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Incarceration and Queer Injustice

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    Relatively little research exists on the experiences of LGBT individuals who are incarcerated. In fact, Mogul, Ritchie, & Whitlock (2011) note even the lack of emphasis by the larger, mainstream LGBT movement, as well as larger national discussions regarding policing, on LGBT individuals’ experiences of policing and incarceration. The authors say, “Yet beyond the efforts of mainstream LGBT organizations to frame LGBT people as victims of crime entitled to full protection of the law, and to strike down sodomy laws, queers have largely been absent from national debates around policing and punishment” (Mogul, Ritchie, & Whitlock, 2011, P. xii). This absence is notable, especially against a backdrop of rising incarceration rates in the United States.

    For example, in the 1970s about 200,000 individuals were incarcerated in state and federal prisons, which rose to 2.3 million in 2008, with an additional 5 million individuals under supervision (i.e parole) (Mogul, Ritchie, & Whitlock, 2011, P.xii). People of color are disproportionately arrested, with 60 percent of inmates being people of color, in 2008 (Mogul, Ritchie, & Whitlock, 2011, P.xii). Women are also being incarcerated at higher rates than men, with Black, Latina, and Indigenous women being overly represented in prisons. In 2008, women were incarcerated at 3x rate of men, and Black and Latina women were incarcerated at 3x the rate of white women (Mogul, Ritchie, & Whitlock, 2011, P.xii). Native women also experience disproportionate rates of incarceration, representing up to 27 percent of the prison populations in some states, like Montana, but only being 7 percent of the state population (Mogul, Ritchie, & Whitlock, 2011, P.xii).

    While limited data exist, new studies suggest that the LGBT population have certainly been affected by mass incarceration. In a study by Meyer et al (2016) using 2011-2012 data from the National Inmate Survey found that sexual minorities, individuals who self-identified as lesbian, gay, bisexual, or reported having same-sex experiences before arrival) were more likely to be incarcerated than inmates who reported themselves to be heterosexual. The study also found that “9.3% of men, 6.2% of men in jail, 42.1% of women in prison, and 35.7% of women in jail were sexual minorities” (Meyer et al, 2016, P. 234). Moreover, respondents were more likely to be victims of sexual violence during childhood and incarceration compared to heterosexual inmates. Lastly, inmates that were sexual minorities were more likely to put into solitary confinement and be sanctioned compared to other inmates. They also experienced higher rates of psychological distress (Meyer et al, 2016). This study did not assess the experiences or rate of incarceration of transgender men and women, however. From a 1997 study done by the San Francisco Department of Public Health, found that two-thirds of transgender women (67%) and a little less than one-third (30%) of transgender men had been incarcerated at some point in their lives (Mogul, Ritchie, & Whitlock, 2011].

    In their book titled, Queer Injustice: The Criminalization of LGBT People in the United States, the authors Mogul et al. (2011) examines and centers the experiences of LGBT people with the criminal legal system, to illuminate how gender, sexuality, race, class, and immigration drive constructions of crime and impact policing and law enforcement. Central to this examination is how the intersection of these factors results in different experiences of brutality and violence among the LGBT community. This analysis also serves as a criticism of current mainstream LGBT movement’s advocacy, which has largely centered its issues around those that affect mostly white, middle and/or upper class, gay men, and solutions have focused on assimilation, not challenging a system that undermines racial justice and civil rights (Mogul et al, 2011).

    The authors use a Critical Criminological lens in their analysis, in which they state that crime is socially constructed phenomena and is a “result of inherently political processes that reflect consensus among those in control or have influence” (Mogul et al, 2011, P. xvi) Furthermore, they note that the construction of crime is not for safety, but instead for the preservation of social order, and the maintenance of power for those in control (Mogul, Ritchie, & Whitlock, 2011]. For example, authors note that the construction of crime was used as a tool to uphold the colonization and control of Native American people by the United States. For example, in California, in the mid-nineteenth century, Native Americans could be arrested if they were found walking around “leisurely.” Other examples, the authors use is the Black Codes during slave, which criminalized black people for engaging in actions that were often legal for white people.

    Highlighting the writer, Mari Matsuda’s work, Mogul et al. (2011) describes the inherent flexibility of laws that, in their application, criminalize some groups and not others, while appearing neutral and “reflective of widespread social consensus.” The “neutrality” and “flexibility” of laws allows for the legitimization of social inequities within society, allowing certain groups or individuals to be held responsible for certain crimes, but not others (Mogul, et al, 2011). Individuals or groups often deemed unacceptable by societal standards- those who exist outside of normative expectations- are often held responsible for these crimes. One’s level of responsibility for crimes and societal acceptableness are determined by a confluence of factors related to an individuals’ race, class, gender, “relationship to the nation-state,” as well as norms related to the expression of gender and sexuality (Mogul et al, 2011).

