Queer Lockdown: Coming to Terms with the Ongoing Criminalization of LGBTQ Communities

LGBTQ Communities: What’s Queer Got to Do With It?

In recent years, the most visible contemporary gay rights movements have concentrated their focus and resources on a limited number of narrowly defined strategies as the ticket to liberation: namely, marriage equality and the passage of federal hate crimes legislation. These strategies have consumed enormous energy¹ without a deep cost-benefit analysis of this approach as a community building strategy. This paper is not designed to be a specific critique of either strategy. What it does aim to do, however, is to examine the needs of the disproportionate presence of queer people affected by the criminal justice system—and for whom survival on the economic margins is the primary issue.

Structural inequality operates through intersecting oppressions to make certain people most vulnerable to criminalization. The experience of living in poverty and the concomitant exposure to a variety of coercive governmental systems puts low-income and especially low-income people of color at risk of incarceration. What typically goes unexamined are the myriad ways that queer people are drawn into and experience the carceral system because of sexual identities and expression. The criminal justice system has a toxic effect on queer communities at every conceivable level: the marginalization and subsequent criminalization of queer youth; bias in the judicial system; trauma during incarceration in prisons and jails; and in disproportionate sentencing, particularly death penalty cases.

It may not be obvious that incarceration and the challenges flowing from involvement in the criminal justice system deserve pointed attention and resources from queer communities. As a political matter, it is difficult to gain currency on the national stage featuring the concerns of prisoners—a reviled group with little political capital. However, a significant number of queer people do find themselves caught up in the criminal justice apparatus. It is only when we understand the class dimensions of homophobia and transphobia that it becomes clear why the criminal justice system presents an overarching issue that the queer community should come to terms with.

Queer youth frequently experience significant problems in response to expression of sexual and gender identity that puts them at risk of criminal justice involvement during their formative years. A recent report by the National Gay and Lesbian Task Force entitled “Lesbian, Gay, Bisexual and Transgender Youth: An Epidemic of Homelessness,”² details the ubiquitous presence of homelessness among queer youth. It is estimated that in some cities in the U.S., up to 40 percent of homeless youth are gay, lesbian, bisexual or transgender.³ This condition is a direct result of the hardships associated with coming out as queer youth. Familial conflict is a significant factor that leads to homelessness and out-of-home care, and this dislocation contributes to substance abuse and mental health challenges faced by these young people that often go unmet. Physical assaults upon disclosure of their sexuality within the home, at school, and in foster care placements can lead to young people to believe that they are safer on the streets.⁴ There, they often must rely on survival through the sex trade and drug use, and they may be harassed and re-victimized by law enforcement.⁵

As a result of the loss of family support, queer youth are made vulnerable to being swept up by the juvenile and later criminal justice systems.⁶ In this way, non-conforming sexual and gender expression can be a predictor of potential incarceration and should be of great concern to anyone who works with young people in the queer community. Early contact with the criminal justice system sets up the cycle of incarceration referenced earlier, but in the case of queer youth provides access to even fewer targeted supportive services. As a result of a pattern of rejection and alienation, queer youth demonstrate reluctance to openly discuss their sexual orientation or gender identity with service providers.⁷

Moreover, the disengagement from family resources in tandem with criminal justice involvement has serious repercussions for the economic prospects of queer youth throughout their lives, which have ongoing impacts on their health and well-being as adults. Consequently, it is not hard to understand why adults who are queer are disproportionately at risk of incarceration, especially if they are transgender. As a group, transgender and gender non-conforming people are disproportionately poor, homeless, and criminalized. Due to persistent discrimination in employment and housing, many remain homeless or marginally housed⁸ and are forced to survive in the underground economy, including sex work.⁹ In some localities it is possible that transgender adults are incarcerated at a rate even higher than the general population of African American males.¹⁰ In San Francisco, a 1997 study conducted by the City’s Department of Public Health found that 67 percent of male-to-female transgender prisoners (MTFs) and 30 percent of female-to-male transgender prisoners (FTMs) respondents had been jailed in the past year.¹¹

1. A total of $73 million was spent on the battle over Proposition 8 in California. Randal C. Archibold & Abby Goodnough, California voters Ban Gay Marriage, N.Y. Times, November 5, 2008 http://www.nytimes.com. See also Richard Kim, “California Supreme Court Upholds Prop 8,” The Nation Magazine, May 26, 2009, http://www.thenation.com/blogs/notion/438620 (questioning the wisdom of committing massive resources toward an initiative to reverse Prop 8 in 2010 rather than other movement goals). [↩]
2. N. Ray, National Gay and Lesbian Task Force, Lesbian, Gay, Bisexual and Transgender Youth: An Epidemic of Homelessness (2006) [hereinafter Ray, Homeless Youth] http://www.thetaskforce.org/downloads/HomelessYouth.pdf. [↩]
3. Id. at 13. [↩]
4. Id. at 2. See also Human Rights Watch, “Hatred in the Hallways: Violence and Discrimination Against Lesbian, Gay, Bisexual and Transgender Students in U.S. Schools” (2001) http://www.hrw.org/legacy/reports/2001/uslgbt/toc.htm.  [↩]
5. Ray, Homeless Youth, supra note 26, at 70. [↩]
6. Id. at 22, 40. [↩]
7. See Corinne Mufioz-Plaza, et. al, Lesbian, Gay, Bisexual and Transgender Students: Perceived Social Support in the High School Environment (2002): 56. [↩]
8. Lisa Mottet and John M. Ohle, Transitioning Our Shelters: A Guide to Making Homeless Shelters Safe for Transgender People (2003): 3-4. [↩]
9. Amnesty International U.S.A., Stonewalled: Police Abuse and Misconduct Against Lesbian, Gay, Bisexual and Transgender People in the U.S. (2006) http://www.amnestyusa.org/outfront/stonewalled/report.pdf.  [↩]
10. Pettit and Western, Life Course, supra note 6, at 151-2. [↩]
11. K. Clements-Nolle, et al., “HIV Prevalence, Risk Behaviors, Health Care Use, and Mental Health Status of Transgender Persons in San Francisco: Implications for Public Health Intervention,” 91, American Journal of Public Health (2001): 915; see also Tali Woodward, “Life in Hell,” San Francisco Bay Guardian, March 15, 2005 http://www.sfbg.com/40/24/cover_life.html [↩]