Reviewed by Daniel R. Schaffer

Queer (In)justice (QI) is a useful and necessary tool for Lesbian, Gay, Bisexual, Transgender, Queer and Gender Non-Conforming (LGBTQGNC) activists and allies to help understand the issues affected by the LGBTQGNC communities when they are ensnared by the criminal justice system. Moving past the usual discussion of same-sex marriage by mainstream groups, QI outlines the historical background of sodomy from colonial times to the present and the involvement of the prison industrial complex against LGBTQGNC people.

Written by Joey L. Mogul, Andrea J. Ritchie and Kay Whitlock, all longtime activists either as lawyers or writers, QI is part of a series of books by Beacon Press on “Queer Action/Queer Ideas” – a series which helps to counteract the plethora of books which focus on same-sex marriage as the ultimate civil rights issue in the LGBTQGNC community. Pointing out the myriad communities for which same-sex marriage is far from the first thing on their list of priorities in their daily lives, QI refocuses discussion on LGBTQGNC communities left out of mainstream activism. QI is well researched and needs to be both read and passed on.

QI ranges from the oft-cited Leviticus to Plato, who called sodomy an “outrage on nature and a capital surrender to lust of pleasure.” In ancient Rome, a married woman could be executed by her husband for “mutually caressing” with another woman. In the 1500’s, Spain and Italy upgraded (or enhanced) a lesbian’s punishment when a “material instrument” was involved. In 1646, in Dutch New Netherlands (early New York City), a “negro” was “choked to death” and “burnt to ashes” for sodomy with a ten-year-old. The ten-year-old boy, also a “negro,” was “tied to a stake, flogged and burned to death.”

In contrast, in 1640’s Connecticut, “a prominent [white] … colonial gentleman” was given a non-capital sentence of thirty years for reported “sodomitical actings.” 1624 saw a ship’s captain in Virginia Colony convicted and executed for buggery against one of his white servants. His servant, though, was required to find a new master to help “compensate the government for the costs of prosecuting and executing” the ship’s captain.

Pennsylvania was the first colony to remove the death penalty for sodomy, but only for whites. Thomas Jefferson unsuccessfully urged Virginia to reform their laws by having male rapists and “sodomists” castrated and women having a hole “at least half an inch in diameter drilled though the cartilage of their noses.” 

Addressing more recent immigration policy, QI notes that it was only in 1991 that the official policy of the United States to exclude those determined to be homosexual was overturned. In 1960, a Mexican woman who was a documented resident was subjected to a deportation hearing because an immigration officer did a “visual assessment” and decided she was a lesbian. Her employer noted that she often wore “trousers and a shirt … and that her hair was cut shorter than some other women’s.” Though ultimately allowed to remain in the United States, she was put through this ordeal.

While many people have heard of the Stonewall police riots in New York City in 1969, they have not heard of Compton Cafeteria in San Francisco in 1966, where “drag queens” and “gay hustlers” rebelled when police tried to arrest them for simply being themselves. In 2003, at the Power Plant Club in Detroit frequented primarily by African American gay men, lesbians and transgendered women, police raided the club on the pretense of enforcing building codes. ”Over 350 people in the club at the time were handcuffed, forced to lie face down on the floor, and [were] detained for up to twelve hours, left to ‘sit in their own and others urine and waste.’” QI describes.

These police riots and rebellions are as much a part of the LGBTQGNC community history as any other, but are often marginalized by the mainstream LGBTQGNC community. The State of California has recently proposed including required “gay and lesbian” history in the official curriculum. It will be interesting to see if the Compton Cafeteria rebellion makes it in as surely as Harvey Milk will.

