Unjust - How the Broken Criminal Justice System Fails LGBT People, CAP MAP AP FT JLUSA, 2016

• March 7, 2016 • Locations: United States of America • Topics: Discrimination, Gay/Lesbian, Prison Reform, Discrimination (Transgender), Failure to Protect (Transgender)

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UNJUST: HOW THE BROKEN CRIMINAL
JUSTICE SYSTEM FAILS LGBT PEOPLE
February 2016

Authors

Partners

This report was authored by:

This report was developed in partnership with:

Center for American Progress
The Center for American Progress (CAP) is a think tank
dedicated to improving the lives of Americans through
ideas and action. CAP combines bold policy ideas with
a modern communications platform to help shape the
national debate. CAP is designed to provide long-term
leadership and support to the progressive movement.
CAP’s policy experts cover a wide range of issue areas,
and often work across disciplines to tackle complex,
interrelated issues such as national security, energy,
and climate change.

Advancement Project
Advancement Project is a next generation, multiracial civil rights organization. Rooted in the great
human rights struggles for equality and justice, we
exist to fulfill America’s promise of a caring, inclusive
and just democracy. We use innovative tools and
strategies to strengthen social movements and
achieve high impact policy change. Learn more at
www.advancementproject.org.

Movement Advancement Project
The Movement Advancement Project (MAP) is an
independent think tank that provides rigorous
research, insight, and analysis that help speed
equality for LGBT people. MAP works collaboratively
with LGBT organizations, advocates and funders,
providing information, analysis and resources that
help coordinate and strengthen efforts for maximum
impact. MAP’s policy research informs the public and
policymakers about the legal and policy needs of LGBT
people and their families.

Contact Information
Center for American Progress
1333 H Street, NW, 10th Floor
Washington, DC 20005
202-682-1611
www.americanprogress.com

Forward Together
Forward Together is a multi-racial, multi-issue organization that is changing how we think, feel, act,
and make policy about families. Whether chosen or
biological, we work to ensure that all families have
the power and resources they need to thrive. We work
at the intersections of race, gender, and sexuality—
and find ways to shift our culture and policy in the
areas of reproductive justice, economic justice, and
ending mass incarceration. For more information, visit
www.forwardtogether.org.
JustLeadershipUSA
JustLeadershipUSA is dedicated to cutting the U.S.
correctional population in half by 2030, while reducing
crime. JLUSA empowers people most affected by
incarceration to drive policy reform. Learn more at
www.justleadershipusa.org.

Movement Advancement Project (MAP)
2215 Market Street
Denver, CO 80205
1-844-MAP-8800
www.lgbtmap.org

A condensed, shorter version of this report is available online at www.lgbtmap.org/criminal-justice.

TABLE OF CONTENTS
FOREWORD............................................................................................................................................. i
THE REPORT IN HISTORICAL CONTEXT............................................................................................... ii
EXECUTIVE SUMMARY........................................................................................................................... iii
GLOSSARY............................................................................................................................................... vi
INTRODUCTION...................................................................................................................................... 1
LGBT People are Overrepresented in the Criminal Justice System........................................................................3
SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO
INCREASED CRIMINALIZATION OF LGBT PEOPLE.............................................................................. 7
Discrimination and Stigma...................................................................................................................................................9
Problem: Family Rejection......................................................................................................................................................9
Problem: Family Instability and Poverty............................................................................................................................11
Problem: Negative Experiences in the Child Welfare System....................................................................................12
Problem: Increased Rates of Homelessness.....................................................................................................................16
Problem: Unsafe Schools........................................................................................................................................................18
Problem: School-to-Prison Pipeline....................................................................................................................................21
Problem: Employment Discrimination ..............................................................................................................................25
Problem: Higher Rates of Unemployment and Poverty .............................................................................................27
Problem: Housing Discrimination and Higher Rates of Homelessness.................................................................28
Problem: Healthcare Discrimination Against Transgender People..........................................................................31
Problem: Inability to Update Identity Documents........................................................................................................31
Problem: Lack of Social Services..........................................................................................................................................33
Summary: How Discrimination Leads to Criminalization...........................................................................................33

Discriminatory Enforcement of Laws................................................................................................................................37
Problem: HIV Criminalization Laws.....................................................................................................................................37
Problem: Laws Criminalizing Consensual Sex.................................................................................................................39
Problem: Drug Laws..................................................................................................................................................................41
Summary: How Discriminatory Enforcement Leads to Criminalization................................................................44

Harmful Policing Strategies and Tactics...........................................................................................................................44
Problem: Quality-of-Life and Zero-Tolerance Policing ................................................................................................44
Problem: Policing of Gender Norms...................................................................................................................................46
Problem: Aggressive Enforcement of Anti-Prostitution Statutes.............................................................................49
Problem: Stop-and-Frisk..........................................................................................................................................................51
Problem: Discrimination and Violence When Seeking Assistance from Police...................................................55
Problem: Abuse and Brutality by Law Enforcement.....................................................................................................59
Summary: How Policing Strategies and Tactics Lead to Criminalization...............................................................63

Recommendations..................................................................................................................................................................63

SECTION 2: IN THE SYSTEM: LGBT PEOPLE ARE MORE FREQUENTLY
INCARCERATED AND TREATED HARSHLY.......................................................................................... 67
Data about LGBT People in the Criminal Justice System...........................................................................................67
LGBT Youth...................................................................................................................................................................................67

LGBT Adults..................................................................................................................................................................................69
4

LGBT Undocumented Immigrants.......................................................................................................................................70

Portrait of the Criminal Justice System.............................................................................................................................72
Adults in the Criminal Justice System ...............................................................................................................................72
Youth in the Juvenile Justice System..................................................................................................................................73
Immigration Enforcement and Detention........................................................................................................................74

Discrimination in Legal Proceedings.................................................................................................................................78
Problem: Inadequate Access to Counsel...........................................................................................................................78
Problem: Discrimination by Judges, Prosecutors, and Court Staff..........................................................................80
Problem: Discrimination in Jury Selection and by Juries............................................................................................85

Unfair and Inhumane Treatment in Confinement Facilities .....................................................................................86
Problem: Limited Regulation and Oversight...................................................................................................................86
Problem: Improper Placement .............................................................................................................................................91
Problem: Harassment and Sexual Assault by Staff and Inmates..............................................................................95
Problem: Inadequate Access to Health Care....................................................................................................................100
Problem: Basic Needs Are Unmet........................................................................................................................................108
Problem: Incarcerated People Lack Recourse.................................................................................................................113

Recommendations .................................................................................................................................................................114

SECTION 3: LIFE AFTER CONVICTION: LGBT PEOPLE FACE ADDED
CHALLENGES TO REBUILDING THEIR LIVES....................................................................................... 116
Lack of Support in Probation, Parole, and Re-Entry Programs ...............................................................................118
Problem: Lack of LGBT Competency in Prison Re-Entry Programs..........................................................................121
Problem: Lack of LGBT Competency in Probation and Parole...................................................................................121
Problem: Lack of LGBT Competency in Re-Entry Programs.......................................................................................122

Impact of a Criminal Record.................................................................................................................................................124
Problem: Indefinite Detention Through Civil Commitment.......................................................................................124
Problem: Difficulty Finding Housing..................................................................................................................................126
Problem: Inadequate Health Care After Release............................................................................................................127
Problem: Difficulties Finding Employment......................................................................................................................127
Problem: Ineligibility for Public Assistance......................................................................................................................129
Problem: Overuse and Misuse of Sex Offender Registries .........................................................................................130
Problem: Educational Barriers...............................................................................................................................................131
Problem: Parenting Rights Severed or Denied................................................................................................................132
Problem: Challenges Reconnecting with Family............................................................................................................132
Problem: Difficulty Obtaining Name Changes................................................................................................................132
Problem: Loss of Political Participation..............................................................................................................................133

Recommendations..................................................................................................................................................................133

CONCLUSION.......................................................................................................................................... 136
ACKNOWLEDGEMENTS......................................................................................................................... 137
KEY RESOURCES..................................................................................................................................... 140
ENDNOTES.............................................................................................................................................. 145
WORKS CITED......................................................................................................................................... 164

FOREWORD
Five years ago, Beacon Press published Queer (In)Justice: The Criminalization of LGBT People, a book which provided a
comprehensive examination LGBT people in the criminal legal system. Now, this report, Unjust, makes a critical contribution
to our collective understanding of the wide-ranging impacts of criminalization and mass incarceration. Unjust collects the
latest research highlighting the experiences of LGBTQ people within the criminal legal and immigration detention systems,
describes cutting-edge programs, and makes urgent recommendations for change.

This report pulls together documentation by grassroots groups, national studies, and academic research to unearth and
examine evidence of ongoing and pervasive discrimination against LGBTQ people throughout the criminal legal system,
from entry to exit. It also highlights the latest chapters in the long history of LGBTQ people’s resistance to criminalization,
turning a spotlight on both individual experiences and collective organizing campaigns.
In reading this report, two principles are essential to keep in mind, both of which draw directly on decades of work
done by the organizations highlighted in the Historical Context sidebar on the next page. First, it is beyond dispute that the
story of criminalization and mass incarceration in the United States is overwhelmingly one targeting Black people, people
of color, immigrants, people labeled with mental illness or addiction, and low-income people—including the LGBTQ people
who share these identities or characteristics. The reality is, as much of the research cited within this report confirms, that
LGBTQ youth and people of color, transgender and gender nonconforming people, and low-income and homeless LGBTQ
people make up the overwhelming majority of the individuals whose experiences animate these pages.

The second core principle is alluded to in the report’s conclusion: that the system is not necessarily broken at all, but rather
working exactly as it is intended to. Put another way, policing and punishment along the axes of race, poverty, ability, gender
and sexuality are intrinsic to the operation of the criminal legal system at every stage, and have been throughout its history.
Of course, this understanding should not keep us from working to reduce the harms worked by the system on individual lives
and communities, for instance by advancing the recommendations of this report. But it should give us pause, and urge us to
confront the reality that the criminal legal system is in many instances structured to produce violence and punishment rather
than to afford protection and safety for people of color and low-income people, including LGBTQ people.
This report comes at a time of unprecedented attention to the impacts of mass incarceration in the United States. It
also comes at a time of unprecedented opportunity, as reflected by bipartisan efforts to reform key aspects of the criminal
legal system and by the May 2015 report of the President’s Task Force on 21st Century Policing, which recommended
several measures that would specifically address LGBTQ experiences of profiling and discriminatory treatment.
The hope is that this comprehensive examination of LGBTQ experiences from first contact with police through re-entry
can both inform larger conversations about criminalization of the broader communities LGBTQ people are a part of, and
simultaneously highlight the ways in which LGBTQ people’s experiences must shift our overall strategies, goals, and outcomes.
The hope is also that this report will inspire LGBTQ advocates to deepen their engagement in and support for broader struggles
against mass incarceration, and against criminal legal responses to poverty, addiction, and mental illness. It is not enough to
advocate for non-discrimination based on sexual orientation and gender identity in the application of criminal law, or to seek
reforms specific only to LGBTQ people. It is essential to keep in view the broader harms experienced by all individuals targeted
for discriminatory enforcement of criminal laws, all who experience violence and deprivation throughout the criminal legal
system and all who face denial of opportunities upon re-entry. And it is essential to center the leadership and experiences of
LGBTQ people–and specifically LGBTQ youth, people of color and low-income people–directly impacted by criminalization
within larger efforts to radically re-envision safety and justice for all members of our communities.
Andrea J. Ritchie
Senior Soros Justice Fellow and co-author Queer (In)Justice: The Criminalization of LGBTQ People in the United States

FOREWORD

The experiences of LGBTQ people are both similar to and distinct from those of the communities they are a part of. Their
stories are inseparable from and an integral part of the larger story of race, gender, immigration, poverty, ableism and the
criminal legal system. There is a distinct danger in understanding the criminalization of LGBTQ people as a process somehow
distinct from and unrelated to these larger frameworks, affecting LGBTQ people in isolation, only through discrimination based
on sexual orientation or gender identity. Conversations around criminalization of LGBTQ people should neither be framed nor
read as an isolated, additional, or competing narrative, but rather situated in a broader systemic understanding of policing and
punishment of gender and sexuality in service of maintaining structures of power based on race, poverty, ability, and place.

The Report in Historical Context By Andrea J. Ritchie
This report draws and builds on a growing body of work documenting and analyzing the experiences of
LGBTQ in the criminal legal system. For the past two decades, grassroots groups like the Audre Lorde Project,
Community United Against Violence (CUAV), FIERCE, Queer to the Left, Queers for Economic Justice, the Sylvia
Rivera Law Project, and the Transgender Law Center led the way documenting and organizing around LGBTQ
people’s experiences with policing and punishment at the intersections of race, poverty, gender and sexuality. In
2005, drawing on the expertise of organizers on the ground across the country, Amnesty International released
Stonewalled: Police Abuse and Misconduct Against LGBT People in the United States, one of the first national reports
on the subject. And in 2009, the Equity Project released the groundbreaking Hidden InJustice: Lesbian, Gay,
Bisexual and Transgender Youth in Juvenile Courts.

FOREWORD

More recently, grassroots and national organizations from Streetwise and Safe (SAS) to Lambda Legal, BreakOUT!
to the National Coalition of Anti-Violence Programs, the Young Women’s Empowerment Project to the National
Center for Lesbian Rights, and Make the Road New York to the National Center for Transgender Equality, to
name just a few, have conducted community-based research to further reflect the experiences of LGBTQ people
in the criminal legal system. Simultaneously, a growing number of academics, service providers, government
statisticians, and policymakers have focused on these issues, providing new data and perspectives. Thanks
to this long legacy of work lifting up the lived experiences of criminalized LGBTQ people, we are in a time of
unprecedented attention to LGBTQ people’s experiences of policing, prisons, and immigration detention.
This report also comes at a time of unprecedented policy advocacy rooted in the experiences of criminalized
LGBTQ people. In 2013, over 50 LGBTQ, civil rights, racial justice, anti-violence and civil liberties organizations
came together to develop a national LGBT criminal justice advocacy agenda. These recommendations were
published in 2014 as A Roadmap for Change: Federal Policy Recommendations for Addressing the Criminalization
of LGBT People and People Living with HIV by the Center for Gender and Sexuality Law at Columbia University,
the Center for American Progress, the Center for HIV Law and Policy and Streetwise and Safe (SAS). Since then,
dozens of grassroots groups and national organizations have come together into a federal LGBTQ Criminal
Justice Working Group to advance the Roadmap recommendations.
Most importantly, this report comes at a time of unprecedented mobilization by and for LGBTQ people directly
impacted by policing and criminalization, as reflected by the Get Yr Rights Network, a national network
of organizations sharing resources and strategies to challenge the criminalization of LGBTQ youth and their
communities founded by Streetwise and Safe (SAS) and BreakOUT!, and by efforts to lift up the experiences of
Black LGBTQ people targeted for police violence through the #SayHerName and #BlackLivesMatter campaigns.
Unjust benefits from these legacies and builds on these groundbreaking efforts in this unique historical moment.
The work that informed and made this report possible remains critically necessary, and continues to merit our
attention, amplification, and resources in order to ensure that efforts to end the criminalization of LGBTQ people
and our communities is both driven by and accountable to those on the front lines of the fight.

EXECUTIVE SUMMARY
The criminal justice system in the United States is
broken. Police departments around the country are
grappling with continued incidents of profiling and
excessive force. Jails and prisons are overflowing and
disproportionately filled with people of color, lowincome people, and people struggling with mental
illness—many of whom pose little safety threat.
Meanwhile, people who were formerly incarcerated face
incredible challenges simply trying to make a living and
rebuild their lives.
Among the many population groups that pay an
especially high price for the failures of the U.S. criminal
justice system are LGBT people, including LGBT people
of color and low-income LGBT people.

enter the justice system and are disproportionately likely
to be incarcerated and face abuse once incarcerated.
Lastly, the report focuses on how LGBT people face
additional challenges in the struggle to rebuild their
lives after experiences with law enforcement—and
particularly time spent in a correctional facility.

ENTERING THE SYSTEM: Three Factors
Lead to Increased Criminalization of
LGBT People
The report looks at three factors that increase the
chances that an LGBT person will be stopped or arrested
by police and pushed into the system. These are:

•• Discrimination and stigma in society, workplaces,

2012, 7.9% of individuals in state and federal
prisons identified as lesbian, gay, or bisexual, as
did 7.1% of individuals in city and county jails.
This is approximately double the percentage of all
American adults who identify as LGBT, according to
Gallup (3.8%).a

•• Sixteen

percent of transgender and gender
non-conforming respondents to the National
Transgender Discrimination Survey indicated they
had spent time in jail or prison, with higher rates
for transgender women (21%) and lower rates for
transgender men (10%).b Comparatively, about 5%
of all American adults will spend time in jail or prison
during their lifetimes.c

•• In a 2015 survey of young people at seven juvenile

As this report makes clear, efforts to reform the
criminal justice system must address the experiences
of LGBT people, particularly LGBT people of color.
The report documents how pervasive stigma and
discrimination, discriminatory enforcement of laws,
and discriminatory policing strategies mean that LGBT
people are disproportionately likely to interact with law
enforcement and enter the criminal justice system. It also
shows how LGBT people are treated unfairly once they

Allen J. Beck et al., “Sexual Victimization in Prisons and Jails Reported by Inmates, 2011–12,”
(U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, May 2013),
2011–12, http://www.bjs.gov/content/pub/pdf/svpjri1112.pdf.
b
Jaime M. Grant et al., “Injustice at Every Turn: A Report of the National Transgender
Discrimination Survey,” Washington: National Center for Transgender Equality and National
Gay and Lesbian Task Force, 2011, http://www.thetaskforce.org/static_html/downloads/
reports/reports/ntds_full.pdf.
c
Allen J. Beck and Thomas P. Bonczar, “Lifetime Likelihood of Going to State or Federal
Prison,” (Bureau of Justice Statistics, March 6, 1997), http://www.bjs.gov/index.
cfm?ty=pbdetail&iid=1042.
d
Angela Irvine, “Time to Expand the Lens on Girls in the Juvenile Justice System,” National Council
on Crime & Delinquency, March 26, 2015, http://www.nccdglobal.org/blog/time-to-expandthe-lens-on-girls-in-the-juvenile-justice-system.
e
Nico Sifra Quintana, Josh Rosenthal, and Jeff Krehely, “On the Streets: The Federal Response to
Gay and Transgender Homeless Youth,” (Center for American Progress, June 2010), https://www.
americanprogress.org/wp-content/uploads/issues/2010/06/pdf/lgbtyouthhomelessness.pdf.
f
Lori Sexton, Valerie Jenness, and Jennifer Sumner, “Where the Margins Meet: A Demographic
Assessment of Transgender Inmates in Men’s Prisons,” University of California, Irvine, June 10,
2009,
http://ucicorrections.seweb.uci.edu/files/2013/06/A-Demographic-Assessment-ofTransgender-Inmates-in-Mens-Prisons.pdf.
a

EXECUTIVE SUMMARY

families and communities force many LGBT people
into untenable situations. LGBT young people are
often pushed out of homes and schools because
of family rejection, harsh and discriminatory school
discipline policies, and other factors—leaving
these youth to fend for themselves on the streets.
In addition, LGBT adults may be unable to make
ends meet because of discrimination in many areas
of life. For example, discrimination can make it
more difficult to earn a living, find safe shelter and
long-term housing, access affordable health care,
and meet other basic necessities. As a result, LGBT
people are at increased risk of becoming homeless
and/or relying on survival economies, which in turn
leaves LGBT people vulnerable to encounters with
law enforcement and, ultimately, criminalization. For
example, one in five (20%) of transgender people in
men’s prisons in California had been homeless just
prior to their incarceration.f

•• According to the National Inmate Survey, in 2011-

detention facilities across the country, an estimated
20% identified as LGBT or gender non-conforming,
including 40% of girls and 14% of boys.d This is over
two times the percentage of all youth who identify
as LGBT or gender non-conforming (an estimated
7-9%).e

iii

Unjust: How the Broken Criminal Justice System Fails LGBT People

ENTERING THE SYSTEM

IN THE SYSTEM

LGBT people are more frequently
incarcerated and treated harshly

EXECUTIVE SUMMARY

Disproportionate criminalization
of LGBT people

LIFE AFTER CONVICTION

LGBT people face added challenges to rebuilding lives

•• Discriminatory

enforcement of laws criminalizes
LGBT people’s lives. Discriminatory criminalization
of LGBT people happens in numerous ways. HIV
criminalization laws, for example, rely on outdated
science and are enforced based on stigma. The result is
that people living with HIV are in constant fear of being
prosecuted and jailed. In a study from prosecutions
under California’s HIV criminalization statutes, 99% of
individuals charged were ultimately convicted, and
nearly all served time in prison or jail.g In addition, state
indecency laws are enforced based on stereotypes
and disproportionately target LGBT people engaged
in consensual sex. Last but not least, drug law
enforcement disproportionately targets people of
color and low-income people, including LGBT people.

neglect, and even death. Recent years have seen
increased attention to the toll of harmful policing
strategies on communities of color, low-income
people, and LGBT people, many of whom are also
people of color and/or low-income.

IN THE SYSTEM: LGBT People Are More
Frequently Incarcerated and Treated
Harshly
Within the criminal justice system, LGBT people face
two main challenges:

•• Discrimination

in legal proceedings. When the
criminal justice system operates as it should,
people are charged, tried, and sentenced without
bias. But too frequently, LGBT people are unfairly
tried. Their sexual orientation and gender identity
are often used against them by prosecutors,
judges, and even defense attorneys. In a survey of
LGBTQ youth engaged in survival sex in New York
City, 44% reported their experience with court

•• Harmful policing strategies and tactics push LGBT

people into the criminal justice system. How police
enforce the law results in certain communities
becoming targets. Police may launch a crackdown
on “undesirable” behavior, which results in an unfair
spike in arrests of LGBT people. In a survey of LGBTQ
youth in New Orleans, 87% of youth of color had
been approached by the police.h Officers also may
use force or abuse their power during interactions
with LGBT people and people of color, in particular,
resulting in sexual and physical abuse, misconduct,

Amira Hasenbush, Ayako Miyashita, and Bianca D.M. Wilson, “HIV Criminalization in California:
Penal Implications for People Living with HIV/AIDS,” (The Williams Institute, December 2015),
http://williamsinstitute.law.ucla.edu/wp-content/uploads/HIV-Criminalization-CaliforniaDecember-2015.pdf.
BreakOUT! and the National Council on Crime & Delinquency,“We Deserve Better: A Report on Policing
in New Orleans By and For Queer and Trans Youth of Color,” 2014, http://www.youthbreakout.org/
sites/g/files/g189161/f/201410/WE%20DESERVE%20BETTER%20REPORT.pdf.

personnel as negative, including being called by
incorrect pronouns or hearing negative comments
about their gender identity or sexual orientation.i
LGBT people often do not receive adequate counsel
or representation—and they can face substantial
discrimination from juries. As a result, LGBT people
are overrepresented in juvenile justice facilities,
adult correctional facilities, and immigration
detention facilities.

United States and touch every aspect of one’s life. In
many ways, these individuals continue to be punished
for their crimes long after they have completed
their sentences. For people who already struggle
with pervasive stigma and discrimination, such as
LGBT people and people of color, a criminal record
compounds daily discrimination to create substantial
barriers to rebuilding one’s life and avoiding future
interactions with the criminal justice system. For LGBT
immigrants, regardless of immigration status, having
a criminal record can easily lead to deportation.

•• Unfair

LIFE AFTER CONVICTION: LGBT People
Face Added Challenges to Rebuilding
Their Lives
The report explores two primary post-conviction
challenges for LGBT people:

•• Lack

of support for LGBT people in probation,
parole, and re-entry programs. LGBT people often
face unique needs for support in finding housing and
jobs and accessing essential services. They experience
discrimination at high rates and frequently lack
family support, and transgender people in particular
may need additional assistance finding appropriate
health care. Rarely do probation, parole, and re-entry
programs take into consideration the discrimination
that LGBT people experience in many areas of
life, including employment, housing, and public
accommodations.

•• Having

a criminal record harms LGBT people’s
ability to support themselves and be a part of
their families and communities. The challenges for
individuals with criminal records are substantial in the

Fixing a Broken System
America’s criminal justice system is under a spotlight.
High-profile instances of police misconduct, combined
with high rates of incarceration for nonviolent offenses,
and shocking rates of recidivism for formerly incarcerated
people, have made criminal justice reform the rare issue
where there is widespread, bipartisan agreement that
change is needed. Unjust: How the Broken Criminal Justice
System Fails LGBT People documents the unique criminal
justice challenges facing LGBT people and makes the
case for changes that will create a more just system for
the LGBT population.
The report provides high-level recommendations
focused on: 1) reducing the number of LGBT people,
particularly LGBT people of color and low-income LGBT
people, who come into contact with law enforcement; 2)
improving access to justice for LGBT people and eliminating
abusive and inhumane conditions of confinement; and
3) creating an environment in which LGBT people with
criminal records can rebuild their lives and be positive
influencers of change in their communities.
As the nation continues to debate how to fix the
criminal system, it is critical to explore solutions that will
improve conditions and advance the cause of equality
for all people. That includes America’s 9 million LGBT
people who are at increased risk of having their lives and
life chances destroyed by the current system.
Meredith Dank et al., “Locked In: Interactions with the Criminal Justice and Child Welfare Systems
for LGBTQ Youth, YMSM, and YWSW Who Engage in Survival Sex,” (Urban Institute, September
2015), http://www.urban.org/sites/default/files/alfresco/publication-pdfs/2000424-LockedIn-Interactions-with-the-Criminal-Justice-and-Child-Welfare-Systems-for-LGBTQ-YouthYMSM-and-YWSW-Who-Engage-in-Survival-Sex.pdf.
j
Allen J. Beck, “Use Of Restrictive Housing In U.S. Prisons And Jails, 2011–12,” (Bureau of Justice
Statistics, October 23, 2015), http://www.bjs.gov/index.cfm?ty=pbdetail&iid=5433.
k
Allen J. Beck, “Sexual Victimization in Prisons and Jails Reported by Inmates, 2011–12 –
Supplemental Tables,” (U.S. Department of Justice, Office of Justice Programs, Bureau of Justice
Statistics, December 2014), http://www.bjs.gov/content/pub/pdf/svpjri1112_st.pdf.

EXECUTIVE SUMMARY

and inhumane treatment in jails, prisons,
and other confinement facilities. LGBT people
are frequently placed in solitary confinement, and
transgender people are regularly placed in facilities
that do not conform to their gender identity; a 2015
report found that 28% of LGB people in prison had
been placed in solitary confinement during the past
year compared to just 18% of heterosexual people in
prison.j LGBT people who are placed in confinement
facilities disproportionately encounter harsh and unsafe
treatment by staff and fellow inmates, insufficient
access to comprehensive, competent health care and
supportive services, and other challenges. Several
studies find incredibly high rates of sexual assault.
For example, 24% of transgender people in prisons
and jails reported being sexually assaulted by another
inmate compared to 2% of all inmates.k

Glossary

•• Lesbian, gay, and bisexual (LGB). The terms lesbian and gay refer to a person’s sexual orientation and
describe people who are attracted to individuals of the same sex or gender. The term bisexual also refers to
a person’s sexual orientation and describes people who can be attracted to more than one sex or gender.

•• Transgender. The term transgender is independent of sexual orientation and describes individuals whose
sex assigned at birth is different from who they know they are on the inside. At some point in their lives, many
transgender people decide they must live their lives as the gender they have always known themselves to
be, and transition to living as that gender.

•• Gender identity and gender expression. Gender identity is a person’s deeply felt inner sense of being male,
female, or along the spectrum between male and female. Gender expression refers to a person’s characteristics
and behaviors such as appearance, dress, mannerisms and speech patterns that can be described as
masculine, feminine, or something else. Note that gender identity and expression are independent of sexual
orientation, and transgender people may identify as heterosexual, gay, lesbian, or bisexual.

•• Gender non-conforming. This report uses the term gender non-conforming to describe a person who has,
or is perceived to have, gender-related characteristics and/or behaviors that do not conform to traditional or
societal expectations. Gender non-conforming women may or may not also identify as lesbian, gay, bisexual,
or transgender.

GLOSSARY

•• Intersex. The

term intersex is used to describe biological conditions in which a person is born with a
reproductive or sexual anatomy not usually associated with the typical definitions of female or male.

•• People of color. In some cases, this report uses the term people of color to refer broadly to African American or
black, Latino/a or Hispanic, Asian/Pacific Islander, Native American, and other non-white people in the United
States. This term is not meant to suggest a singular experience. Wherever possible, this report reports statistics
disaggregated by race or ethnicity. Please note that when discussing data from a particular survey, we use the
same terms used by the survey instrument (e.g., Hispanic or Latino, or American Indian or Native American).

•• Queer. The term queer is an umbrella term used by individuals to describe their sexual orientation and/or
gender identity, frequently with an understanding of their identity as fluid. Some people who identify as
gender non-conforming in some ways, but may or may not identify as transgender, may also use this term.

•• Two-Spirit. In some Native American cultures and communities, the term “Two-Spirit” refers to individuals
having a blend of female and male spirits in one person.1 Given that this term emphasizes an individual’s
gender within a community and culture, it is frequently distinguished from the LGBT identities.
Other key terms are defined as they arise throughout the text. The terms above are used frequently and
throughout this report.
Note, in general, we use the acronym LGBT to describe individuals who identify as lesbian, gay, bisexual or
transgender. In some instances, however, we add the letter “Q,” representing queer. Some people may use this
term to describe their sexual orientation and/or gender identity. When used in this report, it is because the
specific survey or individual used the term “queer.”

