Expanding the LGBTQ agenda

Challenging criminalization
and incarceration

CeCe McDonald is a Black trans woman who defended herself against a violent, racist, homophobic, transphobic hate crime in 2012, and as a result faced the prospect of spending the rest of her natural life in prison. Thankfully, due to a national grassroots campaign and her own bravery and willingness to stand up, fight, and advocate for justice, she was given a reduced sentence, and served only nineteen months in prison. CeCe’s case is not unique; rather, it demonstrates the cruel ways that racism, transphobia, and homophobia plague the criminal legal system. Although largely ignored by most mainstream LGBT and civil rights organizations, the criminalization and incarceration of lesbian, gay, bisexual, transgender, and queer people by America’s criminal legal system is a widespread and urgent problem. Queer (In)justice: The Criminalization of LGBT People in the United States, written by Joey L. Mogul, Andrea J. Ritchie, and Kay Whitlock is an important call to action for the LGBTQ movement to recognize this fact and begin addressing the multitude of ways the criminal legal system harms LGBTQ people. 

Far from being a neutral body and arbiter of justice, the criminal legal system has always operated as an institution to maintain existing power relations and social hierarchies. Understandings of criminality are not a reflection of natural, agreed-upon values of right and wrong, rather they are socially constructed ideologies employed to bolster the status quo. Which forms of violence, theft, deviance, and so on are considered illegal and which are not, is a reflection of power relations in society. Queer (In)justice turns a queer lens onto the criminal legal system, exploring the many ways it functions to enforce hegemonic concepts of morality, sexual conformity, and compliance to traditional gender roles. But as the authors argue, quoting criminologist Beth Ritchie, in order to understand how the criminal legal system regulates sexual and gender nonconformity, it is necessary to look at the ways “gender, sexuality, race and class collide with harsh penal policy and aggressive law enforcement.” As the authors explain, 

This requires discarding the facile notion that all queers experience the stigma of criminalization and the criminal legal system in the same way. Queer engagement with law enforcement cannot be accurately described, much less analyzed, as a stand-alone, generic “gay” experience because race, class, and gender are crucial factors in determining how and which queers will bear the brunt of violence at the hands of the criminal legal system. 

A system of sexual and gender regulation
Queer (In)justice traces the history of state-sponsored sexual and gender regulation in America, beginning with the colonial era, moving through industrialization, up to today. Through discussing the history of sexual and gender policing from colonial period anti-sodomy laws that prohibited nonreproductive sex to ordinances criminalizing homosexuality and gender transgression with the advent of industrialization and urbanization to police raids on gay bars and cruising spots in cities in the twentieth century the authors demonstrate that state regulation of sexual morality and gender expression has long been a feature of the legal system. Essential to carrying out the policing of sexual and gender nonconformity over the course of history is ideology. The authors focus much of their historical research on the presence of what they call “queer criminalizing archetypes,” which they describe in this way, 

It is the enduring product of persistent melding of homosexuality, and gender nonconformity with concepts of danger, degeneracy, disorder, deception, disease, contagion, sexual predation, depravity, subversion, encroachment, treachery, and violence. It is so deeply rooted in U.S. society that the term stereotype does not begin to convey its social and political force. The narratives it produces are so vivid, compelling, and entrenched that they are more properly characterized as archetypes—recurring culturally ingrained representations that evoke strong, often subterranean emotional associations or responses. 

By drawing on a wealth of data and historical and contemporary examples—such as the stories of “lethal, man-hating lesbians,” and associations of homosexuality with pedophilia and mental instability—the authors demonstrate how these criminalizing archetypes have played a central role in demonizing sexual and gender nonconformers, and legitimizing the discrimination and violence they have endured at the hands of the criminal legal system. 

Incorporating race and class into the analysis 
Through an examination of the histories of slavery, colonialism, and immigration the authors illustrate the unique and particular ways sexual and gender policing were employed to control and oppress African-Americans, immigrants, Native Americans, and working-class and poor communities as well. For example, for centuries Black slave women in the American South had no legal rights. Not only were white slave masters allowed total ownership over their slaves’ labor power, they were granted complete control over Black women’s bodies and sexuality. Rape at the hands of white men was a regular and culturally accepted feature of life for Black slave women. Racist and sexist ideology worked together to paint Black women as promiscuous, overly sexual, deceitful, and therefore incapable (or deserving) of being raped. Rather then looking at the history of sexual and gender regulation in isolation, the authors examine the many ways race and class shaped its dynamics. 

The criminal legal system today: An instrument of anti-queer violence
Queer (In)justice also takes readers through a tour of the criminal legal system’s landscape today and the nightmare it creates for the LGBTQ people who come into contact with it. Rather then being the result of a few “bad apples,” the authors demonstrate through hard data and painful real-life cases the many ways racism, anti-LGBTQ bias, and misogyny are institutionalized within a system designed to target poor and working-class people. The authors cover a variety of current-day issues regarding LGBTQ people and the criminal legal system, such as police brutality, the criminalization of sex work, violence in prisons, the policing of public sex, intimate partner abuse, and the targeting and incarceration of homeless LGBTQ youth.

