Criminal InJustice is a weekly series devoted to taking action against inequities in the U.S. criminal justice system. Nancy A. Heitzeg, Professor of Sociology and Race/Ethnicity, is the Editor of CI. Criminal InJustice is published every Wednesday at 6 pm CST.

Queer (In)Justice ~ Winner of 2011 PASS Award
by nancy a heitzeg

Each year, The National Council on Crime and Delinquency acknowledges outstanding contributions to public education on issue of criminal justice with the PASS (Prevention for a Safer Society) Awards.

The PASS Awards (Prevention for a Safer Society) is the only national recognition of print and broadcast journalists, TV news and feature reporters, producers, writers, and those in film and literature who try to focus America’s attention on our criminal justice, juvenile justice, and child welfare systems in a thoughtful and considerate manner.

NCCD established the PASS Awards to recognize and honor the media’s success in illuminating stories that further public understanding of criminal justice, juvenile justice, and child welfare issues. NCCD is seeking stories that illustrate current realities or the promise of reform, especially those that help people understand the complex causes of crime and what must be done to prevent and control it. A critical link in successful policies related to these issues is the education of the public. The media is uniquely positioned to be this link, and we gratefully acknowledge their efforts to fulfill that responsibility.

Queer (In)Justice: The Criminalization of LGBT People in the United States by Joey Mogul, Andrea Ritchie and Kay Whitlock is one of the most deserving recipients of the 2011 Award.


Queer (In)Justice has rightly been described as "ground-breaking", "powerful and productively disorienting" and "revolutionary".

It is all that and more. Queer (In)Justice offers an intersectional analysis of the ways in which "criminalizing archetypes" shape the policing and punishment of sexuality/gender/race/class and offers a much needed critique of "hate crime" legislation and the pitfalls of continued reliance on the old law and order paradigms in pursuit of equality. Doug Ireland in his review, "Outlaws Still" says it best :

"Mogul, Ritchie, and Whitlock have collected — with meticulous, footnoted scholarship — a compendium of utterly revolting but perfectly legal persecutions of queer Americans. These stomach-turning horror stories won’t be familiar to the people who frequent those pricey, black-tie fundraisers given by the Human Rights Campaign and the Gay and Lesbian Alliance Against Defamation, because they mostly concern people of color, or the poor, or gender-benders, and thus often receive little publicity...

Queer (In)Justice ought to be force-fed to the staffs and boards of directors of every national and state gay organization in the hope that it might open their eyes to a reality they too often deliberately ignore. And if the Gill Foundation wants to do something useful, it should buy copies of this book in bulk, distribute them to those closed-door “Outgiving” conferences of fat-cats whose big checks have such inordinate sway in determining the “gay agenda,” and invite the trio of its activist-authors to address them.

Needless to say, dear reader, you too should make sure Queer (In)Justice has a place on your bookshelf. It’s that important."

Yes it is. If you haven't read it yet -- please do.

In celebration of the PASS Award, Criminal InJustice is pleased to re-publish an interview with the authors. So much gratitude to all of them for this path-breaking work, and especially, here to Kay Whitlock, one of the original editors of the Criminal InJustice Series, our comrade in abolition/transformative justice, and most importantly , our friend.

CI: Michael Bronski, the series editor for Beacon’s Queer Ideas series, describes Queer (In)Justice as a “wake-up call” for the LGBTQ movement in this country, and I would agree. What is that wake-up call, and why is it needed now?

Kay Whitlock (KW) : It’s a wake-up call addressing the far-reaching impact of the criminal legal system on queer communities and lives and what that means to a queer justice vision that includes all LGBTQ people, not only the most privileged of us.

And it’s a wake-up call telling us that “get tough on crime” measures supporting intensified policing and harsher punishments produce more rather than less violence and injustice for queers – particularly for queers of color (including immigrants and Indigenous peoples); queers who are poor, homeless, and low-income; and transgender and gender nonconforming people. When our movement fails to confront and work to dismantle state violence – including violence in the criminal legal system – we fail to address a major (indeed, perhaps the major) instigator of anti-queer violence.

It’s a wake-up call highlighting the role the oppressive policing of sex and gender plays in structuring law enforcement and incarceration – and how that policing intersects with, reinforces, and bolsters race- and class-based injustices that are foundational to the criminal legal system.

Joey Mogul (JM): I also hope the book helps people confront the ugly truth that we are living in a crisis of mass incarceration in the United States. A crisis driven by law and order and tough on crime agendas that serve to incarcerate an astronomical number of people, the vast majority of whom are of color (2.3 million people are currently locked behind bars, and another 5 million are under some form of control of the legal system). This crisis of mass incarceration also impacts LGBTQ communities. It serves to ensnare a disproportionate number of LGBTQ people, particularly those who are of color and gender non-conforming, in the criminal legal system.

