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Transgender People And The Criminal Justice System

Source: GayRVA.com

Source: GayRVA.com

Last week, I participated on a panel, Transgender People in Criminal Justice and Law Enforcement Settings: Recent Research, hosted by the Virginia Anti-Violence Project (VAVP) at University of Richmond’s downtown campus.  Dr. Eugene F. Simopoulos, a forensic psychiatrist, presented a thorough review of gender identity and expression, and the treatment of trans people in the criminal justice system and medical institution.  Responses were offered by Edward Strickler (secretary of the Board of Directors of VAVP), Rebecca Glenberg (Legal Director, ACLU of VA), and me (in my capacity as a sociologist).  Our collective goal was to educate local law enforcement about trans people, particularly their treatment within the criminal justice system, and hopefully offer recommendations for improvements.  Below, I offer the notes from my response to Dr. Simopoulos.  You can see media coverage of the event at GayRVA.

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As a sociologist, I study discrimination, and its consequences for marginalized groups’ health and well-being. There are two features of my scholarship that I believe will be useful for today’s conversation about trans people generally and in the criminal justice system specifically.  The first is to offer a critical sociological perspective for understanding discrimination.  The way that most people understand discrimination in an everyday sense is fairly narrow.  In particular, discrimination is thought to include specific, rare, and identifiable events of unfair treatment that are committed by specific, identifiable perpetrators who harbor prejudice toward a particular disadvantaged social group.  Thus, the intent of one’s actions are crucial here, regardless of the impact on the victim.

However, as a sociologist, I recognize that discriminatory treatment is much more complex than this, and often occurs in the absence of explicit, conscious bias.  The discriminatory acts perpetrated by a member of a dominant group against a member of a stigmatized group are merely the behavioral component of a system of oppression.  And, these acts are justified by the ideological component of this system of oppression, or what we typically call prejudice.  I suggest, then, that we think about transphobia as a system of oppression.  The discrimination and harassment that transgender people face is neither rare nor random; rather, trans people repeatedly face discrimination, harassment, and violence across multiple contexts, and throughout their lives.

Transphobia Is A System Of Oppression

Transphobia, as a social system, includes the discriminatory acts perpetrated by cisgender (i.e., non-transgender) people against transgender people.  It also operates through important institutions in society – the medical institution, the criminal justice system, education, the military, and so forth.  It shapes the policies and practices of these institutions in ways that disadvantage, harm, and/or exclude transgender people.  Finally, transphobia manifests as laws and policies, particularly at the federal and state levels, that disadvantage, harm, and/or exclude transgender people.  This includes seemingly-neutral laws and policies that are harmful, nonetheless.  One example would be the push for voter identification laws, which places additional burdens on trans people, particularly those whose legal documents do not reflect their current gender identity.

I offer this perspective of transphobia as a system for two reasons.  First, I wish to highlight that the challenges to improve the treatment of transgender people are by no means unique to the criminal justice system.  Second, I want to push our conversation about trans people’s interaction with and experiences in the criminal justice system into the broader context of transphobia.  The challenges that transgender people face in the criminal justice system are both cause and consequence of the challenges they face in other domains of society.  The National Transgender Discrimination Survey notes that trans people are more likely to interact with law enforcement and/or enter the criminal justice system because: 1) they are more likely than cisgender people to be a victim of a crime, particularly anti-trans hate crimes; 2) they are more likely to be homeless, kicked out of their homes by family or due to extreme poverty; and, 3) because of employment discrimination, many transgender people turn to sex work, selling as well as using drugs, or other parts of the underground economy.

Intersections With Racism And Classism

The second feature of my scholarship that I wish to share today is a framework that considers how other systems of oppression intersect with transphobia. Black feminist scholars have developed a concept called intersectionality to understand the interlocking and mutually reinforcing relationships among racism, sexism, classism, and heterosexism. We can add to this list transphobia. Relatedly, they argue that you cannot attend to one of an individual’s multiple social identities to fully capture that individual’s experiences, well-being, and status in society.

