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New York City’s unpopular, but supposedly “effective” crime-reducing program, “Stop, Question, and Frisk” or (“Stop-and-Frisk” for short), was ruled unconstitutional on Tuesday. The program entails the following: “a police officer who reasonably suspects a person has committed, is committing, or is about to commit a felony or a Penal Law misdemeanor, stops and questions that person, and, if the officer reasonably suspects he or she is in danger of physical injury, frisks the person stopped for weapons.”
The judge, Shira A. Scheindlin of Federal District Court in Manhattan, ruled that NYC police officers were systematically stopping people with little cause for suspicion. (In this particular case, police officers were stopping individuals thought to be trespassing on a Bronx apartment complex property.) In reviewing police training, she further noted that this evidence “strengthens the conclusion that the N.Y.P.D.’s inaccurate training has taught officers the following lesson: Stop and question first, develop reasonable suspicion later.”
“Because any member of the public could conceivably find herself outside a TAP building in the Bronx, the public at large has a liberty and dignity interest in bringing an end to the practice of unconstitutional stops at issue in this case,” the judge wrote.
In a way, this is exactly what NYC major Michael Bloomberg and other advocates of the “stop-and-frisk” program call for. In exchange for the universal possibility of being stopped by a police officer, residents of NYC see a significant reduction in crime and gun possession. While there have been notable declines in the crime rate (but few seizures of guns), many have argued that this purported exchange is not enjoyed universally. Rather, an overwhelming majority of those stopped by police over the past two years were Black and Latino men. Judge Scheindlin took note of one role of race (and racism) in her decision:
As a person exits a building, the ruling said, “the police suddenly materialize, stop the person, demand identification, and question the person about where he or she is coming from and what he or she is doing.”
The decision continued: “Attempts at explanation are met with hostility; especially if the person is a young black man, he is frisked, which often involves an invasive search of his pockets; in some cases the officers then detain the person in a police van.”
Many civil rights and anti-racist activists have criticized the “stop-and-frisk” program due to the overrepresentation of men of color in police stops. Indeed, in practice, the program is a form of institutional discrimination — in this case, as disparate impact discrimination. That is, while the program does not target a particular disadvantaged group — men of color — by design, it does, in practice, disproportionately burden them.
Typically, disparate impact discrimination is deemed otherwise innocent in terms of intention or bias; these are merely programs or policies that have been unfair in practice. Yet “stop-and-frisk” actually operates as a legal door for racial profiling by both those unintentionally and those intentionally targeting Black and Latino men. Some say the racial and ethnic imbalance is merely a product of geography: greater surveillance of predominantly black and brown areas of the city (this, of course, is problematic, too!). In light of stories of being stopped many times in one’s life, others suggest the “stop-and-frisk” program legally allows police to use one’s blackness/brownness as suspect. “You’re Black/Latino, so you must be up to no good!”
Even if police stops were equally burdensome for every racial group (and police were evenly hostile to “suspicious” people), the experience of being stopped, questioned, and searched by police is fundamentally racialized. Given the history of racism, including racist violence and harassment by police or by others yet ignored by police, no white person can ever fully experience the feelings of anger, humiliation, and powerlessness that follow being targeted by police as a person of color.
Further, programs like this one, Arizona’s “show-me-your-papers” law that unfairly targets Latina/o people, among others are just the tip of the racist iceberg of the US criminal justice system. From interaction with the police, to arrest, to court, to prison, racial inequality exists at every step and every facet of law enforcement and criminal justice. Unfortunately, the narrow view of the law cannot handle the reality that racism shapes the core and operation of every social system and institution, including law enforcement.
Legalized Homophobia And Transphobia
It may have come as a surprise to some that lesbian, gay, bisexual, and transgender (LGBT) groups joined the chorus of anti-racist and civil rights organizations that rallied against the “stop-and-frisk” program. Beyond advocating for racial equality, these groups took issue with the disproportionate number of LGBT people of color who have been stopped by police. Often, young Black and Latino LGBT people are stopped as suspects for sexual crimes (e.g., public sex, sex work). In these stops, many are sexually harassed or assaulted by police.