The criminal legal system and mass incarceration, however, fail to truly deter crime and produce safety for LGBTQ people and others. Instead, the system is profoundly unfair, biased and serves to dehumanize all those processed through it; from the point of their arrest, to their treatment in the courts, and without question when locked behind bars. I hope Queer (In)Justice, along with others books like Michelle Alexander’s recently published book The New Jim Crow: Mass Incarceration in the Age of Colorblindness, can help us realize that the policies that drive mass incarceration have failed. These policies are also enormously costly, not only financially but more importantly, because they have deprived us of so many valuable lives and forsaken the enormous potential of too many human beings trapped in the system.

It is a wake up call for us as justice minded individuals to figure out a new way to provide safety for all human beings in our society that does not include locking up massive numbers of people behind bars.

Andrea Ritchie (AR): Hopefully the book serves as a wake-up call that the criminalization of LGBTQ people, and of sexual and gender non-conformity more broadly, is far from over. It preceded the enactment of sodomy laws, and has continued alongside and beyond the enforcement of sodomy laws. It can be definitively traced to the arrival of the first colonizers on this continent and in fact, we argue, was integral to the colonization of the U.S., the imposition and maintenance of chattel slavery, and the exclusion of “undesirables” at the borders. It is instrumental to perpetuating the continuing effects of structures of oppression and exclusion in the history of this country. It is not, by any means, about isolated targeting of LGBT people by the criminal legal system, but rather is an aspect of larger political, economic, and social conditions and processes driving mass incarceration in the U.S. It therefore cannot be considered or dealt with in isolation from the larger context.

It is hopefully a wake-up call that, even as more privileged sectors of our communities have successfully resisted discriminatory enforcement of sodomy and “lewd conduct “laws and the like, law enforcement targeting of LGBT people – or of people perceived to be sexually or gender nonconforming – has not faded into the annals of history such that we can now move on and leave criminalization behind. Indeed, law enforcement targeting of LGBT people has intensified in many respects, while at the same time narrowing its focus more exclusively on more marginalized members of LGBT communities, including LGBT youth of color, LGBT immigrants, transgender and gender nonconforming people of color, and establishments frequented by LGBT communities of color.

It is hopefully a wake-up call that the days of state-sanctioned discrimination against LGBT people are far from over – one need look no further than the nations’ police precincts, criminal courtrooms and prisons for a multiplicity of examples of the most egregious forms of homophobia and transphobia, often in combination with profound racism and class-based discrimination, the vast majority of which goes completely unchallenged by mainstream organizations.

CI:You center race, class, and gender/gender nonconformity in your analysis of the different ways LGBTQ people have been policed, prosecuted, and punished – whether guilty of any harmful actions toward others or not – from colonial times to the present. What difference does that make to the story you’re telling?

JM: It is just not accurate to say that all LGBTQ people have been or are targeted and subjected to abuse and dehumanizing treatment by the police and in the criminal legal system in uniform ways across the board. The laws and practices used to criminalize queers, historically with sodomy and vagrancy laws and now with quality of life offenses (like sex related crimes of public indecency, solicitation or prostitution), have always been selectively and vindictively enforced disproportionately against people of color and immigrants, particularly those without financial resources and privilege.

AR: It was essential for us to dismantle the notion that somehow the policing and criminalization of LGBT people takes place in a vacuum, separate from the policing of race, poverty, and national borders. This is not a separate conversation from ongoing discussions about policing, criminalization and mass incarceration of people of color, poor people, and immigrants, nor is it an attempt to “add on” LGBT experiences to these larger debates. It is an effort to broaden and deepen those conversations by exploring and reflecting on how policing and punishment of gender and sexuality is used in service of existing agendas, and by bringing the experiences of LGBT people of color, immigrant LGBT people, gender nonconforming people, and low-income LGBT people into the center of the conversation, much as we live in the cross-hairs of so many mutually reinforcing systems of violence and exclusion. When these experiences are excluded, we deprive ourselves of a complete picture of how law enforcement and criminalization are affecting our communities, and erase the realities of LGBT members of our communities, rendering our responses inherently incomplete.

KW: Leave out those factors, and we end up with a generic “gay” story that is white-dominant, and in which race, class, and gender/gender nonconformity make only cameo appearances as “add-ons” to that generic story. Sometimes, they’re erased altogether. And a story that limited is inaccurate. The result is that the violence endemic to the criminal legal system – the brunt of which is born most heavily by queers of color, poor and low-income queers, and transgender/other gender nonconforming folks – largely vanishes from the mainstream LGBT justice and anti-violence visions.

Simply put, it’s impossible to accurately analyze the policing and punishment – both formally and informally – of sex and gender apart from its interrelationships with race– and class– based law enforcement.

Stories of Queer (In)Justice: Bernina Mata
quoted from the book and paraphrased by Joey Mogul

One example would be the prosecution of Bernina Mata, a Latina lesbian who was depicted as the archetypal man hating homicidal lesbian by prosecutors in Boone County, Illinois in 1999 to secure her capital conviction and death sentence. Mata was accused of murdering John Draheim, a white heterosexual man. Mata met Draheim for the very first time at a local bar on the evening of June 26, 1998. After drinking at the bar, they returned to Mata’s apartment. Later that night, Draheim was stabbed multiple times in Mata’s bedroom while Mata and her roommate, Russell Grundmeier, were both present. There was evidence to suggest both Mata and Grundmeier committed the murder.

