A new report shows that LGBT people face higher rates of incarceration and unfair treatment and abuse in the criminal justice system. Those particularly impacted include LGBT people of color, low-income LGBT people, and LGBT youth.
“Unjust: How the Broken Criminal Justice System Fails LGBT People,” from the Movement Advancement Project and the Center for American Progress, cites studies showing that nearly eight percent of people in state and federal prisons identify as LGB—nearly twice the percentage of all American adults who identify as LGB. Over 20 percent of transgender women and 10 percent of transgender men have been in jail or prison, versus the five percent of all American adults who will ever spend time there.
When it comes to youth, a 2015 survey of seven juvenile detention facilities across the country found an estimated 20 percent identified as LGBT or gender non-conforming (40 percent of girls and 14 percent of boys), about three times the percentage of all youth who identify as LGBT or gender non-conforming.
This is a systemic problem stemming from discriminatory attitudes, practices, and policies:
- Discrimination and stigma in society, housing, workplaces, families and communities leave LGBT people at increased risk for poverty or homelessness, which in turn leads to increased risk of having encounters with law enforcement and, ultimately, criminalization.
- Discriminatory enforcement of criminal laws targets LGBT people, including HIV criminalization laws, drug laws, and laws criminalizing consensual sex.
- Harmful policing strategies and tactics push LGBT people, especially LGBT people of color and low-income LGBT people, into the criminal justice system.
LGBT youth may be particularly at risk because of “family rejection, family instability and poverty, negative experiences in the child welfare system, unsafe schools, and the school-to-prison pipeline.”
Youth who leave home or spend a lot of time elsewhere, such as on the street or in public parks, may be more vulnerable to being arrested, and “LGBT youth of color and transgender youth are at particular risk due to heightened visibility.”
For LGBT youth in the foster care system, lack of support can mean a greater risk of “aging out” of the system and trying to succeed on their own, still with no support. “Many youth ‘cross over’ from the child welfare system to the juvenile justice system,” the report says.
LGBT youth are also more likely than others to report being bullied or feeling unsafe at school and to feel as if they have little support from school officials. In defending themselves, they may encounter “zero tolerance” policies that push them into the juvenile justice system.
What do we need to change this? A lot, says the report, including better support for LGBT youth and their families in schools and social service organizations; policy improvements at the federal and state levels to address poverty, immigration, and other issues that put strain on families; safe schools legislation that specifically enumerates sexual orientation and gender identity; and school discipline policies that ensure student safety but also work to keep young people in school. Of particular note for readers here is the recommendation that “Governments and communities should also encourage LGBT adults to serve as foster and adoptive parents.”
One thing the report did not cover in too much detail (perhaps because there has been little research on it) is the impact of the unjust criminal justice system on the children (not necessarily LGBT) of LGBT parents. LGBT-headed low-income families and families of color have been studied much less than White, more well-off families—but it is the former who are more likely to encounter the unfair criminal justice system. We know (thanks to another MAP report) that “Single LGBT adults raising children are three times more likely to have incomes near the poverty line” versus non-LGBT ones, and “married or partnered LGBT parents raising children are twice as likely to have household incomes near the poverty line” versus non-LGBT ones. We must find ways to learn more about all LGBT families and ask: What happens to the children when an LGBT parent is incarcerated? Is there another parent to take care of them? Is that parent legally recognized? What are the short- and long-term effects on these children of having a parent incarcerated because of systemic injustices?
The report touches briefly on this, noting that in California, 90 percent of the women (not necessarily LGBT) in state prisons are mothers, and that retaining parental ties after incarceration can be difficult for legal parents, and nearly impossible for non-legal ones. Second-parent or stepparent adoptions can be very difficult, and fostering or adoption may not be possible after certain criminal convictions. Legal issues aside, reconnecting with families after prison can be a struggle.
Those issues remain to be explored more deeply—but the basic conclusion of the report remains sound: “‘Fixing’ America’s criminal justice system means fixing it for everybody, including nine million LGBT people across the nation.” There’s a lot of work to be done.
