The Club Q shooting suspect identifying as non-binary won't prevent them from being charged with hate crimes, legal experts say

• The suspect in the Club Q shooting identifies as non-binary, according to a defense filing.
• But the shooting suspect's gender identity won't stop prosecutors from pursuing hate crime charges.

Identifying as non-binary won't stave off possible hate crime charges for the shooting suspect accused of killing five people and wounding 17 others at a Colorado gay club.

Authorities said a shooter opened fire for nearly six minutes at Club Q in Colorado Springs on Saturday before club patrons helped tackle the shooter to the ground and police arrived. That the shooting suspect attacked an LGBTQ establishment on the eve of the International Transgender Day of Remembrance immediately raised the possibility that the incident was a targeted attack against the queer community, officials said.

A 22-year-old was arrested and is being held on preliminary murder and hate-crime charges, according to authorities. The visibly bruised suspect appeared in court for the first time on Wednesday, where prosecutors said they will present formal charges at an early December hearing.

A defense attorney for the suspect said in an initial court filing that the accused shooter identified as non-binary and uses they/them pronouns — a somewhat surprising development given the suspect's reported history of anti-LGBT remarks.

But identifying as non-binary won't protect them from the possibility of being formally charged with hate crimes on top of the impending murder charges, legal experts told Insider.

"It's not relevant," Neama Rahmani, president of West Coast Trial Lawyers and a former federal prosecutor, told Insider of the suspect's gender identity. "Obviously the defense will want to get it in, but it's not a defense."

Neither the suspect nor their defense has definitively said whether they plan to use the accused shooter's gender identity as part of their defense, but including the suspect's pronouns and gender identity in the Tuesday court filing was a "very strategic move" on the part of their defense, Rahmani said, which is likely already working to build sympathy and ward off the likelihood of additional charges.

"It's certainly something that the defense would try to use, but it's not in and of itself a bar from hate crime charges depending on what the other evidence is," Brian Levin, professor of criminal justice at California State University, San Bernardino, told Insider.

Members of a marginalized group are legally capable of committing hate crimes against members of their same marginalized group, legal experts said.

"The notion that because someone might belong to a group does not mean that some...dispute revolving around that group membership or issue would negate hate crime charges," Levin said.

Prosecuting hate crimes in Colorado recently got easier

Prosecutors pursuing hate crime charges in Colorado previously had to prove that a suspect's intent was driven entirely by hate — an admittedly difficult task given the impossible nature of "getting inside someone's head," Rahmani said, forcing prosecutors to rely on circumstantial evidence.

Proving that a suspect committed a crime with the sole motivation of hate is so challenging that prosecutors often opt not to pursue the additional charges even in cases where bias is a likely motivator, Rahmani added.

But in 2021, Colorado lawmakers rewrote the state's hate crime statutes in an effort to make prosecuting bias-based crimes easier. Now, prosecutors must only prove that hate or bias was a "partial" motivation in the crime, opening the door for more charges and convictions.

"That's obviously important because there may be differing reasons why someone would want to kill someone else," Rahmani said.

Politics can also play a role in a prosecutor's choice to charge a suspect with hate crimes, he added.

"If you're a prosecutor, you really want to enforce these laws when you can. They send a message," Rahmani said. "Your job is to protect minority groups like this."