In today’s conversation, by thinking of trans people solely in terms of their gender identity and expression, we miss important ways in which transgender people’s experiences are shaped by their race and ethnicity, immigrant status, social class, and other identities. More specifically, we miss that certain segments of transgender communities – namely poor trans people, trans women, trans people of color, and especially trans women of color – are particularly vulnerable to violence, discrimination, harassment, sexual violence, poverty, homelessness, and poor health.

Findings from a few recent reports, including the NTDS Survey, and the National Coalition of Anti-Violence Programs report for 2013, suggest that these groups bear the greatest burden of the challenges that trans people face in the criminal justice system. And, these disparities exist in every context in the system, from interactions with police, to arrest, to treatment in prisons.

  • While 60% of the transgender people in the NTDS survey report any interaction with law enforcement, the number jumps to 80% for Black and Latina trans women.
  • Trans women of color are more likely to report being targeted, disrespected, and harassed, and assaulted by police than other trans people, and LGBT people in general. For example, under New York City’s practice of “stop-and-frisk,” wherein 90% of individuals who were stopped were Black or Latina/o, LGBT people, especially trans women, were disproportionately represented.
  • Trans women, particularly trans women of color, are often stopped by police because they are assumed to be sex workers – a pattern that the ACLU and other groups has now referred to as “walking while trans,” akin to racial profiling or “driving while Black.”
  • While only 3% of the general population has ever been incarcerated, 16% of trans people have ever been sent to jail or prison. And, that figure is 41% for Black and Latina trans women; almost all report that they were incarcerated due to transphobic bias.
  • Among trans people who have been incarcerated, trans women of color serve longer sentences, and are more likely to be harassed, and physically and sexually assaulted by both fellow inmates and prison staff than other trans people.
  • And, a greater percentage of trans women of color report that either other inmates or prison staff block their access to hormones or regular medical care.

To conclude, I want to reiterate the importance of recognizing the roles that race, ethnicity, immigrant status, and social class play – or, more specifically, how racism and classism intersect with transphobia. We must avoid thinking of and treating trans communities as a monolithic group, as there is a great deal of diversity within these communities.

References And Additional Information

  • Simopoulos, Eugene F. and Khin Khin.  2014.  “Fundamental principles inherent in the comprehensive care of transgender inmates.”  Journal of the American Academy of Psychiatry and the Law 42: 26-36.
  • Summary of findings [pdf] and full report [pdf] of National Transgender Discrimination Survey.  (And, see my summary here.)
  • Supplementary report [pdf] of Black respondents in the NTDS survey.  (And, see my summary here.)
  • Supplementary report Hispanic and Latina/o respondents [pdf] and Asian and Asian American respondents [pdf] in the NTDS survey.
  • Summary of findings [pdf] and full report [pdf] of the 2013 National Coalition of Anti-Violence Programs report.
  • It’s A War In Here: A Report on Transgender People in Men’s Prisons [pdf] by Sylvia Rivera Law Project.
  • The Williams Institute report on Latina trans women’s experiences with law enforcement [pdf].
  • The Unfair Criminalization of Gay and Transgender Youth,” Center for American Progress, June 29, 2012.
  • A Roadmap for Change: Federal Policy Recommendations for Addressing the Criminalization of LGBT People and People with HIV [pdf].
  • Queer (In)Justice book
  • Dealing with Transgender Subjects,Police Magazine, January 4, 2013.
  • Resources from the Transgender Law Center

The Unjust Murder Of Trayvon Martin Is A LGBT/Feminist/Human Rights Issue

When news first broke about the murder of Trayvon Martin by George Zimmerman, some lesbian, gay, bisexual, and transgender (LGBT) organizations spoke out about the injustice.  Some even signed onto calls demanding that Zimmerman be tried for the murder.  Now, after the not-guilty verdict, which has freed Zimmerman of any responsibility and thus punishment for taking Martin’s life, even more LGBT organizations have voiced their outrage.  Indeed, advocating for justice is the right thing to do.

Trayvon’s Murder As An LGBT Issue

But, is this really something that we should expect of organizations that advocate for equality on the basis of sexual orientation and gender identity and expression?  Or, as the Queerty article asked of its readers, “Should the LGBT community care about the George Zimmerman trial verdict?