    Moreover, quoting the criminologist, “Jeff Ferrel” the authors state that the creation of “sensational, alarming, dehumanized cultural representations of presumptively criminalized individuals and groups,” that are circulated by media justified existing “tough on crime” policies and activities, as well as established groups as targets for criminalization (Mogul, Ritchie, & Whitlock, p. xvii). Ferrel, calls this process “Cultural Criminalization,” which criminalizes groups of people without the use of the law, but can also facilitate the unjust and disproportionate conviction and incarceration of individuals from marginalized communities (Mogul, Ritchie, & Whitlock, p. xvii). This idea of cultural criminalization can be seen throughout the book.

    The authors note that the policing of sexual identity and gender has always historically occurred, beginning with colonialization of the United States. In fact, embedded in colonialism was racial and gendered hierarchies, which was established through the imposition of gendered binaries by Europeans onto those who were colonized. According to the authors, a gender binary is the “complex interplay of cultural and institutional ideas and practices that divide people into two rigidly defined genders (male and female)” (Mogul et al, 2011, P. xix). Particularly for societies that did not have rigid gendered hierarchal structures, the imposition of gender binaries was required to not only differentiate between genders and assign power to men but to separate colonizer from the colonized.

    However, European colonizers simultaneously used claims of sodomy or sexual deviance over particular populations as a tool of oppression. The purposeful characterization of Indigenous people as inherently sexual deviant was used to justify their oppression, and the colonization of the Americas. The authors say that the claim of “sodomy” was used by Europeans as “the pretext for demonizing and eliminating” populations that had what they desired. The labeling of groups as sexual deviant or engaging in sodomy (sexual acts often associated with homosexuality), continued over time, and has been used to justify the rape of female slaves by white slave owners, frame black men and women as sexual predators, bar entry for certain immigrants into the United States, such as Chinese women or individuals with HIV.

    Sodomy and buggery laws were created in the U.S. colonies as a result of these claims of “sodomy” and “sexual deviance,” but sodomy laws themselves have existed as early 400 BCE. One theme that was apparent in the discussion of sodomy laws was that it was applied differently over time during the colonial period. In fact, some sodomy laws did not even recognize sexual acts between women, and/or only recognized particular sexual acts between men. Also, sodomy laws were applied differently to individuals of different races. Lastly, sodomy laws often only pertained to certain acts but did not proscribe a “homosexual identity” to those engaged in those acts. It wasn’t until the 19th century and later that these acts constituted a person’s identity. Hence, the author notes that sodomy laws were not simply a result of “religious rigidity,” “ignorance,” or repression.

    For the mainstream LGBT movement, sodomy laws were viewed as the source of oppression committed by the criminal legal system. While great attention by LGBT movement has been directed towards ending and declaring sodomy laws unconstitutional, the authors note that it is often through other mechanisms and laws that gender and sexuality have been policed. In fact, the rise of “quality of life” policing and “lewd conduct” laws and statues disproportionately target LGBT community members for activities as simply walking down the street in “drag.”

    Trans-women of color are also often targeted and are made vulnerable to police brutality, due to presumptions of being a prostitute. However, the movement’s focus on sodomy laws failed to recognize how the intersection of race, class, and gender results in a variety of mechanisms that members of the LGBT community face oppression and creates a false dichotomy between “oppression due to race” and “oppression due to sexuality.” The authors note that the movement’s current focus on hate crime laws, do not avoid a similar fate to sodomy laws, which focus mostly on individual acts of discrimination. The authors suggest that hate crime laws fail to see how the larger system oppresses members of the LGBT community (Mogul et al, 2011).

    Perhaps, one major theme that runs throughout the book is related to the idea of cultural criminalization. Mogul et al (2011) suggest that sexually deviant stereotypes and tropes, used to oppress racialized others, starting from colonization persist today, and aid in the criminalization of LGBT people in the United States. However, the authors call these “archetypes,” as they are deep-rooted and entrenched in U.S. society, and hold great power-inciting “fear, anxiety, and dread.” Archetypes discussed in the

    “queer killer,” the “sexually degraded predator,” the “disease spreader,” the “queer security threat,” and the “young, queer criminal intruder” (Mogul et al, 2011). Among these archetypes, Mogul et al (2011) identify three themes, queers are “intrinsically mentally unstable”, queers are inherently deceptive, dangerous, and dishonest, and lastly, queers are predatory and try to draw heterosexuals into “same-gender sexual enthrallments.” Overall, she suggests that violence is inherent to queers in these archetypes and that it naturally results from queer desire and sexual expression, tragedy, and antisocial behavior (Mogul et al, 2011, P. 43-44).

