Queer (In)justice: The Criminalization of LGBT People in the United States

The fight for LGBT rights started with a riot. Gays, drag queens, transgender people, and other gender and sex non-conforming individuals were hounded, attacked and criminalized by the legal system just for being themselves in those days. LGBTs had no freedom of association. Gays were banned from the military and from government employment solely based on a queer criminal archetype – the ‘queer security threat’, which, along with other queer archetypes, would make appearances at different times in our history. Gay bars and hangouts were routinely raided, their patrons arrested and charged with crimes. Then, in 1969, at the Stonewall Inn in New York, LGBTs started fighting back – attacking the police establishment and the prevalent belief that LGBT people should be charged with crimes and branded as lawbreakers. The Stonewall riots marked a shift in the way LGBTs would allow institutionalized homophobia to affect them:

It was on the night of June 27, 1969, that a routine police raid on the Stonewall Inn, a Christopher Street hangout for gays, run by the Mafia, prompted not cowed obedience from the customers but uncharacteristic fury and outrage. It was not unusual for the police to raid gay bars, and they did so regularly, to arrest transvestites and harass the customers. What made the raid of the Stonewall Inn unusual is that the gay and lesbian patrons spontaneously fought back, tossing beer cans, bricks and anything else in reach at the police officers, who responded by beating many of the protesters and arresting dozens of others.

Beacon Press has published Queer (In)justice: The Criminalization of LGBT People in the United States, a revolutionary work seeking an entirely new perspective on the rights of LGBT people in the United States. Focusing on the criminal legal system, the book details the years of systematic abuse and institutional and structural problems with that system – taking a hard look into our jails, police and courts – showing us that they not only prevent LGBT people from getting the justice they deserve, but that institutions such as those work against LGBTs to criminalize them based on stereotypes and homophobia – even when they ostensibly exist to help and protect LGBTs.

For instance, a group of women who were friends – and who happened to be black lesbians – were walking down the road one day, when a man, Dwayne Buckle, hit on them. They said no, and he decided to follow them, becoming aggressive and threatening to rape them. He shouted “I’ll fuck you straight, sweetheart!” He attacked the women, pulling hair, spitting, and doing all sorts of things to the women, who had just told him “no.” Eventually, two other men saw what was happening and ran to help. Buckle was stabbed. Then, the group of lesbians got arrested for the crime of defending themselves.

Making things worse, the women were called a “lesbian wolf pack” by the media:

Lesbian wolf pack guilty
Jersey girl gang gets lockup in beatdown

In an instant, four tough lesbians from New Jersey were transformed into crying convicts yesterday after being found guilty of pummeling a filmmaker in Greenwich Village last summer.
[…]
“I’m stabbed and I have a scar that will be with me for the rest of my life,” Buckle told the Daily News. “They have their jail sentences, but they’ll be out soon.

“This is what I get for being a nice guy.”

This is but one example that Queer (In)justice discusses as part of a larger problem with the systematic mistreatment of LGBTs, however it’s an important one. The issues that were at play in this situation include the stereotype of the angry black lesbian as a violent instigator, and the treatment of the women in this case illustrates the problems with racism, sexism and homophobia that permeate our media and our courts. It tells us how a queer criminal archetype can immediately affect the entire presentation of a story and a case. It describes how, taken together, these factors contribute to the problems we tend to view as one dimensional – after all, it goes without saying, anti-gay laws have tended to be enforced more harshly against people of color. Without major reforms to our larger criminal system – and without at least discussing the continued existence of our prison system and its harms on society, something not necessarily addressed in the book but important nonetheless – LGBTs will continue to be victims of these institutional problems the way other minorities are.

Between 2007 and 2008, Queer (In)justice tells us, incidences of reported police violence against LGBTs increased by 150 per cent. The number of law enforcement officers reported to have engaged in violence and abuse of LGBTs increased by 11 per cent.

This isn’t a problem that’s disappearing as we gain more rights and more acceptance among our peers. It’s a pervasive, institutional problem, built into the foundation of this country and enhanced by President Nixon and President Reagan with their “tough on crime” campaigns, that will continue to hurt LGBTs and people of color disproportionately until we address it directly and fight against police abuse the way we did in 1969. Queer (In)justice details a plethora of reasons why this is true.