When I first saw the headline, I thought the answer was obvious — yes!  And, other LGBT media were focusing on the organizations that were demanding justice; so, it seemed the question did not even need to be posed.  I skimmed the article and then the comments to see if the obvious “yes” and the reasons for it were articulated by others.  Fortunately, most of the readers at least said yes, though largely because they could empathize with the injustice in this case as LGBT people.

Admittedly, I was underwhelmed by this response.  It felt as though LGBT people — at least the few people answering Queerty’s inquiry — cared about the unjust murder of Trayvon Martin to the extent that they were able to envision fearing such violence because of their sexual orientation or gender identity/expression.  I had hoped to see some recognition that this racial injustice affects the lives of LGBT people of color — that that was enough for the entire LGBT community to be concerned that some of its members’ rights have been threatened.

However, I read an op-ed in The Advocate this morning, which help me understand this sort of empathy (which I would better understand outside of this very divisive case).  Michelle Garcia, the magazine’s commentary editor, wrote a piece that connects the so-called gay panic defense to the not-guilty verdict Zimmerman received.  In the former, there have been cases of anti-LGBT murders wherein the heterosexual murderer argues that he (typically) was momentarily insane because of a sexual advance made by the gay or transgender victim.  In a way, they feared for their safety (in line with the stereotype of gay rapists), and thus defended themselves.  Zimmerman’s defense for pursuing and killing Martin was that he feared for his and others’ safety.  Because the stereotype of young Black men as violent criminals exists, eliciting real fear in whites, it seemed to be enough to justify taking Martin’s life, and letting Zimmerman (and his racial biases) walk free.

I find this take (and this one) convincing.  The very laws (i.e., Stand Your Ground) that let white murderers of innocent Black people walk free could let heterosexual or cisgender murderers of innocent lesbian, gay, bisexual, or transgender walk free.  In fact, prior to such broad self-defense laws, and without drawing directly upon them now that they exist, there are several of such murderers who do walk free because of the “gay panic” or “trans panic” defense.  Courts and juries have sympathized with privileged people who momentarily felt unsafe (often because they stereotyped an LGBT person as a sexual predator), while offering no justice for their victims — people who live in daily fear of anti-LGBT discrimination and violence their entire lives.

A(nother) Call For Coalition-Building

As such, the unjust murder of Trayvon Martin is an LGBT issue… is a feminist issue… is a human rights issue.  In the past few weeks, LGBT people have celebrated major advancements toward sexual and gender equality.  In that same time frame, the hard-fought rights of people of color and women have been attacked and, in some cases, successfully eliminated.  These setbacks hurt lesbian, bisexual, and transwomen, and LGBT people of color.  Thus, they are setbacks for all LGBT people, and all people of color, and all women.  And, pessimistically speaking, they are a signal to the LGBT movement that bigots never retire, even as discrimination and violence are outlawed.  The very rights we finally secure today may be undermined in a few decades.

This is yet another reminder that single-issue politics are less effective, at least in the long-run.  We cannot afford to have white feminists focusing exclusively on the slow reversal of Roe v. Wade, while white gay men continue to blindly celebrate marriage equality, while heterosexual, cisgender people of color exclusively mourn the recent string of racial injustices (Voting Rights Act, Affirmative Action, Baby Veronica, Zimmerman’s acquittal, etc.).  That is, while women of color, LBT and queer women, and LGBT people of color are exhausted by trying to keep up with all of these issues, and trying to explain to others how they are fundamentally linked.  Simply put, we are overdue for successful coalition-building.  For, “injustice anywhere is a threat to justice everywhere” (Dr. King).

Parenting And Racial Discrimination

Trayvon-Martin-George-Zimmerman-620x457

I feel heartbroken by the news that George Zimmerman walks a free, “innocent” man after murdering Trayvon Martin.  It is difficult to digest that the state of Florida, among other states, has granted license (which mostly benefits whites who kill Blacks) to “stand your ground” (i.e., murder).  So, while there is no doubt Zimmerman killed Martin, he was found not guilty within the content of these broad self-defense laws.  Indirectly, Florida and these other states have legalized the practice of hunting and killing of Black Americans.

Post-racism my ass!