What is the Criminal Justice System?
This report explores the experiences of LGBT people in their encounters with the criminal justice system.
However, there isn’t a single “criminal justice system.” Rather than being one large system, the criminal justice
system in the United States—and its related facilities designed to detain people, including juvenile detention
facilities, jails, and prisons—is a patchwork of overlapping and intersecting federal, state, and local justice and
correctional systems.
Law enforcement officials—such as police, sheriffs, state police, and federal agents—enforce federal, state, and
local laws or ordinances. They work with government prosecutors to bring charges against individuals who have
violated the law. Individuals awaiting charges, who are on trial, or who are awaiting sentencing may be housed
in local city or county jails. Depending on the sentence, they may be moved to state or federal prisons, but may
also serve their sentences in a jail.
The system for young people who are charged with violating juvenile statutes is similar but separate with its
own facilities, courts, and legal advocates. And while it is not part of the criminal justice system, the immigration
system in the United States functions as a legal system in many ways, relying on immigration enforcement officers,
immigration courts and attorneys, and immigration detention facilities.
How an individual interacts with the criminal justice system depends on who they are, where they are located,
and what the potential crime or offense may be. For example:
•• A minor in most states arrested for truancy or shoplifting may be held in a local city or county jail while
awaiting charges and then appear before a juvenile court judge. Depending on the sentence, a youth may
receive community supervision or be placed in a juvenile justice facility overseen by a city, county, or state
correctional department.
•• Adults, on the other hand, may be placed in a city or county jail while awaiting charges and a trial, and then
be sentenced to either jail or state prison. In some cases, adults may serve time in a federal prison.
•• An undocumented immigrant who is arrested by police or detained by immigration officials may be held in
immigration detention while awaiting deportation proceedings, asylum applications, or other judgments.
Individuals who receive community supervision, such as probation, as well as those who are released from jail,
prison or juvenile justice facilities, may be supervised through the parole system.

vii

UNJUST:

HOW THE BROKEN CRIMINAL

viii

JUSTICE SYSTEM FAILS LGBT PEOPLE

ENTERING THE SYSTEM

IN THE SYSTEM

Disproportionate criminalization
of LGBT people

LGBT people are more frequently incarcerated
and treated harshly

LIFE AFTER CONVICTION
LGBT people face added challenges to rebuilding lives

INTRODUCTION
A gay teen is forced from his home by his parents
because of his sexual orientation and is harassed and
arrested by police for sleeping on the street. A black
transgender woman walking to the grocery store is
arrested under suspicion of prostitution just because
of her gender identity. A bisexual parolee can’t find a
home because she’s not legally protected from housing
discrimination and she also has a criminal record. A
lesbian woman in prison is assaulted by a correctional
officer. A transgender woman who is an undocumented
immigrant is placed in a men’s facility, in isolation, simply
because she is transgender.

But the experiences of LGBT people in the U.S.
criminal justice system remain largely hidden, even as the
national conversation in the United States about the need
for reform has flourished.3 Current conversations about
problems in criminal justice focus on police interactions,
profiling, and excessive force; the ballooning prison
population and conditions in confinement settings and
immigration detention facilities; and employment and
other challenges for individuals with a criminal record.
Reform efforts are currently aimed at addressing clear
racial and economic disparities in enforcement and
sentencing, as well as the ways in which mental health
care has increasingly become the responsibility of the
criminal justice system. As this report makes clear, these
reforms also must address the experiences of LGBT people,
particularly LGBT people of color impacted by both racial
and ethnic discrimination and sexual orientation and
gender identity discrimination.
This report joins a clarion call for change in the
nation’s approach to criminal justice. It outlines the
ways in which LGBT people are disproportionately and
negatively impacted by the system and provides high-

The report is divided into three sections as follows:
Entering the System: The first section explains how
pervasive stigma and discrimination, discriminatory
enforcement of laws, and discriminatory policing
strategies mean that LGBT people are disproportionately
likely to interact with law enforcement and enter the
criminal justice system. Stigma and discrimination
in society, workplaces, families, and communities
force many LGBT people into difficult situations,
such as homelessness and survival economies. This
leaves LGBT people vulnerable to over-policing and
criminalization. These problems are exacerbated
by discriminatory enforcement of the law, as LGBT
people are disproportionately likely to have their lives
criminalized. In many cases, it isn’t only an individual’s
sexual orientation or gender identity that brings them
under surveillance or at increased risk of interaction
with police, but rather the combination of being LGBT
along with other factors such as race, ethnicity, and
stereotyping by police.
In the System: Section 2 examines the ways in which
LGBT people are treated unfairly once they enter the
justice system and are disproportionately likely to be
placed in correctional or detention facilities. The section
also describes how LGBT people in these facilities are
frequently abused, disrespected, and left vulnerable
to violence. Discrimination in courts and by court staff,
prosecutors, and judges reduces the chances that
LGBT people receive adequate representation and just
treatment in the court system. And, once LGBT people
enter jails, prisons, and other confinement facilities,
including both correctional and immigration detention
facilities, their physical, mental, and emotional wellbeing is jeopardized and consistently disregarded by
correctional staff and federal, state, and local laws and
regulations. While the same could be said of many
individuals in the system, the degree to which LGBT
people are treated unjustly while in confinement is
higher than it is for many of their non-LGBT peers.
a

See page vi for a definition of these terms, which we use as an umbrella to include individuals
who may identify as lesbian, gay, bisexual, transgender, queer, gender non-conforming, and/
or Two-Spirit.

INTRODUCTION

These are the experiences of many lesbian, gay,
bisexual, and transgender (LGBT)a people across
the United States. Despite comprising an estimated
3.8% of the adult U.S. population,2 LGBT people are
overrepresented in the criminal justice system (see
infographic on page 7). They are frequently targeted by
and vulnerable to increased criminalization and abuse
by law enforcement. They regularly experience assault
and violence in correctional settings. And they face
extraordinary challenges to rebuilding their lives upon
release from the system, both because of their criminal
record and because they are LGBT.

level recommendations for policy change at the federal,
state, and local levels. It also includes profiles of initiatives
and policies that are improving the lives of LGBT people
and their interactions with the criminal justice system.
Look for the “spotlight” icon throughout the report for
these programs and initiatives.

UNJUST: HOW THE BROKEN CRIMINAL JUSTICE SYSTEM FAILS LGBT PEOPLE
2

ENTERING THE SYSTEM
Disproportionate Criminalization of LGBT people
Discrimination and stigma push LGBT adults
and youth into the criminal justice system

Discriminatory enforcement of laws
criminalizes LGBT people

Harmful policing strategies and tactics
target LGBT people

IN THE SYSTEM
LGBT People are More Frequently Incarcerated and Treated Harshly
Discrimination in legal proceedings results in
increased incarceration of LGBT people

Unfair and inhumane treatment in prisons,
jails, and detention facilities for LGBT people

LIFE AFTER CONVICTION
LGBT People Face Added Challenges to Rebuilding Lives
Lack of support in probation, parole, and
re-entry programs make it more difficult for LGBT
people to re-enter society
Impact of a criminal record limits opportunities
for LGBT individuals with records

•• According to the National Inmate Survey, in 2011-

Life After Conviction: The final section of the report
shows how LGBT people face additional challenges
in the struggle to rebuild their lives after experiences
with law enforcement—and particularly time spent
in a correctional facility. The section connects these
struggles to ongoing discrimination and barriers
facing LGBT people not only because of their criminal
records but also because they are LGBT. On the whole,
many parole, probation, and re-entry programs are
understaffed, underfunded, and focus heavily on
employment. These programs largely ignore the
wide range of challenges—and substantial barriers—
facing LGBT people when it comes to securing basic
necessities such as food and shelter and reunifying
with their families. The system also fails LGBT people, as
it does most formerly incarcerated or detained people,
when it comes to helping them access education and
steady employment. All too often, the system leaves
LGBT people struggling and vulnerable to being
arrested again, serving additional time in prison, and
never outliving a criminal record.

2012, 7.9% of individuals in state and federal
prisons identified as lesbian, gay, or bisexual, as did
7.1% of individuals in city and county jails.5 This is
approximately double the percentage of all adults in
the United States who identify as LGBT, according to
Gallup (3.8%).6

•• The National Inmate Survey also found that in 2011-2012
there were approximately 5,000 transgender adults
serving time in prisons and jails in the United States.7

•• Sixteen

percent of transgender and gender
non-conforming respondents to the National
Transgender Discrimination Survey indicated they
had spent time in jail or prison, with higher rates
for transgender women (21%) and lower rates for
transgender men (10%).8 Comparatively, about 5%
of all American adults will have spent time in prison
during their lifetimes.9

•• In a 2015 survey of young people at seven juvenile

In all, there are an estimated 9 million people in the
United States who identify as lesbian, gay, bisexual, and/
or transgender.12,b LGBT people in the United States are
diverse—one in three identify as a person of color.13 They
live throughout the United States, comprising anywhere
from 2.6% of the population in Birmingham, Alabama, to
10.0% in the District of Columbia.14
b

As noted in the glossary, all individuals have both a sexual orientation and a gender identity.
Thus it is possible for an individual to identify as transgender and not identify as lesbian, gay,
or bisexual, or to identify as both transgender and lesbian, for example.

INTRODUCTION

detention facilities across the country, an estimated
20% identified as LGBT or gender non-conforming,
including 40% of girls and 14% of boys.10 This is
more than two times the percentage of all youth
who identify as LGBT or gender non-conforming
(estimated 7-9%).11

LGBT People are Overrepresented in the
Criminal Justice System
It is estimated that one in three adults in the United
States, or more than 70 million people, have been
arrested or convicted for a serious misdemeanor or
felony.4 The criminal justice system in the United States
is broken for many people, including people of color
(see the infographics on page viii and 4-5). While similar
statistics are not available for the LGBT population,
several studies find that LGBT people are more likely to
be incarcerated than the general population, as shown
in the infographic on page 6.

THE MASSIVE AND BROKEN
CRIMINAL JUSTICE SYSTEM
IN THE UNITED STATES
TODAY, AMERICA HAS

2.2 CURRENTLY
MILLION
ADULTS
IN PRISON OR JAIL

% POPULATION
OF THE WORLD’S

BUT

IN 3
1ADULTS

% PEOPLE IN JAIL
OF THE WORLD’S

OR PRISON

HAVE BEEN ARRESTED OR CONVICTED
FOR A SERIOUS MISDEMEANOR OR FELONY

IN 35
1ADULTS

IS CURRENTLY UNDER SUPERVISION
(IN JAIL, PRISON, OR ON PROBATION OR PAROLE)

Sources: Glaze and Kaeble, “Correctional Populations in the United States, 2011”; Travis, Western, and Redburn, The Growth of Incarceration in the United States; Emsellem and Ziedenberg, “Strategies for Full Employment Through Reform of the
Criminal Justice System."

BLACK COMMUNITIES BEAR THE
BRUNT OF THE SYSTEM’S DYSFUNCTION

ARRESTED, SUSPENDED, AND STOPPED

BLACK STUDENTS ARE 3X AS LIKELY TO BE
SUSPENDED FROM SCHOOL AS WHITE
STUDENTS

72% OF ALL STOPS BY CHICAGO POLICE WERE
OF BLACK PEOPLE, WHO COMPRISE JUST
32% OF THE CITY’S POPULATION

IMPRISONED AND DETAINED
BLACK MEN ARE IMPRISONED AT 6X
THE RATE OF WHITE MEN

OF YOUTH IN THE
JUVENILE JUSTICE
SYSTEM ARE BLACK

BLACK WOMEN ARE IMPRISONED AT
2X THE RATE OF WHITE WOMEN

ONLY

OF YOUTH
NATIONWIDE
ARE BLACK

Sources: Civil Rights Data Collection, U.S. Department of Education Office for Civil Rights, “Data Snapshot: School Discipline”; ACLU of Illinois, “Stop and Frisk in Chicago"; Carson, “Prisoners in 2013"; Rovner, “Disproportionate Minority Contact in the
Juvenile Justice System."

LGBT PEOPLE ARE OVERREPRESENTED
IN THE CRIMINAL JUSTICE SYSTEM

IN THE UNITED STATES

3.8%

OF ADULTS IDENTIFY AS LGBT
9 MILLION ADULTS

OF ADULTS IN PRISONS
IDENTIFY AS LGBT

7.1%

OF ADULTS IN JAILS
IDENTIFY AS LGBT

Y
EL
IK
EL
OR
M

IN JUVENILE DETENTION FACILITIES

20%

7.9%

Y
EL
IK
EL
OR
M

IN PRISONS AND JAILS

OF YOUTH IDENTIFY AS LGBT
(COMPARED TO 7-9% OF YOUTH OVERALL WHO ARE LGBT)

Sources: Gates and Newport, “LGBT Percentage Highest in D.C., Lowest in North Dakota"; Mallory et al., “Ensuring Access to Mentoring Programs for LGBTQ Youth"; Beck et al., “Sexual Victimization in Prisons and Jails Reported by Inmates, 2011–12”;
Irvine, “Time to Expand the Lens on Girls in the Juvenile Justice System."

SECTION 1: ENTERING THE
SYSTEM: THREE FACTORS LEAD TO
INCREASED CRIMINALIZATION OF
LGBT PEOPLE

As shown in the graphic on page 6, LGBT people
also are overrepresented in the criminal justice system.
The reasons are complex, but we focus on three key
factors that increase the chances that an LGBT person
will be stopped or arrested by police and pushed into
the system: pervasive stigma and discrimination in
society; discriminatory laws and enforcement; and
discriminatory policing strategies.
Discrimination and stigma in society,
workplaces, families and communities
forces many LGBT people into
untenable situations. LGBT young
people are often pushed out of homes
and schools because of family rejection, harsh and
discriminatory school discipline policies, and other
factors—leaving these youth to fend for themselves
on the streets. In addition, LGBT adults may be
unable to make ends meet because of discrimination
in many areas of life. For example, discrimination can
make it more difficult to earn a living, find safe
shelter and long-term housing, access affordable
health care, and meet other basic necessities. As a
result, LGBT people are at increased risk of becoming
homeless and/or relying on survival economies,
which in turns leaves LGBT people vulnerable to
encounters with law enforcement and, ultimately,
criminalization.

Harmful policing strategies and tactics
push LGBT people into the criminal
justice system. How police enforce the
law results in certain communities
becoming targets. Police may launch a
crackdown on “undesirable” behavior, which results in
an unfair spike in arrests of LGBT people. Officers also
may use force or abuse their power during interactions
with LGBT people and people of color, in particular,
resulting in sexual and physical abuse, misconduct,
neglect, and even death. Recent years have seen
increased attention to the toll of harmful policing
strategies on communities of color, low-income
people, and LGBT people, many of whom are also
people of color and/or low-income.

KEY TERM: Survival Economies
Out of desperation, many populations seek to
earn money or obtain shelter or food in ways
that run them afoul of the law. Also referred to as
“underground economies,” these activities include
selling or trading sex, selling drugs or other items,
shoplifting, or theft.

SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO INCREASED CRIMINALIZATION OF LGBT PEOPLE

Lesbian, gay, bisexual and transgender (LGBT) people
face frequent, pervasive stigma and discrimination in
the United States—by individuals, institutions, and
government officials, laws, and systems.15 Recent progress
has been made for the LGBT community, particularly
as marriage is now a nationwide reality for same-sex
couples.16 By no means, however, are LGBT people
free from legal inequality, institutional and societal
discrimination, and social stigma.17 Indeed, research finds
that LGBT people are more likely to live in poverty, to
experience bouts of unemployment and lower wages, to
be refused needed health care, and to have poorer health
than non-LGBT people.18

Discriminatory enforcement of laws
criminalizes LGBT
people’s
lives.
Discriminatory criminalization of LGBT
people happens in numerous ways. HIV
criminalization laws, for example, rely on
outdated science and are enforced based on stigma.
The result is that people living with HIV are in constant
fear of being prosecuted and jailed. In addition,
indecency laws are enforced based on stereotypes and
disproportionately used to target LGBT people
engaging in consensual sex. Last but not least, drug
law enforcement disproportionately targets people of
color and low-income people, including LGBT people.

SECTION

ENTERING THE SYSTEM:

DISPROPORTIONATE CRIMINALIZATION

SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO INCREASED CRIMINALIZATION OF LGBT PEOPLE

OF LGBT PEOPLE

DISCRIMINATION & STIGMA
LGBT people are pushed into the
system by:
• Family Rejection and Negative Child
Welfare System Experiences
• Unsafe Schools and School-to-Prison
Pipeline
• Employment, Housing, and Healthcare
Discrimination
• Homelessness
• Unemployment and Poverty
• Inability to Update ID Documents
• Lack of Social Services

DISCRIMINATORY
ENFORCEMENT OF LAWS

HARMFUL POLICING
STRATEGIES & TACTICS

LGBT people disproportionately
impacted by:

LGBT people experience negative
policing strategies, including:

• HIV Criminalization Laws
• Laws Criminalizing Consensual Sex
• Drug Laws

ENTERING
THE SYSTEM

• Quality-of-Life and Zero-Tolerance
Policing
• Policing of Gender Norms
• Aggressive Enforcement of AntiProstitution Statutes
• Stop-and-Frisk
• Discrimination and Violence When
Seeking Assistance
• Abuse and Brutality

IN THE
SYSTEM

SECTION

LIFE AFTER CONVICTION

Discrimination and Stigma

18 years or
older,
42%

Before 18 years of age,
58%

The Effects of Discrimination and Stigma on
LGBT Youth
Young people in the United States are “coming out” at
younger and younger ages.19 The Williams Institute estimates that there are approximately 3.2 million young people between the ages of 8 and 18 who identify as lesbian,
gay, bisexual, transgender, or queer (LGBTQ).c,20 More than
six in 10 (61%) of these young people are girls, and 39% are
boys; more than half (52%) identify as youth of color.
Many LGBT young people struggle with receiving
the support and love they need from their families, their
schools, and their communities. When young people are
disconnected from these important sources of support,
the chances rise that they will have run-ins with law
enforcement. In fact, the Williams Institute estimates
that of the 3.2 million LGBTQ youth in the United States,
half are “at risk” of being arrested or entering juvenile
and criminal justice systems.21 Analysis of a national
population-based survey found that LGBTQ youth
were between 25% and 300% more likely than their
non-LGBTQ peers to experience some sort of official
sanction, ranging from being expelled from school, to
being stopped by police, to being arrested or convicted
as an adult or juvenile.22 Of the more than 1,100 LGBTQ
prisoners surveyed by Black and Pink, an organization
for currently and formerly incarcerated LGBTQ people, in
2015, a majority (58%) had been arrested before age 18,
as shown in Figure 1, with black and Latino/a respondents
at increased likelihood of having been arrested as youth.23
Young LGBT people face unique risks because of a
number of problems we explore in the following pages:
family rejection, family instability and poverty, negative
experiences in the child welfare system, unsafe schools,
and the school-to-prison pipeline.
In general, we use the acronym LGBT to describe individuals who identify as lesbian, gay,
bisexual, or transgender. In some instances, however, we add the letter “Q,” representing queer.
Some people may use this term to describe their sexual orientation and/or gender identity.
When used in this report, it is because the specific survey or individual used the term “queer.”

Source: Jason Lydon et al., “Coming Out of Concrete Closets: A Report on Black & Pink’s National
LGBTQ Prisoner Survey,” Black & Pink, 2015.

PROBLEM: FAMILY REJECTION
At the most basic level, young people rely on their
families for love, support, shelter, food, and other basic
necessities. Unfortunately, some LGBT youth are met
with hostility, violence, and rejection when they come
out to their families. In a survey of LGBT young people
between the ages of 13 and 17, one-quarter (26%) said
non-accepting families were the most important problem
in their lives, while non-LGBT young people listed other
top concerns such as: classes, exams, and grades; college
and career; and financial pressures.24 In a separate survey
of transgender adults, 40% said parents or other family
members had rejected them because of their gender
identity or expression. Transgender people of color,
particularly multiracial, Native American, and Latino/a
respondents, were more likely to report this experience.25
When home is no longer a safe and supportive place,
some LGBT young people make the difficult decision to
leave home. Others may be kicked out of their homes.
Many lack a support network of extended family or friends
and struggle to find a stable, consistent place to live.

SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO INCREASED CRIMINALIZATION OF LGBT PEOPLE

Stigma and discrimination in society, in
communities, and in families force many
LGBT people into untenable situations,
pushing them into interactions with law enforcement
and the criminal justice system. This section looks at
the ways in which discrimination and stigma increase
criminalization of LGBT young people and LGBT adults.

Figure 1: Age of First Arrest for Currently
Incarcerated LGBTQ People

•• According

to
the
National
Transgender
Discrimination Survey, one in five transgender
people report having experienced homelessness at
some time in their lives because of discrimination
and family rejection.26

SECTION

Figure 2: High Rates of Family Conflict for LGBT
Youth in Child Welfare System

Figure 3: LGB Youth At Higher Risk For Being
Detained as a Result of Running Away

SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO INCREASED CRIMINALIZATION OF LGBT PEOPLE

Percent of White and Latino LGBT Youth in California
Experiencing Homelessness or Living in Custodial Care
Other issues such as abuse, neglect, family
violence, drugs, or behavioral issues,
58%
Family rejection,
42%

38%
28%
17%
12%

Boys

Girls

LGB

Heterosexual

Source: Angela Irvine, “LGBT Kids in the Prison Pipeline,” The Public Intellectual, May 2, 2011.

Source: Caitlin Ryan and Rafael Diaz, “Family Responses as a Source of Risk & Resiliency for
LGBT Youth,” paper presented at the Child Welfare League of America Preconference Institute,
Washington, DC, February 2005.

•• In

a study of Seattle young people ages 13 to 21
without a stable place to live, LGBT young people were
statistically more likely than their non-LGBT peers in
the same situation to report leaving home because of
abuse. Fourteen percent of the LGBT youth left home
because of conflicts with parents about their sexual
orientation or gender identity.27

“identified lack of parental support as a ‘very serious’
or ‘somewhat serious’ problem” for LGBT youth
already involved in the system.30
LGBT young people at risk of homelessness face
substantial challenges, including risks to their physical
safety and emotional and mental health.d Engaging in
shoplifting, trading sex, selling drugs, or other illegal
activities as a way to survive increases the chances that
young people may be stopped and arrested, and enter
the juvenile justice system.e

•• As shown in Figure 3, in a survey of youth in the juvenile
justice system, 28% of gay and bisexual boys had
been detained for running away compared to 12%
of heterosexual-identified boys.31 The percentage
of girls reporting being detained for running away
was even higher—38% of lesbian and bisexual girls
compared to 17% of heterosexual-identified girls.

•• In a study of white and Latino/a LGBT young people
in California, more than four in 10 (42%) of those
experiencing homelessness or living in custodial
care (e.g., on the streets or in foster care or juvenile
detention facilities) reported family rejection as the
reason for leaving home, as shown in Figure 2.28

•• According to a survey of service providers working
with young people who are homeless or at risk of
homelessness, two-thirds (67%) indicated that
the primary reason transgender young people
were homeless was family rejection—either being
forced out or running away. Fifty-five percent (55%)
of service providers cited family rejection as the
leading reason for homelessness among lesbian,
gay, bisexual, and queer-identified youth.29

•• In
SECTION

Percent of Youth in Juvenile Justice System Reporting
Being Detained for Running Away

a 2009 study of professionals working in the
juvenile justice system, more than 90% of staff

Of course, not all LGBT young people who are
experiencing family rejection and other problems at
home try to move out. Many remain at home but find
ways to avoid conflict, harsh treatment, and rejection.
Some hide their LGBT identities. Others spend as much
time elsewhere as possible. Young people in urban areas
may hang out in public parks, at local LGBT community
centers, or in neighborhoods that are perceived to be
more welcoming of LGBT people. Spending time on the
street or in public parks, however, can put these young
See pages 16-18 for a detailed discussion of homeless LGBT youth and their risk for
criminalization.
See pages page 44 for more about how discrimination results in increased criminalization.

Story: Fleeing Abuse at Home, Pushed onto
the Streets

Excerpted from Katayoon Majd, Jody Marksamer, and Carolyn Reyes, “Hidden Injustice:
Lesbian, Gay, Bisexual and Transgender Youth in Juvenile Courts,” Legal Services for Children,
National Juvenile Defender Center, and National Center for Lesbian Rights, October 16, 2009.

people at increased risk for being stopped and arrested
by police. LGBT youth of color and transgender youth are
at particular risk due to heightened visibility.

PROBLEM: FAMILY INSTABILITY
AND POVERTY
As families across the United States struggle to make
ends meet and provide stability for their children, youth
may feel the consequences. Some youth in struggling
families, including many LGBT youth, may find
themselves without a home and be pushed into unsafe
living situations such as on the streets or in shelters.32
Low and stagnant wages, high poverty rates, chronic
unemployment, and high costs for housing, childcare,
and other necessities leave many families stretched.
One in five children (21.1%) under the age of 18 in the
United States in 2014 was living in poverty, as shown in
Figure 4 on the next page.33 Adding to the challenges,
high rates of incarceration in the United States mean
that some families must rely on a single earner or
networks of support to provide basic necessities. Racial
and ethnic discrimination mean that communities of
color are particularly vulnerable. When some youth
reach a certain age, they may be told they are “on their
own” and need to find ways to provide for themselves.
For some families that struggle with economic
insecurity and housing instability, older youth may be

The Family Acceptance Project (FAP) is a research,
intervention, education and policy project that helps
diverse families to support their LGBT children, to
prevent health risks and promote well-being in the
context of their families, cultures and faith communities.
FAP conducted compelling research with LGBT
youth, young adults and families, which found that
how families respond to their LGBT children—with
specific rejecting and accepting behaviors—has a
compelling relationship with serious health risks and
well-being in young adulthood. For example, youth
who reported high levels of family rejection during
adolescence were more than three times as likely to
use illegal drugs and more than eight times as likely to
attempt suicide compared with those who reported
no or low levels of family rejection. Similarly, higher
levels of family acceptance protect against risk and are
related to higher levels of self-esteem, social support,
life satisfaction and better overall health.
FAP has developed the first evidence-based family
support approach to help ethnically and religiously
diverse families to support their LGBT children
and provides training on this model for families,
healthcare providers, religious leaders, child welfare
agencies, schools, juvenile justice and homeless
services, congregations and communities. FAP has
also produced research-based family educational
materials, videos and assessment resources to increase
family acceptance and support, including multilingual
family education booklets that are “Best Practices” for
suicide prevention for LGBT youth and young adults.
These resources are crucial in helping diverse youth
and families build strong, healthy relationships,
reduce the risks to young people associated with
family rejection and promote well-being associated
with family acceptance and support.

SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO INCREASED CRIMINALIZATION OF LGBT PEOPLE

When he was five years old, George’s father abandoned him, leaving him in the care of an abusive aunt
and uncle. For years, George endured the beatings
and verbal abuse of family, whom he describes as “the
monsters waiting for me at home,” because he is gay.
He thought of school as his sanctuary until a teacher
sexually assaulted him. At age 14, determined to find
new meaning and a new home, he fled to Hollywood,
where he lived on the streets and worked as a prostitute to survive. After two years, he was arrested and
placed in an LGBT group home, where he felt like he
was given a second chance.

Helping Families Support Their
LGBT Children: The Family
Acceptance Project

SECTION

Figure 4: More Than 15 Million Children Grow Up in Poverty

2015 Poverty Thresholds by Family Configuration

SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO INCREASED CRIMINALIZATION OF LGBT PEOPLE

$24,008

SECTION

21%

$19,055

$19,073

Two adults + one child

One adult + two children

$16,317

(15.5 MILLION)

OF CHILDREN

One adult + one child

Two adults + two children

LIVE IN POVERTY

Source: Carmen DeNavas-Walt and Bernadette D. Proctor, “Income and Poverty in the United States: 2014,” Current Population Reports, P60-252, Washington, DC: U.S. Census Bureau, 2015.

separated from their families as they try to find a place to
stay. Other families may include a parent who lacks legal
authorization to be in the United States. If the parent is
forced to leave the country, youth may find themselves
on their own. Domestic violence, abuse, or mental health
issues among caregivers also can make home a scary or
unsafe place to be.34

Figure 5: LGBTQ Youth Are Over-Represented
in Child Welfare System
Percent of Youth Identifying as LGBTQ
19%

Without strong safety net programs and support for
families, youth suffer the consequences.

7-9%

PROBLEM: NEGATIVE EXPERIENCES IN
THE CHILD WELFARE SYSTEM
Some LGBT young people are placed in the child
welfare system. Sometimes, this happens because
their parents are unable or unwilling to care for them.
Others are in the system because they experience
poverty, abuse, or neglect at home. And still more
are driven into the child welfare system because
of incarceration and criminalization among their
parents, particularly in communities of color. In the
District of Columbia, parental incarceration is ranked
third, behind neglect and abuse, among the reasons
for children entering the child welfare system; in 2010,
one in every six children entering foster care in the
city had an incarcerated parent.35

Of Youth in Los Angeles
County Out-of-Home Care

Of Youth in United States

Source: Bianca D.M. Wilson et al., “Sexual and Gender Minority Youth in Foster Care: Assessing
Disproportionality and Disparities in Los Angeles” (Los Angeles: The Williams Institute, 2014).

Research finds that LGBT young people are
overrepresented in the child welfare system. For
example, in a study of young people in out-of-home
care in Los Angeles County, nearly one in five (19%)
identified as LGBTQ, as shown in Figure 5.36 This rate is
approximately 1.5 to 2 times higher than the estimated
LGBTQ youth population as a whole for the area.37 A
majority of the LGBTQ youth in the study were youth
of color, and many were born outside the United

States and/or had at least one parent born outside the
United States.38 Of the LGBTQ youth in the survey, 7.5%
reported being kicked out of their homes or running
away for issues related to their sexual orientation,
gender identity, or gender expression.39

•• LGBT youth report being harassed by peers within
group settings, and they experience more rejection
and hostility from service providers and care givers.40

••
Studies

find that LGBT youth in out-of-home
placements are disciplined more frequently for sexual
conduct and “morality” offenses than their peers.41

•• Thirty-nine

percent of LGBT youth experiencing
homelessness in San Diego indicated they’d been
kicked out of their homes or child welfare placement
because of their sexual orientation.42

•• Of

LGBTQ young people in Washington State’s
juvenile justice and child welfare system, 60% said
they didn’t feel safe or comfortable disclosing their
identity to system staff.43

Young people in the child welfare system also report
high levels of exploitation and/or violence.

