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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

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.