To obtain the death penalty, the State needed to prove there was an aggravating circumstance, but there was very little evidence to prove that Draheim’s murder was particularly heinous. In this case, the only aggravator prosecutors could claim under Illinois law was to claim that the murder was committed in a cold, calculated premeditated manner, pursuant to a preconceived plan. Yet the circumstances of Mata’s encounter with the victim belied the notion that she killed in cold blood. Mata met Draheim only hours before the crime was committed, so there was little time for Mata to have hatched an elaborate scheme to murder him.

Faced with a potentially sympathetic defendant, notwithstanding her race and sexual orientation, prosecutors chose to deploy the queer criminal archetype of the homicidal man-hating lesbian, literally arguing that Mata’s lesbianism caused her to kill. According to the prosecutor, Mata killed Draheim because he made an unwanted sexual advance at the bar, allegedly touching her shoulder and thigh. While “[a] normal heterosexual woman would not be so offended by such conduct as to murder,” this was allegedly a natural response for Mata, who was described as a “hard core lesbian.” This depiction also tapped into the criminalizing racial archetype that frames Latinas as hot tempered, irrational, and prone to “hysterical” violence.

The State then presented an avalanche of evidence of Mata’s lesbianism at trial. Prosecutors paraded ten witnesses before the jury to testify that Mata was a lesbian. They read the titles of three books removed from her home: “The Lesbian Reader,” “Call Me Lesbian” and “Homosexuality.” The prosecutors also referenced Mata’s lesbianism on no less than 17 occasions during their arguments to the jury, making assertions that Mata was “overtly homosexual,” “flaunting” her sexuality, and “proclaiming her sexuality to anyone who would listen.” As [lesbian legal scholar] Ruthann Robson posits, in order to establish the only applicable aggravating factor, the State depicted her in this fashion in an effort to capitalize on jurors’ homophobia and negative stereotypes of lesbians as “man haters,” and to convince them that Mata acted in a cold, calculated manner.

The State’s masterful depiction of Mata as a man-hating lesbian, driven by an unquenchable thirst to kill men, was successful. Mata was convicted of capital murder and sentenced to die. Fortunately, her death sentence was commuted to a term of natural life imprisonment by former Illinois Governor Ryan in 2003, along with that of everyone else then on Illinois’ death row.

CI: Volumes have been written on the role of race, class, gender, and their intersection in policing, punishment, and the prison industrial complex. I can’t think of any other book I’ve read that rightly complicates the discussion by centering Queer (In)Justice. What took so long? How does the inclusion of LGBTQ advance the analysis of criminal injustice as well as calls for change?

AR: I don’t think that this is really the “first” writing on the subject – for instance, there was a piece in Zero Tolerance: Quality of Life and the New Police Brutality in New York City called “Organizing at the Intersections” by Dayo Folayan Gore, Tamara Jones and Joo-Hyun Kang which began to unpack LGBT experiences of criminalization within the larger context of policing of communities of color and low-income communities as early as 2001. There were the fact sheets Kay put out when she was at AFSC and Joey’s piece highlighting queer experiences of the death penalty as a racist institution. There was the 2005 Amnesty International report Stonewalled: Police Abuse and Misconduct Against LGBT People in the United States. There was Beth Richie’s groundbreaking piece in Julia Sudbury’s Global Lockdown called “Queering Anti-Prison Work: African American Lesbians in the Juvenile Justice System.”

The fact that there perhaps hasn’t been a full-length publication on the subject until now is a testament to the urgency of the crisis of criminalization of LGBT people on the ground and the lack of resources to address it – we just had the tremendous privilege and opportunity, thanks to Beacon Press and the flexibility and support of our employers and families, to be able to take the time to research and think about these issues and write about them.

KW: Lots of individuals and groups have been doing pieces of the information gathering, research, analysis, and organizing that inform this book for many years – but they/we have had to struggle every inch of the way to be heard at all. And most of the groups who care about these issues operate on ridiculously small budgets; they are not the recipients of the largesse of most affluent, white gay donors. Their constituencies include those subsets of the larger queer world that are most heavily criminalized.

Who wanted a bunch of queer criminal archetypes in their midst? Not many of the mainstream LGBT groups or other mainstream civil rights/advocacy groups that should be profoundly concerned with mass incarceration.

It is critical to use a lens of interdependence when examining the creation and expansion of, and structural violence/inequality embedded in, the U.S. criminal legal system. You can’t pull the pieces apart – policing sex and gender, criminalizing queerness, race– and class–based law enforcement – and have an accurate picture.

We’re always stronger when our analysis is more comprehensive, our vision expanded. The possibilities for coalition building and expanding the base of support for substantive change greatly increase.

CI: While you include discussion of sodomy laws, their impacts and selective enforcement, you also say clearly that other kinds of laws and pretexts are use to police, prosecute, and punish LGBTQ people – particularly women, poor people, and people of color. How, and in what ways?