In the era of mass incarceration and the new Jim Crow, it is no surprise that a criminal legal system designed to target poor Black, Latino, and immigrant communities disproportionately affects those same populations in the LGBTQ community. While the criminal legal system incarcerates and polices low-income communities of color as a whole, this system of control is embedded within ideologies of sexual and gender normality and compliance that have particularly damaging consequences for the LGBTQ people targeted in those communities. As a result, Black, indigenous, and Latina trans women, sex workers, homeless youth, and poor Black and brown LGBTQ people constitute a disproportionate and overwhelming majority of LGBTQ people who are locked in prison, trapped in the criminal legal system, brutalized and murdered by the police, and those victimized by violent, hate-motivated attacks.     

LGBTQ youth homelessness is one issue covered by the authors that powerfully demonstrates the ways race, class, gender, and sexuality influence people’s experience in the criminal legal system. With the advent of “quality of life” laws in the 1990s, many cities saw an increase in arrests for panhandling, loitering, and other petty crimes, in an effort to “get tough” and “crack down” on crimes that politicians and law enforcement argued worsened the “quality of life” and led to more severe forms of criminal behavior. Rather then making communities safer, these get-tough efforts resulted in more people being swept into the criminal legal system for nonviolent offenses. Homeless LGBTQ youth were, and continue to be, disproportionately penalized and incarcerated because of such measures. Once swept into the system, poor and homeless LGBTQ youth—especially youth of color and those who turn to sex work or drug dealing for survival, already marked by multiple racial, gender, and sexual criminalizing archetypes—face enormous levels of discrimination and bias at the hands of police, lawyers, probation officers, and judges. 

The LGBTQ movement today
Rather than addressing this constellation of problems, most LGBT organizations have focused their efforts on working to make the same criminal legal system provide justice and protection to those it has historically victimized and neglected, specifically through police sensitivity training and the passage of hate crimes legislation. This is a strategy that the authors critique, arguing that it fails to address the social roots and structural factors promoting LGBTQ oppression and discrimination, while also strengthening the same institutions that mete out violence against LGBTQ people in the first place. Instead, the authors argue for the LGBTQ movement to push for more holistic and transformative solutions that aim to address the social roots of anti-LGBTQ violence. Some examples the authors provide are: 

  • Challenging the institutions and policies that legitimize the idea that LGBTQ people are less than others and deserving of violence. This can occur through pushing to repeal policies that codify and legitimize homophobia and transphobia and creating non-discrimination laws 
  • Ending poverty and providing greater educational and employment opportunities in order to eliminate the socioeconomic conditions that contribute to creating violence, sex work, and drug trafficking in the first place
  • Challenging the power of the criminal legal system that itself carries out enormous levels of violence against LGBTQ people
  • Creating alternative, community-based institutions of accountability and justice that emphasize transforming people and healing communities rather than punishment

The limits of a postmodernist framework
While providing a much-needed injection of deeper and more radical insights into the mainstream conversation surrounding LGBTQ rights and social justice, the postmodernist framework informing the politics of Queer (In)justice provides activists with a theoretical perspective that limits our ability to fully understand the problems at hand. While recognizing that oppression is structural and perpetuated by the criminal legal system, there is no argument put forward by the authors as to why. Understanding systemic oppression in its totality requires analyzing it in relationship to the larger capitalist system of exploitation and class domination in which it is embedded. Rather than racial, sexual, and gender oppression having their roots in the long and pervasive history of criminal archetypes—or ideology alone, as the authors argue—structural oppression has material roots in the capitalist mode of production and the agenda of class domination, power, and profit accumulation that drives it.

While the authors thoroughly criticize the racism, sexism, homophobia, and transphobia at the core of and rampant throughout the criminal justice system, their argument that the system functions to maintain a constellation of social hierarchies (race, class, gender, sexuality)—all equal to, separate from, yet intersecting with one another—flows from their misunderstanding of society and the state. A Marxist analysis of the state, which views all of its mechanisms of violence and repression as punitive and disciplinary instruments of social control to uphold capitalism and ruling class hegemony—and the many systems of oppression upon which they depend—is a more effective framework for understanding the larger totality of relations and how to fight them. 

Unfortunately, this kind of totalizing analysis is missing from Queer (In)justice. Analyzing LGBTQ criminalization through a Marxist lens clarifies activists’ understanding of the problems at hand by explaining their underlying causes and points us in the direction of a revolutionary transformation of the capitalist order, the prescription I would argue is ultimately needed if we want to get rid of the criminal legal system and it’s oppressive functions altogether. 

The authors of Queer (In)justice rightfully criticize mainstream LGBT organizations for their near-total neglect of the ways the criminal legal system harmfully affects the LGBTQ community, particularly the most oppressed and vulnerable within it. Even with its theoretical shortcomings, this accessible and highly educational book makes a strong case for why criminalization, policing, and incarceration are LGBTQ issues. The authors are right: we need to continue pushing LGBT, civil rights, and anti-prison and police brutality movements to broaden their agendas and encompass the issues of criminalized LGBTQ people. Queer (In)justice is a must-read for anyone who considers themselves a fighter for sexual and gender liberation, racial and economic justice, and a world free from violence and oppression for all. 

Issue #103

Winter 2016-17

"A sense of hope and the possibility for solidarity"

Interview with Roxanne Dunbar-Ortiz
Issue contents

Top story