•• More than one-third (38%) of complaints about the
Illinois Department of Children and Family Services
catalogued by the Young Women Empowered’s
“Bad Encounter Line” were filed by transgender
youth.44 The Bad Encounter Line is a venue for girls
and women ages 12 to 23, including transgender
youth, who have current or past experience in the
sex trade and street economies, to report negative
experiences with government and social services.
As a result of mistreatment and abuse in child
welfare placements, many LGBT young people are
forced out of these settings, run away and find
themselves on the streets.

••
Service

providers working with LGBTQ youth
experiencing homelessness estimate that between
one in four and one in five of these youth have been
in foster care.45

OF LESBIAN AND GAY
YOUTH IN NYC’S FOSTER
CARE SYSTEM SPENT TIME
ON THE STREETS BECAUSE
GROUP HOME OR FOSTER
CARE WAS UNSAFE

Source: Gerald P. Mallon, We Don’t Exactly Get the Welcome Wagon: The Experiences of Gay and
Lesbian Adolescents in Child Welfare Systems (New York: Columbia University Press, 1998).

•• More than half (56%) of lesbian and gay youth in
New York City’s child welfare system indicated
they’d stayed on the streets at times because they
felt safer there than living in group or foster homes,
as shown in Figure 6.46
Once away from support structures, LGBT young
people may engage in survival economies, such as
trading sex for food, shelter, or money. They also are at
increased risk of becoming victims of violence, including
trafficking, making them more likely to come into contact
with law enforcement.47 In general, young people who
were removed from their homes and placed in out-ofhome care are between two and three times more likely
to be involved in the justice system than youth who
remain in their homes.48
Given that LGBT young people are often rejected
by their families—and many struggle with foster care
placements—LGBT youth are also at increased risk of
“aging out” of the child welfare system. This means they are
neither reunited with their families nor given a permanent
placement, but rather reach the age of independence and
are no longer cared for by the state despite lacking a formal
family support network. Youth who age out rarely have
the resources necessary to succeed on their own, let alone
access to housing, employment, or health insurance.49
This puts young people who age out of the child welfare
system at particular risk for interactions with the criminal
justice system. Of all children who were involved in Illinois’
child welfare system between 1990 and 2003 and were at
least age 18 in 2005, those placed in foster care were two to
three times as likely to have been arrested, convicted, and
imprisoned as youth who remained with their families.50 A
2010 study found that youth aging out of foster care were
more likely than their peers to be arrested, but were no
more likely to have actually committed an offense.51

SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO INCREASED CRIMINALIZATION OF LGBT PEOPLE

The U.S. child welfare system faces welldocumented deficiencies in caring for all children, and
LGBT young people face their own special challenges
in the system. Specifically, LGBT youth in the child
welfare system face a lack of support and increased
risk to their physical safety as well as higher risk of
interaction with law enforcement.

Figure 6: Staying on Streets Because Foster Care is Unsafe

SECTION

Story: From Child Welfare System to the Streets to College: Kristopher Sharp’s Journey

SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO INCREASED CRIMINALIZATION OF LGBT PEOPLE

I was homeless, forgotten, abandoned and alone. A product of the Texas foster care system, I had no
one.
My life was reduced to two pairs of clothes, a well-worn backpack, and the streets. By day, I begged
strangers for their change; and by night, I was turning tricks for a place to stay, a shower, a hot meal, or
whatever resources I could trade my body for.
That was my reality.
The many years I had spent growing up in foster care took away any chances I had at a normal life. I lived in over
20 different homes—sometimes moving every six to eight months—never staying in one place long enough
to create support systems, build community, or establish roots. Sometimes, I think that maybe this was for the
better, because almost all of the 20-plus homes I lived in were imbued with abuse.
By the time I was 18, I had been raped and beaten more times than I care to remember—often by the very
people the State of Texas was paying to “care” for me.
On the streets, I found out very quickly that there aren’t a lot of resources for homeless youth in Houston,
especially if you’re gay. I remember once being turned away from the Covenant House—a homeless shelter that
caters to youth—after an intake worker determined I was gay and erroneously suggested that I “probably had
AIDS” and would be a risk to other youth in the shelter.
So I learned to make do with what I had. Most nights, I would wander the streets in Montrose until someone
picked me up. Sometimes I’d get lucky and they’d let me spend the night, but more often than not, I’d be forced
to sleep on the roof of a shopping strip in the north side of Houston—no more than 10 blocks away from the
group home I was living at when I aged out of the system and into homelessness.
I spent the next six months on the streets doing this over and over again, living day-to-day, surviving through
the street economy—alone, ashamed and guilt-ridden.
One day in August of 2010, I was in downtown Houston searching for an air-conditioned space and a restroom
and ended up wandering into the University of Houston-Downtown.
That day, the course of my life changed.
Youth who age out of the foster care system in Texas are eligible to utilize a tuition waiver that covers the
complete costs of tuition and fees at state-funded institutions of higher education within the state.
It was on that fateful day in August that I found out about this waiver, and with the help of university staff I
registered for classes and applied for financial aid. I spent the majority of my first semester homeless, struggling
to keep up with my course work—but eventually, I would receive a refund check for about $2,000 that I used to
get my first apartment.
I live in that very same apartment today, and in May of this year, I will graduate from the University of HoustonDowntown with a bachelor’s degree in social work.
Reprinted from Kristopher Sharp, “My Struggle To Survive As A Homeless Youth,” The Huffington Post, April 28, 2015.

SECTION

Supporting LGBT Youth in Foster Care

Several programs at the local and state levels are setting out to address these problems.
The LGBT Sanctuary Palm Springs is trying to combat the foster care-to-prison pipeline by providing a safe,
culturally competent space for LGBT youth in foster care to grow and learn. The Sanctuary offers in-house
counseling and therapy, mentorship, and meeting groups.
Similarly, the Los Angeles LGBT Center is collaborating with the Los Angeles Department of Children and
Family Services and more than 20 community organizations on a program called RISE–Recognize Interview
Support Empower. The program helps LGBTQ children and youth in the child welfare system find safe, stable,
permanent families. By improving care and services for LGBT youth in the child welfare system, RISE makes it
less likely that these youth will end up without a home or be pushed into the criminal justice system.
The Illinois Department of Children and Families was the first child welfare agency in the United States to
develop an LGBTQ youth service policy. Released in 2009, the detailed policy was the result of conversations
beginning in 2003 among state legislators, agency administrators and psychologists, and Lambda Legal.52
The policy requires ongoing training and education about sexual orientation, gender identity, and gender
expression for all staff. As part of the policy, the department also named LGBTQ Clinical Consultants to serve
as points of contact and resources for staff.
Under the policy guidance, youth must be served holistically, taking into account their sexual orientation and
gender identity. Youth are not to be placed with a caregiver who expresses disgust or is opposed to a youth
identifying as LGBT. Youth in foster care must have their gender identity and expression respected, including
using their chosen name and pronoun whenever possible and allowing youth to make choices about clothing,
friends, and activities to the extent possible. The guidance is also careful to point out that a young person’s
gender identity or sexual orientation should never be shared without explicit permission.

SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO INCREASED CRIMINALIZATION OF LGBT PEOPLE

As discussed on page 12-16, lack of safety and support that LGBT youth face in the foster care system leads
to increased interactions with law enforcement and the criminal justice system. Many youth “cross over”
from the child welfare system to the juvenile justice system. These youth, particularly LGBT youth, frequently
lack culturally competent foster care placements and social workers, and are vulnerable to harassment and
discrimination by staff and fellow foster youth.

SECTION

PROBLEM: INCREASED RATES OF
HOMELESSNESS

Story: Helping Youth Who Have Nowhere Else
to Turn: El Rescate in Chicago

SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO INCREASED CRIMINALIZATION OF LGBT PEOPLE

LGBT young adults are greatly overrepresented in
the homeless population.

•• An

estimated 20% to 40% of youth experiencing
homelessness in the United States identify as LGBT
or believe they may be LGBT,53 compared to an
estimated 5% to 7% of youth who identify as LGBT.54

•• The

August 2015 Homeless Youth Census in the
District of Columbia found that 43% of youth
experiencing homelessness identified as LGBT.55

•• Service

providers serving youth experiencing
homelessness estimated in 2012 that LGBT youth
comprised about 40% of their clients.56 A followup survey in 2014 similarly found that LGBTQ youth
are overrepresented among youth experiencing
homelessness. Service providers reported a median
of 20% of youth identifying as gay or lesbian, 7%
as bisexual, and 2% as questioning.57 Three percent
identified as transgender and 1% identified as
genderqueer.

•• The

Crib, a shelter open every night of the year
for youth ages 18 to 24 in Chicago, estimates that
as many as 80% of its guests identify as LGBTQ or
questioning.58

A significant number of LGBT youth who are
homeless are people of color, reflecting broader trends
in the homeless population.

••
African

American and Native American young
people are overrepresented among LGBT youth
experiencing homelessness and also among the
broader homeless population.59

•• In a 2014 survey of human service providers serving
the youth homeless population, providers reported
that 31% of their LGBTQ clients identified as African
American or Black, 14% as Latino/Hispanic, 1% as
Native American, and 1% as Asian or Pacific Islander.60
A series of studies released in 2015 by the Urban
Institute and Streetwise and Safe uncovered diverse
reasons for homelessness among LGBTQ youth, including:
social and familial discrimination and rejection, family
dysfunction, family poverty, physical abuse, sexual abuse
and exploitation, and emotional and mental trauma.61

SECTION

Antonio Gray came out to his
family when he was 14. He
didn’t get along with his
mother, and her boyfriend
was violent. “I just couldn’t
take it. It was all just too
much,” Gray told NBC News
in 2014. When he was 17, he
became homeless. He moved between friends’ houses
and emergency shelters. Antonio found his way to El
Rescate, a community center in Chicago’s Humboldt
Park neighborhood for LGBTQ youth and youth living
with HIV. He lives among other youth, learning life
skills from the center’s staff and receiving assistance
with education and employment readiness.
As another resident, Mordecai Barnaby, explained,
“El Rescate embraced me by putting a roof over my
head while focusing on my goals, which include:
continuing my education and finding a stable job,
and hopefully soon, getting my own apartment.
El Rescate has supported me as a transsexual man
and has loved me as their own. They help me with
all of my life necessities, including: food, hygiene
products, bus fare, and the support I need to
become independent. I’m so thankful to live here
and be a part of El Rescate. Now, I can achieve all of
my goals and live up to all of my dreams.”
Adapted from “El Rescate Chicago,” accessed January 12, 2016; Erika L. Sánchez, “At
Chicago’s El Rescate, Homeless, LGBTQ Youth Find True ‘Home,’” NBC News, June 5, 2014.

Becoming homeless can make it extremely difficult
for young people to complete school and do well
academically and, in turn, move on to good jobs and
rewarding careers. Instead, homeless youth are at
increased risk of contact with police and being pushed
into the juvenile and criminal justice systems. Service
providers working with LGBTQ young adults experiencing
homelessness estimate that 20% of transgender youth
and 15% of LGBQ youth have experience with the juvenile
justice and/or criminal justice systems.62 And the streets

Connecting LGBT Youth to Community Service: The Lesbian, Gay, Bisexual & Transgender Center
in New York City

Through a program funded by the New York State Department of Labor, the Center partners with the Ali
Forney Center (AFC), a New York City organization providing housing and programming to homeless LGBT
youth. The program provides service learning, internship, and employment opportunities for LGBT youth–
particularly those impacted by homelessness and justice system involvement. The goal of the program is
to help youth achieve milestones on the road to employment, whether finishing a resume, applying for an
internship, or getting back to school.
The Center’s main role has been in supporting youth to create and implement service learning projects.
During 2015, youth created a video project to educate school officials on issues facing LGBT youth, including
discipline, harassment, and the school-to-prison pipeline. Young people from the Center also offered support
in a community meal and pantry program; and they presented a workshop to peers on mental health concerns
impacting their community, among many other initiatives.
Another service learning project open to all youth at the Center is called ROAR, which stands for Responsibility,
Opportunity, Action and Results. Through this three-month program, each young participant establishes
individual goals (e.g., applying to college, creating a resume, perfecting a performance piece for an audition).
Together, the students also decide on a group community service project. For example, one group chose
to focus on food and the environment. Its project involved creating an informational ‘zine (self-published
magazine) that was shared in their communities. Students also volunteered for a day at the New Alternatives
soup kitchen, a drop-in program for homeless LGBT youth. It was a powerful experience for the Center’s youth
leaders, some of whom receive services at the program themselves, and some of whom came face-to-face
with peers and friends.
The Center has also been working for six years within New York City’s foster care system to increase the system’s
cultural competency when caring for LGBTQ-youth. Specifically, the Center has been able to provide technical
assistance in cases involving LGBT foster youth struggling with acceptance from parents or guardians, as well
as offering training to foster care agencies to ensure that they are effectively meeting the support needs of
LGBTQ youth in care.

SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO INCREASED CRIMINALIZATION OF LGBT PEOPLE

The Lesbian, Gay, Bisexual & Transgender Community Center in New York City is in a unique position to provide
support and services for LGBT youth, many of whom have experienced homelessness and/or involvement with
law enforcement and the juvenile justice system. The Center’s many programs for youth focus on building
skills and leadership. With approximately 10% of youth who participate in the Center’s programs having had
some interaction with the juvenile or criminal justice system, several of its programs aim to address the unique
challenges these youth face.

Adapted with permission from Glennda Testone, Executive Director, The Lesbian, Gay, Bisexual & Transgender Center, New York City

SECTION

SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO INCREASED CRIMINALIZATION OF LGBT PEOPLE

are frequently unsafe for LGBT youth. It is estimated that
LGBT youth on the streets are more than seven times
more likely to experience sexual violence that nonLGBT youth experiencing homelessness.63 But LGBTQ
homeless young people don’t always avail themselves of
shelters and other resources out of fear of discrimination.
Research finds that homeless shelters can be difficult
places for LGBT young people and adults. Some LGBT
youth worry that shelter staff will contact the local child
and family services office and try to reconnect them with
their families, who may be openly hostile about a young
person’s sexual orientation or gender identity.64

PROBLEM: UNSAFE SCHOOLS
In
addition
to
encountering
challenging
environments at home, LGBT students, including LGBT
students of color, are more likely to report an unsafe
environment at school and have little means to address
it. Many of these students experience bullying and
harassment, a lack of supportive services, and the use
of zero-tolerance discipline strategies that push LGBT
youth into the juvenile justice system.

•• The

2013 National School Climate Survey found
that more than half of LGBT middle and high school
students (56%) reported feeling unsafe at school
because of their sexual orientation, and four in ten
students (39%) felt unsafe because of how they
expressed their gender (see Figure 7).65 The same
survey found that LGBT youth of color reported higher
rates of harassment and violence because of their
race and ethnicity compared to white LGBT youth.
Multiracial LGBT students reported higher rates of
physical harassment based on sexual orientation and
gender expression than all other LGBT students.

•• A

2012 survey of LGBT youth conducted by the
Human Rights Campaign found that LGBT Latino/a
youth were twice as likely as non-LGBT Latino/a
youth to report being excluded by peers, verbally
harassed, or physically assaulted at school.66

•• In a longitudinal survey of 4,200 students in Alabama,

SECTION

Texas, and California that began when the students
entered fifth grade and concluded when they finished
tenth grade, students who identified as lesbian, gay,
or bisexual were 91% more likely to be bullied and
46% more likely to be victimized compared to their
heterosexual peers, as shown in Figure 8.67

Figure 7: LGBT Students Report Feeling Unsafe at School
Percent of LGBT Youth Reporting Feeling Unsafe Because of Their…

56%

39%

Sexual Orientation

Gender Identity or Expression

Source: Joseph G. Kosciw et al., “The 2013 National School Climate Survey: The Experiences of
Lesbian, Gay, Bisexual and Transgender Youth in Our Nation’s Schools” (New York: GLSEN, 2014).

Figure 8: LGB Students at High Risk for Bullying
and Victimization
Over five years, LGB youth were:

91%

MORE LIKELY
TO BE BULLIED

46%

MORE LIKELY
TO BE VICTIMIZED

THAN THEIR HETEROSEXUAL PEERS
Source: Mark A. Schuster et al., “A Longitudinal Study of Bullying of Sexual-Minority Youth,” New
England Journal of Medicine 372, no. 19 (May 7, 2015): 1872–74.

“Gay-straight alliances,” “gender-sexuality alliances”
(GSAs), and other groups for LGBT students and teachers
and their supporters have been shown to improve the
academic and social experiences of LGBT students in
schools, in part by reducing harassment and bullying.
Yet amid budget cuts and a lack of institutional support
at many schools, only 50% of LGBT youth report having
a school organization, such as a GSA, that is focused on
issues affecting LGBT students.68
Some LGBT students who are bullied or harassed
at school receive little support or recourse through
school officials. Ultimately, LGBT youth may be forced
to defend themselves.69

•• According

to the 2013 National School Climate
Survey, 3% of LGBT students said they didn’t report
bullying because they thought school personnel
wouldn’t help and that staff were hostile toward
LGBT students.70 One percent of students feared they
would be disciplined if they reported an incident.
data finds that youth who identify as lesbian, gay,
bisexual, or aren’t sure—together with those who
reported only same-sex sexual contact—were more
likely to carry a weapon, gun, or be in a physical fight
than non-LGBQ youth.71

Compared to other students who experience
bullying at school, LGBT young people who are bullied
and harassed at school often experience more severe
consequences, including school discipline, risk of
substance use, mental health challenges, missed
school, thoughts of suicide, and lower aspirations to
attend college.72

•• In

the 2013 National School Climate Survey, 3.4%
of LGBT youth said they did not plan to graduate
high school or were unsure if they would graduate.73
When asked why, a majority of these students (57%)
named hostile or unsupportive school environments
as the reason why they felt they had to leave school.
One-fifth (20%) of students planning to drop out
reported having mental health concerns.

••
Service

providers working with LGBTQ youth
experiencing homelessness estimated that virtually
all LGBTQ youth they see have experienced
harassment and bullying; the numbers were 90%
for transgender youth and 70% for LGBQ youth.74
The providers also estimated that 20% of homeless
transgender youth and 12% of homeless LGBQ youth
had dropped out of high school.75

When LGBT young people miss school, or drop out
entirely, they are at increased risk for interaction with law
enforcement. In some states, “failure to attend school,” or
truancy, is a criminal charge, as it is in Texas, where it can
be accompanied by a $500 fine.76
What’s more, when young people don’t complete
their educations, they are also at increased risk for
entering the criminal justice system. The reason: limited
employment opportunities and increased likelihood
of engaging in survival or underground economies.
Among young adults ages 16 to 24, those without a
high school diploma were 63 times more likely to be in

LGBT young people also face barriers accessing
mentoring programs designed to help youth. For
example, LGBT youth are less likely to have access to LGBT
mentors and may feel unsafe coming out to non-LGBT
mentors, particularly if they have experienced negative
reactions from family and friends when disclosing their
sexual orientation or gender identity. Additionally, many
mentoring programs are religiously affiliated, and some
may discourage youth from coming out because of their
stance on LGBT people. Most mentoring programs lack
clear policies addressing and preventing discrimination
based on sexual orientation and gender identity.78

KEY TERM: School-to-Prison Pipeline
Harsh school policies and an increased role for
law enforcement in schools create a “school-toprison pipeline.” The problem: punitive measures
such as suspensions, expulsions, and school-based
arrests are increasingly used to deal with student
misbehavior, and huge numbers of youth are
pushed out of school and into prisons and jails.

SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO INCREASED CRIMINALIZATION OF LGBT PEOPLE

•• Analysis of Youth Risk Behavior Surveillance System

a correctional facility compared to those with college
degrees, according to an analysis of young adults in
correctional facilities in 2006 and 2007.77

SECTION

SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO INCREASED CRIMINALIZATION OF LGBT PEOPLE

SECTION

The Legal Landscape for LGBT Students
A variety of federal laws prohibit discrimination in education based on race, color, national origin, language, sex,
religion, and disability.79 Federal law, however, does not explicitly protect LGBT students from discrimination
based on sexual orientation or gender identity/expression. Recent guidance from the Department of Education
makes clear that Title IX’s prohibition on sex discrimination in education includes a prohibition on discrimination
based on gender identity or failure to conform to gender stereotypes. As a result, the Department of Education is
now investigating claims of discrimination based on gender identity occurring in public schools and universities.
Some universities, however, are claiming religious exemptions from these protections.
In addition, no federal law explicitly prohibits bullying of LGBT students. The vast majority of states also lack laws
protecting LGBT students from discrimination and bullying.80 As shown in Figure 9, only 12 states and the District
of Columbia have passed state nondiscrimination laws protecting students from discrimination based on sexual
orientation and gender identity; another state, Wisconsin, has such a law covering only sexual orientation. In
addition, only 19 states and the District of Columbia have laws prohibiting bullying in school based on sexual
orientation or gender identity; and five states and the District of Columbia include protections based on
association with someone who may be LGBT (such as a student who has LGBT parents).
Figure 9: Safe School Laws By State
School Nondiscrimination Laws

Anti-Bullying Laws
WA

WA
NH
MT

VT*

OR
ID

UT
CA*

PA
IL

CO
KS

NJ
WV

CA*

IL*

Law prohibits discrimination in schools based on sexual orientation
and gender identity (12 states + D.C.)
Law prohibits discrimination in schools based on sexual orientation
only (1 state)
* Law prohibits discrimination in schools based on association with
someone with a listed characteristic (2 states)
No law protecting LGBT students (33 states)

VA
NC*

DE
MD
DC*

SC
AL

LA
FL

FL
HI

NJ
WV

MS
AK

CT*

RI
PA

CO
KS

AR
AL

SD
WY

MS
AK

VT*

ND
MN

MI
IA

Law prohibits bullying based on sexual orientation and gender
identity (19 states + D.C.)
Law prohibits bullying based on sexual orientation only (0 states)
* Law prohibits bullying based on association with someone with a
listed characteristic (5 states + D.C.)
No law protecting LGBT students (24 states)

Source: Movement Advancement Project, Equality Maps, current as of February 2, 2016. For updates see http://lgbtmap.org/equality-maps/safe_school_laws.

PROBLEM: SCHOOL-TO-PRISON
PIPELINE

Disproportionate Discipline Against LGBT
Students. LGBT young people are among the groups of
students who are more likely to be suspended, expelled,
or otherwise removed from school settings—often for
relatively minor offenses—and pushed into the juvenile
justice and broader correctional systems.81

•• A study published in Pediatrics found that students
who reported identifying as LGB or having same-sex
attractions were more likely to be stopped by police,
to be expelled from school, or to be arrested and
convicted as juveniles and adults.82

•• In interviews with LGBTQ and questioning youth in
Arizona, California, and Georgia, researchers found
that these youth were often punished for displaying
affection and transgressing gender norms.83 The
youth reported needing to stand up for themselves
at school against bullying and harassment and
then being labeled as aggressors, putting them at
increased risk of being disciplined or arrested.

•• More than one-quarter of LGBT students surveyed in
the 2013 National School Climate Survey said they
had been disciplined for public displays of affection
that were not disciplined among non-LGBT students.84

•• In its work in New York State, the New York Civil Liberties
Union received many complaints of transgender and
gender non-conforming youth being disciplined for
wearing clothes that were consistent with their gender
identity or for using the “wrong” restroom.85

••
Emerging

research suggests that girls are at
increased risk because of harsh school disciplinary
policies. This is particularly true of African American
girls and girls who identify as LGBT who are perceived
to be gender non-conforming in some way, such as
dressing in a more stereotypically masculine fashion,
speaking out in class, or playing sports.86

Percent of LGBTQ Young Adults Ages 18-24 Reporting Being Sent to
Detention in Middle or High school, By Race/Ethnicity
72%

69%

65%
57%

Native
American

African
American

Latino/a

All
Respondents

Source: Lambda Legal, “Protected and Served? School Security, Policing and Discipline,” accessed
January 7, 2016.

•• As discussed earlier, LGBT students are at increased
risk for truancy violations, particularly because
LGBT students who are bullied or harassed are more
likely to skip school than those who are not.87 When
students are suspended or expelled from school,
they fall behind in their academic studies, further
jeopardizing their long-term future.88
Transgender youth and LGBT youth who are African
American are at particularly high risk of disciplinary
actions in school.

•• The 2013 National School Climate Survey revealed
that transgender students were more likely to have
experienced school disciplinary actions, including
detention, suspension, or expulsion, than nontransgender LGB students.89

•• In a 2012 national survey of LGBT people ages 1824, 72% of Native American LGBT youth, 69% of
African American LGBT youth, and 65% of Latino/a
LGBT youth had been sent to detention in middle or
high school, as shown in Figure 10.90 Nearly one-third
(31%) of African American LGBT youth reported being
suspended compared to 20% of LGBT youth overall.
More than three-quarters (79%) of LGBT youth of
color reported that they interacted with security or
law enforcement in their middle or high school years,
compared to 63% of white LGBT young people.91
These findings about LGBT students mirror research
about the disproportionate impact of disciplinary
policies on students of color and students with

SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO INCREASED CRIMINALIZATION OF LGBT PEOPLE

Not only do LGBT young people frequently contend
with unsafe school environments, they also face punitive
disciplinary systems that frequently push students into
the school-to-prison pipeline. LGBT students are at risk
for entry into the school-to-prison pipeline because of
three key factors: disproportionate discipline of LGBT
students; an increased police presence in schools; and
the advent of zero-tolerance policies in schools.

Figure 10: LGBT Youth of Color More Likely to
be Disciplined at School

SECTION

SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO INCREASED CRIMINALIZATION OF LGBT PEOPLE

SECTION

disabilities. For example, research finds that black,
American Indian, and Native-Alaskan students are
subject to more disciplinary action than white students
even when controlling for the type of offense.92 Black
students are three times more likely to be suspended
than their white peers.93 Students with disabilities are
also disproportionately affected by school disciplinary
policies. For example, in 2009-2010, two in ten high school
students with a disability had been suspended compared
to fewer than one in ten students without a disability.94
Increased police presence in schools. Many
students in the United States, particularly students of
color, attend schools that utilize metal detectors and have
substantial police presence.95 Particularly for students of
color and other students who are already at risk of being
stopped by police or arrested, including LGBT students
and students with disabilities, increased security and
police presence can turn school from a place of safety
and learning to a place where students feel unsafe and
on edge. More than two-thirds of LGBTQ youth 18 to 24
years of age responding to a survey by Lambda Legal
stated they had school security or school police in their
middle and high schools.96 This increased presence, in
turn, can have a significant impact on learning outcomes
as well as emotional well-being.97 Students report that
heavily secured schools make them feel untrustworthy
and that any misstep will be treated as a crime.98
As school budgets have tightened, funding
for support staff—including school counselors,
psychologists, and other behavioral staff—has been cut,
making it more difficult for teachers, principals, and other
school staff to adequately address social and behavioral
issues. These cuts, combined with increased police
presence, mean that routine classroom management
and minor disciplinary issues quickly escalate and result
in more students being referred to the police.99
Zero-tolerance policies. In the early 1990s, schools
began adopting “zero-tolerance” policies toward school
infractions. This means that student offenses, even
for minor code violations such as smoking, fighting,
or disrupting a classroom, often result in suspension,
escalating to expulsion.100 Research finds that these
policies fail to improve school safety or to create positive
learning environments, and they actually make schools
and communities less safe.101 These policies can also
push students out of the classroom rather than empower
students, teachers, and staff to engage in conflict
resolution and mediation.

Story: Unsafe Zone
A 19-year-old, bisexual Latino boy was asked by an
interviewer, “Were you ever stopped and frisked?” He
responded:
About three times like in front of my old school. I
would stand across the street and the [police] car
would just come by and they’d be like, “freeze,” and
we weren’t doing anything, we were just standing
across the street from the school. And they would
like throw my [skate] board to the side to make sure I
didn’t like hit them or anything. And then they would
just pat me down all types of stuff. One time it was
like really crazy. A guy like grabbed my penis and
it was just like I don’t know. I feel like it got worse,
you’re stopped and frisked... it just got worse.
Excerpted from Meredith Dank et al., “Locked In: Interactions with the Criminal Justice
and Child Welfare Systems for LGBTQ Youth, YMSM, and YWSW Who Engage in Survival
Sex” (Urban Institute, September 2015).

Partners in Safety: Improving Denver Public Schools

Through advocacy and collaboration, Padres & Jóvenes Unidos and the Advancement Project pushed Denver
Public Schools administration and the Denver Police Department to rewrite the “intergovernmental agreement”
that sets out how police officers operate within schools. Youth were actively involved in the negotiations
around the agreement. Tori Ortiz, a youth leader, explained, “I have had friends get suspended and ticketed for
minor offenses, and I saw how that affected them as students and took away from their potential. It put them
on the wrong track, and I recognized this. And I wanted to find out what I could do to change it. As students,
we researched best practices for [these agreements] from around the country and proposed our solutions to
Denver Public Schools and the Denver Police Department.”103
Under the agreement, police officers in schools, frequently called “school resource officers,” must differentiate
between disciplinary issues and criminal behavior and work to de-escalate school-based incidents whenever
possible. These officers also should work with the district to use restorative justice approaches that minimize
the use of law enforcement and prioritize youth taking responsibility for their actions, with a focus on working
to improve relationships between youth and their communities.
As Denver Police Department Chief Robert White explained after the agreement was signed, “We have, as the
police, no desire to be disciplinarians. That’s not our job. That’s the parents’ job, that’s the schools’ job. Our job
is to deal with serious violations of the law and that’s what we’re going to do.”104
The long-term partnership and advocacy of Padres & Jóvenes Unidos and the Advancement Project changed
the landscape of school discipline in Colorado. In Denver, the new agreement resulted in dramatic reductions
in harsh discipline, including a 58% reduction in out-of-school suspensions and a 57% reduction in referrals to
law enforcement for students of color.105 The success of this work in Denver resonated throughout the state,
where measures of harsh school discipline have declined across-the-board and teachers and administrators
report more autonomy in addressing disciplinary issues without involving law enforcement. From 2012 to
2013, statewide out-of-school suspensions were reduced by 10% and expulsions dropped by 25%.106

SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO INCREASED CRIMINALIZATION OF LGBT PEOPLE

Padres & Jóvenes Unidos, a multi-issue community organization in Denver, began working on school-toprison pipeline issues in 2000, when parents expressed concern about the disciplinary policies impacting
their middle school students, primarily Latino and black youth. In 2008, the organization partnered with the
Advancement Project to push for school reforms to dismantle the school-to-prison pipeline in Denver Public
Schools. In 2011, it released a research report that included a school scorecard showing how each school was
doing in implementing reforms passed in 2008.102 Overall, schools did poorly, and were referring more, rather
than fewer, students of color to police.