Parents And Racial Socialization

In addition to the collective outrage and sadness that followed the not-guilty verdict, I noticed other, unexpected responses.  One, in particular, caught me by surprise, but probably should have been expected.  Because Trayvon Martin was only 17 years old when George Zimmerman killed him, many Black parents (especially mothers) have expressed great concern for protecting their children.  Some have asked specifically how they can effectively prepare their children to navigate a world where they could be murdered for carrying a bag of Skittles and an iced tea — that is, if they are Black.

Throughout US history, Black parents, like all parents of color, have socialized their children in a way that is explicitly racialized.  This aspect of Black parenting, sometimes referred to as racial socialization, entails practices of preparing one’s children for the current realities of racism and race relations and, for some, instilling a strong sense of racial pride.  So, the concerns raised by Black parents following the murder of Trayvon Martin and, again, following the conclusion of George Zimmerman’s trial, are not new.

But, the messages transmitted by Black parents to their children does change over time, reflecting the current racial climate.  In their 2006 Social Psychology Quarterly article, “Race Socialization Messages across Historical Time,” sociologists Tony Brown and Chase L. Lesane-Brown assessed the content of Black parents’ racialized socialization practices over time: specifically pre-Brown v. Board of Education (before 1957; Blacks born between 1879-1940), Civil Rights protest (1957-1968; those born in 1941-1955), and post-protest (1969-1980; those born 1956-1963).  The earliest cohort — those coming of age before Brown — were more likely to hear messages about deference to or fear of whites, or about color-blindness.  Those coming of age after the peak of the Civil Rights Movement were more likely to hear messages of racial group pride, individual pride, or no race-specific messages at all.

Racial Socialization, 1980 To Today

What about the racial socialization of those born from 1964 to today (Blacks under the age of 50)?  Black Americans who came of age in the 1980s were socialized during the time of conservative President Ronald Reagan, The Cosby Show, and heightened poverty.  Those who came of age in the ’90s witnessed the appointment of Clarence Thomas to the Supreme Court (following the hearings of his sexual harassment against Anita Hill), the brutal beating of Rodney King by LA police, and the Million Man March.  My cohort — those coming of age between 2000-2010 — has seen the election of Barack Obama (and other “Firsts” like Colin Powell and Condoleezza Rice), the ugly (mis)handling of evacuation before and relief after hurricanes Katrina and Rita, the end of busing and subsequent resegregation of schools, and the beginnings of successful attempts to undermine and dismantle Affirmative Action policies.

What about the current racial climate — Black youth who are coming of age during the present decade (2010-)?  It appears to be an intensification of the racial/racist schizophrenia of the prior decade.  While President Barack Obama was reelected, there were heightened efforts to suppress Blacks’ vote.  Recently, declaring racism dead or nearly dead, the Supreme Court gutted much of the Voting Rights Act.  Affirmative Action programs continue to be challenged and scaled back.  Blacks are disproportionately represented in prison and throughout the criminal justice system.  While hearing claims that America has reached a post-racial era, the vast majority of Black Americans report facing interpersonal discrimination (Kessler et al. 1999); this is complemented by legal law enforcement practices that unfairly target people of color (including Stand Your Ground laws) and other forms of institutional racism.

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Racial Socialization, Discrimination, and Crime

But, is instilling a strong sense of racial pride and preparing one’s children for racial bias effective?  Yep.  Prior research has suggested that the damaging effects of racial discrimination, particularly to one’s health and well-being, are buffered by a strong, positive racial identity (Paradies 2006; Pascoe and Richman 2009).  This is true for racial socialization broadly, but also supportive parenting in general (Simmons et al. 2006).

Interestingly, racial socialization also partially mediates (or explains) the relationship between racial discrimination and criminal or delinquent behavior (Burt et al. 2012; Caldwell et al. 2004; Martin et al. 2010).  Unfortunately, as a result of the anger, depression, hostile view of interpersonal relationships, and disengagement from conventional norms that can follow exposure to discrimination, victims of racial discrimination may be more likely to engage in these kinds of violent or illegal activities.  But, Black parents’ successful efforts to instill a strong sense of racial pride and prepare their kids for racial bias can interrupt this chain of events.