Parallel to blackness and brownness as suspect, LGBT people are legally targeted through the “stop-and-frisk” program often because of their gender expression. LGBT people, especially transgender and gender non-conforming people, are deemed suspicious because their “appearance transgresses gender norms embraced by mainstream society.” It turns out that stops based on suspicion of sexual crimes has already been deemed illegal, again by the same judge:
In 2010, in a decision dripping with outrage, US District Judge Shira Scheindlin held New York City in contempt for failing to end enforcement of loitering laws held unconstitutional decades before. One of the laws at issue was the “loitering for sex” statute that Lambda Legal had succeeded in getting struck down in 1983 by New York’s highest court, shortly after it threw out the state’s sodomy law.
“The human toll, of course, has been borne by the tens of thousands of individuals who have, at once, had their constitutional rights violated and been swept into the penal system,” Scheindlin wrote. “More disturbing still, it appears that the laws — which target panhandling, remaining in a bus or train station, and ‘cruising’ for sex — have been enforced particularly against the poor and gay men.”
Missing The Complex Reality Of Discrimination Today
The above discussion points to the inability for the law, in its present state, to fully appreciate the complex reality of discrimination today. One challenge is to prove that a law or program — instances of institutional discrimination — disproportionately affect a particular group (without just cause). This sidesteps the matter of proving biased or prejudiced intentions, a matter central to cases of unfair treatment; however, the narrow view of the law fails to account for the systemic, wide-reaching influence of systems of oppression such as racism, homophobia, and transphobia. Indeed, it can be argued that discrimination within one institution (e.g., criminal justice) mutually reinforces discrimination in other systems (e.g., education). The true challenge, then, is proving when discrimination is not at play, at least indirectly.
The other important matter that is systematically overlooked is the simultaneous, interconnected operation of multiple systems of oppression. “Stop-and-frisk” reflects the practice of both racism and homophobia/transphobia by police and the criminal justice system. What, on the surface, appears to be a matter of racial inequality has turned out to disproportionately affect Black and Latina/o queer people. Another instance of legalized discrimination, the US military’s “Don’ Ask, Don’t Tell” policy, had its greatest effect on Black women. And, given the greater number of Black same-gender couples who have children, Black LGBT people hold a greater share of the burden created by laws that prohibit or hinder same-gender marriage and adoption.
Of course, greater attention should be paid to the reality that some people are victimized by multiple forms of discrimination (e.g., racist and sexist discrimination). Yet, discrimination cases that pursue such claims are ultimately less successful in court, probably because the court is unable to apprehend this level of complexity.
The days of explicit, unapologetic racist discrimination are (mostly) gone, and great progress has been made toward equality for LGBT people. Yet, the task remains to better understand prejudice and discrimination in the new millennium. There is a great deal of complexity to discrimination that we consistently miss when attending to the discriminatory actions of a few bigoted apples. We will never achieve full equality, whether in opportunities or outcomes, without an appropriately comprehensive understanding of what discrimination is, how it operates, and how to prevent it.
Black lesbian, gay, bisexual, and transgender people exist. Black same-gender couples exist. Black heterosexual and cisgender allies to the LGBT community exist. However, the way that race and sexual orientation, race and gender identity, race and bi/homophobia, and race and transphobia are talked about, it almost seems as if LGBT and Black are mutually exclusive. And, to be more specific, they are at odds with one another.
Black people who are homo/bi/transphobic exist, too. But, somehow, the US seems fixated on the anti-LGBT prejudice harbored by Black communities as if such sentiments exist in a vacuum. That is, we discuss “black homophobia” as a social problem, while, of course, acknowledging “homophobia” as a social problem. Notice here that we do not hear of explicit concern about “white homophobia.” Why?
An Example: Prop 8 In California, 2008
Let’s take an example. Prop 8. In 2008, the state of California successfully passed an amendment to ban the legal recognition of same-sex marriage. While the entire nation witnessed history with the election of the first (half-)Black president, the US also took one step back by stripping one of the few states with marriage equality of legal same-sex marriage. Now, over three years later, legal challenges to Prop 8 are working their way up the judicial branch.
Immediately following the passage of Prop 8, many in LGBT communities, the media, politicians, and others engaged in a blame-game, pointing a finger squarely at Black Californians for the amendment’s success. Initially, results from the California exist polls suggested that a larger proportion of Black voters voted in favor of banning same-sex marriage relative to voters of other races. Corrected analyses were released later, indicating that Black voters were no more likely than any other racial or ethnic group to vote in favor of Prop 8. More importantly, Blacks only represented 6 percent of all voters in California in 2008; even if every Black voter voted in favor of the ban, that 6 percent cannot be fairly held accountable for the entire 51 percent that voted in favor of Prop 8. But, despite what the numbers say, some were quite hostile toward Blacks in the US, even resorting to racist assaults.