SECTION

SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO INCREASED CRIMINALIZATION OF LGBT PEOPLE

Building Safe Schools Without Pushing Youth Out: #GSAs4Justice

In 2014, the GSA Network launched the #GSAs4Justice campaign. The goal is to empower youth to urge school
districts to adopt restorative justice policies that focus on rehabilitation of offenders through reconciliation
with survivors and communities. Compared to the traditional juvenile justice system, restorative justice allows
individuals to take responsibility for their actions while simultaneously dismantling the school-to-prison
pipeline by keeping youth in schools. The campaign was launched in conjunction with a toolkit for educators
and several resources for youth to advocate against criminalization and to keep youth in schools. The campaign
recognizes that LGBT youth, including youth of color, immigrant youth, and youth with disabilities, are at
greatest risk for being pushed out of school and into the juvenile and criminal justice systems.
As part of this effort, the GSA Network has worked with youth around the country to highlight the needs of
LGBT youth, particularly LGBT youth of color. In Wisconsin, GSAFE, an organization focused on creating schools
where LGBTQ and all youth can thrive, created a “GSAs for Justice” curriculum in two high schools examining
the impact of discrimination on communities. In a partnership with the Madison Metropolitan School District,
GSAFE, and the University of Wisconsin, it offers a “Foundations of Leadership” program that empowers LGBT
high school students, particularly students of color, to become active partners in creating more safe and fair
learning environments for LGBT students and students of color. The four-year program meets weekly and is
designed to allow students to attend even if they have disciplinary issues at school.
A related effort is a partnership between the GSA Network and the Youth Empowerment Project of New
Orleans. LGBTQ youth in that city who have been pushed out of school and are in “alternative school settings”
can participate in a “GSA for Justice” programming.

Revising School Disciplinary Codes to Break Down the School-to-Prison Pipeline
Many school districts are taking the initiative to revise school disciplinary codes to reduce the number of youth
pushed out of school and into the juvenile justice system.
•• Baltimore reduced its dropout rate by more than half in just a few years after it revised the school discipline
code to prevent suspensions for minor offenses, added school counselors and after-school programs, and
instituted a range of academic interventions.107
•• Colorado reduced out-of-school suspensions by 10% and expulsions by 25% during 2012-13—just one year
after the state enacted legislation mandating that all school districts rewrite their discipline codes to include
alternative approaches such as restorative justice programs and to eliminate automatic expulsions for all
offenses other than bringing firearms to school.108
•• Reforms at Florida’s Miami-Dade and Broward County Public Schools have cut school-based arrests by more
than half in five years and have significantly reduced suspensions.109
•• I n California, expulsions decreased 12.3% and suspensions dropped 14.1% between the 2011-12 and 2012-13
school years. This happened in the wake of district-level changes enacted throughout the state that eliminated
suspensions for young children and expulsions for all students for minor misconduct.110 In 2014 California
limited suspensions or expulsions of students for “willful defiance” or disruption of school activities.111

SECTION

•• In Los Angeles, the school district has nearly eliminated police-issued truancy tickets in the past four years
and has enacted new disciplinary policies to reduce reliance on its school police department. School officials
will now deal directly with students who deface property, fight, or get caught with tobacco on school
grounds. Suspensions in the Los Angeles Unified School District alone dropped 37.5% after the discipline
policy was revised to discourage suspension for minor offenses.

Story: Escaping the School-to-Prison Pipeline

After a while, I stopped going to school to just ignore the day-to-day stress. It pushed me more to the
streets, where I didn’t face as much judgment or as many issues. People would come up to me just to have
a conversation, but then I realized that most of those people just wanted something from me. I battled
with being in and out of school, in and out of the streets, on drugs, and doing sex work just to make sure I could
survive on a daily basis. Then it hit me that I have a life, and I have so much more potential to do a lot of things
that people said I never could, so I beat the school-to-prison pipeline stereotypes. I’m currently a college student
making big changes in myself and my community.
I am working with JASMYN*, and I am a Youth Leader. I take my position at JASMYN very seriously because
without them I wouldn’t be who I am today. I speak on different panels that deal with topics such as teens in
school living with HIV, teens in drug and substance abuse programs, and even my favorite panel where we got
to discuss what changes should be made in the school system to protect our LGBTQ youth.
Intersectionality is not invisible, and it’s not something that should be overlooked. If you feel like you are being
discriminated against, then be the voice and #SpeakUp and #SpeakOut!!

- Kourtnee Armanii Davinnie

*JASMYN, the Jacksonville Area Sexual Minority Youth Network, is an organization based in Jacksonville, Florida, that supports LGBTQ
youth ages 13-23 by providing safe space, support, leadership development, HIV prevention, and recreational activities.
Excerpted from “Power in Partnerships: Building Connections at the Intersections to End the School-to-Prison Pipeline” (Advancement Project, Equality Federation Institute, and GSA Network,
September 2015).

The Effects of Discrimination and Stigma on
LGBT Adults
LGBT people across the United States face a climate
of hostility and discrimination that makes it more difficult
to thrive emotionally, economically, and physically.
The lack of explicit nondiscrimination protections at
the federal level, as well as a patchwork of protections
across states and in cities and towns, mean that LGBT
people are left vulnerable to discrimination in many
areas of life, including employment, housing, public
accommodations, health care, credit, and more. This,
in turn, increases their chances of encounters with the
criminal justice system.
Particularly for LGBT people who are already struggling
economically, the pervasive stigma and discrimination
they experience can make it even more difficult to stay
afloat. Losing a job, being evicted, struggling to find work,
or facing a serious health crisis can push poor LGBT people
into a downward spiral of financial struggle, poverty,

homelessness and reliance on survival economies. Of
clients served by the Sylvia Rivera Law Project, which
focuses on serving intersex, transgender, and gender
non-conforming people (particularly those who are lowincome and people of color), an estimated 40% of clients
needed assistance with criminal justice issues or had
criminal justice issues arise while they were receiving
assistance (see Figure 11 on the next page).112
In the following pages, we explore some of the
unique problems facing LGBT adults and how they
contribute to an increased likelihood of criminalization.

SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO INCREASED CRIMINALIZATION OF LGBT PEOPLE

All throughout school I was known as a very smart and articulate person, but there was always a red
flag floating around my head... the fact that I am transgender. Some people aren’t as accepting to trans
men and women. I have been made fun of, bullied, run out of my school, even treated differently by
school staff. There were several times where I felt as if I wasn’t safe or felt like I wasn’t welcomed at all.

PROBLEM: EMPLOYMENT
DISCRIMINATION
LGBT people experience high rates of employment
discrimination—when looking for work and on the job.

•• Transgender people and people with LGBT-related
work or volunteer experience on their resumes

SECTION

Figure 11: Two in Five Clients Needed Assistance with
Criminal Justice Legal Issues
Of Intersex, Transgender, and Gender Non-Conforming Clients
at the Sylvia Rivera Law Project

Figure 12: Many LGBT Workers Are Denied Employment
or Unfairly Fired
Percent Reporting Being Unfairly Fired or Denied Employment

SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO INCREASED CRIMINALIZATION OF LGBT PEOPLE

Lesbian, gay and
bisexual people

SECTION

Transgender
people

Source: D. Morgan Bassichis, “‘It’s War in Here’: A Report on the Treatment of Transgender and
Intersex People in New York State Men’s Prisons,” New York: Sylvia Rivera Law Project, 2007.

are less likely to be invited for job interviews than
similarly qualified applicants.113 A study conducted
by the District of Columbia Office of Human
Rights found that employers favored less qualified
candidates over qualified transgender candidates in
nearly half (48%) of cases.114

8-17%

13-47%

Source: M. V. Lee Badgett et al., “Bias in the Workplace: Consistent Evidence of Sexual Orientation
and Gender Identity Discrimination,”The Williams Institute, June 2007.

Inclusive Job Training for Transgender
Youth: Job Corps Centers

•• While

Few culturally competent job training programs
means that lower-income LGBT people are left
unprepared for a competitive job market and lack
access to valuable vocational skills. In May 2015,
the U.S. Department of Labor released a new policy
ensuring equal access for transgender youth to
125 Job Corps Centers. The Job Corps is a federal
program that provides job training, housing, food,
medical care, and a living allowance to youth
across the country between the ages of 16 and
24. These centers serve an estimated 60,000 youth
each year and provide tangible skills that are
valued in the job market.

•• A

The new Department of Labor policy requires
program staff to use a student’s preferred name
in all situations (except paperwork that requires a
legal name) and to avoid outing transgender youth
to peers or family members without their consent.
It also makes clear that hormone medication and
other medical needs of transgender students
should be treated like other medical care that is
typically provided for students.

•• Between 8% and 17% of lesbian, gay, and bisexual
people report being unfairly fired or denied
employment because of their sexual orientation, as
do 13% to 47% of transgender workers, as shown in
Figure 12.115

•• Six in 10 LGBT workers (62%) report hearing jokes
or derogatory comments about LGBT people at
work,116 while 78% of transgender workers report being harassed, mistreated, or discriminated
against at work.117
there is evidence of a wage advantage
for lesbian women over heterosexual women,
studies conducted over the past decade show
that gay and bisexual men earn 10% to 32% less
than heterosexual men, even when controlling for
important factors like education, occupation, and
region of the country.118 Also, due to the gender pay
gap, female same-sex-couple households earn less
than opposite-sex-couple households.119
2014 resume-matching study found that men
whose resumes indicated they were gay received
lower starting salaries than those with resumes that
did not indicate they were gay.120

PROBLEM: HIGHER RATES OF
UNEMPLOYMENT AND POVERTY

Figure 13: LGBT People Report Extremely Low Incomes
Percent of Respondents Reporting Incomes Less Than $12K Per Year
LGBT

20.7%

•• Data

from the California Health Interview Survey
show that 13% of LGB people were unemployed
compared to 10% of heterosexual adults.121

•• Transgender individuals reported twice the average
national unemployment rate at the time the National
Transgender Discrimination Survey was conducted;
14% compared to 7% of the general population.122

•• LGBT people of color are at a particular disadvantage.
Recent analysis by the Williams Institute finds that LGBT
people of color have higher rates of unemployment
compared to non-LGBT people of color,123 while the
National Transgender Discrimination Survey found that
African American transgender people had substantially
higher rates of unemployment than white transgender
people (28% compared to 12%).124

Non-LGBT

17.0%

Research also finds that LGBT people are more likely
to live in poverty than their non-LGBT peers.

•• Only 29% of LGBT adults in the United States report

•• According to a 2012 Gallup survey, 20.7% of LGBT
people living alone had incomes less than $12,000—
near the poverty line—compared to 17% of nonLGBT people living alone (see Figure 13).126

Source: M. V. Lee Badgett, Laura E. Durso, and Alyssa Schneebaum, “New Patterns of Poverty in the
Lesbian, Gay, and Bisexual Community” (The Williams Institute, June 2013).

Figure 14: Transgender People Report Extreme Poverty
Percent of Respondents Reporting Incomes Less Than $10K Per Year
34%

•• A

study of transgender Americans found they are
nearly four times more likely to have a household
income under $10,000 per year than the population
as a whole (15% vs. 4%) with much higher rates for
transgender people of color, as shown in Figure 14.127
This is true despite the finding that 87% of
transgender people have completed at least some
college and 47% have obtained a college or graduate
degree—rates that are much higher than those for
the general population.

The combination of high rates of poverty and
unemployment no doubt contributes to higher rates
of incarceration and justice system interactions among

28%

18%
15%
9%
4%

All Races

Asian/Pacific
Islander

Overall

SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO INCREASED CRIMINALIZATION OF LGBT PEOPLE

For many LGBT people, employment discrimination can
result in increased economic insecurity. Several surveys have
found higher rates of unemployment among LGBT people.

that they are thriving financially, compared to 39%
of non-LGBT adults. The gap between LGBT women
and their non-LGBT counterparts is even greater (12
percentage points).125

Black

Latino/a

Transgender & Gender Non-Conforming

SECTION

Figure 15: High Rates of Unemployment for LGBTQ
Prisoners Prior to Current Incarceration

Figure 16: LGBT People High Rates of Housing Discrimination
Percent Reporting Housing Discrimination

SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO INCREASED CRIMINALIZATION OF LGBT PEOPLE

Percent Reporting Being Unemployed

36%

Source: Jason Lydon et al., “Coming Out of Concrete Closets: A Report on Black & Pink’s National
LGBTQ Prisoner Survey,” Black & Pink, 2015.

LGBT people. Lack of economic security and employment
opportunities are frequently observed among individuals
who are incarcerated. For example, individuals who are
currently incarcerated had pre-incarceration median
incomes 41% lower than similarly aged non-incarcerated
people; the median income for incarcerated adults prior
to entering prison was only $19,185. Among LGBTQidentified prisoners surveyed by Black and Pink, more
than one-third (36%) had been unemployed before being
incarcerated, as shown in Figure 15.128

PROBLEM: HOUSING DISCRIMINATION
AND HIGHER RATES OF HOMELESSNESS
LGBT people experience housing discrimination that
makes it more difficult and expensive to find housing. One
result is that LGBT people are more likely than non-LGBT
people to live in “unstable housing” or emergency shelters.
Several studies have examined housing discrimination
against LGBT people, as shown in Figure 16.

•• In a groundbreaking study commissioned by the U.S.
Department of Housing and Urban Development
(HUD) in 2013, researchers found that opposite-sex
couples were favored over same-sex couples when
applying for rental housing 16% of the time.129

•• A 2013 study focused on the housing experiences of

SECTION

older LGBT adults. It found that in 48% of the cases
studied, a same-sex spouse or couple experienced
adverse treatment compared to an opposite-sex
couple when exploring a move to an independent
living, continuing care or assisted living facility.130

48%
16% 19%
Same-Sex
Couples

Transgender
People

Seniors in SameSex Couples

Source: Samantha Friedman et al., “An Estimate of Housing Discrimination Against Same-Sex
Couples,” U.S. Department of Housing and Urban Development, Office of Policy Development
and Research, June 2013; Equal Rights Center, “Opening Doors: Investigation of Barriers to Senior
Housing for Same-Sex Couples,” 2014; Jaime M. Grant et al., “Injustice at Every Turn: A Report of the
National Transgender Discrimination Survey,” Washington: National Center for Transgender Equality
and National Gay and Lesbian Task Force, 2011.

•• The

National Transgender Discrimination Survey
found that 19% of respondents had been refused
a home or apartment because of their gender
identity/expression, and 11% had been evicted for
the same reason.131 Eviction rates were even higher
for African American transgender respondents
(37%), respondents lacking a high school degree
(33%), and undocumented immigrants (21%).

While the reasons why people end up homeless
vary, a lack of housing for LGBT people can be the result
of poverty and discrimination or mistreatment. The
safety net designed to support homeless people in this
country, LGBT and non-LGBT alike, has failed. Because
limited housing is available for people experiencing
homelessness, they often are forced to live on the
streets and rely on shelters and soup kitchens. This
limits their ability to regain financial security and often
puts them in situations where they may encounter
police and enter the criminal justice system.
There is no current estimate of the number of LGBT
adults who are homeless or at risk of homelessness,
but as of January 2013, there were more than 610,000
homeless people in the United States.132 Based on
survey findings showing high rates of homelessness
for LGBT young adults, it is likely that LGBT adults are
overrepresented among people who have experienced
homelessness. A national survey of transgender people
found that 19% had been homeless at some point, as

that of the general prison population, and 5% reported
being transient.138 In a study of incarcerated transgender
people in California, nearly half (47%) reported being
homeless at some point during their adults lives, and
over 20% had been homeless just before their most
recent incarceration.139

Unfortunately,
transgender
people
facing
homelessness also face discrimination from agencies
that should be helping them. A 2010 survey of
transgender people found that 29% of individuals who
had experienced homelessness had been turned away
from a shelter because of their transgender status; 55%
had been harassed by shelter staff or residents.135 Of
transgender people in men’s prisons in California, nearly
half (47%) reported being homeless at some point in
their lives, and 20% reported being homeless just before
their most recent incarceration.136 Transgender people
are frequently unable to stay in a shelter that matches
their gender identity as opposed to their birth sex,
making them less likely to seek shelter altogether.137

Several cities have passed ordinances making it a
crime for people who are homeless to sleep in public
places. In August 2015, the U.S. Department of Justice
argued that such prohibitions are unconstitutional,
particularly when there is insufficient shelter space.140

Individuals who experience homelessness are
particularly vulnerable to being stopped or arrested
by police and having their lives criminalized. As shown
in Figure 17, several surveys find high rates of housing
instability among incarcerated LGBTQ people. In a recent
Black and Pink survey of 1,118 LGBTQ-identified people
in prison or jail in the United States, 13% had been
homeless prior to being incarcerated, a higher rate than

If they aren’t arrested under these types of laws,
people who are homeless often are targeted for
enforcement of ordinances that criminalize sleeping
outside, loitering, or other activities in public places.
Additionally, LGBT people experiencing homelessness
may be targeted because they engage in survival
economies to try to make ends meet. This means
trading sex for shelter, money, or food; selling drugs;
or relying on shoplifting or theft as a means to obtain
basic necessities.
Between 2012 and 2013, the Urban Institute and
Streetwise and Safe interviewed hundreds of LGBTQ
young people in New York City who had participated
in survival economies, mainly young people who had
traded sex for shelter and/or food.141 As a result of their
homelessness, the young people surveyed lacked access

Figure 17: LGBT People Have High Rates of Homelessness
% of transgender people who experienced
homelessness during their lifetime

19%

% of low-income LGBT and gender non-conforming people
who had experienced homelessness during their lifetime

69%

47%

% of transgender people in men’s prisons in California
who had been homeless during their lifetime
% of transgender people in men’s prisons in California who
had been homeless just before current incarceration
% of LGBTQ people in prison or jail who had been
homeless prior to current incarceration

In general

20%

SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO INCREASED CRIMINALIZATION OF LGBT PEOPLE

shown in Figure 17.133 In a survey of low-income LGBT
and gender non-conforming people in New York, 69%
had been homeless at some point; and 58% were
currently experiencing housing instability, living in a
shelter, temporary living situation, or on the streets or
in the subway.134

13%

Of people currently incarcerated

Source: Jaime M. Grant et al., “Injustice at Every Turn: A Report of the National Transgender Discrimination Survey,”Washington: National Center for Transgender Equality and National Gay and Lesbian Task Force, 2011;
Dwayne Bibb et al., “A Fabulous Attitude: Low-Income LGBTGNC People Surviving & Thriving with Love, Shelter & Knowledge”(Welfare Warriors Research Collaborative, 2010); Lori Sexton, Valerie Jenness, and Jennifer
Sumner, “Where the Margins Meet: A Demographic Assessment of Transgender Inmates in Men’s Prisons,” University of California, Irvine, June 10, 2009; Jason Lydon et al., “Coming Out of Concrete Closets: A Report on
Black & Pink’s National LGBTQ Prisoner Survey,” Black & Pink, 2015.

SECTION

Across the United States: Homeless Services for LGBT Youth and Adults

SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO INCREASED CRIMINALIZATION OF LGBT PEOPLE

Despite a higher risk for homelessness among LGBT people, very few shelters are explicitly LGBT-inclusive or
competent when it comes to serving them. Federal law prohibits gender identity discrimination in homeless shelters
that receive federal funding, and in November 2015, the federal Department of Housing and Urban Development
(HUD) released proposed guidance for emergency shelters requiring them to house individuals based on their gender
identity.144 However, there is no federal law against discrimination on the basis of sexual orientation. In addition, less
than half of states prohibit housing discrimination on the basis of sexual orientation or gender identity. In 2015, the
Center for American Progress and the Equal Rights Center conducted telephone tests of homeless shelters in four
states and found that only 30% of shelters were willing to properly accommodate transgender women.145
A patchwork of shelters and programs specifically designed to meet the needs of LGBT people experiencing
homelessness has developed across the country, as shown in Figure X. These are all amazing programs, but they barely
total 300 spaces for LGBT, HIV-positive, and/or gender non-conforming youth and adults experiencing homelessness.
Figure 18: Map of Services
DOLORES STREET COMMUNITY SERVICES
(SAN FRANCISCO)146
A neighborhood-based organization serving San
Francisco’s homeless population, announced in
June 2015 it would be opening a new 24-person
shelter, Jazzie’s Place, specifically for LGBT and
gender non-conforming people experiencing
homelessness.

Offers emergency and transitional housing to LGBT youth ages 16 to 24. The center offers 47 emergency beds across the city
and space for 42 youth in its transitional housing programs, located in Manhattan and Brooklyn. In 2015, the Center began
offering hormone therapy to transgender youth through its medical clinic.

TRUE COLORS RESIDENCE AND TRUE COLORS BRONX (NEW YORK CITY)153
Supports a permanent living program for LGBT youth who were formerly homeless, with 30 studio apartments; residents pay
what they can based on their income.

GREEN CHIMNEYS (NEW YORK CITY)154
Operates a shared apartment program for LGBTQ youth experiencing homelessness in New York City, including life skills
programming, individual and group counseling, job skills, and substance abuse assistance.

RUTH’S HOUSE (DETROIT)149
Hosted by the Ruth Ellis Center, Ruth’s House is a
structured living program for LGBT youth ages 12 to
17. The integrated program includes counseling, job
training, mental and physical health care, and life
skills coaching.

EL RESCATE (CHICAGO)151
A transitional living program for youth
ages 18 to 24 who are LGBT and/or
HIV-positive.

THRIVE YOUTH CENTER (AUSTIN)155
Offers 13 spaces for LGBT youth experiencing
homelessness, including five private rooms
for transgender youth who may feel unsafe.

LOS ANGELES LGBT CENTER (LOS ANGELES)150

SECTION

ALI FORNEY CENTER (NEW YORK CITY)152

Hosts 24 beds for LGBT youth ages 18 to 24
experiencing homelessness. The transitional
program is designed to help youth find their feet
while developing life and job skills. It offers coaching,
support groups, and social outings. Youth can stay
for up to 18 months in the program.

WALTHAM HOUSE (BOSTON)156
Has room for 12 LGBT youth ages 14 to 18 in a
residential program. The program focuses on
mental and physical health, individual, group
and family therapy, and life-skills building.

WANDA ALSTON HOUSE (WASHINGTON DC)147
Offers housing and life skills training for the LGBTQ youth ages 16 to 24 in its residential program.

CASA DE RUBY (WASHINGTON DC)148
A community center for transgender and gender non-conforming people, announced it would
be opening a shelter for LGBT youth in 2015. The new shelter would more double the beds
specifically for LGBT youth in the city to almost 30.

to necessities and basic services, driving them to survival
economies.142 A 2013 survey of youth experiencing
homelessness in New York City found that 23% had
traded sex or something of value in order to meet basic
needs, such as a place to sleep, money for food, drugs,
clothing, or money to support their family.143

Unlike private housing, federally funded housing,
including homeless shelters, must not discriminate
on the basis of sexual orientation, gender identity, or
marital status. But many LGBT people still experience
housing discrimination in federally funded housing.
In 2013, the Department of Housing and Urban
Development created a Fair Housing App for Apple
devices. The app contains information on housing
rights and also provides a means by which to file
housing discrimination claims. In disaster situations,
the app can help people understand their housing
rights and options.

For transgender people, even those with health
insurance, needed care isn’t always covered. Most
insurance companies in the majority of states continue
to exclude coverage for transition-related care, as
shown in Figure 19 on the next page. These exclusions
deny transgender people coverage for a range of vital,
medically necessary services (including hormone
replacement therapy, mental health services, and
reconstructive surgeries) even when the same services
are covered for non-transgender people.
To afford this medically necessary care, some
transgender people purchase medication or medical
services without a prescription or from unlicensed
medical providers, putting their health at risk and
increasing their chance of being arrested.157 Others turn
to survival economies to afford the high out-of-pocket
costs of transition-related care.
In September 2015, the U.S. Department of
Health and Human Services released a proposed
rule implementing the Affordable Care Act’s
nondiscrimination provisions. The rule would prohibit
any insurer that sells plans on state or federal healthcare
exchanges or that receives Medicare or Medicaid from
denying coverage to transgender people.158

PROBLEM: INABILITY TO UPDATE
IDENTITY DOCUMENTS
Transgender people face an ongoing struggle to
obtain identity documents that match their lived gender.
Many states have requirements that make updating
documents difficult or impossible, as shown in Figure 20
on the next page. Having official, government-issued
identity documents is crucial to many aspects of everyday
life, including driving a car, paying with a credit card,
applying for a job or to school, voting, or boarding a plane.
Without access to accurate identity documents,
transgender people struggle to find employment, face
challenges accessing social services, and are at increased
risk of harassment by law enforcement (see pages 5962 for more about abuse by law enforcement). When
transgender people are stopped or detained, they are
often subject to harassment and abuse if the name and

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There’s an App for That: Understanding
Federal Housing Rights

PROBLEM: HEALTHCARE DISCRIMINATION
AGAINST TRANSGENDER PEOPLE

SECTION

Figure 19: Health Insurance Protections

Private Insurance

Medicaid

WA
NH
MT

OR
SD

WY
NE

NV
UT

CO
KS

SC
MS

RI
CT

Transgender exclusions in health insurance service coverage prohibited
(12 states + D.C.)

State Medicaid policy explicity covers health care related to gender
transition for transgender people (11 states + D.C.)

Law prohibits health insurance discrimination based on sexual
orientation and gender identity (11 states + D.C.)

State Medicaid has no explicit policy regarding transgender health
coverage and care (23 states)

Law prohibits health insurance discrimination based on sexual
orientation (0 states)

State Medicaid policy explicitly excludes transgender health coverage
and care (16 states)

No law providing LGBT inclusive insurance protections (39 states)

Source: Movement Advancement Project, Equality Maps, current as of January 10, 2016. For updates see http://lgbtmap.org/equality-maps/healthcare_laws_and_policies.

Figure 20: Identity Document Laws and Policies Across the United States
Birth Certificate

Driver’s License

WA
NH
MT

PA
IL

WI
MI
PA
IL
KS

State issues new birth certificate and does not require sex reassignment
surgery nor court order in order to change gender marker (9 states + D.C.)
State is unclear regarding surgical/clinical requirements and/or may
require a court order to change gender marker (12 states)

State requires proof of sex reassignment surgery in order to change
gender marker (23 states)
State does not allow for amending the gender marker on the birth
certificate (2 states)

DE
MD
DC

SC
AL

FL
HI

VA
NC

CT
NJ

OH
WV

DC
AZ

MA
RI

NE
UT

SC
AL

NV
CA

MN
WY

CT
DE

NJ
WV

State has unclear, unknown or unwritten policy regarding gender marker
changes (4 states)

SECTION

SC
MS

WI
MI

NJ
WV

SD
WY

MN
ID

SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO INCREASED CRIMINALIZATION OF LGBT PEOPLE

FL
HI

State accepts documentation from a broad range of licensed
professionals in order to change gender marker. Does not require sex
reassignment surgery (15 states + D.C.)
State accepts documentation from a limited range of licensed
professionals in order to change gender marker. Does not require sex
reassignment surgery (14 states)
State requires burdensome proof of clinical treatment in order to change
gender marker. Does not require sex reassignment surgery (3 states)
State has unclear, unknown or unwritten policy regarding gender marker
changes (4 states)
State requires proof of sex reassignment surgery, court order, and/or
amended birth certificate in order to change gender marker (14 states)

Source: Movement Advancement Project, Equality Maps, current as of January 10, 2016. For updates see http://lgbtmap.org/equality-maps/healthcare_laws_and_policies.

gender marker on the document they present don’t
match the name they use and their gender expression.
Additionally, law enforcement may accuse them of
committing fraud by giving a name that differs from the
one on their identification; they may even be arrested on
false impersonation charges.

•• Nearly half (48%) of low-income LGBT and gender

According
to
the
National
Transgender
Discrimination Survey, only one-fifth (21%) of
transgender people who had transitioned were able to
update all of their identification documents and records
with their new gender, and one-third did not update any
of their documents.159,f

22% of respondents had been denied equal
treatment by government agency personnel and
22% had been harassed or disrespected.166

Many vital social services that support vulnerable
populations—including individuals with physical and
mental health issues, young people, and those struggling
financially—are chronically underfunded and facing
substantial cuts by federal, state, and local governments.
This is happening despite the fact that mental
health issues are frequently present among individuals
experiencing homelessness and those in the criminal
justice system.160 For example, providers serving young
people experiencing homelessness estimate that 75%
of transgender youth and 65% of LGBQ youth have a
need for mental health care.161 Between 2009 and 2012,
for example, states cut more than $1.6 billion from state
mental health agency budgets for services including
supportive housing, treatment, crisis services, and
access to psychiatric medication.162 When mental health
services dwindle, law enforcement is frequently asked
to address situations where individuals are in crisis,
pushing more and more people with mental illnesses
into prisons and jails.163
Accessing social services, such as housing, job training
programs, or medical services, can be a special challenge
for LGBT people because of discrimination by and lack of
competency of providers and business owners.164

•• In the National Transgender Discrimination Survey,

This lack of supportive services exacerbates the
challenges facing LGBT people in need of assistance,
increasing the chances that their lives will be criminalized.

Summary: How Discrimination Leads to
Criminalization
As we have described in this section, LGBT youth and
adults face an array of unique challenges at home, in
schools, when finding employment and housing, and when
accessing social services. They also are disproportionately
affected by poverty, the frayed social safety net and a lack
of legal protections. The result is that LGBT people who
experience hardship are often left with very few options
to survive. As they are pushed out of schools, jobs, and
housing, and as they often have minimal resources and
social support to fall back on, some LGBT people become
homeless and some are forced to rely on survival economies
such as sex work or drug sales. This puts them at increased
risk of criminalization.167
f

Note that not all transgender people wish to change their identity documents, so this number
should not be interpreted as the number who wanted to update their documents but were
unable to do so.

