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June 17, 2024 Criminal Justice

LGBTQ inmates need better protection

Jails and prisons are dangerous places for anyone, but they are especially dangerous for LGBTQ inmates, who are routinely attacked by fellow inmates and guards simply for being LGBTQ. A panel of experts at a recent ABA program urged lawyers and judges to do more to ensure that these inmates are better protected.

The ABA Judicial Division sponsored the June 13 panel discussion “LGBTQ+ Persons in Custody: What Judges & Lawyers Need to Know..”

The ABA Judicial Division sponsored the June 13 panel discussion “LGBTQ+ Persons in Custody: What Judges & Lawyers Need to Know..”

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“Our family members, our loved ones, our neighbors, our LGBTQ siblings … are directly impacted and harmed by the criminal legal system… by discriminatory practices, by violence,” said Richard Saenz, a senior attorney with Lambda Legal in New York City. “We should care about that. It’s that simple.”

Saenz was one of five panelists on a June 13 program, “LGBTQ+ Persons in Custody: What Judges & Lawyers Need to Know,” sponsored by the ABA Judicial Division. Piper Kerman, author of the book “Orange is the New Black: My Year in a Women’s Prison,” moderated the program.

“LGBTQ people are overrepresented at every stage in the criminal legal system in this country, starting with our children in the juvenile system,” Kerman said. The incarceration rate for lesbian, gay and bisexual people is three times the national average, she added.

Kerman and panelist Dee Farmer, executive director of Fight4Justice, an advocacy group based in Washington, D.C., talked about their experiences behind bars.

Kerman, who identifies as bisexual, recalled, “Literally the first day of being incarcerated by the state and almost every day of the time that I spent in prison what we hear from agents of the state, from the employees of the prison, was quite literally ‘Don’t be gay. Don’t be gay for the stay. Don’t be gay.… Again and again… Literally having the state communicate to you to not exist.”

Farmer, a Black transgender woman, was beaten and raped by another inmate in a federal prison in Indiana. She sued prison officials, alleging that they failed to protect her, and in 1994, the U.S. Supreme Court handed down a landmark opinion that prison officials could be held liable if Farmer could prove that the officials acted with “deliberate indifference” to her safety.

In the ABA program, Farmer blamed, in part, the type of people hired by prisons and jails to be guards – “mostly former military where LGBTQ is generally not accepted.” As a result, she said, transgender inmates are targeted for violence.

Often, she said, transgender inmates are placed in solitary confinement as retaliation for being transgender, as she was for three years, which led to a “total breakdown” mentally and placement in a hospital psychiatric unit.

Another panelist, D Dangaran, gender justice director at Rights Behind Bars, an advocacy group based in Washington, D.C. concluded, “I think the harm that occurs behind bars is the most pressing issue for the LGBTQ community today.”

Saenz offered advice to lawyers and judges who are concerned about the treatment of LGBTQ inmates in jails and prisons. “I think judges have a role and duty to really investigate and interrogate this as they are making their [sentencing] decision, looking at all of the evidence in front of them. And prosecutors should really join in on this. They should not just like let these things happen without doing their own homework.

“And defense attorneys need to be making these arguments any time they’re in front of the judge, that if their client is not safe because of practices or things that are happening, including the use of solitary confinement… Start making that a record any time you’re in front of the judge, even if it is during the criminal trial phase. Hopefully you can spearhead it, stopping some of this before it becomes a larger problem.”

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