October is LGBTQ history month. As we reflect on what this month means to us as a community and on the progress of recent years, we cannot forget that mass incarceration profoundly affects the most vulnerable people in the queer community. In these five areas, evidence shows how queer people are disproportionately affected by the criminal justice system:
1. There is a long history of criminalization of queer people and of violent police targeting of queer spaces.
When drag queens, transgender women, and other queer folks rioted at the San Francisco Compton Cafeteria diner in 1966, it marked the boiling point of police harassment sanctioned by “female impersonation” laws, which made it illegal for cisgender men to wear women’s clothing. Some states rewrote antisodomy laws in the 1970s to target gay couples, a practice that remained legal until 2003, when the US Supreme Court struck down these laws in the Lawrence v. Texas ruling.
More recently, laws like North Carolina’s HB2 (which has been repealed and partially replaced) and Texas’s SB2 (which failed) banning transgender people from using the bathroom that matches their gender expression represent a resurgence of bills designed to criminalize queer Americans.
2. Queer youth of color are more likely to be arrested or detained in school.
Zero-tolerance policies in schools, designed to keep students safe, often fail to do so for queer students, resulting instead in arrest or exclusionary discipline when queer students attempt to defend themselves from harassment.
A school climate survey of queer students found 53 percent report being physically harassed, and 34 percent report being assaulted because of their sexual orientation or gender expression. One study in Washington, DC, schools found queer students are three times more likely to be arrested or experience exclusionary discipline measures than their straight and gender-conforming counterparts.
3. Queer youth are overrepresented in the juvenile justice system.
Although they account for only 5 to 7 percent of the youth population, queer youth account for 13 to 15 percent of youth in the juvenile justice system. More than 60 percent of these young people are black or Latinx. This trajectory of juvenile justice system involvement is rooted in discrimination at home and at school. Students who are arrested, suspended, or expelled from school are more likely to end up in the juvenile justice system.
Queer children are more likely to be rejected by family, accounting for 40 percent of homeless youth. When these youth become homeless, they might engage in survival sex and other misdemeanor crimes to survive. Interviews with police officers in New York City revealed some officers believe queer homeless youth to be inherently criminal.
4. Queer adults are overrepresented in prison and jail.
Men who identify as gay, bisexual, or men who have sex with men (MSM) account for 4 percent of all US men, but they represent 9 percent of men in prison and 6 percent of men in jail.
This disparity is even more salient among incarcerated women. Lesbian, bisexual, and women who have sex with women (WSW) account for only 3 percent of all US women, but they comprise 42 percent of women in prison and 36 percent of women in jail. Sixteen percent of trans-identified adults have been incarcerated but account for only 0.6 percent of the US population. Queer people are more than three times more likely to be incarcerated than the general adult population.
According to the most recent estimates (from 2012), queer young people incarcerated at juvenile facilities reported a rate of youth-on-youth sexual victimization of 10 percent, compared with 2 percent reported by their straight counterparts. Similarly, incarcerated lesbian, gay, bisexual, WSW, and MSM adults reported sexual victimization rates by other incarcerated people of 12 percent in prison and 9 percent in jail, while their straight counterparts reported rates of 1 percent in both prison and jail.
Lesbian, gay, and bisexual adults also reported higher rates of sexual victimization by facility staff: 5 percent in prison and 4 percent in jail, compared with 2 percent in both prison and jail among their straight counterparts. Transgender adults are the most likely of any adult population to be sexually victimized by staff or other incarcerated people in prisons and jails: 40 percent of transgender people in prison and 34 percent in jail reported sexual victimization while incarcerated.
During LGBTQ history month, we recognize a past that is full of stories of overcoming challenges as large as these. Increasingly, diversion programs and problem-solving courts for survivors of trauma and people with behavioral and mental health needs are being implemented instead of incarceration to provide necessary treatment and services for people in need of support.
These courts and programs can address system disparities, in-custody victimization, and histories of victimization, abuse, and discrimination among queer youth and adults who find themselves caught in the justice system.