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PROBLEM: LACK OF SOCIAL SERVICES

non-conforming people in New York City reported
discrimination by a government or county agency
when seeking public benefits, such as food or
housing assistance, and many were turned away.165

•• As noted elsewhere in this report, very few homeless
shelters specifically focus on addressing the
challenges facing LGBT young people and adults
experiencing homelessness, and shelters remain
challenging places for transgender people (see
pages 16-18 for more discussion of the challenges
facing LGBT people experiencing homelessness).

SECTION

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SECTION

Story: LGBT Youth Surviving on the Streets Speak Out
In February 2015, the Urban Institute and Streetwise and Safe released a report
examining the experiences of LGBTQ youth in New York City who engaged in survival
sex. In total, 283 youth were interviewed, sharing their experiences. The following are
some of their stories:
My father didn’t respect me for who I am because he don’t like bisexual people or gay
people so from there I came out to him and I told him and then he just kicked me out,
because he couldn’t take it. – 19 year-old bisexual Latino male
My mom kicked me out … she didn’t want me being gay, she wanted grandchildren, she didn’t like my lifestyle, she
didn’t pretty much accept it. She still loved me but she just didn’t want me being there. And plus I have a little brother
so she didn’t want me pretty much influencing him in any form or fashion. – 19 year-old black gay male
When my parents had me they was crack heads and stuff, so I eventually got taken away from them and then I was
adopted and my adoptive father was basically raping me. So I went to the cops and they told me to leave the house
and stuff like that. And then after that there was nowhere else to go because I didn’t know my real family. I just knew
all my adopted family. And I knew they wasn’t going to believe me. So I was at a friend’s house till I ran out. I couldn’t
go anywhere else. – 19 year-old Native American lesbian female
[I didn’t really think about], you know, trading sex for anything whenever I first moved here. And then whenever I got
here, I realized that it was just so popular because there were so many people in my situation that were unemployed
and they needed money and that it was just so widely, you know, it was so easy to get into. So I was a very conservative
person. I didn’t really think about doing that but times got really, really hard and I didn’t eat for about a week and I
didn’t have anywhere to stay. I was sneaking on the train and so I decided that I was going to clean myself up a little
bit. Decided to go out there and do what I have to do. – 21 year-old white transgender female
I needed the money and my friend hooked me up with a guy who she said would give me money and all I had to do is
go out with him on a date. And it turns out that wasn’t all he wanted. But he offered me $500 and I really needed the
money to pay my phone bills, and pay for school books and everything. – 18 year-old white bisexual female
Excerpted from Meredith Dank et al., “Surviving the Streets of New York: Experiences of LGBTQ, YMSM, and YWSW Youth Engaged in Survival Sex,” Urban Institute, February 2015.

Working Beyond Survival: Economic Empowerment for Transgender People

In Chicago, Angelica Ross created TransTech Social Enterprises to empower transgender and gender nonconforming people to become self-employed independent contractors in the technology industry. Technology
skills are, Ross believes, going to be increasingly in demand in our tech-savvy world. She hopes TransTech will
set its participants up for “economic improvement,” and help ease the “extreme levels of poverty, discrimination,
harassment, and violence towards the trans community, especially trans women of color.”168 TransTech offers
programs designed to help transgender people gain skills, including graphic design, web development, social
media for businesses, coding, and data entry. The organization then pairs clients seeking technology services
with trained individuals.
Ross understands firsthand the struggle of unemployment and underemployment. She was discharged
from the military when people learned she was transgender, and faced an employment environment that
was stacked against her. So she started her own business to invest in people in similar circumstances and
to create a powerful group of transgender contractors who can leverage their tech skills for good. Through
hands-on training and video tutorials, members at every skill level have the opportunity to increase their tech
competence and job prospects.

The Trans Employment Program (TEEI) is the nation’s first comprehensive city funded initiative designed to
combat rampant unemployment in transgender and gender non-conforming communities. Started in 2007,
the program currently enjoys national attention for its successful model in San Francisco/Bay Area. TEEI is a
collaborative program of the San Francisco LGBT Community Center and the Transgender Law Center.
It is designed to help members of the transgender community achieve financial self-sufficiency through
secure, stable employment in safe jobs that provide a living wage and benefits. Services include:
•• One-on-one job search coaching and workshops, including résumé development, interviewing practice,
and networking opportunities.

SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO INCREASED CRIMINALIZATION OF LGBT PEOPLE

Many transgender people face challenges when seeking employment, but recent initiatives have emerged to
empower transgender people to create economic security for themselves and their families.

•• Career Fairs with pre-screened, transgender-friendly companies and organizations committed to diversity
inclusion. Including comprehensive employer cultural competency trainings with leading national
employers.
•• Peer-based mentoring from transgender and allied professionals in the community who can share their job
experiences and networks.
•• Free legal advice that focuses on rights in the workplace and advocacy to advance public policies that
support transgender economic security.

SECTION

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SECTION

Human Trafficking and LGBT People

It is estimated that global human trafficking is a $32 billion per year industry.169 Trafficked individuals are forced,
coerced, or deceived into situations where they do work against their will, such as hard labor, agricultural
work, sex work, transporting or selling drugs, or serving as domestic workers.170 Around the world, there are an
estimated 20 million victims of human trafficking.171
The United States is widely regarded as a hub for human trafficking, with many traffickers using the United
States as a destination country. International reports estimate that 14,500 to 17,500 victims are trafficked into
the United States each year. This does not include the number of victims who are trafficked within the United
States, as those numbers are more difficult to estimate.172 Within the United States, any young person under age
18 who is induced into trading or selling sex is defined by the law to be a victim of sex trafficking, regardless of
whether they were explicitly coerced.173 This legal definition does not acknowledge the reality of many youth,
however, who may not experience coercion but may trade sex to meet economic needs.
Trafficking is a particular concern for LGBT people, particularly LGBT young adults. Traffickers use a variety of
tactics, including force, fraud, and coercion, to lure their victims and force them into labor or sexual exploitation.
Traffickers frequently look for individuals who are vulnerable for a variety of reasons, including isolation,
economic hardship, natural disasters, or political instability.174 In its 2014 report, Trafficking in Persons Reports
2014, the U.S. State Department emphasized that LGBT people can be uniquely vulnerable to trafficking because
their very identities are criminalized in many countries.175 And while identifying as LGBT isn’t itself a crime in the
United States, the climate of stigma combined with family rejection and legal discrimination means that LGBT
people in the United States are also vulnerable to trafficking.176
For example, LGBT young adults who are pushed onto the streets because of family rejection, failures of the child
welfare system to meet their needs, or unsafe schools, can find themselves in vulnerable situations where they
are coerced into trading sex. The scenario is not uncommon: a transgender teen kicked out of her home for being
transgender meets someone who offers housing, food, and clothing and eventually forces her to engage in sex work
to continue to receive support. In a survey of youth experiencing homelessness in Arizona, LGBTQ young adults
who were experiencing homelessness were more likely than their heterosexual peers to experience trafficking.177
Given that individuals who are trafficked are often forced into underground economies, such as prostitution,
drug sales, or itinerant labor, they may be targets of law enforcement activities. Without proper training of law
enforcement, survivors of trafficking can themselves be arrested and pushed into the criminal justice system rather
than receiving assistance in gaining safety, freedom, and security. Individuals are placed in foster care if they are
minors, or they may be convicted and sentenced to time in prison or jail for activities they were forced to commit.
Many survivors of trafficking endure fear and coercion. They are often hesitant to provide information about their
trafficker, meaning they are not identified as a survivor of trafficking. This is of particular concern for trafficked
individuals who are undocumented immigrants; they can end up in immigration detention facilities and be
deported. Without legal recognition of their trafficked status, they are unable to access pathways to citizenship
designed to protect trafficking survivors. New York State passed a law in 2007 that makes it easier for individuals
who engaged in illegal activity and are convicted to have their convictions and sentences overturned or vacated
if the activity was committed during a trafficking situation.178

Discriminatory Enforcement of
Laws

•• HIV

criminalization laws that rely on outdated
science and stereotypes;

•• State

indecency laws that frequently are used to
target LGBT people engaging in consensual sex; and

•• Drug laws that disproportionately impact people of
color and low-income people, many of whom are LGBT.

PROBLEM: HIV CRIMINALIZATION LAWS
People living with HIV, including LGBT people, face
a patchwork of outdated and reactionary laws that
rely on misinformation rather than accurate science
about the transmission of HIV, as shown on the maps
in Figure 21 on the next page.179 These laws, frequently
called “HIV criminalization laws,” penalize behavior by
people living with HIV, even if those behaviors carry no
risk of transmission or even if someone unintentionally
exposes another to the virus. HIV criminalization laws
also criminalize consensual sexual behavior between
adults, regardless of whether they use condoms and/or
other forms of protection.
The result of HIV criminalization laws is that people
living with HIV are at constant risk of being charged with
a crime. In some states, individuals convicted under these
laws are forced to register as sex offenders, further limiting
employment and housing options, among other farreaching ramifications. If they end up going to jail or prison
because they have violated these laws, individuals with
HIV face added challenges in receiving adequate medical
care while in prison, as discussed in pages 102-103.
Research finds that HIV criminalization laws create
a culture of fear and often discourage people from

Between 2008 and 2013, there were at least 180
prosecutions of individuals living with HIV for consensual
sex or activities that carry no risk of transmitting HIV, such as
biting or spitting.183 Some people have been prosecuted for
other conduct because of their HIV status, with authorities
equating this conduct with reckless endangerment, assault,
terroristic threats, or attempted homicide.184
Evidence suggests that prosecutions under HIV
criminalization statutes may be racially skewed.
Analyzing 322 HIV-related prosecutions, ProPublica
found that two-thirds involved individuals who identified
as black or African American.185 A 2015 study examined
convictions between 1992 and 2010 under Michigan’s
HIV criminalization law, which makes it a crime for a
person with HIV to have sex without disclosing their
status. Among the study’s headline findings: black men
with female partners and white women overall had a
greater risk of conviction, compared to men with male
partners overall and white men with female partners.186
In 2015, the Williams Institute examined instances
where individuals came into contact with the California
criminal justice system between 1988 and June 2014.
Again, racial disparities emerged; black and Latino/a
people comprised two-thirds (67%) of the individuals
who came into contact based on their HIV status, while
they comprise just 51% of individuals living with HIV
in the state.187 Individuals charged with HIV-related
charges were convicted in nearly all (99%) cases, and
91% of individuals were sentenced to time in prison or
jail, as shown in Figure 22 on the next page.
In a survey of people living with HIV, 57% of
transgender respondents said they feared false
accusations of nondisclosure, which could trigger
criminal prosecution. Virtually all of the transgender
respondents said it would be very difficult to receive a
fair chance in court if accused of nondisclosure.188

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Since colonial times, state laws criminalized
consensual sex between individuals of the
same sex and/or individuals who engaged in certain
sexual acts, regardless of sex. These laws are frequently
called “anti-sodomy laws.” In practice, however, the
enforcement of these laws discriminatorily targeted
LGBT people. While the Supreme Court struck down state
sodomy bans in 2003, LGBT people are still criminalized
through discriminatory enforcement of other laws. This
section of the report looks at three categories of laws
that are disproportionately used against LGBT people:

seeking treatment, learning about their HIV status
and practicing appropriate disclosure.180 According to
the Centers for Disease Control and Prevention, HIV
criminalization laws do not take into consideration
prevention measures, including condoms, antiretroviral
medications, and pre-exposure prophylaxis (also known
at PrEP)—all of which reduce, or completely eliminate,
the risk of transmission.181 A groundbreaking study
released in 2015 found that among more than 1,700
couples in which one partner had HIV, antiretroviral
therapy resulted in a 0% rate of HIV transmission.182

SECTION

Figure 21: HIV Criminalization

HIV Criminalization Laws*

Associated Charges**
WA

NH
MT

OR
SD

NY
MI
PA

IL
KS

VA
NC

DE
MD
DC

SC
MS

CT
NJ

WV
KY

MA
RI

LA
FL

FL
HI

State has HIV-specific law(s) (or criminal law concerning sexually
transmitted infections that explicitly includes HIV) related to perceived
or potential exposure and/or transmission of HIV (38 states)
State does not have HIV-specific law, but general criminal law has
been used to prosecute people living with HIV (6 states)
No known prosecutions or HIV-specific statutes (6 states + D.C.)

Violations of HIV-specific statute (or HIV-related prosecutions under
general criminal code) are charged as felony offenses (33 states)
Violations of HIV-specific statute (or HIV-related prosecutions under
general criminal code) are charged as misdemeanors (8 states)
State imposes “sentence enhancement” statute that may increase
penalties based on HIV status (3 states)
No known prosecutions or HIV-specific statutes (6 states + D.C.)
Sentence for HIV-related offense includes registration as a sex
offender (9 states)

*
Note: The extent to which states or individual prosecutors actively prosecute cases under these statutes varies greatly, as do the penalties if convicted (see other map for Misdemeanor and Felony charges). A
number of criminal laws on sexually transmitted infections explicitly include HIV, whereas others, such as in New York, contain broad definitions that can encompass HIV. It is important to note that while several
states have no known prosecution or HIV-specific statutes, there are also no legal frameworks in place to prevent prosecutions under general criminal codes in these states.

Note: HIV-related “offenses”can be charged as misdemeanors or felonies dependent on the specific state statute, and the maximum sentences for such charges vary greatly. HIV-specific sentence enhancements
are also included in several state criminal statutes. The charges shown in this map are either explicit guidelines or, in the absence of guidelines, recorded charges applied to known prosecutions. When a state
has more than one HIV-specific statute and/or known prosecution, the state is categorized by the most severe charge therein–for example, California has several HIV-related statutes on the books and known
prosecution with associated charges ranging from sentence enhancement up to felony, and is thus categorized under HIV-related felony states. Iowa HIV statute was revised in 2014 and now has gradations
of charges and penalties, depending on degree of intent, risk, and whether or not HIV was transmitted.

Source: Movement Advancement Project, Equality Maps, current as of January 31, 2016. For updates see http://www.lgbtmap.org/equality-maps/hiv_criminalization_laws.

Figure 22: Incredibly High Conviction Rates in HIV
Criminalization Cases
Of Individuals Charged Under HIV-criminalization
Statutes in California

Individuals
convicted,
99%

SECTION

MI
NE

MS
AK

NJ
WV

SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO INCREASED CRIMINALIZATION OF LGBT PEOPLE

MN
ID

Source: Amira Hasenbush, Ayako Miyashita, and Bianca D.M. Wilson, “HIV Criminalization in California:
Penal Implications for People Living with HIV/AIDS,”The Williams Institute, December 2015.

KEY TERM: Sodomy Law or Anti-Sodomy Law
A broad category of laws criminalizing nonprocreative sexual activity. Laws varied by state, but
frequently included oral and anal sex. In some cases,
the law only targeted sex between individuals of
the same sex, but other states criminalized such
conduct between individuals of the opposite sex.

After graduating from Louisiana State University, Robert Suttle sought to enlist in the Air
Force, but he was rejected when he tested positive for HIV. Suttle overcame his
disappointment and began working for Louisiana’s Second Circuit Court of Appeal, in
Shreveport, as an assistant clerk. After several years, he was well on his way to becoming
the first black male deputy clerk in that court.
But then, his life was destroyed. After a contentious relationship broke up, his former
partner filed criminal charges against him for not having disclosed his HIV status when
they first met. Robert was not accused of transmitting HIV or of lying about his HIV
status. But he was still prosecuted under a Louisiana law that effectively requires people with HIV to disclose
that status prior to having sexual contact, regardless of whether there was any chance of HIV transmission.
Rather than risk a 10-year prison sentence, Robert accepted a plea bargain and served six months in prison. He is
required to register as a sex offender through 2024, and the words “sex offender” are printed in red capital letters
underneath his picture on his driver’s license.
Excerpted from (Think Having HIV Is Not a Crime? Think Again n.d.).

PROBLEM: LAWS CRIMINALIZING
CONSENSUAL SEX
In 1962, Illinois became the first state in the United
States to repeal its law criminalizing sodomy. At the time,
every other state in the United States had laws on the
books that regulated consensual sex between adults.189
While some of these laws prohibited sexual acts between
individuals of the same sex, many didn’t specifically
target gay, lesbian, bisexual, and/or transgender people
at the time they were enacted. However, beginning in
the mid-20th century, these laws came to be used almost
entirely against gay and bisexual men.
By 2003, 36 states had repealed these laws to
remove prohibitions on consensual sex between
adults.190 The remaining states still had laws that
were rarely enforced, but when they were, gay and
bisexual men were frequently targeted. In 2003, the
U.S. Supreme Court ruled in Lawrence v. Texas that the
government could not legislate personal relationships
and private activity between consenting adults. This
historic decision, in theory, removed the criminal threat
that millions of gay and bisexual men lived with—raids
on gay bars, fear of police entrapment, and more.
More than 12 years after Lawrence, a case that
certainly helped pave the way for other advances for
LGBT people, 12 states still have not legislatively repealed
sodomy laws.191 While these laws do not discriminate

against LGBT people on their face, laws and policies
remain in place that seek to regulate and police sexual
activity and put LGBT people at increased risk for arrest
and for additional charges and harsher sentences.

Gay and Bisexual Men Are Targeted
Gay and bisexual men, and men who have sex
with men but who may not identify as gay or bisexual,
remain at higher risk for criminalization of consensual
sex than other adults. Although anti-sodomy laws
were found unconstitutional, gay and bisexual men
often are targeted.
Police often focus their attention on areas where
men meet or places where they engage in sexual
contact, even if similar sexual contact between
opposite-sex couples doesn’t draw police attention.192
In 2013, an undercover sheriff’s deputy in East Baton
Rouge, Louisiana, met another man at a public park.193
The deputy asked the man if he’d like go back to his place
for “some drinks and some fun.” Despite the fact that
no money was exchanged, the man was arrested. This
arrest was part of a series of efforts by law enforcement
in the city to single out gay men who visited a public
park, even though they were not engaged in any illegal
activity. Police in other cities often focus their efforts
on public places such as restrooms in transportation
terminals, such as the Port Authority Bus Terminal in
New York City,194 or public parks.

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Photo permission from Robert Suttle

Story: Prison and Sex Offender Registration: Living with HIV in Louisiana

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Story: Deadly Consequences for Teen Arrested by Police
In 1997, Marcus Wayman, a high school senior, and his 17-year-old companion were sitting in a
parked car in Minersville, Pennsylvania, when they were approached by two officers. The police
interrogated them despite a lack of any evidence that they were engaged in unlawful activity.
The officers proceeded to search the car on the pretext that the young men were in possession
of marijuana, demanding that they empty their pockets. When the officers discovered that the
boys were carrying condoms, they concluded the two were going to have sex.
Both were arrested for underage drinking and brought to the police station for further
questioning. One of the officers subsequently lectured them on his interpretation of the Bible’s
views on homosexuality, called them “queers,” and threatened to tell Marcus’ family and friends that he was gay.
Marcus died by suicide shortly after he was released. Marcus’ family sued the town and the police department
for police misconduct, discrimination, and violation of the right to privacy. The court ruled that Marcus’ right to
privacy was violated, writing “it is difficult to imagine a more private matter than one’s sexuality.”
Excerpted and adapted from Joey L. Mogul, Andrea J. Ritchie, and Kay Whitlock, Queer (In)Justice, Queer Action/Queer Ideas (Boston, MA: Beacon Press, 2011).

Frequently, the statutes used to prosecute gay
and bisexual men for consensual sex mandate that
convicted individuals register as sex offenders; this can
have lifetime consequences long after an individual has
served a sentence. In addition, when a person is charged
with violating a sex-related statute, he frequently
receives additional charges or harsher sentences than
if the conduct were with a member of the opposite sex
under these “crimes against nature” statutes.

LGBT Youth Are Treated Unfairly

A parent who disapproves of their child’s sexual
orientation or gender identity could report a son or
daughter’s sexual partner to law enforcement. This is
exactly what happened in 2013 to Kaitlyn Hunt. A high
school senior in Florida, she was charged with lewd
and lascivious battery for engaging in voluntary sexual
activity with her girlfriend, a 14-year-old freshman. The
girlfriend’s parents reported the relationship to the
police once Kaitlyn turned 18, and she was at risk for
being placed on a sex offender registry. She pleaded no
contest and was placed on house arrest and probation.

LGBT young people are at increased risk for prosecution
under statutory rape and other laws regulating sex
between minors. Researchers find that LGB young people,
in particular, are at risk for criminalization because their
sexual behavior is frequently considered less acceptable
by family members, teachers, and law enforcement.
One alarming result is that many LGB young people are
convicted as sex offenders for engaging in consensual
sex, even when heterosexual young people would not
be charged or convicted under the same circumstances.
This can have have a detrimental impact on young LGB
people’s ability to finish school and find jobs.195

LGBT young people also receive harsher
punishments as a result of society’s discomfort about
sex between individuals of the same sex. Participants
in one study were asked to propose various disciplinary
actions for individuals who engaged in sex with a
14-year-old. The participants gave harsher punishments
to gay offenders than they did to heterosexual
offenders.197 In the study, a 16-year-old heterosexual
offender was much less likely to be made to register as
a sex offender than a 16-year-old gay offender. And the
16-year-old gay offender was disciplined in a manner
similar to a 35-year-old heterosexual offender.

In Texas, for example, sexual contact with a minor
under the age of 17 is a felony, unless the parties involved
are no more than three years apart in age, each member
is older than 14, the sexual contact is consensual, and they
are the opposite sex.196 LGBT young people engaged in
same-sex sexual contact are excluded from this exception.

Story: “I didn’t do anything wrong but love somebody”

Like many teenagers, Antjuanece Brown sent a lot of text messages to her friends. In 2009, she
started dating Jolene Jenkins, who was 16 and three years younger than Antjuanece. The two
spent time at the mall. Antjuanece attended Jolene’s lacrosse games.

Jolene’s mother didn’t like that her daughter was dating another girl and took Jolene’s phone. She
turned it over to the police. As Antjuanece told a reporter for Willamette Week, “I’ve never been in
trouble in my life. … I’m not a sex offender.”
And yet, Antjuanece was arrested and indicted by a grand jury for felony crimes, producing child pornography, sex
abuse, and luring a minor. Together, these crimes could have carried a sentence of six years in prison and mandatory
registration as a sex offender. The three-year age difference in their relationship wasn’t itself against the law, but the
fact that the two exchanged sexts was what triggered the police. After being arrested, Antjuanece spent a month in
the Washington County jail. She couldn’t afford the $50,000 bail set by a judge. “I got called a child molester,” she says.
“I was told I should kill myself. We were only allowed out of our cells six to eight hours a day. It was lonely and scary.”
Facing six years in prison derailing her plans for the future, Antjuanece pleaded guilty to “luring a minor,” a felony
that doesn’t require her to register as a sex offender. She was sentenced to three years of probation, $3,000 in
court fees, and was unable to see Jolene until Jolene turned 18. She lost her job at a call center because of her
criminal record. And her dreams of becoming a social worker and working with children seem impossible to her
now that she has a felony conviction, particularly one involving minors.
After 10 months apart, when Jolene turned 18, the couple reconnected. As Jolene explained, “We had a lot of
things taken away and … Look, a lot of things we had to go through, but we’re here.” The couple started living
together and making plans to get married.
Adapted from Beth Slovic, “Sext Crimes,” Willamette Week, November 30, 2010; What Are LGBT Youth of Color Facing? (Cross-Coast Youth Discussion - Growing Up Policed), Growing Up Policed:
Surveilling Racialized Sexualities Mini-Conference (New York & Oregon), 2011.

PROBLEM: DRUG LAWS
Current drug policy in the United States results in
the incarceration of tens of thousands of individuals
each year—many of whom were convicted of nonviolent
crimes such as possession of marijuana or another
illegal substance. On December 31, 2013, there were an
estimated 1.57 million people in federal and state prisons
in the United States.199 Sixteen percent of people in
state prisons were sentenced for drug-related offenses.
A majority of people held in federal prisons (51%) were
sentenced for drug-related offenses.200
Mandatory minimum sentencing penalties, such as
those contained in the federal Anti-Drug Abuse Act of
1986, allow very little flexibility for judges sentencing
individuals convicted of drug-related offenses. Three

in five individuals incarcerated in federal prisons for
drug-related offenses were sentenced under mandatory
minimum penalties.201 Over time, the average length of
stay in prison has increased substantially.202 The average
time served for a drug offender in 2011 was twice what it
was in 1984.203 In response to these facts and the adverse
impact of “mandatory minimums” on individuals,
families and communities (not to mention government
spending on prisons), nearly half of Americans (48%)
support increasing the use of alternative sentencing
programs for people with nonviolent convictions.204
The intense war on drugs in the United States has
disproportionately impacted urban communities, people
of color, and those living in poverty. Drug sentencing
laws often punish some offenders more harshly than
others, and this has a disproportionate impact on people
of color. For example, individuals convicted of selling
drugs near schools receive increased sentences, but

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Like more than half of American teens who have “sexted,”198 the two exchanged text messages
that were flirtatious and sometimes sexually explicit.

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Story: A Second Chance for Me, but Not for Her
A couple of days after the New Year in 1997, I cooked up two shots of heroin: one for my girlfriend and one for
myself. We injected them, and I watched through clouded eyes as she slumped to the floor. As gone as I was, I
knew something was wrong. I tried all of the tricks I knew—ice in the pants, shaking, slapping. No response. I
couldn’t feel a pulse. I called 911.
In the courthouse a few weeks later, I watched as an even more disturbing scene unfolded. My appearance had
been early in the morning. I was lucky. My attorney got my charges dropped to a misdemeanor, and I was put
in a pre-trial diversion program. As long as I showed up, did some community service, and managed not to get
arrested, I wouldn’t have a record. My girlfriend, on the other hand, wasn’t given that option. The same judge,
in the same courtroom, on the same day, gave her real probation, complete with a probation officer, urine tests,
and, worst of all, a record.
I wanted to jump out of my seat, to scream. Even as an 18-year-old heroin addict, I understood what had
happened. I was white, she was not. I had a lawyer that knew the judge; she had a public defender with 15 other
cases that morning. The judge assumed I’d be successful in diversion, and that she needed closer monitoring.
It didn’t matter that I had been the one to introduce her to heroin, that my habit had started three years before
I met her, that I spent about three times as much money on drugs. The system was set up to punish her more
harshly than little white, wealthy me.
I’m grateful that I got diversion. It wasn’t that easy, but I managed to do my 21 days of community service in
between shifts at my two jobs. And at the end of the day, there were no real consequences. When I applied
for jobs, when I applied for college, when I applied for a security clearance, my name came up unblemished.
Though it took me a few years to get out of the cycle of drugs and homelessness, I eventually ended up going
to community college and then undergrad. I got a master’s in business and a law degree. Today, I advocate for
changes in criminal justice policy. And every day I’m driven by the knowledge that I could not be where I am if
my arrest had resulted in a felony conviction, and that I benefited from structural racism.
- Meghan Maury
given the population density around schools in many
cities, people in urban areas, particularly people of color,
are more likely to be arrested within these zones.205 In
August 2013, the Department of Justice announced
changes to its mandatory sentencing policies to shift the
most severe mandatory sentencing penalties to serious,
high-level, or violent drug traffickers.206
Law enforcement strategy has also focused intently
on policing marijuana distribution and use, with a
disproportionate effect on arrests of African American
individuals. According to a 2013 report by the ACLU
examining data from all 50 states and the District of
Columbia from 2000 to 2010, African Americans are
incarcerated for drug charges at much greater rates than
white people even though drug use rates are similar.207
Information about rates of arrest of LGBT people for
drug-related offenses is limited. However, it is likely that
LGBT people are at greater risk of arrest for these types

of offenses given that they use substances at a higher
rate than the broader population.208 Research finds that
some LGBT people are more likely to abuse substances,
including illegal drugs, perhaps as a coping mechanism
related to the discrimination and stigma that LGBT
people experience.

•• Men who have sex with men are more likely than other
men to use marijuana, amphetamines, and heroin.209

•• In a meta-analysis of 18 published academic studies,
LGB-identified youth were more likely to engage in
substance use than heterosexual youth.210

•• Bisexual

youth and female-identified LGB youth
were also more likely than LGB youth as a group to
use illegal substances.211

•• Research has found links between parental rejection
during adolescence and negative health outcomes,
including substance abuse, for LGBT young adults.212

Transgender people may also be unfairly targeted
by police for suspicion of drug use if they are found in
possession of syringes. Some transgender people inject
hormones as part of their transition-related medical
care, so they may have syringes in their belongings.g

Percent of Currently Incarcerated LGBTQ People

Sold Drugs
Prior to
Incarceration,
55%

A troubling number of transgender people who lack adequate medical care and/or those who
cannot find competent medical care use street hormones and may be at increased risk for
blood-borne illnesses if they share needles.

Source: Jason Lydon et al., “Coming Out of Concrete Closets: A Report on Black & Pink’s National LGBTQ
Prisoner Survey,” Black & Pink, 2015.

Community-Based Diversion Programs

Recent years have seen an increase in programs designed to provide alternatives to incarceration and conviction
for nonviolent and drug offenders. “Diversion programs” vary in their focus and scope, but they frequently seek
to address behavioral health issues, including substance use and mental health, and engage individuals in
programming rather than putting them in jail.214 Upon successful completion of the program, in some models,
individuals do not receive a permanent criminal record, removing what would otherwise be a significant barrier
to success. As of 2011, there were more than 3,000 diversion programs. These include programs focused on
pretrial diversion, “drug courts,” and intervention programs.215
In Seattle, WA, a pilot diversion program for low-level drug and prostitution crimes aims to divert offenders into
community-based programs even before the booking process. Law Enforcement Assisted Diversion (LEAD)
allows law enforcement officers, instead of arresting low-level offenders, to divert them directly into community
services including drug treatment programs and mental health support, housing and healthcare assistance, and
job training. Offering the diversion in the pre-booking phase saves the city the funds spent in the arrest process,
and ensures that participants in the program do not end up with another mark on their record.
Local organizations, including a homelessness advocacy organization, offer case management, financial
assistance, legal advocacy, housing assistance, and job training services. In addition, regular evaluations are
built into the program. In 2015, an analysis revealed that LEAD participants were 60% less likely to be arrested
within six months of participation in LEAD than a “system-as-usual” control group.216 Since LEAD was established
in 2011, participants were 58% less likely to have experienced an arrest than individuals who did not participate.