A Double Standard For Prejudice?
Why was it so easy to blame a fraction of the population for the majority’s decision to deny marriage equality in California? Why did our attention focus on homophobia in Black communities, while failing to ask about homophobia in the US and, more specifically, homophobia in white communities? And, why were we so angry with Black homophobes (and, at times, all Black people), but not so much white homophobes?
I argue that the answer is a double standard for homophobia. At the root of the angry reaction toward Black voters who favored the passage of Prop 8 is confusion. We are confused by what seems to be an oxymoron: a prejudiced minority, the oppressive oppressed, and so on. We cannot seem to understand how one group, still facing the contemporary remnants of a history of enslavement, exclusion, discrimination, and violence, can harbor prejudice and discrimination against another, marginalized group. The logic would seem that, given Blacks’ own experiences with prejudice, discrimination, and violence, they should be empathetic toward the plight of LGBT communities due to their exposure with prejudice, discrimination, and violence.
While the logic of empathy makes sense on the surface, it creates five problems (of likely a few others):
- It makes invisible the anti-LGBT prejudice, discrimination, and violence of whites. Though we single-out Blacks when we express our concern about homophobia in Black communities, whites are invisible as a specific racial group in larger discussions of homophobia. And, it begs the question, should we expect whites to be homo/bi/transphobic?
- It holds Blacks to a different standard than whites. Thus, LGBT- and non-LGBT people alike scrutinize the positions and actions of Black communities and organizations regarding gender and sexuality. In the aftermath of Prop 8, LGBT and cisgender heterosexuals criticized Blacks in California for their contribution to the passage of Prop 8.
- It leads us to overlook the alliances between Black and LGBT communities and organizations, and the positive steps that Black people have taken to fight for the equal rights of LGBT people.
- It keeps invisible Black LGBT people. In discussing whether Blacks are homophobic, we fail to acknowledge that some Black people are LGBT, have friends who are LGBT, and who have relatives who are LGBT. Unfortunately, predominantly-heterosexual Black communities, predominantly-white LGBT communities, and society in general are responsible for maintaining an image of Black as straight and gay as white.
- It fails to ask about racism in LGBT communities. Even with some obviously racially motivated anger directed at Black communities by LGBT people following Prop 8, there was little explicit discussion about the racist prejudice, discrimination, and violence perpetrated by LGBT people.
Let’s Look More Broadly
Frankly, the social science research on racial and ethnic differences in attitudes toward LGBT people, same-gender relationships, and homo/bisexuality is mixed; but, the tendency seems to be, once you have accounted for racial differences in religiosity and education, you see little racial difference in these attitudes and, for some matters (e.g., LGBT rights), you actually see more favorable attitudes among Blacks compared to whites. But, that is missed in a narrow focus on homophobia among Blacks. The larger point that is missed is that Blacks, like whites, are socialized in a society that stigmatizes LGBT people. Period. Thus, all people, regardless of race and ethnicity, are implicated in the maintenance or elimination of homo/bi/transphobia. Though one might be sympathetic, or even empathetic, to the plight of other marginalized groups, one’s own marginalized status does not make one automatically an ally.
Another point that is often overlooked is the sneaky (and not-so-sneaky) efforts of white, cisgender, heterosexual men to pit Black and LGBT communities against one another. A recent example of such “divide and conquer” strategizing is not as subtle as other conservative politicians and religious leaders’ efforts:
Edwin O’Brien, Baltimore’s soon-to-be Cardinal, used a speech this week to denounce marriage rights for Maryland’s gay and lesbian couples. He angrily attacked the pending passage of marriage bills in the House and Senate. Maryland’s Governor, Martin O’Malley, is a strong supporter of marriage equality and he helped to introduce the bills this past Tuesday. On Wednesday, O’Brien put his own spin on one of the most heinous arguments put forth by social and religious conservatives — that gay people’s civil rights are an affront to black people and the rights of black people.
For all of these reasons, it is important that we regularly acknowledge the intersections among race, ethnicity, gender, and sexuality. What are the unique experiences of individuals who are marginalized on more than one of these axes? Where are opportunities for coalition-building across marginalized and privileged communities? And, as my last point suggested, how the intersections of these systems manipulated for gain? Obviously, these are difficult questions, but important nonetheless.