Our system, every tiny little facet of it, in short, works on the presumption that heteronormativity and gender conformity – the idea that you must be heterosexual and that you must look and act like the body you were born into – are overarching principles that we must command people to follow, and call them criminals if they don’t fit in.

The book explains in exhaustive detail the institutional problems we face, going back hundreds of years to the very creation of the ‘penitentiary’ and the concept of prison itself. It tells us why policing sex and proper gender roles has compounded the issues we face. The enforcement of gender roles themselves can lead to criminalization – or at least inaccurate stereotyping that perpetuates criminalization. Simply put: the idea of having a system with institutionally discriminatory racist, classist and sexist views in charge of regulating sexual behavior leads to the ‘other’ being persecuted while ‘normal’ sexual behavior, and especially the larger white race, is not. If you’re not seen as sexually normal or gender conforming, you are shunned or attacked. For years there have been laws enforcing gender conformity – even going as far as to tell women what they can and cannot wear in some instances.

It discusses some basic issues that are left off the table by mainstream LGBT rights groups: the treatment of transgender people and transsexuals by our system. The fact that they receive more – and harsher – abuse than other groups. And they tend to be poorer with less access to a good lawyer or health advocate. Transgender people are placed into the wrong type of prison for their gender and they are treated with disrespect when imprisoned; they suffer through degrading and humiliating abuse because of their gender and sex nonconformity. They are denied necessary medical treatment – including hormone therapy. And yet they are largely left out of the public debate. Where’s their representation?

Racial factors and how they intersect with LGBT rights are also touched on in the book. Racial discrimination and racism play a part in our system whether or not non-heterosexuality or gender non-conformity come into play, but when they do, it adds entirely new dimensions to the abuses LGBTs endure. And yet most of our national LGBT organizations have a history of playing to their white donors and readers while ignoring LGBTs of color.

Access to HIV/AIDS treatments in prisons is entirely lacking. Sometimes prisoners are just outright denied access.

And it can’t be said enough that white heterosexuals are not persecuted and prosecuted the same way LGBTs are, and definitely not the same way LGBTs of color are. They aren’t charged the same. They aren’t tried the same way in court by judges. They’re not viewed the same way by the media. They’re not even treated the same way by their own lawyers.

Prosecutors are the people who decide how a case is presented before a court. The book’s research shows us that in a great many cases, prosecutors tend to play on LGBT stereotypes in order to obtain a conviction. They have used the idea that being transgender is sneaky and deceitful to get a guilty verdict from jurors that might be swayed by homophobic language. They’ve even, in some cases, used homosexuality in family court to accuse the person suing for custody of being an alcoholic and sexually promiscuous, based on completely incorrect but long-held stereotypes.

LGBTs and gender non-conforming people are also often denied effective counsel. This happens on purpose in some instances, but in others, their lawyers are just ineffective. They are unaware of the lives of their LGBT clients and what’s an acceptable way to represent them and what is not. Another problem with lack of effective representation is the fact that many LGBTs are – despite the common stereotype – poor and unable to afford good lawyers who would do the research required for effectiveness.

Stereotyping affects juries and judges as well. LGBTs, along with people of color, are overcriminalized simply because juries and judges either buy into stereotypes of those groups or because they choose to completely ignore the racial, gender and orientation based components of a situation.

Recent events that occurred after the book was published provide an illustration. In the Supreme Court case Connick v. Thompson, in which a black man was denied a monetary award after being convicted and sentenced to death for a crime based on the prosecutor withholding evidence, it was ignored throughout the entire opinion that he’s black. His race wasn’t even mentioned until the third page of the dissenting opinion. This was despite the clear evidence that people of color are imprisoned and sent to death row disproportionately. And the clear fact that most prosecutors are white. And most lawyers (who oftentimes give ineffective counsel to minority communities) are white. Imagine how this case which didn’t even involve gender or orientation discrimination, admittedly, would have turned out differently if the Justices would have discussed race and its role in the case – both in the way it was presented and in the way the jury handled it. Now imagine cases that involve LGBT people of color and how much better they would go for those LGBTs if things like this were discussed, or at the very least, if the institutional problems of police forces and jails were dealt with before cases like this even reached the courts and juries.

