A small victory for the Transgender Community

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Erica Kay

Erica Kay’s overturned grand theft conviction finally officially closed

On Wednesday, November 23, 2011, historical transgender personality and activist Erica Kay was scheduled to make an appearance in the Panama City courtroom of the Honorable Elijah Smiley to have her case of grand theft officially close; one year and a day after it was overturned by the Appellate Court due to failure to prove criminal intent. Hoping to avoid the press the State Attorney hand delivered the motion to close the case, eliminating the need for a hearing. In spite of the cancelation and in the face of repeated and credible death threats, Ms. Kay was present as her five-year battle against Florida’s law enforcement community finally came to a close to hold a press conference on the steps of the courthouse. During which she outlined the facts in her case and the discrimination she faced while in the custody of law enforcement.

According to Ms. Kay, the State Attorney’s office stated to her attorney Kevin Alvarez that they concede that her case was mishandled and they regret that they will no longer be able to pursue Ms. Kay criminally. This provocative statement is proof to some that Erica Kay was singled out by the State of Florida in an attempt to make an example of her. The true motive behind this statement will never be known, but according to Ms. Kay and her attorney, this is due to prejudice against the transgender community.

Historically, Ms. Kay is one of the oldest living transgenders in this country having transitioned at the age of 17 after being diagnosed with Klienfleters Syndrome in 1967. Erica Kay did not reveal the fact that she was a transgender female to the public until her secret was splashed across the tabloids many years ago. Since then Ms. Kay has experienced repeated death threats, abuse, and discrimination every time the articles resurface.

This case is one of the many examples Ms. Kay uses to expose how deep prejudice against the transgender community goes. In this instance, fear and ignorance surrounding Ms. Kay’s condition infected Florida’s justice system. According to Ms. Kay’s statement to the press, Detective Rosier of the Panama City Police let his prejudice and the unfounded claims of tabloid articles blind him to any substantial evidence that allegations of theft were false. Instead, he refused to listen to Ms. Kay, her business partner Melvin John Harvill, or the financial records that were iron clad proof of her innocence and proceeded to arrest Ms. Kay for grand theft.

According to Erica Kay’s camp, the arrest was only the beginning of the discrimination she faced. She was repeatedly humiliated by being forced to endure “sex verifications” by members of the jail’s staff after being order to do so by Detective Aaron Wilson. While Ms. Kay concedes that an initial verification would have been standard procedure in this instance, the fact that it took place in a jail bathroom and not a clinical setting was the first indication she would not be treated fairly and then to have her sex revivified the same night bordered on harassment.

While repeated sex verifications could be considered an isolated incident, Detective Rosier went one-step further to continue the confusion in this case by listing Ms. Kay’s listing her sex as male on a warrant. The state attorney went so far as to list her male birth name on the indictment, which could only be found in the tabloid article since it, had not been used in 43 years. According to court documents and Erica Kay and witness Terri Lemmer, when Judge Simmons discovered this he asked Detective Rosier if he or a clerk typed up the warrant. The detective proudly boasted that he was the one who created the confusion. The judge was angry with the treatment of Ms. Kay, but the damage had already been done.

During the trial and extending to this day, Erica Kay is constantly harassed by death threats with no real protection from the law enforcement community, according to her statements made to the press. In September of 2007, Ms. Kay was convicted on three counts of grand theft and sentenced to five years’ probation.

According to attorney Susan Rodgers, Detective Rosier arrested Ms. Kay solely based on the allegations made in the tabloid articles, which he later admitted were false. In her statement to the press Ms. Kay states, “By then it was too late. The State Attorney’s office insisted on continuing with the prosecution and continued to claim during the trial that I had closed the business and skipped town.”

According to court documents, Erica Kay’s conviction was overturned by the court of appeals on November 22, 2010 due to failing to prove criminal intent necessary to secure a conviction. According to the law, grand theft would have required actual money to be stolen or embezzled not work, which was incomplete. So directly from the beginning, there were never grounds for arrest, a trial, or conviction. The law is very clear on the limitations of this law. If in this case it has been allowed to stand then every business, which folded during the economic downturn, could have been prosecuted. The law was not created for that purpose, it was created after the hurricane devastation to prosecute those who went door to door taking money and never completing a job. In her press conference, Ms. Kay asks why did the state not only wait one year and a day after the conviction was overturned to finally close the case, but why was a warrant issued by Detective Aaron Wilson allowed to stand until approximately one month ago when it was finally withdrawn?

Ms. Kay states that not only was the warrant allowed to stand, but Detective Wilson contacted her civil attorney, Marie Maddox, demanding her to reveal Ms. Kay’s whereabouts so that he could arrest her after he received a Notice of Intent to Sue. This notice is customary in lawsuits dealing with gender discrimination.

In response to the abuse and discrimination Ms. Kay has suffered at the hands of law enforcement both directly and indirectly, on September 26, 2011 a Notice of Intent to Sue was served by Ms. Kay through her attorney Marie Mattox of Tallahassee to the State Attorney Glenn Hess, Panama City, and Parker for gender discrimination, false arrest, and malicious prosecution. Ms. Kay states that once the Notice of Intent has ran its 180 day course she will be moving forward with her suit to be filed in the Northern District US Court in Panama City.

In her exclusive interview, Erica Kay states that her “motivation is to put an end to discrimination against Transgenders. This cannot happen to another person.” In addition to her suit, Ms. Kay has also written her memoirs in a book titled Bound Between Love currently being optioned to publishers and a screenplay based on the book is being optioned as well. In Ms. Kay’s efforts to shed new light on the prejudice, the transgender community faces everyday she is working towards the ratification of a “true human rights amendment to the U.S. Constitution so that no one is ever left vulnerable gain. It is only through this amendment that states will be prevented from passing discriminatory laws.”