AR: We talk quite a bit in the book about how the advent of “quality of life” laws now sweeping the nation – laws which regulate every day activities in public spaces - has greatly facilitated the policing of gender and sexual nonconformity. Some of these laws are very specific – such as those which prohibit drinking, eating, sleeping, urinating in public - but, because of the pervasive (and generally non-criminal) nature of the conduct they prohibit, cannot be enforced against all who violate them at all times. This, of course, creates conditions ripe for discriminatory enforcement along lines of race, gender, sexuality, and poverty. A commuter falling asleep on the train on the way home will likely not be ticketed for sleeping in public, but a homeless queer or gender nonconforming young person – of which there are disproportionately high numbers - seeking refuge on public transit for the night most certainly will be.

Some “quality of life” laws – such as those prohibiting “lewd conduct” or “loitering for the purposes of prostitution” – particularly lend themselves to discriminatory enforcement against LGBT people, whose presence in public spaces is inherently sexualized in the minds of police and the community members who call them. In the book, we quote law enforcement officers who directly admit to discriminatory enforcement of “lewd conduct” laws, confirming that queer people are subject to arrest for conduct that is deemed completely acceptable between heterosexuals, at most prompting a warning by police officers. We also cite to the work of groups across the country documenting the extensive profiling of transgender and gender nonconforming people, particularly of color, as being engaged in prostitution-related offenses. This practice is so pervasive that some have coined the term “walking while trans” - derived from the more commonly known “driving while Black or Brown” - to describe the experiences of so many transgender women of color who literally cannot walk down the street without being stopped and arrested on suspicion of “loitering for the purposes of prostitution” or some similar offense.

Even more vague “quality of life” offenses – such as “loitering” or “disorderly conduct” – are particularly amenable to use by law enforcement officers to charge people whom they perceive to just “not belong” in a community, or whom they see as signaling disorder simply by failing to conform to gendered norms of appearance and behavior. Derivative of vagrancy laws used in the past to explicitly police the presence of African-descended, Native, immigrant, and poor people, along with women of all races deemed “common night walkers,” in public spaces, such “quality of life” offenses, far more than sodomy laws, continue to be used to sweep untold numbers of LGBT people into the criminal legal system, where they face discriminatory treatment and disproportionate punishment.

CI:You suggest that criminalizing narratives about queers, people of color and poor people – and the intersections of those narratives – go deeper than prejudice and stereotyping; that they have archetypal resonance. What purposes do these queer criminal archetypes serve?

JM: We are not the first to discuss criminalizing narratives and how they operate. A great deal of work has been done by African American feminists, including Patricia Hill Collins and Cathy Cohen (whom we cite in the book) who have deconstructed the demonizing narratives used to frame Black women. Numerous death penalty attorneys, mitigation specialists, scholars and activists, like Stephen Bright, Craig Haney and Joan Howarth (whom we also cite in the book), have written and discussed how racist criminal scripts have been deployed in capital cases to presume a Black man’s guilt and obtain his death sentence. I think we may, however, be the first to identify, delineate and label the criminalizing narratives that are used frame LGBTQ people as pathological and criminal.

We describe these concepts as archetypes to convey that they are more than just superficial stereotypes. Rather, they are deeply embedded and indelible impressions that operate in both conscious and non conscious ways in our individual and collective imaginations. Thus, regardless of our own experiences, we all can fall prey to their persuasive power and weight.

AR: What may be unique to our work is our effort to catalogue the many, often overlapping, archetypes which inform the criminalization of LGBT people, pull together information from a wide variety of sources to illuminate the many facets of each as well as the common themes among them, and unpack some of the ways in which criminalizing narratives rooted in racism meld with and mutually reinforce those rooted in homophobia and transphobia. We describe their operation across time, geography, and contexts, from police encounters to courtroom deliberations to behind prison walls to responses to violence against LGBT people, tracing their threads through individual cases and broader patterns.

KW: The queer criminal archetypes we discuss include queer killers (lethal lesbians, gleeful gay killers and deceptive gender benders); sexually degraded predators; disease spreaders; security threats; and young, criminal intruders. Unifying threads that run through all of these “hyper-sexualized” archetypes include violence, mental instability, and deception/dishonesty.

These archetypes are at the center of every anti-LGBT campaign, and informed the opening shots in the homophobic/transphobic culture wars: the “Save the Children” campaign fronted by Anita Bryant in Dade County, FL in the mid-1970s and California’s infamous (and thankfully, failed) “Briggs Initiative,” in the same era, a measure that sought to ban lesbians and gays from working in public schools. They continue to inform political attacks on transgender people, queer relationships, families and households headed by queers, and queers in the military. All of the queer criminal archetypes informed the waves of fear, hysteria, and governmental indifference to the HIV/AIDS epidemic and still influence federal and state responses to it. And they may well account for why anti-gay campaigns often win, even when poll after poll shows widely increasing support for basic forms of LGBT rights and recognition.