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Given higher rates of drug use, homelessness
and police stereotyping, it is likely that LGBT people,
particularly LGBT people of color, face significantly
higher risks of drug-related arrest. For example, as
shown in Figure 23, in the Black and Pink survey of
currently incarcerated LGBTQ people, 55% had sold
drugs prior to being incarcerated.213

Figure 23: Drug Selling Reported by Currently
Incarcerated LGBTQ People

Despite the success of diversion programs in cities like Seattle, there is very little research about how LGBT
people interact with these programs. According to a survey of juvenile justice professionals conducted by the
Equity Project, 63% said that diversion programs in their geographic areas were either not suited to working
with LGBT youth, or else there were no programs that were appropriate in working with LGBT youth.217
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SECTION

Summary: How Discriminatory Enforcement
Leads to Criminalization
Bad laws and discriminatory enforcement of laws
push LGBT people into the criminal justice system.
HIV criminalization laws rely on outdated science and
stereotypes. State indecency laws are frequently used
to target LGBT people engaged in consensual sex, and
drug laws have resulted in high rates of incarceration
for low-income communities and communities of color,
including many LGBT people.

Harmful Policing Strategies
and Tactics
Law enforcement agencies, including
city and state police, often enforce laws
and ordinances in ways that disproportionately impact
low-income people and people of color, including LGBT
people. Law enforcement officers also often use policing
strategies and tactics that have a disparate impact on
these communities.
The various aspects of people’s identity, such as race,
sexual orientation, gender identity and class, can increase
their chances of being subject to police surveillance or
put them at increased risk for interaction with police.
Another likely trigger for encounters with police is
simply congregating in a public place. These identities
and situations combine with stereotyping and profiling
by police to result in discriminatory treatment for LGBT
people, particularly LGBT people of color, transgender and
gender non-conforming people, and poor LGBT people.
Over the past several years, the nation’s attention
has turned to the ways in which police officers and other
members of law enforcement engage with the public,
particularly black and Latino communities. Surveys
show that communities of color have great mistrust of
the police as a result of the use of force, implicit bias,
explicit racism, harassment, and discrimination.218
Surveys also show that perceptions of law enforcement,
its effectiveness and its integrity vary widely depending
on race and ethnicity. For example, a 2009 survey found
that many white Americans (78%) believe police do a
good job enforcing the law, compared to just 61% of
Latino/a people and 55% of African Americans.219 Poor
perceptions of police by people of color, frequently
based on a history of negative interactions, result in less
trust of the police and can ultimately deter the reporting
of crime. Among Latino people, for example, 5% said

they would definitely not report being a survivor of a
violent crime. They cited fear of repercussions such as
immigration enforcement, discrimination, or a lack of
police response.220
This section explores how and why the LGBT
community, including many LGBT people of color,
interact with law enforcement, including:

•• Impact of quality-of-life and zero-tolerance policing;
•• Policing of gender norms;
••
Aggressive enforcement of anti-prostitution
statutes;

•• Disproportionate impact of stop-and-frisk;
•• Discrimination and violence when seeking assistance
from law enforcement; and

•• Abuse and brutality by law enforcement.
The net result of these harmful policing strategies
and tactics is disproportionate numbers of LGBT people
being pushed into the criminal justice system, increased
mistrust of law enforcement, and reduced public safety.

PROBLEM: QUALITY-OF-LIFE AND
ZERO-TOLERANCE POLICING
Over the past 30 years, government and law
enforcement officials have prioritized a policing
strategy called “quality-of-life policing.” This strategy
is based on the “broken windows theory,” which posits
that cracking down on highly visible minor crimes and
even non-criminal activity can prevent more serious
crimes in a neighborhood and restore “order.”221
In some places, quality-of-life policing is part of a
broader community policing strategy, which relies on
community organizations and community members to
be attentive to activities in their neighborhoods and
to act as partners in improving safety.222 However, in
many areas, quality-of-life policing is used solely as a
tactic to appear tough on crime, with little community
engagement or dialogue.
As a policy, quality-of-life policing focuses on
policing minor crimes like graffiti, littering, not paying
fares for public transit, and unlicensed street vending.223
These policies also criminalize many public behaviors,
such as making too much noise or sleeping or drinking
in public.224 For example, it is increasingly against the
law to congregate in public. Police in many places focus

on enforcing these public nuisance statutes as a way to
deter more serious crime. “Zero-tolerance” policing is a
similar, frequently simultaneous, policing policy where
these minor infractions, which previously brought a
warning or a citation, now result in arrest, jail time, and/
or hefty fines.225

This focus on quality-of-life policing persists despite
research showing that improvements in neighborhood
safety frequently begin with reductions in violent
crimes, such as murder, rape, and aggravated assaults,
and economic improvements, rather than focusing on
minor crimes. In fact, crime rates across the country have
declined in recent years, even in cities that have not
employed quality-of-life policing strategies.228
LGBT people, particularly low-income LGBT people
and transgender people of color, are frequently targeted
under these strategies. When law enforcement is tasked
with increased enforcement of quality-of-life ordinances,
officers are given broad discretion.
For example, groups of LGBT young people
congregating near an LGBT center may be targeted
through curfew enforcement campaigns or antiloitering efforts even if they are not violating any laws or
ordinances outside of simply being outside.
For some LGBT young people, for whom home is not
a safe or supportive place, being “out and about” is their
survival mechanism, but it can put them at risk of being
criminalized.229 In particular, young LGBT people of color
too often are perceived as “out of place” in traditionally
“gay”neighborhoods, which are frequently predominantly
white. And people experiencing homelessness, including

Offenses in this category are focused more on
how people behave in public environments. This
category frequently includes loitering, public
drinking, littering, or jumping a turnstile.

Story: LGBT Youth in Gay Neighborhood
Targeted by Police
In the Boystown neighborhood in Chicago, groups
of black and Latino LGBT youth have been targeted
by neighbors and the police for congregating
on the street, listening to loud music, and other
infractions such as drinking in public, smoking
marijuana, urinating, or vandalism. The youth
come from other neighborhoods to hang out and
to attend programs at the LGBT community center,
the Center on Halsted, but they are perceived to be
the root cause of increases in robberies, assaults,
and vandalism in the neighborhood. Kloe Jones, a
23-year-old transgender woman, explains, “There’s
a lot of people from the South and West Side.
[Boystown] is a predominantly white neighborhood,
but this is all we have. There have been muggings
and robbings up here, and [white residents] look at
the African Americans who come to the Center, as if
somehow it’s their fault.”
Adapted from Mitch Kellaway, “Working With Laverne Cox, Standing in Solidarity with
Trans Women of Color,” The Advocate, October 19, 2014.

the estimated 20-40% of homeless youth who identify as
LGBT,230 can find themselves caught in a cycle of arrests
and jail time as they are ticketed or arrested for sleeping
in public or panhandling.

•• In focus groups of young people in New York who
identified as LGBTQ and questioning, several youth
said they’d been ticketed for putting their feet on a
subway seat, sitting in a playground after dark, or
dressing in a way that officers found “offensive.”231

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Quality-of-life policing grants extensive discretion
to individual law enforcement officers. Because of this,
underlying biases can easily come to bear in interactions
between people and police.226 Officers look the other way
and ignore infractions committed by some people or in
some neighborhoods, but cite, ticket and arrest others.
In many places, quality-of-life policing has resulted in
increased police presence and aggressive enforcement
of minor offenses, including minor drug offenses. And
research finds that police departments do not use this
policy across an entire jurisdiction, but rather in specific
neighborhoods, either based on high rates of crime or
concern from residents.227 As a result, young people, people
of color, people perceived to be involved in trading sex,
homeless people, and low-income people, many of whom
are LGBT, are explicit targets of broken-windows policing.

KEY TERM: Quality-of-Life Crimes

•• Of

LGBTQ youth engaged in survival sex in New
York City, 70% had been arrested at least once in
their lifetime, frequently for offenses other than
prostitution, such as drug possession, jumping the
turnstile, or trespassing.232 In fact, only 9% had been
arrested on prostitution-related charges.

SECTION

Figure 24: LGBTQ Youth Interactions with Law Enforcement
Percent of LGBTQ Youth in New Orleans
Reporting Interactions with Police

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87%

SECTION

33%

LGBTQ youth of color

LGBTQ white youth

Source: BreakOUT! and the National Council on Crime & Delinquency, “We Deserve Better: A
Report on Policing in New Orleans By and For Queer and Trans Youth of Color,” 2014.

•• In a survey of LGBTQ youth in New Orleans, 87% of
youth of color had been approached by the police
compared to just 33% of white youth, as shown in
Figure 24.233

•• Analysis of nationally representative data shows that
LGBTQ youth were at increased risk of police stops
compared to their non-LGBTQ peers.234
These data mirror extensive research finding that
people of color are particularly impacted by quality-oflife policing strategies. Not only are police more likely
to engage in over-policing in communities of color and
low-income neighborhoods, they are also more likely to
enforce violations by people of color in predominantly
white and upper-class neighborhoods. In New York City,
for example, roughly nine out of ten citations citywide
for disorderly conduct, loitering, and spitting were
issued to black and Hispanic people.235
Quality-of-life policing has a particularly
detrimental impact on low-income communities as
the fines and fees add up and can be insurmountable
for low-income and homeless individuals. When
individuals, particularly those struggling financially,
cannot afford the fines associated with minor
violations such as parking infractions, traffic tickets,
or housing code violations, cities and counties
frequently issue arrest warrants. Thus, individuals are
arrested and incarcerated not for serious violations,
but rather for failing to pay fines and fees associated
with minor offenses in a timely manner.236 Particularly
for low-income people, “poverty violations”—such as

driving with a suspended license, expired plates or
registration, or failing to provide proof of insurance—
threaten their economic security and can land them
in jail. Time spent in jail, or even waiting in municipal
court, can wreak havoc on the lives of low-income
individuals, many of whom have hourly jobs and lose
not only income, but their employment, making it
even more difficult to pay the necessary fines.237

PROBLEM: POLICING OF
GENDER NORMS
Law enforcement officers are frequently in
situations where they must make judgment calls about
when to question or interact with someone. In these
situations, underlying biases and explicit prejudice can
influence officers’ decisions. “Profiling” refers to the
practice by law enforcement to rely on an individual’s
characteristics to make conclusions about whether or
not that individual is participating in criminal activity.238
When law enforcement officials use profiling, they
are not focusing on evidence of wrongdoing, but are
instead relying on stereotypes and bias.
When police bring their personal biases and
stereotypes to their work, research finds they perceive
LGBT people as stepping out of line and in violation
of social norms. Police use perceived or actual sexual
orientation or gender identity as a way to profile people.
Officers will draw conclusions about an individual
based on appearance and perceived sexual orientation
and gender identity—along with other factors such
as the location, the race of the person, and what that
person is doing.
An Amnesty International report found that
transgender and gender non-conforming people in
particular, as well as LGBT individuals generally, are subject
to increased policing because they are perceived to
transgress gender norms.239 For example, police frequently
assume that transgender women, particularly transgender
women of color, are sex workers based on their perceived
transgender status and their race, as well the fact that
they are standing, walking, or driving in a particular area.
Among the other possible triggers for police targeting of
transgender and gender non-conforming people: use of
a restroom designated for what police perceive to be a
different gender or the presentation of identity documents
that do not match a transgender person’s gender expression
or the officer’s perception of what the person’s gender is.

Story: Life for Transgender Women of Color in New Orleans

Excerpted from Mitch Kellaway, “Working With Laverne Cox, Standing in Solidarity with Trans Women of Color,” The Advocate, October 19, 2014.

Educating LGBT People About Their Rights

In the absence of broader reforms, the best response for LGBT people facing discriminatory policing strategies is
to know your rights. Across the country, many organizations are working on campaigns and materials to educate
LGBT communities about their rights through “know your rights” campaigns and resources. These efforts strive
to educate people, and particularly minority communities such as people of color or transgender people, about
their rights as they interact with police and the criminal justice system.
The National Lawyers Guild created a series of documents to assist the transgender community, as well as
attorneys and service providers, in knowing their rights when it comes to criminal law, immigration law, housing
law, and employment law.
The Sylvia Rivera Law Project and the National Center for Transgender Equality published a guide specifically
focused on transgender people participating in direct actions, such as protests, where they may interact with
law enforcement.
In Chicago, the Chicago Street Youth in Motion Task Force created a “Street Youth Bill of Rights,” which focuses
on areas of health care, education, police, and social services.
In 2015, Streetwise And Safe (SAS) and BreakOUT! developed the Get YR Rights Network, a national know
your rights network for LGBTQ youth and LGBTQ youth-serving organizations. Bringing together over 30
organizations, and growing, the Get Yr Rights: A National LGBTQSTS Youth Know Your Rights Network is a
vehicle for connection and collaboration among organizations, including sharing materials and strategies,
including the victories and challenges in organizations’ efforts to end discriminatory policing practices and
police profiling. Through conversations with LGBTQ youth organizations across the country, SAS and BreakOUT!
sought to address young people’s consistently identified needs for media, materials, and strategies in doing
Know Your Rights work. In partnership with Network members, SAS and BreakOUT! gathered Know Your Rights
materials specific to the experiences of LGBTQ youth with the police on the website, and set out to create a
campaign toolkit and curriculum for LGBTQ, questioning, and Two-Spirit youth and youth-serving organizations
focused on policing and interactions with law enforcement. Streetwise and Safe has created two workshops,
“This is My Truth” and “The Criminal Injustice Machine,” which are facilitated by peer youth facilitators.

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L’lerrét Jazelle Ailith lives in New Orleans, where she’s a college student, blogger, and activist. She
recently explained to The Advocate what it is like to be a transgender woman of color in New
Orleans. “New Orleans has a really intense problem with police basically stopping anyone who
looks ‘suspicious.’ Basically, they don’t think we know our rights, and they take advantage of that.
They treat LGBT people—especially trans women of color—like we are inherently criminals. A lot
of trans women [find themselves] locked up in prison, in solitary confinement, or put in prisons
with men—[placed] in very dangerous situations. And there’s no one to advocate for them, no one
to fight for them.”

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Police Department Policies Gaining in LGBT Competency

A growing number of cities and counties have added specific language to their police department policy
handbooks about how to best engage with the LGBT community. Frequently, these changes result from dialogue
with community advocates, as well as through pressure from lawsuits or consent decrees (see page 55 for more
about the use of consent decrees to improve relations between police and the LGBT community). Given the high
rates of police harassment that transgender people face, increased training for police officers is crucial. Examples
of these changes include:
In 2012, the Los Angeles Police Department worked with the Los Angeles transgender community to create
guidance for culturally competent, appropriate interactions with transgender people. The guidance makes clear
that law enforcement should respect anyone’s gender identity and gender expression, and underscores that
being transgender is not reasonable suspicion of prostitution or any other crime.
The Chicago Police Department issued similar guidance in 2012 for police officers vis-à-vis their treatment of
transgender, intersex, and gender non-conforming people. Like the Los Angeles example, the Chicago guidance
makes clear that law enforcement should above all respect a person’s gender identity and use that person’s
preferred name and personal pronouns. Among the other elements of the guidance: gender identity cannot be
used as reasonable suspicion of criminal activity; law enforcement should never stop, frisk, or detain someone in
order to determine gender; and law enforcement should never disclose a person’s transgender or intersex status
to anyone without a proper purpose.
Also in 2012, the New York Police Department updated its patrol guide to address the way police interact
with and address transgender and gender non-conforming people. The updates, which resulted from an LGBT
advisory group, included guidance on how officers should address transgender people, how transgender people
should be searched, and where they should be housed during processing.
The constant threat of arrest is a concrete reality for
many transgender people. According to the National
Transgender Discrimination Survey, 79% of transgender
people who have transitioned have not updated all of
their identity documents, which leaves many in the
transgender community at risk.240 There is evidence that
when a transgender person “passes”h as the gender they
present, they are less likely to be stopped or arrested by
police, and harassment by police is less severe.241 (For
more on the frequent abuse and harassment by police
LGBT people experience, see pages 59-62.)
In a similar way, gay and bisexual men and lesbian
and bisexual women can be profiled by police if they
are perceived to be disrupting the “order”— especially
if they deviate from stereotypical gender norms. As
discussed above, when LGBT young people’s behavior is
seen as gender non-conforming, such as girls who are
outspoken or dress in stereotypical masculine clothing,
police can see these actions as “disorderly” or out of line–
or profile them as being involved in criminal activity.

An Amnesty International report found that Latina
lesbians in Los Angeles had been profiled by police as
being members of a gang because of their appearance,
behavior, and clothing items such as baggy pants, which
were outside of stereotypical clothing.242
h

The terms “to pass” or “passing” are sometimes used by members of the transgender
community to refer to individuals who are not perceived as transgender. Adapted from http://
transequality.org/issues/resources/teaching-transgender-guide-leading-effective-trainings.

Recent Federal Guidance and Action on Police Profiling

In other federal actions on profiling, President Obama’s Task Force on 21st Century Policing released its final
report in May 2015 aimed at building public trust while effectively reducing crime. The report included the
following LGBT-specific recommendations:245
•• Law enforcement agencies should adopt and enforce policies prohibiting profiling and discrimination based
on race, ethnicity, national origin, religion, age, gender, gender identity/expression, sexual orientation,
immigration status, disability, housing status, occupation, or language fluency.
•• Invasive searches should never be used for the sole purpose of determining gender identity, and an
individual’s gender identity should be respected in lock-ups and holding cells to the extent that the facility
allows for gender segregation.
•• Law enforcement agencies should implement training for officers that covers policies for interactions with
the LGBT population, including issues such as determining gender identity for arrest placement, as well as
reinforcing policies for the prevention of sexual misconduct and harassment.
•• Law enforcement agencies should establish search and seizure procedures related to LGBT and transgender
populations and adopt as policy the recommendation from the President’s Advisory Council on HIV/AIDS to
cease using the possession of condoms as the sole evidence of vice.
mostly transgender women), over 40% reported
having participated in sex work.248

PROBLEM: AGGRESSIVE ENFORCEMENT
OF ANTI-PROSTITUTION STATUTES

•• In

a survey of nearly 1,000 youth experiencing
homelessness in New York City, LGBTQ-identified
youth were seven times more likely to have traded
sex for a place to stay than heterosexual, nontransgender youth.249

The sale of sex remains illegal in all states in the
United States.i In their implementation of quality-oflife policing strategies, many communities aggressively
enforce anti-prostitution ordinances.
As described above, some LGBT people who are
pushed out of the mainstream economy because of
discrimination, poverty, homelessness and other issues
end up trading sex for money, food, clothing, or shelter.
Research finds that homelessness is a primary driver of
reliance on survival sex. This is particularly true for LGBT
young people due to the high rates of family rejection
and discrimination they face.246 As described on page 36
(trafficking), some LGBT people also are forced into sex
work through trafficking and coercion.

•• Nearly

half (48%) of transgender people in the
National Transgender Discrimination Survey who
engaged in sex work also reported experiencing
homelessness.247 In a survey of transgender people
in state prisons for men in California (presumably

•• In a survey of LGBTQ youth engaged in survival sex
in New York City, virtually all of those surveyed were
youth of color; 37% identified as African American
or black, 22% as Latino/a, and 30% as multiracial.250
Only 5% identified as white. More than half (58%) of
youth engaged in survival sex were either living on
the street or in a shelter.
Because LGBT people may be disproportionately
represented among individuals engaged in sex work,
they are frequent targets of police and laws criminalizing
prostitution and related offenses. Of transgender people
in the National Transgender Discrimination Survey who
reported trading sex, more than three-quarters (79%)
reported interactions with police, and transgender
There are several counties in Nevada where regulated brothels are permitted to operate.

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In late 2014, the U.S. Department of Justice issued an update to its policy prohibiting profiling by federal law
enforcement agencies and officers.243 The updated policy clarified that federal law enforcement officers are
prohibited from using sexual orientation and gender identity—among other characteristics, including race and
ethnicity—to any degree during routine traffic stops and other “ordinary” law enforcement situations.244

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SECTION

people of color trading sex were more than twice as
likely to be arrested than their white counterparts.251
Police generally have wide discretion under these
ordinances, and they often arrest individuals for vague
violations such as “loitering with intent to solicit.”252 In
a number of cities and counties, police take these laws
to an even greater extreme, considering possession or
presence of condoms as evidence of prostitution.253
Not only does this practice infringe on basic rights, but
it also discourages individuals from carrying condoms,
undermining efforts to reduce transmission of HIV and
other sexually transmitted infections. Particularly for
transgender women and young gay and bisexual men
of color, for whom rates of new HIV infections have been
rising,254 this leaves them in a difficult situation—risking
arrest for carrying condoms or endangering their health
by not using protection. Among LGBTQ youth in New
York City engaged in survival sex surveyed by the Urban
Institute and Streetwise and Safe, 15% reported that
condoms found during a stop, question, or frisk were
used by police to justify lengthy questioning or arrests
for prostitution-related offenses.
In a number of cities, advocates, public health
agencies, and others have pushed for police to no
longer consider condoms as evidence of prostitution.
After hearings and community organizing, the City of
San Francisco became the first city in the country to
stop considering condoms as evidence.255 New York
City’s police commissioner announced that officers
would no longer be able to confiscate condoms as
arrest evidence for several prostitution-related charges
in May 2014, although they may still be used for other
related offenses.256
In 2014, California became the first state to require a
court to treat condoms like all other evidence and state
explicitly that the presence of condoms is relevant to
an individual case before prosecutors can bring them
as evidence of prostitution.257 As initially proposed, the
legislation was much broader and would have banned
the use of condoms as evidence entirely. Unfortunately,
leaving the issue up to a court at the trial phase does
nothing to assuage people’s fear of carrying condoms
or having them available. The fact is, condoms can still
be used to justify an arrest and a prostitution-related
or lewd conduct-related charge. Explaining the need
for the broader legislation banning use of condoms as
evidence, Wendy Hill, a staffer for Assembly member
Tom Ammiano explained, “There are cases where HIV

health outreach workers would go out and distribute
condoms and then law enforcement will follow up right
behind them as a means of ‘cleaning up the streets’ . . . .
[Police officers] would threaten [the sex workers], arrest
them or just scare the crap out of them.”258
New York State is currently considering legislation
that would more effectively ensure access to condoms
and other reproductive health tools without fear that they
would ever be used to justify an arrest or prosecution for
any prostitution-related offense.259 Last year, a provision
banning the use of condoms as evidence of prostitution
offenses was passed as part of the Governor’s End AIDS
initiative. Advocates are continuing to press for a more
comprehensive ban including all prostitution-related
offenses, including promoting prostitution, permitting
prostitution, or lewd conduct to offer critical protections
to youth, trafficking victims, and outreach workers.
As discussed previously, police also frequently
rely on stereotypes in enforcing anti-prostitution laws,
such as assuming that all transgender women, and
particularly transgender women of color, are engaged in
prostitution-related offenses. In Human Rights Watch’s
examination of policing in New Orleans, for example,
transgender women were subjected to constant
harassment, verbal abuse, and stops for suspicion
of prostitution; these women also were sometimes
asked for sex in exchange for leniency.260 Transgender
women frequently report that police assume they are
participating in sex work, simply because they are
“walking while transgender” or because condoms are
found during a frisk.261
When citing LGBT people for prostitution and
related offenses, police also may charge them with
additional crimes that bring added punishments. Until
very recently, LGBT people in Louisiana, in particular
African American transgender women, who were
arrested for prostitution-related crimes were at risk for
being charged under the state’s “crimes against nature”
statute.262 This law singled out solicitation of oral and
anal sex for harsher punishment, including registration
as a sex offender. In 2012, a federal judge found the sex
offender registration requirement unconstitutional.263
And, in 2013, the state agreed to remove hundreds of
people from the registry who had been convicted of a
crime against nature.264 In Orleans Parish, nearly 40%
of individuals on the sex offender registry in 2011 had
been convicted of crimes against nature; 80% of them
identified as African American.265

Story: Walking While Trans

#1: Bianca’s Story

Adapted from “Transgender Woman Sues Cicero Police, Alleging Harassment,” The Tran’s Women’s Healing Justice Project; Clifford Ward, “Transgender woman settles
suit with Cicero, attorneys say,” The Chicago Tribune, August 7, 2012.

#2: Antonia’s Story
Antonia is a transgender Latina woman from Jackson Heights in Queens, NY. She has been
stopped, frisked, profiled, and arrested multiple times for allegedly being engaged in prostitution.
One day, Antonia was walking in her neighborhood with two other transgender women. While
outside of one of their homes, two police officers pulled up in a police car, stopped them, and
told them to go home. The officers then drove around the block and saw Antonia and her friends
again. This time they did not ask; they just stopped and frisked them. Police told them they
were looking for condoms; they said they stopped Antonia and her friends for prostitution. No
condoms were found, but Antonia was arrested and taken to the detention center, where she
was strip searched to the point that she was nearly naked as officers reportedly laughed at her.
As a result, Antonia feels falsely accused, violated, and humiliated.
Excerpted from “Transgender Woman Sues Cicero Police, Alleging Harassment,” The Tran’s Women’s Healing Justice Project; Clifford Ward, “Transgender woman settles
suit with Cicero, attorneys say,” The Chicago Tribune, August 7, 2012.

PROBLEM: STOP-AND-FRISK
“Stop-and-frisk” is a form of proactive or preemptive
policing where an officer stops an individual on the street
alleging a reasonable suspicion of criminal activity. If the
officer believes that the individual is armed and presents
an immediate danger, the law allows the officer to
perform a limited pat down of the outer clothing of the
person (a “frisk”). Stop-and-frisk is also known as a “Terry
stop” after the Supreme Court ruling in the case Terry v.
Ohio. According to that ruling, police can briefly detain
someone whom they suspect is involved in criminal
activity and conduct a frisk if they reasonably suspect a
person is armed and dangerous.266
In reality, stop-and-frisk has been grossly abused
by police departments, who routinely engage in the
practice without sufficient legal basis. Additionally,

officers often go far beyond what is legally permissible
as a “frisk” to conduct full searches without probable
cause to believe that a person is concealing weapons or
is involved in a crime.
Law enforcement agencies that regularly abuse
stop-and-frisk tactics claim they reduce crime. However,
in New York City, only 11% of stop-and-frisks in 2011
were based on police receiving a description of a violent
crime suspect; the remainder were random stops.267
Only 0.02% resulted in discovery of a gun despite law
enforcement claims that the tactics were effective at
stopping illegal weapon use. In only 6% of stops in 2012
did officers have probable cause to arrest an individual.268
While 17 states require data collection for all stops
and searches, only 15 require analysis and publication
of these data.269 In one study, 20 of the largest law
enforcement agencies in the United States, out of 55
surveyed, were found to have some data on stop-and-

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In 2011, 18-year-old Bianca Feliciano was walking with a friend in Cicero, a western suburb
of Chicago. They were stopped by police under suspicion of prostitution. The police ordered
them into a police car and proceeded to search Bianca’s purse. The police officers refused
to accept her ID, which had her legal name and gender marker. They then verbally harassed
Bianca, saying, “You are not female, you have a dick between your legs.” She was threatened
with physical violence by the police, and they told her she could be accused of fraud. In 2012,
she settled a lawsuit with the police, which included a stipulation that the police department
would develop guidelines for respectful interactions with transgender people.

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Figure 25: Racial Disparities in Stop-and-Frisk Around the United States
Racial/Ethnic Composition of Stops by Police Compared to Overall Racial/Ethnic Composition of City’s Population
Chicago

New York City

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87%
72%

32%

Of those stopped by police are Black,
African American and/or Latino/a

Source: Center for Constitutional Rights, “Floyd, et Al. v. City of New York Press Kit: 2012 Stop and Frisk Statistics;” ACLU of Illinois, “Stop and Frisk in Chicago,” March 2015.

frisks, including Newark, Philadelphia, Boston, Seattle,
and Los Angeles.270 An important reason why New York
City has been the focus of much of the controversy around
stop-and-frisk tactics is because the city has required
collection and publication of stop-and-frisk data since
the 1980s.271 This, in turn, allows for the analysis of the
potential discriminatory effect of stop-and-frisk in certain
communities, as well as the efficacy of the practice in
identifying people engaged in criminal activity.
Predictably, the available data from New York and
other jurisdictions show that not only are these stops
rarely effective in reducing crime, but research shows
individuals who are stopped are disproportionately
people of color, lower-income and homeless people,
public housing residents, and LGBT people—including
many LGBT people of color. What’s more, research finds
that individuals who have experienced stop-and-frisk
policing and other profiling are left feeling humiliated,
depressed, angry and helpless, and that the tactic
fosters mistrust and a reluctance to report crimes and
cooperate with police.272
It is well documented that stop-and-frisk policies
disproportionately target people of color, as shown in
Figure 25. For example:

•• In New York City, the Center for Constitutional Rights

SECTION

OF NEW YORK CITY’S
POPULATION IS BLACK,
AFRICAN AMERICAN
AND/OR LATINO/A

OF CHICAGO’S POPULATION
IS BLACK OR AFRICAN
AMERICAN
Of those stopped by police are
Black or African American

53%

found that 87% of individuals stopped by police in
2012 were black or Latino/a, while black and Latino/a
people make up only 53% of the city’s population.273
Racial disparities persisted across gender.274 Young

people ages 14-21 comprised one-third of stops
in the city in 2008 and 2009, even though they
comprise only one-tenth of the City’s population.275

•• Researchers

in Los Angeles found similar trends,
noting that African American and Hispanic people
were stopped at much higher rates, were more
likely to be frisked, and more likely to be searched
despite the fact that both African Americans and
Hispanics who were stopped and frisked and/or
consensually searched were less likely to be found
with a weapon or drugs than white people who had
been stopped.276

•• According to a 2015 study by the ACLU of Illinois,
black Chicagoans comprised 72% of all individuals
stopped between May and August 2014 despite
comprising just 32% of the city’s population.277
Rates were even higher in police districts where the
majority of residents were white.
Surveys also show the disproportionate impact of
stop-and-frisk policies on LGBT people, particularly LGBT
people of color and transgender women.

