. “Instead of attacking trans children’s existence, the Board should have been focused on creating a safe, welcoming, and affirming environment for all of its students.”

Barred from running

The real-world consequences of anti-trans policies are all too real for local Albuquerque resident, Jill Eaton Potts, and her family. Jill has four kids, two sons and two daughters.

At the age of three, Jill’s youngest child, Millie, let her Mom know that she was really a girl. Jill wasn’t phased or upset. She raised her children to feel free to play with whatever they wanted to play with and to wear whatever they wanted to wear.

“The older three siblings kind of gravitated to more stereotypical gender roles,” said Potts. “Our youngest didn’t and we were okay with that.”

By the time Millie reached the age of six, she was still insistent on her gender identity. Jill took action, allowing Millie to live her life authentically. On their first trip out as a family with Millie as her true self, she twirled happily through Target as her family shopped for new clothes.

(Photo: Jill Eaton Potts)

“I took a little video of her twirling through Target and I sent it to my ex-husband saying, ‘I’m pretty sure we have a little girl on our hands,’” Potts said. “I asked him, ‘are you going to be okay’? And he replied, ‘absolutely.’”

When Millie turned seven, a neighborhood Facebook page posted about a track club seeking new runners. Jill asked Millie if she wanted to join the club that her older siblings had also participated in and Millie said “yes.” Jill called the organizer to explain the situation.

“She’s seven but she is transgender,” Jill said. “So the birth certificate is going to show male, but she needs to be with the girls team.”

The organizer promised that she would talk to the head coach and that the coach would call Jill. That call never came. What did come was a surprise.

"If you are going to stick a needle in my kid’s arm, you are going to stick a needle in every kid’s arm."

The organizer finally got back to Jill with conditions for Millie to participate in the running club. She told Jill that she would have to prove that Millie had been living and identifying as a girl for three years and that Millie was going to have to undergo testosterone blood checks every six weeks at Jill’s expense.

Jill was taken aback at the requirements. “I said, ‘Excuse me, her testosterone levels at seven are going to be the same as every kid on that team. Boy, girl it doesn’t matter. If you are going to stick a needle in my kid’s arm, you are going to stick a needle in every kid’s arm.’ She didn’t really like that.”

"These kids are not going away. It's more safe for them to be who they are."

Jill felt terrible and had to tell Millie that the track club wasn’t going to work out and that they would have to look for something else. So far, they haven’t found another sports club that would allow Millie to run.

“These kids are not going away,” Potts said. “It’s more safe for them to be who they are. I bet you they may have had some trans kids on the team who have already changed their birth certificate and they would have never known.”

Gender policing is discriminatory and  harmful

Though anti-trans lawmakers continually cite concerns about competitiveness as the reasoning behind bills that ban trans kids from playing sports, modern science does not support their arguments. These bills are not really about sports or about protecting female athletes, just like anti-trans restroom bills were never about restrooms. These bills are aimed at erasing and excluding trans people from participation in all aspects of public life.

Not only are attempts to ban trans women from sports discriminatory and harmful for trans athletes -- they also pose harm to cisgender athletes, particularly cisgender women.

The National Collegiate Athletic Association (NCAA) and the International Olympic Committee (IOC), which regulate hundreds of events every year to ensure competition fairness and equity, recognize that transgender athletes on horomone therapy have no competitive advantage or other athletes, and allow trans athletes to participate in competitions.

Not only are attempts to ban trans women from sports discriminatory and harmful for trans athletes -- they also pose harm to cisgender athletes, particularly cisgender women. Take Caster Semenya, for example.  In 2019, Semenya, a cisgender Olympic track champion from South African, was ordered by the Court of Arbitration for Sports to take drugs to suppress her natural testosterone levels to compete in certain races because her testosterone levels were considered too high. There is currently no such test or standard for cis-men in sports.

Harmful attacks mount across the country

Attacks against transgender people with the intent of shutting trans people out of public life are not new, but the pace of attacks has accelerated. This year, there have been more anti-trans bills filed and passed than in the last 10 years combined. These statewide efforts have been supported through a coordinated campaign led by anti-LGBTQ groups that have long worked to attack our communities.

New Mexico’s neighbors have been especially aggressive in pursuing bills prohibiting transgender girls from playing school sports. Texas, Oklahoma, Arizona, Colorado and Utah all filed bills this year aimed at preventing trans kids from playing sports. Transgender activists and allies have managed to defeat each bill, but the fight is not over. After failing to push these bills over the finish line this past year, transphobic lawmakers in each state could take up the issue once again next year.

Attacks against transgender people with the intent of shutting trans people out of public life are not new, but the pace of attacks has accelerated.

In the 2020 New Mexico legislative session, lawmakers filed two bills intended to discriminate against transgender people. One bill attempted to ban trans girls from school sports and another bill aimed to make it legal to use religion as an excuse to discriminate against LGBTQ+ people in healthcare. Together with allied organizations like Equality New Mexico and the Transgender Resource Center of New Mexico, we defeated both bills. Nevertheless, they underscored the importance of staying vigilant and ready to defeat transphobic laws here at home.

We cannot rest

After receiving our demand letter, the Alamogordo Public School Board quickly pulled the resolution seeking to ban trans girls from sports from their calendar. While they offered no comments as to why the resolution was pulled, it was a sigh of relief for trans people across the state.

"When civic leaders and elected representatives are debating about your inclusion, in some cases about the validity of your very existence, that really erodes your confidence and self-worth."

“I think we have clear indications about what this type of legislation does to the mental health, stability and sense of belonging of trans and non-binary young people,” said Adrien Lawyer, Co-Founder and Executive Director of the Transgender Resource Center of New Mexico (TGRCNM). “When civic leaders and elected representatives are debating about your inclusion, in some cases about the validity of your very existence, that really erodes your confidence and self-worth. It’s not even about sports inclusion, per-se, although we also have great data on the benefits of sports participation for youth who are interested. It’s really more about core acceptance and inclusion in the communities we live in.”

Legal and legislative action are important arenas for protecting trans rights. But it will also take public education and committed allyship to root out the harmful myths underlying anti-trans policies.

We’ll keep fighting to ensure that families like Jill Eaton Potts’ don’t have to worry about signing their kids up for a running club.

“Education is power, power is education. So whatever we can do to help educate people, and make it graceful and kind and not get mad at people who don’t understand trans issues,” said Potts, “My dream is that Millie can be whoever she wants to be, just like any parent of any kid. There’s a lot of families that are like mine, and families who are going through this, there’s so much support. You’re not alone.”