We have, literally, hundreds of years of repetition of the basic idea that queerness is synonymous with danger, degeneracy, disorder, depravity, disease, deception, treachery. Add race, immigrant status, class, and gender/gender nonconformity to the mix, and you’ve got a prescription for maintaining traditional hierarchies of affluent, white, male, heterosexual power relationships. The criminal legal system plays a central role in maintaining those power hierarchies.

CI: Some argue that if we have a condition of legal equality for LGBTQ people, then queer criminal archetypes will simply fade away, be regarded as archaic ideas that belong only to the past. Do you believe that to be true? What additional efforts might be needed to de-construct these archetypes?

JM: Personally, I do not believe that if we, LGBTQ people, are given legal equality (in the legal terminology considered a suspect class or classes entitled to strict scrutiny under the equal protection clause of the 14th Amendment) that will change the experiences and realities of criminalized queers in the criminal legal system. Certainly, such legal equality, i.e., strict scrutiny, has not affected the criminalization of African American people in the criminal legal system.

AR: Legal equality is but one piece – and many would argue a relatively small piece – of a much larger and deeper struggle to achieve what is ultimately a revolution of values. For instance, putting into question and ultimately dismantling the gender binary system, which assumes and enforces the notion that there are only two genders, and everyone falls neatly within one or the other and can never move between or beyond them would be one thing that would be necessary to undermine the archetype of the “deceptive gender bender.” Really, as Alexander Lee so eloquently articulates in his essay in Critical Resistance’s publication Abolition Now!, we need to fundamentally reorganize our society in ways that eliminate the structures and systems that produce criminalization of race, poverty, gender nonconformity, and sexuality

KW: Even when laws are neutral with regard to status categories, they are selectively enforced in ways that uphold traditional power hierarchies. The justifications for policing may shift from time to time, and there may be some cosmetic changes in how policing occurs. But both formal and informal policing and punishment can/will continue, even when “legal equality” is the law of the land. Legal equality purports to remedy injustice, but it takes no account of historic power differentials, or the impacts of long-term structural violence and institutionalized discrimination generation after generation.

For example in the wake of the Civil Rights Movement for Black people, legal equality was achieved. But more than 40 years later, the vast majority of prisoners in U.S. jails and prisons are people of color. Racial profiling is commonplace. Other institutionalized forms of discrimination – and the impacts of same - constantly work against the realization of a form of equality that exists on paper but not in practice. You can trace a pretty clear line from chattel slavery to the Black Codes to the growth of prisons to the convict leasing system to mass incarceration and the expansion/influence of the prison industrial complex.

Stories of Queer (In)Justice: Duanna Johnson
summarized by Andrea Ritchie

One of the stories in the book that I think is particularly powerful is that of Duanna Johnson, a Black transgender woman who was arrested for a prostitution-related offense in Memphis, Tennessee, whose brutal beating by a police officer in the local jail was caught on videotape, and whose murder less than a year later, the third in as many years of a Black transgender woman in Memphis, remains unsolved.

The reason it is so compelling is because it raises so many central themes – the grinding discrimination transgender people face in virtually every aspect of life - employment, housing, access to drug treatment, homeless shelters, and other supportive services - the pervasive profiling and policing of transgender people, and particularly transgender women of color, as being engaged in sex-related offenses, the viciousness and impunity of police violence against LGBT people of color, and the endemic violence and lack of police protection LGBT people of color face in our communities.

It also highlights the relative invisibility of these experiences – Johnson’s case, despite the existence of a “smoking gun” video of the police beating , did not garner national attention or generate widespread outrage among mainstream racial justice, anti-police brutality, and civil rights organizations as Rodney King’s did. Her murder did not draw the nationwide calls for justice Matthew Shepard’s did. Local organizers’ valiant and thoughtful efforts to do justice by her experiences and her memory went largely unsupported by national organizations of all stripes beyond a sound bite here and there, usually in service of their larger agenda of advancing “hate crimes” laws – which have done nothing to protect Johnson from either form of “hate violence” she experienced. And ultimately, while the officer who beat her was ultimately prosecuted under federal civil rights laws, Johnson was not able to achieve justice through the legal system in her lifetime for the multiple forms of violence and criminalization she endured.

CI: Here at Criminal Injustice, we often discuss different forms of systemic prison brutality. You write about prisons as “queer spaces.” Can you explore that idea further here and also tell us something about how “queerness” – and people who are or presumed to be queer – get marked for additional punishment in prisons?