•• Transgender women in New York City reported high
levels of interactions with the police, which often
included aggressive searches.278

•• In

New York City’s West Village, a neighborhood
with a predominantly white LGBT community (just
8% of residents are African American or Latino/a),
77% of individuals stopped were African American

A Successful Campaign in New York City to Challenge “Stop-and-Frisk”

The lawsuit and subsequent decline in the reported use of stop-and-frisk were the result of collaborative work by
a diverse coalition of organizations and people across the city. Among the leaders of the effort was Communities
United for Police Reform.285 Also contributing to the success of the campaign was a 2012 report by the Center for
Constitutional Rights (CCR) revealing the human impact of stop-and-frisk.286 CCR had long advocated for an end
to the discriminatory practice, first suing the city in 1999. The organization’s efforts helped lead to mandatory data
collection by the New York Police Department, revealing the discriminatory impact of the tactics. Reports from
the NAACP287 and the New York Civil Liberties Union288 also added to the mounting evidence of discriminatory
treatment.
Among the many advocacy organizations working to end the use of stop-and-frisk were Streetwise and Safe,
FIERCE!, and Make the Road New York. In the end, a calculated mix of legislative advocacy, legal strategy, research
and community engagement galvanized the city’s conversation around the impact of stop-and-frisk on young
people of color, including many young LGBT people of color.
or Latino/a.279 LGBT youth of color commented that
they felt particularly targeted not only because they
were African American or Latino/a, but also because
they were queer or gender non-conforming.
When individuals are stopped by police, property is
often confiscated, including cash, cell phones, cars, and
even homes. This can happen even if a person is not
charged with a crime or eventually found guilty.280 In
order to have their assets returned to them, individuals
must prove those assets were obtained legally.281 This
practice, called civil asset forfeiture, has been shown to
be used disproportionately against low-income people
and people of color.282

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In August 2013, a federal judge ruled that New York City was deploying stop-and-frisk unevenly against mainly
young black and Latino/a New Yorkers, and that this disproportionate impact violated the Constitution.283
Following the election of Mayor Bill DeBlasio in 2014, the city saw a dramatic decrease in the reported use
of stop-and-frisk by law enforcement. In some places, such as Harlem, its use dropped by as much as 96%.284
Many advocates, community members, and others report a shift in how stops are executed and how they are
documented by officers, meaning that communities on the ground may not be feeling a shift as dramatic as
reported by the decrease in documented stop-and-frisk numbers. Nonetheless, Judge Scheindlin’s 2013 ruling
represented a major victory for New Yorkers.

SECTION

New York State: A Hub of Innovation and Cooperation
54

Thanks to hundreds of organizations and thousands of activists, New York has recently seen positive action on profiling,
stop-and-frisk, and other issues affecting LGBT people at the state and local levels. For example:

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•• In 2013, a judge ruled that New York’s disproportionate use of stop-and-frisk policing was unconstitutional (see
discussion on page 53), slowing the reported deployment of the tactic.
•• New York City passed the Community Safety Act in 2014, designed to curb racial profiling and add protections
against profiling on the basis of sexual orientation and gender identity.
•• Also in 2014, New York City announced it would stop considering condoms as evidence in most (but not all)
prostitution-related offenses (see discussion on page 50).
•• One hundred beds for homeless youth were added to New York City’s shelter supports in 2014, including 24 beds
for LGBT youth specifically.
The following organizations are among the many that advocated for these changes and continue to advocate for the safety
of LGBT people on the streets, in their homes, and when interacting with law enforcement and criminal justice institutions.
Streetwise and Safe (SAS) builds skills, leadership, and community among LGBTQ youth of color who are likely to experience
harsh policing and criminalization. The organization’s Know Your Rights work aims to educate youth about their rights when
interacting with law enforcement and the criminal justice system. In 2012, youth leaders from SAS and BreakOut in New
Orleans (see pages 47, 55 and 125) held conversations that turned into the Get Yr Rights network, a powerful, multi-state
network of organizations doing similar work with and for LGBTQ youth. SAS conducts research on policing and LGBTQ youth,
specifically in New York City. SAS also advocates at the city, state, and federal levels for policies that increase safety and selfdetermination for youth, and that strengthen accountability for law enforcement and criminal justice institutions.
The Queer Detainee Empowerment Project (QDEP) started in 2014 to fill a lack of transgender-competent services for
people being released from incarceration or immigration detention. QDEP also serves undocumented LGBT youth in
state care who, upon aging out of care without family support, would be transferred to immigration detention. QDEP
offers a range of direct services to LGBT undocumented immigrants, helping them find employment, educational
assistance, safe housing, food stability, and other resources. The organization also has expanded into community
organizing against over-policing and unjust detention.
The Vera Institute is a national advocacy and research organization with offices across the country; the institute also does
a significant amount of work on local issues in New York City. In 2015, Vera began a project to streamline the health intake
process for girls entering juvenile justice facilities (see discussion on page 101). Girls and young women entering juvenile
justice facilities have a high likelihood of having been sexually assaulted prior to their arrest. A standardized, confidential
health assessment is crucial to ensure that these girls and young women feel safe and can access swift, competent
medical care. Similarly, LGBT-identified girls and young women may not feel comfortable disclosing their identity to intake
personnel, but the information is crucial for continued care and to understand the disparities faced by LGBT youth in
juvenile justice systems. Vera is piloting a program using iPads to confidentially collect health data and is working to
streamline the health intake process for youth in male and female facilities. The goal is to ensure that LGBT and gender
non-conforming youth can provide relevant information and access competent care without compromising their safety.
Sex Workers Project (SWP) was a leading member of the coalition working to end the use of condoms as evidence
in New York City. SWP also provides direct assistance to survivors of trafficking and offers legal and social services to
individuals engaged in sex work.
Make the Road New York is a multi-generational, multi-issue advocacy organization focused on Latino and workingclass communities. As part of a range of robust programming for youth, Make the Road hosts a youth power project and
supports 10 New York-based Gay-Straight Alliances that focus on leadership development and critical thinking. Make
the Road was active in the campaign to challenge stop-and-frisk in New York City and in the campaign against the use of
condoms as evidence of prostitution. Among its work with adults, Make the Road focuses on highlighting the voices of
LGBT people and their families in their efforts to reform the immigration system.
SECTION

Other New York organizations serving the LGBT community, including the LGBT Community Center, the True Colors
Fund, Green Chimneys, the Sylvia Rivera Law Project, the Ali Forney Center, FIERCE!, New York Immigrant Family Unit
Project, and Communities United for Police Reform are described elsewhere in this report.

Use of Federal Consent Decrees to Improve Treatment by Police

Advocates in several cities have used consent decrees to address rights violations by police departments and
have specifically cited the treatment of the LGBT community in their requests to the Department of Justice.
For example, in May 2010 the Department of Justice launched an investigation of the New Orleans Police Department
for several violations of federal law. These included allegations that transgender women were improperly targeted
and arrested for prostitution; and that young people, people of color, and LGBT people frequently were stopped,
targeted, booked, and arrested for minor infractions – and disproportionately charged with “solicitation of a crime
against nature.” Under the latter offense, people were punished for solicitation of oral or anal sex with a five-year
prison sentence and mandatory sex offender registration for a period of 15 years to life.289
To fight these practices, LGBTQ young people, primarily youth of color, from BreakOUT launched a “We Deserve
Better” campaign,290 providing research, testimony, and resources in support of the consent decree; the
youth also participated in a broader effort to advance a “People’s Consent Decree.” As a result of community
engagement, the Department of Justice and the New Orleans Police Department entered an agreement under
a consent decree in July 2012. Under the decree, the police department was required to update policies and
procedures and give officers clear instructions and training to ensure that they enforce the law effectively and
constitutionally.291 The decree outlined policies related to the proper use of force and the use of canines in
vehicle pursuit. It was considered of the most extensive decree issued by the Department of Justice.
Contained in the decree are the requirements that officers no longer stop and frisk individuals without reasonable
suspicion of a crime, and that officers cannot use race, sexual orientation, gender, or gender identity (among
other characteristics) as the basis for stop-and-frisk policing and arrests, as well as other actions from conducting
a warrantless search to seeking a search warrant. The decree explicitly states that the department will treat LGBT
individuals with courtesy, professionalism, and respect, and that officers are specifically prohibited from using
harassing, intimidating, or derogatory language regarding or toward LGBT individuals.

PROBLEM: DISCRIMINATION AND VIOLENCE
WHEN SEEKING ASSISTANCE FROM POLICE
Insensitive and incompetent responses by law
enforcement can push some LGBT people unfairly into
the criminal justice system. When LGBT people seek
assistance from the police, particularly in instances of
intimate partner violence or a hate crime, they are often
met with a lack of understanding. Sometimes they are
even arrested alongside, or instead of, the perpetrator.

Hate Crimes
LGBT people in the United States continue to
experience high levels of homophobic and transphobic
violence directly because of who they are and whom
they love; these situations are often called “hate

violence” or “hate crimes.” According to a 2014 study
by the National Coalition of Anti-Violence Projects
(NCAVP), transgender women, transgender people in
general, LGBTQ people of color, gay men, and LGBTQ
young people are most at risk for severe violence.292 As
shown in Figure 26 on the next page, for example:

•• LGBTQ young people were 2.5 times more likely to
be injured due to hate violence than other LGBTQ
and HIV-affected survivors of violence.

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The Civil Rights Division of the U.S. Department of Justice has the ability to sue police departments and compel them to
change their practices if there is evidence that police have a “pattern and practice” of using force or violating individuals’
civil rights. The resulting agreement, which frequently requires detailed changes to police policies and operations,
is called a “consent decree.” Consent decrees can be a useful tool for advocates in pushing for policing reform.

•• LGBTQ

and HIV-affected people of color were 2.2
times more likely to experience physical violence
than white LGBTQ and HIV-affected people.

In 2013, 20% of individuals involved in hate crime
incidents were targeted because of their sexualorientation and 0.5% because of their gender identity.

SECTION

SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO INCREASED CRIMINALIZATION OF LGBT PEOPLE

However, NCAVP’s research shows that only 54%
of survivors identified in the study reported their
experiences of hate violence to the police, and only 6%
of incidents reported to the police were subsequently
classified as a bias crime.293 Law enforcement officials
often fail to adequately identify sexual orientation or
gender identity-related bias in an incident or look for
other possible motives for the offense, such as robbery.294
When LGBT people do seek out assistance from law
enforcement, they often do not have their complaint
taken seriously or are not responded to quickly. Police
may try to explain why a perpetrator acted the way they
acted, particularly in cases involving transgender and
gender non-conforming people whom police officers
may see as engaging in “gender fraud.”295 In addition,
there have been documented cases where an LGBT
person involved in a hate incident was charged with a
crime for defending themselves against a perpetrator,
while the perpetrator was not charged.296
LGBT people who report hate crime incidents
to the police may themselves become the targets of
police violence. As shown in Figure 27 on the next page,
the 2014 NCAVP survey found that among hate crime
survivors, transgender women were 6.1 times more
likely to experience physical violence when interacting
with police than other violence survivors and 5.8 times
more likely to experience police violence, including
harassment, threats, bullying, or vandalism.297 LGBTQ
and HIV-affected people of color were 2.4 times more
likely to experience police violence than other violence
survivors, and LGBTQ and HIV-affected young adults
ages 19 to 29 were 2.2 times as likely to experience
police violence.298
Even with the high levels of violence they
experience, NCAVP’s report found that transgender
women were less likely to report hate violence
incidents to the police than were other survivors—
probably because of poor treatment by police.299
White gay men were the most likely to report LGBTrelated hate crimes to the police.
It is important to note that evidence demonstrates
that hate crimes legislation, like other criminal
punishment legislation, is used unequally and
improperly against communities that are already
marginalized, including people of color, low-income
people, and LGBT people.

SECTION

Figure 26: LGBTQ People At Risk For Hate Violence

LGBTQ YOUNG
PEOPLE ARE

2.5x

MORE LIKELY TO BE INJURED BY HATE
VIOLENCE THAN OLDER LGBTQ PEOPLE

LGBTQ AND HIV-AFFECTED
PEOPLE OF
COLOR ARE

2.2x

MORE LIKELY TO EXPERIENCE PHYSICAL
VIOLENCE THAN WHITE LGBTQ AND
HIV-AFFECTED PEOPLE
Source: Osman Ahmed and Chai Jindasurat, “2014 Report on Lesbian, Gay, Bisexual, Transgender,
Queer, and HIV-Affected Hate Violence” New York: National Coalition of Anti-Violence Programs, 2015.

Figure 27: Violence Survivors At Risk for Violence By Police

TRANSGENDER
WOMEN ARE

2.4x

LGBTQ AND HIVAFFECTED YOUTH ARE

2.2x

MORE LIKELY TO EXPERIENCE PHYSICAL VIOLENCE BY POLICE
THAN OTHER HATE CRIME SURVIVORS

Source: Osman Ahmed and Chai Jindasurat, “2014 Report on Lesbian, Gay, Bisexual, Transgender, Queer, and HIV-Affected Hate Violence” New York: National Coalition of Anti-Violence Programs, 2015.

Photo permission from Windy City Times

Story: Two Hate Crimes, Two Cases of Injustice (part 1)
#1: Chicago Woman Charged with Attempted Murder For Defending Herself During
Hate Crime
On March 28, 2012, Eisha Love and Tiffany Gooden parked near a gas station in the Austin
neighborhood of Chicago, Illinois. Eisha wanted to pick up a birthday present for her mom.
Two men approached the women, including one who was verbally assaulting Eisha. As
black transgender women in Austin, this wasn’t surprising to her and Tiffany. Eisha says she
was frequently harassed, but she learned to keep her head down and ignore her harassers.
The men continued bothering Eisha and Tiffany, and then one of the men punched Eisha in the face. When she
heard one of the men calling friends for some support, Eisha realized they were in real danger, so Eisha and
Tiffany ran for their car and drove away.
After the men gave chase both on foot and by car, Eisha lost control of her car, swerving and hitting one of the
men. The man limped away and was later treated for a broken leg. Certain that the men were going to kill them,
Eisha and Tiffany left their car and ran, finding a hiding spot from which she called her mother.
Later, Eisha and her mother returned with police to the location where the car had been left and explained what
happened. Some of the men who had been involved were there, too. As Eisha arrived, several of the men pointed
to Eisha and said, “There’s the faggot that did it,” and “We’re going to get you.”
Eisha was told to go to the police station. She thought the police would investigate her attack, but instead she
was booked and ultimately indicted on charges of attempted first-degree murder and aggravated battery. Eisha
spent three years and nine months in jail without a trial before being released in December 2015 after accepting
a plea of guilty for aggravated battery. While in a maximum security men’s jail, Eisha was verbally harassed and
attacked by a correctional officer.
Several months after the incident, Tiffany Gooden was found dead in an abandoned building. She’d been
stabbed. Her mother told a Windy City Times reporter that a friend of Tiffany’s told her that someone was looking
for Tiffany. “They were saying they was going to kill her. They were saying they were going to ‘get his’ ass because
‘he’ was riding in the car.” Another transgender woman, Paige Clay, was murdered just a few blocks from where
Tiffany’s body was found a few weeks earlier.
Adapted from Gretchen Rachel Blickensderfer, “Trans* Woman Claims Self-Defense in Case,”Windy City Times, September 17, 2014; Gretchen Rachel Blickensderfer, “A Tale of Two Murders: Connected
or Not?,” Windy City Times, September 24, 2014; Gretchen Rachel Hammond, “Transgender Woman Released from Jail after Nearly 4 Years without Trial,” Windy City Times, December 17, 2015.

SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO INCREASED CRIMINALIZATION OF LGBT PEOPLE

6.1x

LGBTQ AND HIV-AFFECTED
PEOPLE OF COLOR ARE

SECTION

Story: Two Hate Crimes, Two Cases of Injustice (part 2)

SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO INCREASED CRIMINALIZATION OF LGBT PEOPLE

#2: Transgender Man Imprisoned for Fighting Off Rapist

SECTION

Ky Peterson, a black transgender man, is serving a 20-year sentence for involuntary
manslaughter in the Pulaski State Prison in Georgia. His crime? He defended himself
when he was being raped by a stranger.
On October 2011, Ky was walking home from a gas station. He was frequently harassed
by strangers and had been raped before, so he kept a gun in his bag for protection.
After ignoring the advances of a man drinking outside the gas station, Ky passed some
abandoned buildings. There the man, Samuel Chavez, hit Ky over the head and raped him while screaming
homophobic slurs. Ky’s brothers heard his screams and helped pull Chavez off of Ky. As Chavez came charging
toward him again, Ky shot the man.
Immediately, Ky wondered what to do. Would the police see him as a rape survivor who defended himself with
the help of his brothers? Or would police see the young black men as thugs?
A rape kit came back positive and confirmed what Ky had told the police – he had been raped and had defended
himself. Nevertheless, he was arrested for possession of a firearm and for shooting his rapist. Ky spent 366 days
in the county jail awaiting formal charges. He wasn’t given an opportunity to meet with a public defender.
Once he was formally charged, Ky met with a public defender who advised him to plead guilty to involuntary
manslaughter. Ky’s public defender had more than 200 active cases at the time and wasn’t able to devote much
time to the case. Ky’s attorney told The Advocate he thought Ky had two strikes against him. “Number 1, you’re
African-American,” the attorney recounted saying to Ky. “And these little old white ladies in South Georgia think
that if [they] see an African-American outside their own neighborhoods, [they] need to be careful.” The second
strike, the attorney said, was that Ky looked “stereotypically gay.” “The fact you’re gay will be an issue that I have
to address early on,” the attorney recalled telling Ky. “That’s two strikes that are against us from the get-go. And
that factored extensively into my and my investigator’s discussions about the case.” Ky never told his public
defender that he was transgender.
Ky was placed in a women’s prison and is frequently harassed. “My identity [as a trans man] has not been respected
at all. The officers still address me as ‘ma’am,’ which I don’t like at all. But I have to go by it, because that’s their
rules that I have to go by,” Ky told a reporter for The Advocate. “Here the staff’s like ‘girl’ this and ‘girl’ that, and I
have to catch myself sometimes like, ‘You must be talking to someone behind me.’ It’s just not what I’m used to,
even at home. Once I make it known to them [that I’m a trans man], it’s always something extra like, ‘No, you’re
just gay.’” Ky struggles with depression, and has yet to receive follow-up care or counseling related to the rape.
There are also substantial delays in receiving routine medical care, including asthma medication, which took
seven months for Ky to receive. In January 2016, Ky was finally approved to begin testosterone.
Adapted from Sunnivie Brydum and Mitch Kellaway, “This Black Trans Man Is in Prison for Killing His Rapist,” The Advocate, April 8, 2015.

Intimate Partner Violence and Sexual Assault
It isn’t just hate crimes. Law enforcement also often
fails to adequately address cases of intimate partner
violence involving LGBT people.300

Sometimes, the survivor can even be charged with
a crime if they use violence against the perpetrator.
According to NCAVP, police arrested LGBT and HIVaffected survivors for violence in 22% of all cases of
intimate partner violence.304
Figure 28: Intimate Partner Violence Survivors
Experience Police Misconduct
Percent of LGBTQ Survivors of Intimate Partner
Violence Who Called Police
Experienced Police
Misconduct, Including
Being Unjustly
Arrested

National attention has recently focused on the
abuse, harassment, and discrimination faced by
communities of color, particularly black and AfricanAmerican communities, in the United States. In a
nationally representative sample of young people ages
18 to 29 conducted in December 2013 and January
2014, young black people reported the highest rate
of harassment by police (54%), nearly twice the rate of
other young people.305
LGBT people, including many LGBT people of color,
have long suffered from discrimination, harassment, and
violence at the hands of police. Recent surveys have
quantified these experiences, and they highlight the
ways in which law enforcement not only targets LGBT
people for breaking the law, but also abuses its power
and treats LGBT people in deplorable ways, as shown in
Figure 29 on the next page.

Youth

•• A survey of LGBTQ youth in New Orleans found that
59% of transgender youth surveyed had been asked
for a sexual favor by the police in New Orleans, along
with 12% of non-transgender LGBQ youth.306

•• In a survey of youth in New York City, some of whom
identified as LGBT, 12% reported negative sexual
experiences with police, including receiving sexual
attention or being touched inappropriately.307

57%

•• LGBT youth in the New York City survey were more

Arrested by
Police

22%

Source: Chai Jindasurat and Emily Waters, “Lesbian, Gay, Bisexual, Transgender, Queer, and HIV-Affected
Intimate Partner Violence in 2014” (National Coalition of Anti-Violence Programs, 2015).

than twice as likely to report negative sexual contact
with police in the past six months, compared to nonLGBT youth. With the power dynamic so tilted in a
police officer’s favor—both because of their ability
to use lethal force but also the threat of arrest—
these demands amount to sexual extortion.

•• Of 1,094 youth surveyed throughout New York City,
nearly half (48%) reported a negative experience
of some kind with police in the past six months,
including negative verbal or sexual experiences.308
The LGBTQ-identified youth were much more likely
to have negative experiences with police than their
non-LGBTQ peers and were less likely to report
positive experiences. They also were more likely to
have negative legal contact, verbal contact, physical

SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO INCREASED CRIMINALIZATION OF LGBT PEOPLE

Rates of domestic and intimate partner violence in
same-sex couples are similar to the rates in opposite-sex
couples.301 However, LGBT survivors of domestic violence
are frequently arrested along with their abusive partners
if they reach out to the police for help.302 As shown in
Figure 28, in a 2014 report from the National Coalition
of Anti-Violence Programs, 57% of intimate partner
violence survivors who called the police experienced
police misconduct including being unjustly arrested.303

PROBLEM: ABUSE AND BRUTALITY
BY LAW ENFORCEMENT

SECTION

contact, and sexual contact with police. Nearly half
(49%) of those who had been arrested said they felt
unsafe in the patrol car following their arrest.

SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO INCREASED CRIMINALIZATION OF LGBT PEOPLE

••
The

Young Women’s Empowerment Project, a
Chicago-based organizing project for girls and
women ages 12 to 23, including transgender youth
who have current or past experience in the sex
trade and street economies, analyzed complaints
filed through their “Bad Encounter Line.” In 2009,
the hotline received reports of 146 encounters
with police, 33% of which were bad encounters.309
Of all complaints about interactions with police,
transgender youth comprised 25%.

LGBT Adults

San Francisco Police Department
Creates “Safe Zones” at Stations
As part of an effort to encourage LGBT people to
report hate crimes and other problems in their
community, the San Francisco Police Department
implemented a Safe Zone policy in 2013. All of the
department’s 10 stations have signs indicating that
individuals can expect courteous, respectful, and
compassionate interactions.
Source: “San Francisco Police Reaching out to LGBT Community with Safe Havens,” The
San Francisco Examiner, April 16, 2013; Greg Rynerson, “SFPD Stations Declared LGBT Safe
Zones,” California Bail Bonds, April 21, 2013.

•• The

2015 LGBT Health and Human Services Needs
Assessment conducted in New York State found one
in five transgender respondents (21%) had been
unfairly arrested, harassed, or physically harmed with
higher rates for transgender people of color (31%).310

•• In

2015, the Williams Institute reviewed several
surveys about LGBT people and people living with
HIV and their experiences with law enforcement.
The researchers found evidence of pervasive
discrimination and harassment.311

Figure 29: High Rates of Abuse and Brutality by Law
Enforcement
Figure 29a: Percent of LGBTQ Youth in New Orleans
Reporting Being Asked for Sexual Favors by Police

59%

•• In a survey by Lambda Legal, 73% of LGBT people
and people living with HIV reported face-to-face
contact with law enforcement in the past five years.
Among these people, 21% reported hostile attitudes
from the police and 14% were verbally harassed.312
Harassment and discrimination by law enforcement
is higher among LGBT people of color and transgender
people. Among Latina transgender women in Los Angeles
County, for example, two-thirds report that they have
been verbally harassed by law enforcement, 21% report
being physically assaulted by law enforcement, and 24%
report being sexually assaulted by law enforcement.313

12 %
Transgender Youth

Non-Transgender LGBQ Youth

Figure 29b: Percent of Transgender Adults in New
York State Reporting Being Unfairly Arrested or
Sexually or Physically Harassed by Police

1 in 5

TRANS PEOPLE

AND

1 in 3

TRANS PEOPLE
OF COLOR

Source: BreakOUT! and the National Council on Crime & Delinquency,“We Deserve Better: A Report on Policing
in New Orleans By and For Queer and Trans Youth of Color,” 2014; Somjen Frazer and Erin Howe, “Transgender
Health and Economic Insecurity: A Report from the 2015 LGBT Health and Human Services Needs Assessment
Survey”(New York, NY: Empire State Pride Agenda, 2015).
SECTION

Story: Brutality at the Hands of the Police (part 1)

#1: Transgender Man in Georgia Assaulted by Police

The officer responded by demanding to search Juan and examine his genitals to determine whether
he was a man or a woman. When Juan refused, he was arrested and taken to the police station where
he was harassed by staff and outed, including being threatened with additional genital searches.
Adapted from Mitch Kellaway, “WATCH: Georgia Trans Man Called ‘It’ by Police Pushes for End to Harassment,” The Advocate, November 2, 2014.

#2: Police Beat Transgender Woman Later Found Shot Dead
After facing discrimination from shelters, drug treatment centers, and employers because
she was transgender, Duanna Johnson, a black woman in Memphis, was living on the
streets. In February 2008, police arrested her for suspicion of prostitution.
Once at the station, Duanna refused to respond to the officers who called her “faggot” and
“he-she.” She told a local news station, “I knew he couldn’t be talking to me because that’s
not my name.” One of the officers put on a pair of gloves, wrapped a pair of handcuffs
around his knuckles, and beat her while the other officer held her down. She was sprayed
with pepper spray, held down on the floor, and handcuffed. A security video captured the
entire incident.
Both officers were fired, and the officer who beat Duanna pleaded to a single count of violating her civil rights; he
was sentenced to two years in prison for Johnson’s beating and for tax evasion. In November 2008, Duanna was
found dead, shot execution style, the third black transgender woman to be killed in Memphis in two years.
Adapted from Kimberlé Williams Crenshaw et al., “Say Her Name: Resisting Police Brutality Against Black Women” (New York, NY: African American Policy Forum and the Center for Intersectionality
and Social Policy Studies, 2015); Robbie Brown, “Murder of Transgender Woman Revives Scrutiny,” The New York Times, November 17, 2008.

SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO INCREASED CRIMINALIZATION OF LGBT PEOPLE

In East Point, Georgia, on October 23, 2014, Juan Evans was pulled over by police for speeding. An
African American transgender man, he provided extensive information in response to the officers’
questions. Since he didn’t have his wallet with him, he offered his birth name, birthdate, social security
number, and address. He disclosed to police that he was transgender after one of the officers accused
him of lying.

SECTION

Story: Brutality at the Hands of the Police (part 2)

SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO INCREASED CRIMINALIZATION OF LGBT PEOPLE

#3: Police Officer Sexually Assaults Young Lesbian Couple

SECTION

After being pulled over for a routine traffic stop in Florida – the result of an illegal U-turn –
a 17-year-old teen was placed in an officer’s police car and taken to the station, while her
girlfriend followed in her car.
Once at the station, the officer put the teen in an empty room and asked her sexually explicit
questions. “[He asked me] how do I have intercourse, and I told him, ‘Why do I need to answer
that? Why is that necessary?’” the young woman told a local news station. “He insisted … so I
told him how me and my partner have intercourse. ... After, he asked if I was a virgin. He asked
me, if he was to test me right that moment, if I had any diseases on me.”
The officer then began touching himself and ordered the girl to take off her shorts. After 15 minutes, she was
released, and she and her girlfriend filed a police report.
Adapted from Mitch Kellaway, “Florida Cop Suspended After Allegedly Forcing Lesbian Teen to Strip, Making Sexual Gestures,” The Advocate, June 19, 2015.

#4: Gay Man Pulled from House, Beaten By Officers
On June 19, 2015, Louis Falcone, a gay man living in Staten Island, opened the door to find police on
his front step. He had been arguing with his brother, and a neighbor had complained about the noise.
When Louis asked the police why they wanted to come inside, the situation escalated as he was pulled
from his house and beaten on his front lawn. A neighbor caught the incident on video, and officers can
be heard screaming while four officers piled on him.
“They threw me against the concrete in front of my house. My first reaction was to try to get up a little
bit,” Falcone told the New York Daily News. “While I was on the ground, I had mud and blood in my
mouth. One [of the cops] said, ‘Don’t let it get on you, he probably has AIDS, the faggot.’” Louis suffered
a broken nose, two black eyes, cuts to his face and body, and needed surgery to his foot, which had recently been
operated on before the incident.
Adapted from Chelsia Rose Marcius and Tina Moore, “EXCLUSIVE: Gay S.I. Man Says Cops Beat Him in Yard (VIDEO),” NY Daily News, July 31, 2015.

Summary: How Policing Strategies and Tactics
Lead to Criminalization

Recommendations
LGBT people in the United States are at risk of being
unjustly stopped and arrested by police, having their
lives criminalized, and being pushed into the criminal
justice system.
These recommendations are not meant to be
comprehensive, but rather high-level suggestions for
ways to improve the safety of communities and reduce
the forces that result in too many LGBT people entering
the criminal justice system without justifiable cause.
Increase support for and acceptance of LGBT
young people within families, schools, communities,
and institutions.
1. Family rejection. Youth-serving organizations,
social service organizations, and schools should
emphasize the power of family acceptance in
reducing negative outcomes for LGBT youth.
2. Increased support for families. Policymakers
should take steps to reduce family poverty; reform
immigration policies to keep families together;
provide affordable, safe housing; and reduce mass
incarceration to improve the stability and security of
families. This will reduce the number of youth who
end up on the streets, many of whom are LGBT.
3. Child welfare. Policymakers and government
agencies serving families and children should

4. Safe schools. Congress should pass legislation
ensuring nondiscrimination in education and
prohibiting bullying based on sexual orientation
and gender identity. State policymakers should
pass state nondiscrimination and anti-bullying
laws enumerated to include sexual orientation and
gender identity. States and the federal government
should also require that districts adopt model
policies that address incidents as they arise but do
so in a manner that ensures student safety while
striving to keep young people in school to the
extent possible.
5. Dismantle the school-to-prison pipeline.
Policymakers at all levels should advance
policies and initiatives that keep youth from
entering
the
school-to-prison
pipeline.
Districts and schools should review discipline
policies to better ensure student safety while
working to keep students in school.
Schools should implement innovative programs
designed to reduce bullying and discrimination
while simultaneously working to address the
school-to-prison pipeline.
States and school districts should review school
discipline standards to appropriately and
proportionally address student behavior.
School districts and schools should work to create
agreements with law enforcement as to when and
how officers will be involved in school disciplinary
issues, with the majority of issues being handled
by teachers, staff, and students through a conflict
resolution model. Districts should remove all
armed police officers in schools.

