How Laws Assault Queer People

Against the Current, No. 156, January/February 2012

Susan Dirr and Tessa Echeverria

Queer (In)Justice:
The Criminalization of LGBT People in the United States
By Joey L. Mogul, Andrea J. Ritchie & Kay Whitlock
Boston: Beacon Press, 2011, 240 pages, $27.97 cloth.

QUEER (IN)JUSTICE IS authored by Joey Mogul, a partner at the People’s Law Office in Chicago and director of DePaul University’s Civil Rights Clinic; Andrea Ritchie, an attorney and organizer who works on issues of police misconduct; and Kay Whitlock, an organizer and writer around structural injustices.

It is no surprise then, that in their opening the authors explain that they use the term “Criminal Legal System,” because the system does not serve justice to the people of this country, so to call it the justice system would be untruthful. From there, the book “turns a queer lens on the criminal legal system in the United States, exposing how the policing of sexual and gender ‘deviance’ is central to notions of crime, and serves both as a tool of race-based law enforcement and as an independent basis for punishment.”(xiii)

To make their argument the authors draw on the history of colonization, the evolution of law enforcement, media and public discourse, court cases, and testimonies from victims.  The resulting framework disrupts the myths circulated by the mainstream LGBT movement and offers an analysis with the potential to generate a proactive strategy for queer liberation.

The mainstream strategy for lesbian and gay legal equality attempts to prove that gay people are a minority who are “just like straight people” except for whom they love. The queer movement has largely rejected this strategy as exclusionary because it leaves intact the unjust social and economic conditions that affect many queers who cannot assimilate into white middle class heteronormativity.

In Queer (In)Justice, Mogul et al offer an alternative analysis of queer oppression, arguing that the criminalization of gender/sexuality is a tool used to enforce and maintain hierarchical power systems. By anchoring the discussion within this larger context, the authors center the experiences of queer low-income people and people of color and expose the institutionalized nature of homophobia.

According to the authors, queer criminalization within the last century has been influenced by the development of criminal archetypes that “establish predetermined story lines that shape how a person’s appearance and behavior will be interpreted — regardless of individual circumstances or realities.” (23) These archetypes, born in the nexus between law enforcement and mass media, establish the inherent criminality of queer people within the public consciousness and cast queer people as mentally unstable, deceptive and potentially violent.

Subsequent chapters trace the ramifications of criminal stereotyping for queer people’s experiences with the criminal legal system, beginning with police encounters, continuing into the court system, and concluding with the queer experience in prisons. Physical, sexual and verbal abuse of queer people at the hands of law enforcement is rooted not just in individual homophobia, but in the role law enforcement plays in “upholding systems of gendered power relations, conventional notions of morality, and sexual conformity.” (51)

Within the hostile environment of “quality of life” policing, queer sexualities and gender expression embody disorder and deviance, disrupting the social order by their mere presence, regardless of whether a law has actually been broken, as illustrated by the following case. In 2003, 50 to 100 police officers violently stormed a Detroit club which primarily served LGBT people of color, forced everyone onto the ground in handcuffs, and arrested over 300 people for “loitering inside a building.” The officers were on the premises purportedly to enforce building and liquor codes.

Similarly, perceptions of queer criminality can completely overpower reason and evidence during prosecutions and investigations, leading to the conviction of innocent people and excessive punishment for relatively minor offenses.

Sean O’Neil, a young man in his late teens, had consensual relationships with four underage teenage girls in 1994. Similar cases involving heterosexual, non-transgender youth rarely result in more than a misdemeanor. However, after Sean was determined to be “anatomically female” and his transgender status was revealed, he was charged with criminal impersonation and sexual assault. Facing up to 32 years in prison if convicted, Sean pled guilty to second degree sexual assault, and was required to register as a sex offender.

Finally, queers who find themselves in prisons face sexual and physical violence at the hands of guards and inmates, punitive housing assignments, and the denial of adequate healthcare, especially hormone therapy and HIV/AIDS treatment.

How to Resist?

In the face of these deeply ingrained and complex systems of criminalization and violence, hate crime legislation is at best a flawed response that focuses on “individual acts of violence rather than on dismantling the systemic forces that promote, condone, and facilitate homophobic and transphobic violence.”(126) As laid out in Queer (In)Justice, the criminal justice system itself is the perpetrator of homophobic violence and as such cannot be expected to act as a safeguard against this violence.

While the authors greatly expand the analysis around criminalization, this section would have benefitted from more attention to the experiences of female queers and analysis of male privilege.  Because sodomy laws and ordinances criminalizing “public sex” weigh more heavily on gay men and result in highly visible punishments, men may be seen as experiencing harsher punishment for queerness. But those without access to male privilege may experience more invisible policing outside the legal system through cultural, social and familial channels, which can be equally punitive.

How can the queer movement take up the question of homophobic violence and the criminalization of queer people? We must follow the lead of organizations like the Audre Lourde Project, FIERCE, and the Sylvia Rivera Law Project, which cente the experiences of queer people of color and low income people while building coalitions with other groups active in the struggle against police brutality, profiling and inhumane prison conditions.

While organizing to improve conditions for queers caught up in the criminal legal system, we must simultaneously create ways to keep our people safe from homophobic violence without relying on law enforcement. Queer (In)Justice brings home the reality that the criminalization of queerness has persisted for centuries, and that limited demands for legal equality will not free us from violence.

We want more than legal equality. We desire systems of community accountability and restorative justice that challenge homphobic and transphobic violence on the streets and in our families. We desire a society that supports rather than criminalizes diverse gender expressions and sexualities.

January/February 2012, ATC 156