For, what unfolds is much worse.  With racial disparities in (hostile) interaction with the police, in arrest, in the courts, and in sentencing, the risk of imprisonment is multiplied.  And, once release from prisons (at least for felonies), one’s livelihood and well-being are further jeopardized by the simultaneous stigmatized statuses of “ex-con” and Black.  In certain states, that comes with the loss of key aspects of citizenship, namely the right to vote (another right that is already threatened by racial discrimination).

The sheer vastness of racism’s reach are difficult to comprehend.  From birth to death, one’s life is persistently shaped and constrained by racism; even the racist treatment one faces within one institution (e.g., education) can influence such treatment in one’s navigation through other institutions (e.g., criminal justice, politics).

Concluding Thoughts

And effective racialized socialization can minimize some of this?  That is an unfair, heavy burden to place on the shoulders of parents of color.  And the era of supposed post-racism has made the job of Black parents even more complicated.  How do you explain to your 12 year old that he could be President, a doctor, a teacher, or an engineer by age 40… or living in poverty, HIV-positive, in jail, or dead by age 25?  How do prepare your child for racist violence, like the murder of Emmett Till in 1955, alongside the “progress” that has transpired in the past 60 years?

And, what could Trayvon Martin’s parents — Tracy Martin and Sybrina Fulton — have done to prevent the tragic end of their son’s life at the young age of 17?  Told him to lay off of junk food?  Don’t walk alone at night?  Dress like characters on the uber white show, Friends?  Or, stop being Black?  Any of these suggestions are victim-blaming; and, unfortunately, parts of Zimmerman’s trial seem to put Martin on trial (for his own murder).

TRAYVON_MARTIN_NEW_PHOTO_1When racial socialization is not enough, and the law actually gives bigots a license to hunt innocent Black teenagers, what protection remains for people of color in America?

It is hard to hope for any answer other than, “nothing.”

References

Bowleg, Lisa, Gary J. Burkholder, Jenne S. Massie, Rahab Wahome, Michelle Teti, David J. Malebranche, and Jeanne M. Tschann. Forthcoming. “Racial Discrimination, Social Support, and Sexual HIV Risk among Black Heterosexual Men.” AIDS Behavior.

Brown, Tony N., and Chase L. Lesane-Brown.  2006.  “Race Socialization Messages across Historical Time.”  Social Psychology Quarterly 69: 201-13.

Burt, Callie Harbin, Ronald L. Simons, and Frederic X. Gibbons. 2012. “Racial Discrimination, Ethnic-Racial Socialization, and Crime: A Micro-Sociological Model of Risk and Resilience.” American Sociological Review 77: 648-77.

Caldwell, Cleopatra Howard, Laura P. Kohn-Wood, Karen H. Schmeelk-Cone, Tabbye M. Chavous, and Marc A. Zimmerman.  (2004).  “Racial Discrimination and Racial Identity as Risk or Protective Factors for Violence Behaviors in African American Young Adults.”  American Journal of Community Psychology 33: 91-105.

Kessler, Ronald C., Kristin D. Mickelson, and David R. Williams. 1999. “The Prevalence, Distribution, and Mental Health Correlates of Perceived Discrimination in the United States.”  Journal of Health and Social Behavior 40: 208-30.

Martin, Monica J., Bill McCarthy, Rand D. Conger, Frederick X. Gibbons, Ronald L. Simons, Carolyn E. Cutrona, and Gene H. Brody.  2010.  “The Enduring Significance of Racism: Discrimination and Delinquency Among Black American Youth.”  Journal of Research on Adolescence 21: 662-76.

Paradies, Yin. 2006. “A Systematic Review of Empirical Research on Self-Reported Racism and Health.”  International Journal of Epidemiology 35: 888-901.

Pascoe, Elizabeth A., and Laura Smart Richman. 2009. “Perceived Discrimination and Health: A Meta-Analytic Review.”  Psychological Bulletin 135: 531-54.

Roberts, Megan E., Frederick X. Gibbons, Meg Gerrard, Chin-Yuan Weng, Velma M. Murry, Leslie G. Simons, Ronald L. Simons, and Frederick O. Lorenz. 2012. “From Racial Discrimination to Risky Sex: Prospective Relations Involving Peers and Parents.” Developmental Psychology 48: 89-102.