    These archetypes play a role in the experience that LGBTQ people face in the courtroom, as they portray queers as deceptive, thus presumptively guilty of a crime. Archetypes play a role in how prosecutors handle the cases of those who are queer. Mogul notes that prosecutors must dehumanize and vilify the defendant in order to successfully sentence those convicted of a crime, often relying on using these archetypes to sway the jury. Nonetheless, this process bolsters “criminalizing narratives” that already exist in society, which allows LGBT people to be more likely convicted, receive the death penalty, and even face harsher charges for sex-related crimes.

    For example, Matthew Limon, an 18-year-old boy was sentenced to 17 years in prison for having oral sex with a fifteen-year-old (Mogul et al, 2011, P. 78). Once in prison, LGTB people often face worse harassment and violence, often at the hands of prison staff. Queer people are often more likely to have reduced access to healthcare, including hormone treatment, be sent to solitary confinement, for simply being queer, be victims of sexual abuse by prison staff or other prisoners. Ironically, Mogul describes prisons as a “queer space” that lies outside of social norms, which simultaneously encourages queerness and punishes it.

    Several themes in this book are reiterated by other authors, such as Andrea Ritchie, in her book titled “Invisible No More.” Ritchie, similarly, shows how “criminalizing narratives” are constructed. In fact, Ritchie notes that the imprisonment of women of color is due to the “social construction of gender hierarchies,” which are similarly rooted in the colonialism and slavery, as well as the ideals of “femininity” and “masculinity” based on whiteness. Like Mogul et al (2011) she centers the criminalization of women sexuality and gender, suggesting that the dehumanization of Women of color is rooted in being labeled as sexually deviant. In contrast to other texts, such as Elizabeth Hinton’s book, From the War on Poverty to the War on Crime and Edelman’s (2017) book, Not a Crime To Be Poor, Mogul et al (2011) centers the power of cultural criminalization, and the media’s role in criminalizing marginalized groups. While the other texts focus on how the law, court systems, and other bureaucracies operate to maintain norms and criminalize certain groups, Mogul et al (2011) show how these systems along with cultural narratives work together to do so.

    The current administration is undergoing efforts to narrowly define “gender” and “sex” as only male or female, which will be determined primarily by the “genitals that a person is born with,” and genetic testing will have to be used to dispute one’s sex. This is a reversal of President Obama’s previous administration stance, which allowed for federal recognition of transgender women and men (Green, Brenner, & Pear, 2018). This effort, primarily spearheaded by the Department of Health and Human Services (HHS), would essentially be fulfilled through “reinterpreting” Title IX, which prohibits sex discrimination in school.

    The narrow definition could lead to erasing the federal protections provided for transgender men and women that ensured that laws would not allow discrimination against transgender men and women in settings, such as the workplace, housing, schools, and health care” (Lopez, 2018). Nonetheless, this highlights, Mari Matsuda’s idea regarding the inherent flexibility of laws, as they can be changed or “reinterpreted” in a manner that is discriminatory. Moreover, the existence of this law does not prevent discriminatory action taken against transgender women and men, which emboldens the author’s suggestion. The authors suggest that to truly address discrimination, efforts must go beyond laws and shelters, but also “holding public and private institutions accountable.” (Mogul et al, 2011). It also suggests that solutions cannot simply be rooted in the law.

    In order to truly address the oppression and criminalization of LGBT communities’ efforts must move away from “individual rights,” and “single issue causes,” and instead efforts should be taken to address how administrative programs and laws execute violence against transgender individuals who are most marginalized. This can only occur by understanding how power works, including queer archetypes, critiquing and recognizing hierarchies of value, and understanding who they privilege. This will allow the development of programs, that address multiple issues that affect transgender men and women. For example, Mogul et al (2011) describe the program Project UNSHACKLE, which addresses HIV/AIDS and incarceration in the transgender community. Focusing on multiple issues allows forces community organizers to look at the intersection of race, class, gender, and sexuality, and see who it affects.

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