Beyond Marriage: Advocates Call on Obama Administration to Combat LGBTQ Criminalization

The movement to legalize same-sex marriage across the country is probably the most visible, if not successful, political effort on the mainstream Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ) agenda. With the help of celebrity endorsements and courtroom dramas, same-sex marriage is basking in the media’s limelight as the opinion polls and legal opinions continue tipping in its favor. After all, what’s not to like about a picture of two middle-aged women holding hands and reciting vows on the front page of the newspaper? But there are plenty of LGBTQ people who never make the front page of the paper, even if the telling of their stories could mean the difference between freedom and years of dangerous imprisonment, or even life and death.

Despite the media hype, marriage equality is not the top issue on every agenda in the LGBTQ world. Many LGBTQ people – especially gender nonconforming people and people of color – face the threat of imprisonment, assault and deportation that is a direct result of discriminatory police profiling. While some gay rights advocates have been soaking up much of the LGBTQ movement’s funding and the public’s attention fighting for marriage equality, others have been working long hours trying to stop police officers from sexually harassing homeless LGBTQ youth and throwing transgender women of color in jail for carrying condoms or simply walking down the street at night.

That’s why it was refreshing to hear what Urvashi Vaid of the Columbia Law School’s Center for Gender and Sexuality Law had to say last week.

“You know, LGBT people lead complex lives in which our race and gender and economic and immigration status, our gender identity and expression, our physical abilities, they interact with our sexual orientation to produce a starkly different experience of equality and freedom,” Vaid said during a May 7 presentation at the Center for American Progress in Washington, DC. “One of the unfortunate and unintended consequences of this celebratory moment in which there is so much focus on marriage equality is that it’s diluting the focus on many, many other realities that are experienced by LGBT people as well.”

Vaid was speaking at the official rollout of a new report on the criminalization of LGBTQ people and a “roadmap” for reforming the criminal justice system to combat discrimination against LGBT people and people living with HIV. Vaid said the report and policy recommendations, titled “A Roadmap for Change: Federal Policy Recommendations for Addressing the Criminalization of LGBT People and People with HIV,” is an effort to address “gaps” in the LGBTQ policy agenda.

The result of collaboration between grassroots activists, advocates and legal experts, the sweeping report found that LGBTQ people – especially those of color – are significantly overrepresented in the US penal system and face “sweeping discrimination” in all stages of the criminal justice system. From interacting with cops to appearing in court and serving time in prison, LGBTQ people and people living with HIV are disproportionally subjected to harassment, violence and profiling.

A recent survey of LGBTQ people and people living with HIV found that 73 percent report having face-to-face contact with police during the past five years, according to the report. Five percent reported serving time in jail or prison, compared with the 3 percent of the total population of US adults who are behind bars or on parole or probation at any given time.

The report points out that LGBTQ people do not commit more crimes than other people, but deep-seated homophobia and transphobia among law enforcement combined with policing tactics that hyper-sexualize and assume the guilt of LGBTQ people make members of these communities more likely to end up behind bars. LGBTQ people are also members of other communities that are disproportionately targeted by police, such as immigrant and low-income communities.

The report’s findings would come as no surprise to the LGBTQ youth of color in New Orleans who reported being profiled and even brutalized by police in recent years, or to the transgender women in cities across the country who are routinely profiled as sex workers and unfairly targeted for arrest by police officers.

The findings are also no surprise to Yasmin Nair, a co-founder of the radical queer publishing group Against Equality, which challenges the marriage equality movement’s monopoly on the LGBTQ agenda. Nair told Truthout it’s about time that mainstream advocates start paying attention to issues that impact LGBTQ people beyond the minority who wish to get married. For years, Nair said, big marriage-equality organizations like the Human Rights Campaign (which boasts a $40 million budget) have soaked up funding that could have gone to a variety of activist causes such as youth homelessness, immigrant rights and police profiling that are highlighted in the report.

“We know from our work as individuals and as collective activists that we’ve actually seen ways in which organizations have been denied money,” Nair said.

In Maine, for instance, activists pointed out in 2009 that funding for HIV prevention and other services was being cut and LGBTQ organizations were folding while millions of dollars were being spent on gay-marriage campaigns in the state and across the country.

“So we know this connection exists on an empirical level,” Nair said.

As Truthout as recently reported, grassroots groups such as Streetwise and Safe in New York, which contributed to the report, have spent years challenging the cop shops to adopt anti-discrimination policies, with some considerable success. But without firm mechanisms to enforce the policies and audit police behavior, holding police accountable remains a serious challenge. Advocates also work to support LGBTQ people and people living with HIV in prisons in immigration detention, who suffer from systemic denial of health care and the regular use of isolation lockups as “protective” measures against assault, according to the report.

The report does include a national roadmap for broad reform, at least from the top down. A sweeping list of policy recommendations for the Obama administration demands changes at virtually every federal agency dealing with health and criminal justice. As Vaid and her colleagues point out, the report shows that the criminal justice system is “broken,” not just for LGBTQ people but for everyone. Here are some highlights:

• The Centers for Disease Control and the Department of Justice should issue guidance condemning reliance on the mere possession of condoms as evidence of criminal activity as harmful to public health policy. Human rights researchers confirmed that police in major American cities use condoms as evidence to arrest and harass suspected sex workers and LGBTQ people, especially transgender women, for allegedly engaging in prostitution, which discourages people from carrying and using condoms for safer sex.

• Prioritize and implement alternatives to detention for undocumented immigrants. Release of LGBTQ people from immigrant detention facilities should be prioritized.

• End the use of solitary confinement in all prisons, jails and immigrant detention facilities.

• All federal law enforcement agencies, including the Department of Justice and Immigration and Customs Enforcement, should adopt anti-discrimination and anti-profiling policies that prohibit the use of “race, color, ethnicity, national origin, immigration status, religion, gender, disability, sexual orientation or gender identity as a factor, to any extent or degree, in establishing reasonable suspicion or probable cause, exercising discretion to conduct a warrantless search or seek a search warrant.”

• Amend existing law to require prisons to eliminate bans on consensual sex among incarcerated people.

Vaid said recommendations for state governments are forthcoming. Many of the policy recommendations are not totally new ideas for the Obama administration and law enforcement. The Presidential Advisory Council of HIV/AIDS has already condemned the use of condoms as evidence to arrest suspected sex workers, and the New York Police Department recently announced that condoms would no longer be used as evidence to prosecute suspected sex workers, although condoms can still be used to prosecute sex trafficking and promoting prostitution. The Justice Department in January proposed new anti-discrimination guidelines for federal officers that include sexual orientation and gender identity.

Still, the United States has the highest rate of incarceration on the planet, and federal mandates keep immigrant detention facilities full of suspected undocumented people who could otherwise be at home with their families awaiting hearings.

There is a lot of work to be done, and Nair remains skeptical. While she welcomed the report and supports many of the people behind it, she said that her experience with the LGBTQ activist community leads her to doubt that the activists and mega-funders behind the gay-marriage movement will turn to issues like police profiling and criminalization with great force.

“The point about the gay marriage movement is that it insists that once you get marriage everything else works out okay,” Nair said. “If you’re the type of person who believes this, then why would you give a shit about anyone else?”