JM: In QIJ, we discuss how prisons are queer spaces in several ways. First, as sex-segregated institutions they are spaces where individuals engage in same-sex sex, intimacy or friendship “as a form of resistance to the isolation and violent dehumanization” in prisons and “as an affirmation of their humanity” (quoted from QIJ, page 95). Second, detention facilities are branded as queer spaces because they are sex-segregated institutions where options for “normal” sexual activity are unavailable and penal officials seek to ban all sexual activity – whether it is consensual sex among inmates or even masturbation because they fear that may lead to same sex sexual activity. This denial of sexual intimacy and agency many would argue is a quintessential queer experience because LGBTQ people’s sexual desires and actions have been and continue to be criminalized, denied, over regulated and sought for extinction. Finally, we discuss how prisons in society’s imagination are considered queer spaces because they have “always served as a breeding ground for raced, gendered, and classed archetypal amalgam of criminality, disease, predation and out-of-control sexuality (quoted from QIJ, page 95).” For example, we often see prisons used as trope in crime drama tv shows. During the course of an interrogation, a young suspect is compelled to confess by police officers who tell the youth to cut a deal otherwise they will be sentenced to prison where they will become someone’s “bitch.” While often left unsaid, the images conjured up in the popular imagination are often that of a Black lesbian or gay man preying on and turning out an un-consenting individual, a myth that is belied by the facts and lived experiences of LGBTQ people in prison.

In fact, those who are or who are LBGTQ in prison (or read as such) are more likely to be targeted and sexually assaulted by staff and prisoners. Such sexual violence is not limited to rape and coerced sex of LBGTQ prisoners, but also dehumanizing and humiliating strip searches, particularly of transgender women and men. The Sylvia Rivera Law Project in New York produced a ground breaking report documenting the sexual violence transgender women suffer in New York men's prisons that we cite in QIJ. You can also read an excerpt from QIJ describing the sexual violence suffered by LGBTQ people published by Alternet.

The manner in which people are housed in prison also serves as means to punish sexual and gender non conformity. Because detention facilities are sex-segregated institutions and housing decisions are based on a person's genitalia rather than their gender identity, transgender people are often housed in the wrong facilities (transgender women are often housed with men), or improperly placed in punitive segregation or administrative units where they are subjected to extreme forms of sensory deprivation and deprived of access to any programs that may help them obtain good time credits. In a Virginia prison, lesbians and other women who appeared to be lesbians were placed in a separate wing of the prison and referred to as the "butch wing" or "studs wing."

Penal officials further refuse to acknowledge anyone's gender identity, including calling people by their chosen name. Transgender and gender non conforming prisoners are also refused clothing and other materials that reflect their gender identity, even though they are provided to others incarcerated and in some cases are necessary for health reasons. In QIJ, we document that one prison forced a transgender man to wear a dress even though no other person incarcerated in that women's facility was forced to wear a dress.

Further, LGBTQ prisoners are denied necessary medical treatment that often leads to dire consequences. Transgender prisoners are often denied access to hormone therapy, even when they had access to such treatment prior to their incarceration. Further, those are who are HIV+ or who have AIDS, a disease popularly considered to be "queer," are routinely denied the most basic medical treatment, including regular and meaningful examinations and proper access to medication like anti-retrovirals or others to combat opportunistic infections.

Finally, rules that bar any all sexual activity are used to target and punish LBGTQ people in detention. In QIJ, we discuss how young Black lesbians in juvenile detention facilities report being punished for violating the no sex rules when they are observed merely talking to other young women or engaging in flirtatious behavior. Such policing extends to visits LBGTQ people have with their partners in visiting rooms and leads to the denial of same-sex desire which has resulted in some prisons banning prisoners from receiving gay magazines like the Advocate and Out because of their "homosexual" content. Most recently, I learned that Black and Pink's newsletter (Black and Pink is a great organization that supports gay, lesbian, transgender and queer prisoners ) was banned from a facility for this very same reason.

CI: The book presents a strong case that hate crime laws are not reducing or preventing violence – and at the same time, you describe hate crime laws as an “untouchable ‘third rail’” of gay civil rights agendas. Can you say more about this?

KW: Penalty enhancements were the key feature for proposed federal and state hate crime laws when the template for same was promoted by the Anti-Defamation League in the early 1980s and uncritically adopted by many civil rights and advocacy organizations, including some of the “mega-gay” groups like the National Lesbian and Gay Task Force (NGLTF) and the Human Rights Campaign.

Harassment of and violence against queers has always been a problem in this country. Increasingly, in the post-Stonewall era, this was framed as violence perpetrated by criminal “extremists,” bigoted individuals motivated by personal prejudice run amok. Historian Christine Hanhardt (sorry, subscription required for access to this article) argues that many LGBT groups began to frame themselves as crime victims, and this fit in perfectly with the “get tough” mood of the late 1970s and 1980s.

Accordingly, demands for “safe communities” and end to homophobic/transphobic violence narrowed and did not generally include law enforcement violence with two general exceptions: sodomy laws and their enforcement and police failure to respond appropriately to “hate” violence. There is sporadic concern about police misconduct in certain egregious cases. But deeper concern about systemic violence against queers in all aspects of law enforcement largely vanished as once-radical demands gave way to a desire for legal equality and a search for social respectability.

And most LGBT organizations have embraced community safety strategies that place responsibility primarily in the hands of the very criminal legal system that is a major perpetrator of anti-LGBTQ violence.

LGBT leaders assure us that hate crime laws finally place the police on “our” side and show that society would no longer tolerate violence and hatred against us. But this is absurd. Here we are in 2011, with a plethora of federal hate crime laws on the books, including a penalty enhancement provision enacted in 1994. Hate crime laws in 12 states and the District of Columbia include both sexual orientation and gender identity; 18 state hate crime laws list sexual orientation as a “protected” status category.