QI discusses one of the most extreme punishments that the criminal justice system offers – the death penalty. Jay Neill, in 1984 in Oklahoma, was accused of murder. The chief investigator “reported to the press that he assumed the killer was a gay man because he claimed ‘[in] most cases of overkill, the perpetrator turns out to be a homosexual.’” In the trial that followed, the prosecutor told the jury, “I’d like to go through some of the things that to me depict the true person, what kind of person he is. He is a homosexual.
The person you’re sitting in judgment of – disregard Jay Neill. You’re deciding life or death of a person that’s a vowed [sic] homosexual.” An appellate judge in Oklahoma, Carlos F. Lucaro, wrote, and the court majority agreed, that the prosecutor’s conclusion was “susceptible of only one possible interpretation: among other factors, Neill should be put to death because he is gay.” Despite this conclusion, Neill was executed in 2002.

Hate crime statutes appropriately bear the scrutiny of QI. The authors write that “the hate crime framework is further compromised by placing primary responsibility in the hands of a criminal justice system that is itself responsible for much of the LGBT violence.” QI writes about the opposition in New York state by the Sylvia Rivera Law Project, FIERCE!, Audrey Lorde Project, Queers for Economic Justice and the Peter Cicchino Youth Project to the still unpassed Gender Employment Non-Discrimination Act. The groups could not support the bill because it encompassed a hate crimes provision. They wrote in an open letter that “by supporting longer periods of incarceration and putting a more threatening weapon in the State’s hands, this kind of legislation places an enormous amount of faith in our deeply flawed, transphobic and racist criminal legal system.”

Other groups have noted important conclusions. A San Francisco Human Rights Commission report on “normalizing” medical interventions being performed on intersex infants and children found that the issue “should be dealt with as a human rights issue.”
Among the conclusions reached was that “it is ethically wrong to treat people differently or unfairly because they are perceived to be ‘monsters’ or ‘oddities.’” A 2010 National Transgender Discrimination Survey on Health and Health Care found that transgender medical clients faced verbal discrimination from their doctors twenty-eight percent of the time and physical assaults two percent of the time.

QI is a strong call to LGBTQGNC activists and allies to work for all of our communities whether it is at organized protests or bigotry spoken at polite dinners. “Ultimately regardless of our intentions, all of us are accountable for the roles we play in reinforcing or dismantling the violence endemic to policing and punishment systems.” Although QI notes some relative progress has been made for prisoners and in prisons more generally, it adds that while these ongoing efforts may produce changes for individual prisoners or facilities, systematic and transformative change has proven elusive. The violence and punishment visited on LGBT prisoners are not anomalies and cannot be eradicated through reform.

While no one book can cover every area of an issue, if QI were to be expanded a further discussion of sexual abuse within the prison system as a second level of punishment, either afflicted intentionally or by neglect, would be helpful. Even with that note, QI needs to be read by anyone who intends to aid LGBTQGNC communities. The authors should be commended for their contribution to expanding the discussion of the needs of the LGBTQGNC community.

Many people know that the Thirteenth Amendment to the U.S. Constitution abolished “slavery” and “involuntary servitude” but do not know the other part, which lays the constitutional basis for the Prison Industrial Complex – “except as a punishment for crime whereof the party shall have been duly convicted….” Used originally to re-enslave through the “Black Codes” many of the people given constitutional freedom, and also to enslave the indigenous populations, the Thirteenth Amendment lays the groundwork for the view of prisons as an investment opportunity.

QI notes there is a “rapid and far reaching growth of relationships between government and private interests.” This intersection expands to private interests after people have left prison, including homeless shelters and related programs. Jay Toole, Director of the Shelter Project for Queers for Economic Justice (QEJ), adds, “being homeless is harder for the LGBTQGNC community. Case managers often use religious bias against transgender folks.” One of the programs run by QEJ is LGBTQGNC support groups in homeless shelters where access is allowed. At a recent meeting one resident who had spent most of her adult life in prisons or homeless shelters summarized the lack of difference between the two when she said, “They get paid either way.”

Danny Schaffer is a Collective member of Books Through Bars - New York City and a volunteer at Queers for Economic Justice.

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