by Jacob Barrett
LGBTQ individuals continue to be criminalized for their sexuality, resulting in high rates of incarceration and higher chances of solitary confinement once behind bars. That’s the take-away from a report by The Sentencing Project issued on June 9, 2022.
Using data from the year before, it estimated that 90,000 LGBTQ people were incarcerated in 34,000 local jails. A separate study found over 6,000 self-identified transgender prisoners in state and federal prisons. Both data sets were incomplete, but they suggest that LGBTQ adults are incarcerated at three times the rate of other adults, while LGBTQ youth are incarcerated at double the rate of other youth.
What drives the overrepresentation of LGBTQ individuals behind bars? Their higher rate of unemployment, the report said. That in turn is blamed on discrimination. The result is poverty and homelessness, as well as being targeted for violence. Both inside and outside the carceral setting, LGBTQ individuals face elevated levels of sexual and physical assault.
What can be done? Advocacy groups call for repealing laws that criminalize LGBTQ sexuality. Behind bars, they seek to limit solitary confinement and promote access to gender-affirming medical care, which is absent from most U.S. prisons and jails. LGBTQ prisoners also struggle to access appropriate clothing and personal hygiene supplies, leading to further humiliation and shame.
It is a much bigger problem for women than men. More than 33% of female prisoners identify as LGBTQ, compared to 5.5% of male prisoners. In county jails, rates are similar: 26.4% of women identify as LGBTQ and 3.3% of men.
Police bias and anti-trans laws also contribute to high rates of incarceration, particularly for trans women of color. They report being arrested even when they were victims of violence because police did not take their complaints seriously. As a result, one in five transgender women reports some experience being incarcerated.
LGBTQ youth also face high rates of abuse and discrimination in the justice system. Just 9.5% of all U.S. youth identified as LGBTQ in 2019, compared to 20% of those incarcerated.
Worse, the so-called “panic defense” continues to justify violence against LGBTQ victims in many courts, which accept the claim that a defendant was triggered by fear of sexual minorities. Many judges and parole boards also do not recognize “chosen” families as legitimate support networks, resulting in a reduced release rate for LGBTQ prisoners.
Once in custody, LGBTQ individuals continue to face a greater risk of victimization. A 2012 report by the federal Department of Justice Bureau of Justice Statistics (BJS) revealed that LGBTQ prisoners and detainees reported sky-high rates of sexual assault: 12% of those in prisons and 9% in local jails, compared to 1% of heterosexual individuals. Nearly 5% reported sexual assaults by staff.
Trans prisoners are often not housed according to their gender identity, leading to their abuse. Even those leaving prison are often placed in re-entry programs and housing that do not conform to their gender identity, resulting in higher rates of violence there, as well. A 2017 survey by the Prison Policy Initiative found only three states — Delaware, Pennsylvania, and Vermont — required prison guards to use prisoners’ proper pronouns and preferred names. Oregon joined that short list in 2020. It is also the only state that allows prisoners to change legal names and have their prison records amended accordingly.
A 2009 BJS study found that incarcerated LGBTQ youth face similarly high rates of sexual assault, with more than 20% reporting such abuse. Complicating the matter are laws like the federal Prison Litigation Reform Act, which makes it more difficult for prisoners to file a lawsuit and collect damages. Perversely, laws designed to protect prisoners from sexual assault, such as the Prison Rape Elimination Act, also further restrict prisoners’ ability to sue.
LGBTQ individuals are more likely to end up in solitary confinement. A 2014 Black and Pink survey found that over 85% of its 2,400 subscribers reported spending time there at some point while incarcerated. The use of solitary confinement for youth in federal facilities was prohibited in 2016, but many state facilities allow varying degrees of long-term isolation.
“Incarceration exacerbates harm against an already vulnerable population,” the report concluded. “The drivers of the over-incarceration of LGBT+ people — poverty, homelessness, discrimination, social stigmatization, and violence — are systemic issues that should be addressed … through investments in inclusive social services, not compounded by incarceration.”
Source: Incarcerated LGBT + Adults and Youth, The Sentencing Project (2022)
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