But are we safer? Is the violence diminishing? No. Anti-queer violence remains a depressingly consistent – though seriously under-reported – feature of the political and social landscape Annual reports from the National Coalition of Anti-Violence Programs a network of 40 groups that monitor and respond to anti-LGBT hate, domestic, and sexual violence, and HIV-related violence, confirm this – and regularly note that much anti-LGBT abuse occurs at the hands of law enforcement personnel. Moreover, as we note in the book, “Since racially motivated violence makes up the majority of reported hate crimes, it is not surprising that LGBT people of color are overrepresented among those targeted for homophobic and transphobic violence.” Additionally, transgender people suffer a disproportionate amount of anti-LGBTQ violence. In short, this country’s history of race-based law enforcement and the oppressive policing of sex and gender follow us into the realm of policing hate violence.

Groups that have challenged the uncritical embrace of more policing and harsher penalties to produce safety for LGBT communities – including the Audre Lorde Project, American Friends Service Committee (pdf download), Sylvia Rivera Law Project , FIERCE! , Queers for Economic Justice , Peter Cicchino Youth Project, GenderJUST , and Transformative Justice Law Project of Illinois. But mainstream groups continue to ignore or dismiss them. Nonetheless, challenges to the mainstream LGBT embrace of “get tough” are growing.

There is no “one size fits all” alternative that will magically produce community safety for queers. The task requires a long-term commitment to innovative forms of community organizing that can identify, analyze, and respond to local conditions and needs.

And we can draw on the experiences of groups like the Audre Lorde Project whose “Safe Outside the System” collective works to create whole neighborhood systems of support and sanctuary for queers who are victims of or threatened by violence without relying on the police. And that of Community United Against Violence (CUAV), the nation’s first anti-LGBTQ violence organization founded in San Francisco in1979, in the wake of the murders of Harvey Milk and George Moscone. CUAV. By the mid-1980s, CUAV became one of the first queer anti-violence organizations to expand its vision to include intimate violence. Today, its analysis of violence recognizes “multiple, overlapping forms of violence and oppression, including state violence.

AR: I would simply add that we need to be clear that “hate crimes” laws are all too often turned against the very individuals they are intended to protect – we cite information in the book which indicates that young Black men make up an obscene proportion of individuals charged with “lynching” in one Southern state (yes, you read that right), and instances in which LGBTQ victims of homophobic and transphobic violence have been alleged to have committed “hate violence” against heterosexuals. It seems that when the system is set up to police and punish particular populations it doesn’t change its stripes when applying laws intended to protect crime victims.

CI: The book argues against more policing, prosecution, and punishment as ways to produce community safety for LGBTQ people, but at the same time notes that many LGBTQ groups tend to distance themselves from taking on issues of state violence against queers in the criminal legal system. So what are some initial thoughts about where we go from here?

KW: The concluding chapter in our book takes a look at what a number of different organizations are doing to develop community responses to violence against queers that don’t rely on and strengthen systems of policing and punishment.

But in addition to looking to others for education and inspiration, we also have to examine the ways in which policing, prosecution and punishment have come to shape how many of us think about safety – what it is, how we create and maintain it. In many ways, the idea of “prison” shapes how we think about not only safety, but also the very concept of justice: walls and fences, cages, and repressive technology to keep “us” safe from “them.” But, as we say in the book, it’s impossible to police and punish our way to safety or to justice. Can’t be done. “Get tough” measures only create more violence, more exclusion and greater injustice, wreaking havoc on individuals, families, and entire communities. They distort our budget priorities, taking away money desperately needed for education, jobs, and other human needs.

What does “safety” really mean for any of us in a society based on violence, exclusion, and inequality? We need to talk about that, across fault lines of race, culture, class, immigration status, gender, sexuality and ability. And it’s a tough discussion to have, because too often, middle-class whites want to dominate it.

Our focus needs to shift from policing and punishment to the positive creation of community well being, in which rights and economic stability for all is assured, and no one is considered expendable. That means moving beyond single-issue organizing so that we can build relationships and strong coalitions across issues and constituencies – and so that we are framing issues and choosing strategies that don’t undermine the rights and safety of other groups.

JM: As we discuss in the book, many LGBTQ people while striving to obtain equal rights in the United States, feel it is necessary to perpetually depict LGBTQ people as “normal,” law abiding citizens (just like heterosexuals) and distance themselves from LGBTQ people and cases that deal with sex-related or violent crimes. They fear that criminal cases involving LGBTQ people can be used and manipulated by the media, people on the right and others in mainstream society to paint all LGBTQ people as criminal, immoral and pathological. While I understand it is complicated and difficult to respond to cases that involve allegations or acts of sex and violence, it is still necessary and of the utmost importance

First, police, prosecutors and prison officers are state actors engaging in acts of homophobia and transphobia that ought to be condemned, regardless of whether the accused person is guilty or innocence. Second, when state actors engage in such conduct it has far reaching consequences. As we discuss in QIJ, when state actors deploy homophobic, transphobic and racist arguments they breathe life into criminal queer archetypes and beliefs that later get projected into larger society to oppress and discriminate all queers. These biased sentiments are mobilized to deprive all of queers of the ability to be employed, raise children and lead productive, prosperous and violence free lives.

