July 29, 2019 Summer 2019

The Impact of Incarceration and Policing in Our Community

How do LGBTQ2I people end up incarcerated at three times the rate of the rest  of the population Why are 40% of incarcerated women queer?  Discriminatory police profiling contributes to the disparity.

LGBTQ2I youth have a highly disproportionate rate of contact with the criminal justice system.

LGBTQ2I youth have a highly disproportionate rate of contact with the criminal justice system.

kittirat roekburi via Shutterstock

Policing in the U.S. is not neutral. While this issue has been  a focus for many communities of color, it is important to understand how it impacts the LGBTQ2I community as well. LGBTQ2I people in many communities are more frequently stopped by police than non-LGBTQ2I people. Police often engage in discriminatory profiling and criminalization of LGBTQ2I people, using loitering, identification, prostitution, lewdness, and other laws to target them for harassment, arrest, and incarceration. This  is a is a historical and current-day, systemic and nationwide practice.

Our community is at risk and  those most affected are individuals that are of color, transgender and gender non-conforming, poor, and/ or young.  In the U.S., transgender people are routinely profiled as sex workers and are “stopped and searched while doing nothing illegal, including walking home, returning from school, and waiting for the bus.” In Los Angeles, 60 percent of transgender Latinas surveyed reported being stopped by police while merely walking to the grocery store or to the bus. Profiling of transgender women, particularly transgender women of color, is “so pervasive that queer communities have coined the phrase ‘walking while trans’ to describe the experience of being targeted because of their gender and racial identities.”

Consider Linda Dominguez, who was profiled and criminalized for walking home while Latinx and trans. In 2018 in New York, Linda was arrested for walking through a park on the most direct route to her home, singled out by three police officers even though others from her bus were also crossing the park from the bus stop. Linda was then harassed and humiliated by police at the station because she is transgender, and was charged with for “false personation,” for giving police her legal first name.

Even though Linda “explained that she was a transgender woman and had legally changed her name [and] gave the officer both her previous first name and her current first name, along with accurate information about her last name, date of birth, and home address.”

In 2013, Monica Jones, a Black transgender woman, activist, and social work student from Arizona State University was arrested in Phoenix for “manifesting intent to engage in prostitution,” after accepting a ride to a bar from undercover police. The arresting officer testified that his basis for arresting Ms. Jones was her presence in an area known for prostitution, which happened to be near her residence, and her outfit, a black form-fitting dress. Ms. Jones was convicted. However, unlike many profiled trans people, she was able to successfully challenge her conviction on appeal. Ms. Jones also reported being stopped and questioned by police four other, separate times on suspicion of engaging in prostitution- for merely walking down the sidewalk or having conversation with friends.

LGBTQ2I youth have a highly disproportionate rate of contact with the criminal justice system compared to their heterosexual peers. A 2011 study found LGB youth were 53 percent more likely to be stopped by the police, 60 percent more likely to be arrested before the age of 18, 90 percent more likely to have had a juvenile conviction, and 41 percent more likely to have had an adult conviction, than their heterosexual peers–even when controlling for race, socioeconomic status, and criminal behavior. Transgender youth, young gay men of color, gender non-conforming LGBTQ2I youth, and homeless LGBTQ2I youth are frequently profiled as sex workers by police and detained in the juvenile justice system. Young, masculine of center, queer women are profiled as violent and/or gang members. Some experts believe that police are more likely to arrest and charge LGBTQ2I youth because “they equate homosexuality with deviancy,” and vague laws such as disorderly conduct, public lewdness and loitering allow for significant discretion on the part of individual police officers.  Solicitation laws, and related criminal offenses such as lewd conduct and sodomy, have also been used for decades to police gay men’s non-commercial sexual activity while allowing the same heterosexual activity to occur without sanction. Even after Lawrence v. Texas, and even in places like ‘liberal’ California, lewd conduct laws are selectively enforced against gay men by police. This disproportionate enforcement is often fueled by purposeful and implicit bias. In a 2008 study, 62 percent of police chiefs surveyed believed that “homosexuality constitutes ‘moral turpitude,’” and 56 percent viewed “homosexuality as a ‘perversion.’” Gay men do not more frequently engage in public sex than others; surveys suggest that people of all sexual orientations engage in public sexual activity, with one poll reporting nearly all people surveyed admitting to public or semi-public lewdness.  Yet, as one Los Angeles police officer admitted, different-sex sexual partners who are caught engaging in public sex acts are rarely arrested, but if two men are consensually involved in a car, officers usually arrest them.”

\The discriminatory profiling of LGBTQ2I persons raises serious constitutional questions. Federal courts increasingly recognize that government actions that target or harm LGB and transgender people are subject to heightened constitutional scrutiny both as impermissible sex discrimination, and because transgender status is a suspect classification. Profiling LGBTQ2I people because they act or dress in a manner that defies gender stereotypes is discrimina- tion based on gender. The communication of messages about gender through clothing and dress is also First Amendment protected expressive activity.

This disproportionate profiling and selective enforcement has driving up the incarceration rate for LGBTQ2I persons, leading to reduced opportunities for education, housing, and jobs. Understanding the issue is a first step, but the legal profession must consider further legislation and litigation strategies to end these discriminatory practices.real-world consequences, including driving up the incarceration rate for LGBTQ2I persons, leading to reduced opportunities for education, housing, and jobs. Understanding the issue is a first step, but the legal profession must consider further legislation and litigation strategies to end these discriminatory practices.

Tasha Hill

LGBITQ & Prisoner Civil Rights Attorney

Tasha Hill is an LGBITQ and prisoner civil rights attorney working at The Hill Law Firm and teaches TQ Criminalization and Incarceration at UC Irvine School of Law. While at the ACLU of Southern California, Ms. Hill co-authored an amicus brief for the Ninth Circuit (Erotic Service Provider Legal Education and Research Project v. Gascon (9th Cir. 2018) 880 F.3d 450) addressing these issues, and much of the information in this article is drawn from that work.