Shortly after the book was published, and in conjunction with the DOJ’s new stated position that LGBTs deserve heightened scrutiny in court, they released a report on misconduct by police officers in New Orleans. It provided a groundbreaking look into the institutional abuse LGBTs suffer – this was happening for the first time in history, and the results were ugly:

“Members of the LGBT community complained that NOPD officers subject them to unjustified arrests for prostitution, targeting bars frequented by the community and sometimes fabricating evidence of solicitation for compensation. Moreover, transgender residents reported that officers elect to charge them under Louisiana’s statute criminalizing solicitation of ‘crimes against nature,’ rather than the state’s generic solicitation law. The crimes against nature statute, a statute whose history reflects anti-LGBT sentiment, in part criminalizes the solicitation of an individual ‘with the intent to engage in any unnatural carnal copulation for compensation.'”

This is why this book – written and meticulously researched by a group of three activists, lawyers and organizers for civil rights: Joey Mogul, Andrea Ritchie, and Kay Whitlock – takes these things on directly and forcefully. It lays the foundation for the beginning of radical change in the way LGBT people are treated in their daily lives. Recent events prove its necessity, and its importance in our discussions of how to deal with mistreatment of oppressed minorities.

Queer (In)justice is one of the most important books about the struggle for LGBT rights that we’ve seen in decades. It adds a critical point of discussion, advocating for working beyond the standard ‘marriage and military service’ framework and instead fighting the entire system of institutional wrongs historically perpetrated against all LGBTs.

Indeed, the book touches on an important point I – as well as others – have attempted to raise in discussions of LGBT rights: namely, the fallacy that the Supreme Court’s decision in Lawrence v. Texas overturning the remaining sodomy bans in the United States, puts an end to criminalization of LGBTs. It did not even get those laws off the books, and they are still being used as a literal form of state-sponsored terrorism against gays. They are not enforceable but that’s not the point. Since we are dealing with an institutional problem which has historically worked against LGBT people, we have to change or eliminate those institutions from our society if we want them to stop harming everyone. Just passing a hate crimes bill here, signing marriage equality into law there, that won’t fix this. A Supreme Court case overturning sodomy bans will not itself eliminate the criminalization of LGBT people. I don’t know if it even puts a dent in the system. Those are all good political goals that Americans should support and that politicians and our courts can handle but we have to look further down the road as well.

What made this book so interesting for me was the fact that it’s so challenging. It challenges conventional wisdom about homophobia, but the authors also investigate conventional wisdom from the left in our approach to LGBT rights and deal with its incorrectness. It challenges the concept of hate crimes, arguing that we frame the debate as if the fact that certain groups are historically considered crime victims will mean that law enforcement will protect those groups. Law enforcement is historically part of the problem. If your experience upon reading it was like mine, it will shift your perceptions of the parameters of the debate the country is having on LGBT rights. Some of it is uncomfortable. After all, its intent is to dismantle our entire way of thinking on the subject. The book is easily accessible and serves to shatter perceptions about the way our system is working, and the way our political gains are actually affecting us.

The most provocative part to me was the aforementioned idea of rethinking our whole political strategy and our movement – thinking about issues like gays in the military and same-sex marriage in a different light. Does it matter that we fight for marriage rights when our people are in jail in disproportionate numbers? Does it matter if we can serve openly in the military when we face such drastic income inequality that we almost have no choice but to join the military either way? Those and other questions crossed my mind after reading this. And I don’t have answers.

But I am listening.

In fact, those people who deal directly with our criminal legal system would benefit most from reading and discussing the ramifications of this book. Things clearly need to change and it’s up to those who can effect the necessary changes to work on these problems from the bottom up if we ever want to see reforms. We need our communities to get together to work on protecting their LGBT brothers and sisters. The fight will be a long one, but we can’t call ourselves free until we end every last facet of institutional discrimination.

Authors: Joey L. Mogul, Andrea J. Ritchie, Kay Whitlock
Length: 216 Pages
Publisher: Beacon Press
Publication Date: February 15, 2011