It is also important to note that people’s reluctance to fight on behalf of criminalized queers, including those who may have violated laws criminalizing sex-related acts, also stems from an unwillingness to address the systemic and structural discrimination LGBTQ people, particularly those who are of color and gender non-conforming, experience that may cause many to engage in survival crimes likes solicitation, prostitution, public indecency and drug related offenses. Tackling such monumental issues is extremely challenging and complicated and there are no quick fixes, but such work is necessary in order to ensure all LGBTQ people have the opportunity to leave positive and violence free lives.

Stories of Queer (In)Justice: April Mora
summarized by Kay Whitlock

We tell the story of April Mora, a Denver teenager of African American/Native American descent who was walking to a store to buy a soft drink. Some guys in a car pull up and start mocking her with homophobic epithets. Two of them, armed with a knife and razor blade, got out of the car, pushed her to the ground, and cut her tongue and her face. One carved the word “dyke” on one forearm and “R.I.P.” on her stomach. Mora fought back. The two guys kicked her in the ribs, telling her she’s lucky they didn’t rape her, but next time they will.

Mora made it back home and called her Latina girlfriend with whom she lived. They called the police and an ambulance. But instead of responding to Mora as the victim of a violent crime, they respond as if she and her girlfriend are the criminals; that they may have taken drugs and been fighting. Instead of searching for the people who attacked Mora, police demanded that she take a lie detector test. After Mora went to the hospital for treatment, the officers searched her house – trashing parts of it – looking for evidence of Mora’s guilt. Never mind that the hospital staff offered to confirm in writing that her injuries could not have been self-inflicted. No evidence of Mora’s so-called “guilt”was ever found, and the police did not search for her attackers.

As a young woman of color, whose gender expression and perceived sexual orientation are at odds with societal norms, Mora summed up the experience saying, “It’s as if–if I want to look like a guy, I should get beat up like a guy,” and “I’m black and Indian, but I look Chicano. I think if I were white, the cops and people would treat us differently.” She’s right.

CI: In one sentence: what message would you most like readers to “get” once they’ve read and thought about Queer (In)Justice?

JM: As we say in Queer (In)Justice, the policing, prosecution and punishment of sexual and gender non conformity is a tool of race based law enforcement in the United States and an independent function of law enforcement.

KW: I’d love for readers to understand why confronting the state violence of the criminal legal system is an essential component of anti-racist, progressive LGBTQ agendas – and why confronting the criminalization of queers is an essential component of all progressive movements for justice.

About the Authors

Joey L. Mogul is a partner at the People’s Law Office in Chicago, IL and Director of the Civil Rights Clinic at DePaul University. Mogul focuses on representing individuals who have suffered from police and other governmental misconduct. Mogul represents people seeking to vindicate their constitutional rights in civil rights cases, and defending individuals in criminal and capital cases. As both an attorney and an activist, Mogul has advocated for LGBTQ people ensnared in the criminal legal system, including those targeted and brutalized by the police, fighting for their lives on death row, and those assaulted and denied necessary medical treatment while incarcerated in penal institutions.

Andrea Ritchie is a police misconduct attorney and organizer who has engaged in extensive research, writing, speaking, litigation, organizing and advocacy on profiling and policing of women, girls and lesbian, gay, bisexual and transgender (LGBT) people of color in the US and Canada over the past two decades. She currently coordinates Streetwise & Safe (SAS), an organization focused on gender, race, sexuality and poverty-based policing and criminalization of LGBTQQ youth of color. As a member of the national collective of INCITE! Women of Color Against Violence from 2003 – 2008, she coordinated the development of the INCITE! Women of Color Against Violence Organizer’s Toolkit on Law Enforcement Violence Against Women of Color and Transgender People of Color. Ritchie is also the author of the immediately forth-coming book, published by South End Press - Violence Every Day Police Brutality and Racial Profiling Against Women, Girls, and Trans People of Color.

Kay Whitlock is an organizer/writer focusing on dismantling structural injustice in law enforcement and other public institutions. Her work has appeared in a number of periodicals and anthologies, and she authored a series of publications for American Friends Service Committee (AFSC) bringing a queer perspective to criminal legal system issues, including limitations of hate crime laws (pdf download) , the violence of the prison industrial complex , and abolition of the death penalty . She has co-written educational resources about poverty and economic hardship in LGBTQ communities for Queers for Economic Justice.

† © Copyright 2010-2012, Nancy A. Heitzeg, Kay Whitlock, and Seeta Persaud of CMP. All rights reserved. All articles and posts published by Criminal Injustice may not be distributed, re-published or cross-posted in any format, including print or electronic format, without express and explicit written permission from the copyright holders, including CI editors (Nancy Heitzeg and Kay Whitlock) and

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