Simons, Ronald L., Leslie Gordon Simons, Callie Harbin Burt, Holli Drummund, Eric Stewart, Gene H. Brody, Frederick X. Gibbons, and Carolyn Cutrona. 2006. “Supportive Parenting Moderates the Effect of Discrimination upon Anger, Hostile View of Relationships, and Violence among African American Boys.” Journal of Health and Social Behavior 47: 373-89.

Actually, Racism Is Probably Worse Than We Realize

In 2008, the argument that race has declined in importance became the crystallized “post-racial” thesis upon the election of President Barack Obama.  By his re-election in 2012, some had offered clarification that race still exists, but it is racism that has disappeared – the “post-racism” thesis.  There it sits, almost as a sense of relief — “whew, now we can stop tip-toeing around people of color, and supporting these race-related causes like Affirmative Action.”

On day 2 of George Zimmerman’s trial for the murder of Trayvon Martin, the supposed reality of post-racism contrasts with that of the hyperrelevance of race and racism.  A young Black man was killed because his race made him a suspect.

Today, Blackness is still a crime, and whites are charged with the task of policing Black people.  The harshness of law enforcement and the criminal justice system is magnified for Blacks, from the use of excessive force to longer sentences to denial of justice all together.  Even those who are not police officers, judges, and lawyers serve to police Blacks; the days of lynching Black women and men has merely evolved into a calmer form of extralegal vigilance.

For example:

My blood boiled as I watched this video.  I posted it in various places on Facebook, expecting similar outrage.  The video was widely shared, but often introduced with concerned, but surprisingly calm notes: “watch this”; “wow”; “this is messed up.”  Those were comments mostly comments from white people.

But, even some Black folks articulated concern, but little surprise.  In fact, a few people seemed to think that it was problematic that I was surprised, and that they are superior in some way for being unmoved.  The unsympathetic response of “why are you surprised?” stung, playing on my fear that I am “not Black enough” or “too white” to fully comprehend the severity of contemporary racism.  I suppose the anonymity of the internet is a dual-edged sword, where hostility is widely expressed and, absent of an in-person connection, there is little expression of empathy and solidarity.

Racism Is Worse Than We Realize

As I further processed my reactions to this video, I realized that my surprise and anger are warranted.  Yes, in the self-confident sense where I do not need to justify my feelings, or shape or suppress them according to others’ opinions.  But, also because the sheer pervasiveness and severity of racism cannot be fully comprehended by one person.  Even as a researcher, I am unable to see every instance, manifestation, and consequence of racism in every corner of the world.

Like this video, racism that hides behind seemingly race-neutral interactions, laws, and practices is harder to see, and near impossible to prove exists.  Today, we are dealing with consciously suppressed and unconscious racial prejudice — both which shape behaviors.  Few racists openly, proudly identify themselves as racists, and most racists do not even know that they are racist.

Racial discrimination, too, is harder to identify, particularly absent of outwardly expressed racial bias.  It is no longer limited to exclusion at the entry point or first contact.  The “whites only” sign has to be implied since it cannot be hung from the front door.  We may be hired, but then harassed on the job or denied opportunities to advance.  We may receive a loan, but are offered one that is economically risky.

On the ground, we cannot see other interactions to “accurately” assess whether we have been discriminated against.  (This speaks to the importance of research to look at the broader patterns!)  Like the racial profiling video above, Black people may suspect unfair or differential treatment driven by racial prejudice, but rarely can we compare the same situation experienced by a white person.  Even in some of the recent audit studies that demonstrate racial discrimination in the labor force, some of the participants were unaware of the discriminatory treatment they faced until they compared notes with others and the researchers.

In reality, racism and the pervasiveness of racial discrimination are likely far worse than we can imagine.  So, I stand by my surprise because it is a reasonable reaction to such harsh reminders of the everyday consequences of racism.  But, also because I much prefer to hope for something better than resign myself to accept the world as it is.

“Stop-And-Frisk”: Legalized Racist, Homophobic, And Transphobic Discrimination

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.”

Legalized Racism

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.