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LGBT people are frequently profiled and targeted by
police for quality of life crimes. The result is that LGBT
people, particularly low-income LGBT people and LGBT
people of color, are pushed into the criminal justice system.
When LGBT people interact with police and those interactions are negative—involving misconduct, harassment,
abuse, sexual assault, and discrimination—LGBT people,
in particular, have weaker trust in law enforcement. In fact,
LGBT survivors of violence are less likely to report incidents
to police, and when they do report, their complaints are
rarely fully addressed.314 In addition to disproportionately
impacting LGBT people, policing strategies and tactics
that rely on stereotypes, profiling, and targeting of quality of life crimes inflict serious emotional and physical
trauma on individuals and communities, diminish the
effectiveness of police in serving communities,315 and
reduce community trust and cohesion.

increase funding, increase staff and organizational
competence, and ensure nondiscrimination in
the provision of services to protect LGBT youth.
Governments and communities should also
encourage LGBT adults to serve as foster and adoptive
parents. Governments and foundations should
increase funding for programs, including voluntary
harm reduction programs, to meet the needs of LGBT
youth who are at risk for criminalization.

Work to eliminate discrimination against
LGBT people across many areas of life, including
employment, housing, public accommodation, health
care, and access to accurate identity documents.
SECTION

1. Congress should pass federal nondiscrimination
legislation.

SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO INCREASED CRIMINALIZATION OF LGBT PEOPLE

2. State and local policymakers
nondiscrimination legislation.

should

pass

3. Federal and state regulators and insurance
companies should remove insurance exclusions for
transition-related care for transgender people.
4. State lawmakers should pass laws allowing transgender people to obtain accurate identity documents;
states and localities should issue guidance easing the
processes for updating documents.
5. Governments and foundations should support
trainings for social service organizations to better
serve LGBT people and to better address the
unique barriers to economic security and safety
experienced by LGBT people.
Work to eliminate homelessness among the LGBT
population and ensure that LGBT people have the ability
to make choices about how to support themselves.
1. Congress should fully fund and implement legislation
such as Federal Plan to End Homelessness, which
would expand access to affordable housing.
2. Federal, state, and local governments should
expand investment in public and affordable
housing, increasing the number of units available
and improving the quality of housing.
3. Congress should amend the Runaway and Homeless
Youth Act to provide explicit protections for LGBT
homeless youth, including prohibiting grant
recipients from discriminating against LGBT youth.
4. Congress should pass legislation to reduce
homelessness
among
all
youth.
Such
legislation would improve training, educational
opportunities, and permanency planning for
older foster care youth.
5. Government agencies should increase funding for
direct services to assist LGBT people experiencing
homelessness and those at risk for homelessness.
6. Governments and foundations should provide more
funding for research on LGBT youth homelessness.
Local, state, and federal agencies should implement
homelessness data collection that includes data on
gender identity and sexual orientation. Researchers
and advocates should include LGBT youth in their

SECTION

research to better understand the development
needs, health disparities, and educational and
workplace challenges facing LGBT youth.
7. States and localities should repeal laws and policies
targeting homeless people.
Repeal, replace, and modernize HIV criminalization
laws.
1. States should repeal all laws that criminalize the
transmission of HIV and other diseases. When
examining existing statutes, lawmakers and
advocates should take into consideration “unique or
additional burdens” these laws place on individuals
living with HIV/AIDs and the extent to which
existing laws do not take into account the most
recent science and research as to the transmission
of HIV and the benefits of treatment.316
End criminalization of consensual sex
1. State and local law enforcement should not
criminalize consensual sex between adults—and
should reduce entrapment schemes aimed at gay
and bisexual men.
2. State and local law enforcement should ensure that
laws policing sex are not discriminatorily enforced
against LGBT people.
3. States should pass legislation ensuring access to
condoms without fear that their possession or
presence will be used as evidence to justify stops,
arrest or prosecution for any prostitution-related
offense or lewd conduct-related offense.
Enact drug policy and sentencing reform
1. Congress and the states should pass sentencing
reforms to allow for judicial and prosecutorial
discretion to take into account the circumstances
surrounding a crime. Another priority: exploring
and implementing alternatives to criminal charges,
such as substance abuse assistance, alternative
justice methods, and restorative justice programs.
2. Congress, states and communities should increase
funding for LGBT-specific and LGBT-inclusive drug
treatment facilities.
3. Congress, states and communities should improve
drug treatment options. This means increasing
funding for public drug treatment programs317,
including in-prison treatment.318

Reduce disparities in criminal justice legislation
1. Congress should pass legislation requiring that a proposed new criminal law or modification to a criminal penalty for an existing crime must be examined
to determine whether it will have a disparate racial
impact and impact on other specific communities.319

1. Government at all levels should build strong
boundaries between immigration enforcement
and law enforcement to prioritize community
safety and to encourage immigrants, regardless of
legal status, to report violence and other concerns
to police without fear of deportation.
2. Law enforcement should adopt “least harm”
practices including issuing warnings and
recommendations for diversion programs as
opposed to citations and fines for minor infractions.
Quotas or benchmarks for the number of citations,
tickets, or arrests should be abandoned and not
used as a way to generate revenue for localities.

Address hate crimes and intimate partner violence
1. As part of law enforcement education and ongoing
training, officers should receive competency
training about how to identify hate crime and
intimate partner violence incidents and how to
best engage with the LGBT community, including
survivors of hate violence and intimate partner
violence. The December 2015 guidance from the
Department of Justice, “Identifying and Preventing
Gender Bias in Law Enforcement Response to Sexual
Assault and Domestic Violence,” offers detailed
recommendations for local police departments.321
Reduce abusive and excessive force by police

3. Law enforcement should deprioritize enforcement
of laws criminalizing prostitution. Efforts should be
made to provide supportive services requested by
people in the sex trades, including drug treatment
and housing, rather than focusing on arrests.

1. Police departments should adopt and enforce
policies governing interactions with LGBTQ people
during stops, arrests, transport, and detention
and ensuring non-discriminatory treatment in
responses to violence experienced by LGBTQ people.

4. Policymakers should pass state and local legislation,
and police should adopt department policies,
prohibiting the use of condoms as evidence and
the confiscation of condoms by police.

The Department of Justice should develop and
disseminate a model policy for police interactions
with LGBTQ people in collaboration with the
LGBTQ Working Group.

5. Law enforcement agencies should collect,
maintain, and analyze demographic data on stops,
frisks, searches, summons, and arrests.

2. Police departments should create LGBT Advisory
Committees to help craft guidelines for law
enforcement and advocate for changes to local,
state, and federal laws.

Reduce profiling
1. Congress should pass a law to end profiling by law
enforcement on the basis of actual or perceived
race, color, ethnicity, immigration status,
language, disability (including HIV status), sexual
orientation, and gender identity, among other
characteristics, such as the End Racial Profiling
Act. Local and state legislatures should pass their
own LGBT-inclusive anti-profiling laws.
2. All law enforcement agencies that receive federal
funding should implement guidance from the U.S.
Department of Justice regarding profiling, which
states that federal law enforcement officers cannot

3. Police departments at all levels should have regular
cultural competency trainings on how to engage
with communities most impacted by excessive
police force, including LGBT communities. Trainings
should be created in consultation with communitybased organizations.

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Adopt less discriminatory policing strategies

use “race, ethnicity, gender, national origin, religion,
sexual orientation or gender identity to any
degrees, except that officers can rely on the listed
characteristics in a specific suspect description.”320
This guidance should be applied to all federal
government agencies. Cities and counties should
adopt similar guidance.

4. Local and state law enforcement agencies
should enact and enforce nondiscrimination
provisions that prohibit discrimination on the
bases of sexual orientation and gender identity.
Officers should be trained on these policies and
held strictly responsible for their enforcement.

SECTION

SECTION 1: ENTERING THE SYSTEM: THREE FACTORS LEAD TO INCREASED CRIMINALIZATION OF LGBT PEOPLE

SECTION

5. Police departments should pass and enforce
“zero-tolerance”
policies
toward
sexual
harassment and assault by police officers.
The U.S. Department of Justice should promote
and disseminate guidance to federal, state, and
local law enforcement agencies on documenting,
preventing, and addressing sexual harassment
and misconduct by local law enforcement agents,
consistent with the recommendations of the
International Association of Chiefs of Police.
Agencies should make the process for enforcing
these policies transparent and develop external
oversight procedures.
6. Agencies should recruit and retain LGBT officers
and maintain community liaison units to foster trust
between LGBT communities and law enforcement.
Increase Data About the Experiences of LGBT
People With Law Enforcement
1. Governments, academics, and advocates should
strengthen data collection about the experiences
of LGBT individuals with law enforcement through
anonymous surveys and other mechanisms
designed to ensure the safety of respondents.
2. The Bureau of Justice Statistics should add
questions concerning sexual harassment of and
misconduct toward community members, and
in particular LGBT and gender non-conforming
people, by law enforcement officers to the Police
Public Contact Survey.
3. The Centers for Disease Control should add
questions concerning sexual harassment of and
misconduct toward community members, and
in particular LGBT and gender non-conforming
people, by law enforcement officers to the National
Intimate Partner and Sexual Violence Survey.

SECTION 2: IN THE SYSTEM: LGBT
PEOPLE ARE MORE FREQUENTLY
INCARCERATED AND TREATED
HARSHLY

Regardless of whether an LGBT person is sentenced
to a correctional or an immigration detention facility,
too many LGBT people are treated harshly, abused,
disrespected, and subjected to violence in these settings.
LGBT people are also disproportionately subject to unfair
convictions, physical and emotional abuse, and a lack of
adequate medical care. Specifically, this section explores
the following issues:
DISCRIMINATION in legal proceedings.
When the criminal justice system operates
as it should, people are charged, tried, and
sentenced without bias. But too frequently,
LGBT people are unfairly tried. Their sexual
orientation and gender identity often are used against
them by prosecutors, judges, and even defense
attorneys. LGBT people often do not receive adequate
counsel or representation—and they can face substantial
discrimination from juries. As a result, LGBT people are
more likely than non-LGBT people to spend time in
juvenile justice facilities, adult correctional facilities, and
immigration detention facilities.
UNFAIR AND INHUMANE TREATMENT
in jails, prisons, and other confinement
facilities. LGBT people who are placed in
confinement facilities disproportionately
encounter harsh and unsafe treatment. In
this section, we focus on the following issues:
discriminatory placement; harsh treatment by staff and
fellow inmates; safety issues including sexual assault;

First, however, we present data about LGBT people
in the criminal justice system—including prisons, jails,
juvenile justice facilities, and immigration detention
facilities. Then we provide an overview of how the
justice, immigration, and prison and jail systems function
in the United States and how they are regulated. The
exploration of how LGBT people are discriminated
against in legal proceedings and in jails, prisons, and
other confinement facilities begins on page 78.

Data about LGBT People in the Criminal
Justice System
There is a general lack of data about the lives of LGBT
people in the United States. Few national government
surveys ask questions about sexual orientation, and none
asks about gender identity. This lack of data carries over
to the lives of LGBT people in the criminal justice system;
there just has not been a lot of research on the numbers
of LGBT people in the system and their experiences.
However, academics and researchers at the Bureau of
Justice Statistics have recently conducted several surveys
that shed some light on the subject. Similarly, recent
work by advocates and the Government Accountability
Office has advanced understanding of the experiences
of LGBT people in immigration detention facilities.

LGBT Youth
As described in Section 1, LGBT young people
are pushed into the criminal justice system as a
result of discrimination and stigma, outdated laws
and discriminatory enforcement, and harsh and
discriminatory policing strategies. Several recent
surveys and analyses are finally providing data to show
what advocates have known for quite some time: that
LGBT youth make up a disproportionate share of youth
in the juvenile justice system, as shown in Figure 30 on
page 69. The data show that between 12% and 20% of
youth in juvenile justice facilities are LGBT, compared
to the estimated 7% of youth who identify as LGBT
nationally.322

SECTION 2: IN THE SYSTEM: LGBT PEOPLE ARE MORE FREQUENTLY INCARCERATED AND TREATED HARSHLY

In Section 1, we described how LGBT people are
more likely to interact with law enforcement, have their
lives criminalized by outdated laws and discriminatory
enforcement, and experience abuse and harassment
by police and other officials. Unfortunately, the
interactions, abuse, and criminalization described in that
section frequently mean that LGBT people end up being
charged with crimes, spending time in jail, facing trials,
and, if found guilty, are forced into correctional facilities.
LGBT undocumented immigrants face a separate but
related set of challenges and are frequently caught up in
immigration enforcement activities, either at the border
or after being arrested by police. As a result, they often
face lengthy immigration proceedings and detention.

insufficient access to comprehensive, competent
health care; lack of supportive services; and restrictions
on visitation by family. We also explore some of the
unique challenges faced by LGBT young people and
transgender people.

••
In

a survey of youth in six juvenile justice
jurisdictions across the United States, 15%
identified as LGBT or gender non-conforming, and

SECTION

IN THE SYSTEM:

LGBT PEOPLE ARE MORE FREQUENTLY

SECTION 2: IN THE SYSTEM: LGBT PEOPLE ARE MORE FREQUENTLY INCARCERATED AND TREATED HARSHLY

INCARCERATED AND TREATED HARSHLY

ENTERING
THE SYSTEM

IN THE
SYSTEM

LGBT people face:
• Inadequate Access to Counsel
• Discrimination by Judges,
Prosecutors, and Court Staff
• Discrimination in Jury Selection
and by Juries

UNFAIR & INHUMANE
TREATMENT IN JAILS,
PRISONS, AND DETENTION
FACILITIES
LGBT people experience:

LIFE AFTER
CONVICTION

SECTION

DISCRIMINATION IN LEGAL
PROCEEDINGS

• Improper Placement
• Harassment and Sexual Assault by
Staff and Inmates
• Inadequate Access to Health Care
• Basic Needs Are Unmet, including
Overall Respect, Supportive
Services, and Visits by Family
• Incarcerated People Lack Recourse

Figure 30: LGBTQ Youth are Overrepresented in Criminal Justice System

Percent of Youth In Juvenile Justice Facilities Identifying as LGBT and/or Gender Non-Conforming
40%

20%
15%
7-9%

2010 Survey of Six Juvenile Justice
Facilities Across United States

All youth

14%

12%

11%

2012 National Survey of
Youth in Custody

Girls

Boys

2014 Survey of Seven Juvenile Justice
Facilities Across United States

Percent of Youth Nationally Identifying as LGBTQ

Source: Angela Irvine, “‘We’ve Had Three of Them’: Addressing the Invisibility of Lesbian, Gay, Bisexual and Gender Non-Conforming Youths in the Juvenile Justice System,” Columbia Journal of Gender
and Law 19, no. 3 (2010): 675–701; Angela Irvine, “LGBT Kids in the Prison Pipeline,” The Public Intellectual, May 2, 2011; Allen J. Beck, Paige M. Harrison, and Paul Guerino, “Sexual Victimization in
Juvenile Facilities Reported by Youth, 2008–09” (U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, January 2010); Angela Irvine, “Dispelling Myths: Understanding the
Incarceration of Lesbian, Gay, Bisexual, and Gender Nonconforming Youth,” Unpublished, (Oakland, CA: National Council on Crime and Delinquency, 2014).

the proportion held fairly steady by race.323 The
rates of detention varied greatly by sex, however;
8% of males identified as gay, bisexual, or
questioning compared to 24% of females. Adding
in gender non-conforming youth, the numbers
increased to 27% of girls and 11% of boys.

•• A survey by the federal Bureau of Justice Statistics
found that 12% of youth in juvenile facilities selfidentified as non-heterosexual.324

•• A

2014 survey found that 20% of youth in the
juvenile justice system at seven facilities identify as
LGBQ or gender non-conforming, including 40% of
girls and 14% of boys.325

Similar to the numbers for the broader population of
people in the criminal justice system, LGBT people in the
system are overwhelmingly people of color. In a survey of
youth at seven juvenile justice facilities across the United
States, 85% of LGBT and gender non-conforming youth
were youth of color.326 High rates of incarceration for
LGBT youth of color are not surprising given that youth
of color, in particular black youth, are disproportionately
likely to be in the juvenile justice system; 40% of
incarcerated youth are black compared to 14% of youth
overall.327 Rates of incarceration for Latino/a youth are
roughly proportionate to the Latino/a youth population

overall, while white youth are underrepresented among
youth in juvenile justice facilities (33% of incarcerated
youth versus 53% of the overall youth population).328
Despite their overrepresentation in the system, LGBT
young people of all races and ethnicities are frequently
invisible and hide their identities out of fear of harassment
by staff and other youth. Surveys show that LGBT youth
in the juvenile justice system fear reprisals from other
youth, parents, institutional staff, and judges if they
disclose their sexual orientation or gender identity.329 In
a survey finding that 15% of youth in the juvenile justice
system identified as LGBT or gender non-conforming,
two in three of these young people told researchers they
keep their sexual orientation or gender identity hidden
and are assumed to be straight by their peers and staff.330

LGBT Adults
Data about LGBT people in the criminal justice
system are scarce. As part of recent data collection efforts
required under federal law, federal surveys have begun to
ask individuals in prisons, jails, and juvenile facilities about
their sexual orientation and gender identity. Two reports
released by the federal Bureau of Justice Statistics, one in
2008 and another in 2011-2012, found that 8% of adults
in prisons and jails, or approximately 162,000 adults in

SECTION 2: IN THE SYSTEM: LGBT PEOPLE ARE MORE FREQUENTLY INCARCERATED AND TREATED HARSHLY

27%

SECTION

SECTION 2: IN THE SYSTEM: LGBT PEOPLE ARE MORE FREQUENTLY INCARCERATED AND TREATED HARSHLY

the United States, identified as something other than
heterosexual.331 This is more than twice the percentage of
adults in the United States who identify as LGB, as shown
in Figure 31.332 The 2011-2012 study also estimated that
there were approximately 3,209 transgender adults held
in prisons or jails in the United States.333
As shown in Figure 32, the National Transgender
Discrimination Survey, a large national survey of transgender
and gender non-conforming people, found that one in six
(16%) transgender people have experienced at least one
Figure 31: LGBT Adults are Overrepresented
in Jails and Prisons
Percent of People Identifying as LGB
7.9%

period of incarceration during their lifetimes, with higher
rates for black transgender people (47%) and transgender
women (21%).334 Black and Native American/Alaskan Native
transgender women were more likely to report having been
incarcerated than white transgender women.335 These
high rates of incarceration for transgender people come
despite the fact that they have higher rates of education
than the general incarcerated population. A 2015 study
involving transgender veterans accessing care through the
Veterans Administration found that transgender veterans
were twice as likely to have been involved with the justice
system than non-transgender veterans.336
Research finds that transgender people in prisons
and jails are more frequently incarcerated for propertyrelated crimes than the general population, perhaps
because of the discrimination they experience in many
areas of life, making it difficult to meet basic needs.337

LGBT Undocumented Immigrants
3.4%

All Adults in United
States (from Gallup)

Adults in Jails and Prisons
(from 2011-2012 National
Inmate Survey)

Source: Allen J. Beck et al., “Sexual Victimization in Prisons and Jails Reported by Inmates,
2011–12” (U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics,
May 2013); Gary J. Gates and Frank Newport, “LGBT Percentage Highest in D.C., Lowest in North
Dakota,” Gallup, February 15, 2013.

There are an estimated 267,000 LGBT-identified
undocumented individuals in the United States.338
It is likely that LGBT people are overrepresented in
immigration detention because of the number of
LGBT people who come to the United States to seek
asylum based on persecution in their home countries
based on their sexual orientation, gender identity,
and/or HIV status. There are an additional 637,000
LGBT-identified documented immigrants, including
those with green cards. 339

Figure 32: High Rates of Incarceration Among Transgender Adults
Percent of People Reporting At Least One Period of Incarceration
All Adults and Transgender and Gender NonConforming Adults, By Gender

Transgender and Gender NonConforming People, By Race/Ethnicity

47%

30%
21%

21%

25%

16%
12%

10%
5%
Lifetime Rate
for U.S.
Population

SECTION

All Transgender
and Gender
Non-Conforming
People

Transgender
Men

Transgender
Women

White

Multiracial

Latino/a

American
Indian

Black

Source: Jaime M. Grant et al., “Injustice at Every Turn: A Report of the National Transgender Discrimination Survey,” Washington: National Center for Transgender Equality and National Gay and Lesbian
Task Force, 2011; Allen J. Beck and Thomas P. Bonczar, “Lifetime Likelihood of Going to State or Federal Prison” (Bureau of Justice Statistics, March 6, 1997).

OVERLAPPING SYSTEMS COMPRISE
CRIMINAL JUSTICE SYSTEM
IN THE UNITED STATES

FEDERAL

Youth who remain in the juvenile
justice system interact with
state and local-level officials
and facilities. Youth who are
tried as adults may be tried in
state or federal courts.

Individuals who violate federal
statutes have cases heard in
federal courts around the country
and may be sentenced to one of
116 federal Bureau of Prisons
facilities, privately managed
facilities or other facilities.

CRIMINAL
JUSTICE
SYSTEM
IMMIGRATION

STATE AND LOCAL

Individuals detained by
Immigration and Customs
Enforcement may be held in one
of more than 250 federal
facilities, in city or county jails,
or in private facilities around the
country.

Individuals violating state or
local laws are frequently housed
in city or county jails. Cases are
heard by state court systems,
and then they may sentenced to a
state prison or may remain in a
city or county jail operated by a
state department of corrections
or a county.

SECTION 2: IN THE SYSTEM: LGBT PEOPLE ARE MORE FREQUENTLY INCARCERATED AND TREATED HARSHLY

YOUTH

SECTION

SECTION 2: IN THE SYSTEM: LGBT PEOPLE ARE MORE FREQUENTLY INCARCERATED AND TREATED HARSHLY

SECTION

Using data from U.S. Immigration and Customs
Enforcement (ICE) and the Williams Institute, one article
estimates that there are approximately 75 transgender
detainees at any given time in ICE custody, 90% of whom
are transgender women.340 As part of an investigation
by the Center for American Progress, ICE documents
showed that between October 2013 and October 2014,
104 immigrants told ICE they were afraid of being put in
detention because of their sexual orientation and gender
identity.341 Of these, 81 were placed in detention anyway.

Portrait of the Criminal Justice System
To better understand how LGBT young people and
adults, including undocumented immigrants, interact
with the justice system and within detention facilities
such as jails, prisons, juvenile facilities, and immigration
detention facilities—we provide background information, including:

•• How the adult criminal justice system works
•• How the juvenile justice system works
•• How the immigration enforcement system works
•• How these various systems are regulated
On pages 78-113, we explore how LGBT adults, LGBT
youth, and LGBT undocumented immigrants are treated
in legal proceedings and in prisons and jails, juvenile
justice facilities, and immigration detention facilities.
We highlight the ways in which these populations have
similar, and sometimes very different, experiences.

Adults in the Criminal Justice System
The United States has an extremely high rate of
incarceration relative to other countries. It is estimated
that one-quarter of the world’s prison population is
held in U.S. prisons and jails, despite the United States
comprising only 4.4% of the world’s population.342
Approximately one in 35 people in the United States is
under supervision of the criminal justice system.343 In
2013, 17 states had prison populations greater than their
facilities were designed to house.344 The rise in prison
populations is not explained by crime rates, which are
actually declining across the country.345 Instead, U.S.
prisons are at or beyond capacity because of legislation
at the state and federal levels designed to “get tough on
crime” by implementing mandatory prison sentences,
increased sentences for drug-related crimes, and longer
sentences in general.

Most adults who are arrested for, convicted of, or
sentenced for criminal offenses are placed in correctional
facilities or given alternative sentencing such as
community supervision. In 2013, an estimated 6.9 million
people were under the supervision of adult correctional
systems, including in prisons, jails, and community
supervision. The majority of these people were supervised
by state or local law enforcement and correctional facilities
rather than by the federal correctional system.346 Studies
have shown that individuals who are incarcerated are
primarily men of color, under age 40 and poorly educated.
They frequently lack formal job training or experience,
and many have drug or alcohol addiction and mental and
physical illnesses.347
Individuals awaiting trial or conviction frequently
spend time in a local jail. There are more than 3,200 jails
in the United States;348 between July 2012 and June 2013,
an estimated 11.7 million people were admitted to these
local jails.349 Upon sentencing, offenders may serve time in
a local jail (run by a city or county) or a prison (under the
direction of a state correctional department or the federal
Bureau of Prisons). In 2013, more than 2.2 million U.S.
adults, or one in 110, were incarcerated in prison or jail.350
These facilities vary in their level of supervision and their
design. In general, offenders sentenced to less than a year
stay in jail while those with longer sentences are held in
prison. Some individuals receive community supervision
rather than a prison sentence. States vary in their use of
community supervision as opposed to incarceration in
jails or prisons. For example, a 2005 report found that
Alabama courts rely less on probation and more heavily
on incarceration. On a per capita basis, that state had 48%
more individuals in prison compared to the U.S. average, as
well as fewer individuals on probation.
Individuals who violate federal statutes have
their cases heard by federal judges; if convicted, these
individuals are sentenced to federal correctional
facilities. Far fewer individuals are held in federal facilities
relative to state and local jails and prisons. As of May 14,
2015, the federal Bureau of Prisons reported holding
208,656 individuals. Four in five individuals (81%) were
held in one of 116 federal institutions, 11% were at
privately managed facilities, and the remaining 8% were
held in other facilities.351 Drug offenses are the most
frequent offense among federal offenders. Roughly half
of individuals in federal prisons (49%) were incarcerated
for drug offenses compared to the next largest category,
weapons, explosives, and arson offenses (16%).352

KEY TERM: Adjudication

Rise of private prisons. Federal, state, and local
governments began contracting with private businesses
to operate correctional facilities in the mid-1980s. In
many cases, private companies bid to provide secure
correctional institutions at lower cost than governments.
A 2001 report by the Department of Justice, however,
found that rather than the 20% cost savings projected
through privatization, the average savings was only 1%;
this was mostly achieved through reduced labor costs.353
In 2013, private prisons housed 8% of all incarcerated
people,354 including 7% of those held by the state and
19% of those held by the federal government.355 The
rise of private facilities has introduced unique issues
regarding liability and accountability in the system,
including whether incarcerated individuals whose rights
are violated in these facilities can sue private prison staff
and corporations for violations, and the extent to which
states provide good oversight.356

Youth in the Juvenile Justice System
After minors are arrested by police, but
before they are tried for a crime, they are
either released back to their home or are
placed in a juvenile justice facility to await
adjudication. Placement decisions are made by judges
based their analysis of the severity of the crime, the
youth’s arrest record, support from family, school
attendance and grades, among other factors.
In general, young people under age 18 who violate
the law are tried in juvenile court. Some youth, however,
are moved to the adult criminal justice system. Two
states have lower age limits regulating who can be tried
as an adult: New York (16) and North Carolina (17). In
these states, youth at these lower ages are automatically
moved to the adult criminal justice system for pre-trial
processing, trial, and incarceration. All other states
have laws that allow criminal, adult prosecution of
youth in some circumstances—for example, based on
the severity of the crime of which they are accused.

A sizeable minority of states have no minimum age
for adult prosecution.358 In 2007, for every 1,000 cases
involving youth tried as youth, nine were moved to adult
criminal courts through action by juvenile court judges;
male and black youth were more likely to have their cases
moved to adult courts.359 Of juvenile cases filed directly
in adult criminal courts, either because of laws dictating
the charges or prosecutor discretion, the youth involved
were overwhelmingly male (96%) and black (62%).360
Young people are entering the adult criminal
justice system at high rates despite the fact that the U.S.
Supreme Court has held in many other areas that youth
cannot be treated as adults. For example, the Supreme
Court has ruled that it is unconstitutional to sentence
minors to the death penalty, to sentence youth convicted
of non-homicide crimes to life without parole, or to give
mandatory life sentences to youth, regardless of the
crime.361 However, young people who are transferred
to the adult criminal justice system are treated as adults
during trial, sentencing, and incarcerations.
Very few young people entering the adult criminal
justice system are processed in the federal justice system;
those in the federal system are usually transferred to
state or local authorities. For example, in 2008, only
275 youth were arrested under the federal system, and
just 156 of these young people were committed to the
custody of the Federal Bureau of Prisons.362
Young people who are convicted of crimes
subsequently receive sentencing. Some youth are placed
in correctional facilities. Others receive supervision,
are asked to perform community service, or receive
community-based services such as counseling, family
assistance, substance abuse education, and other
supportive services. In some states, the specifics of
where a youth is placed and for how long are determined
by a judge, while in other states it is determined by the
juvenile correctional department. Youth without strong
family support, including many LGBT youth or youth
involved in the child welfare system, are more likely to
be placed in correctional facilities (see page 80 for more
on this disparity). One quarter (26%) of youth sentenced
under juvenile delinquency statutes in 2010 were

SECTION 2: IN THE SYSTEM: LGBT PEOPLE ARE MORE FREQUENTLY INCARCERATED AND TREATED HARSHLY

When a juvenile court judge determines that a
youth committed a delinquent offense, they are
adjudicated. This is similar to what happens with an
adult criminal conviction, but within the juvenile
justice system.

Decisions on whether or not to transfer a youth into the
adult criminal justice system are frequently based on a
judge’s discretion, a prosecutor’s discretion, or state laws
(such as laws stating that youth should be tried as adults
in all cases of murder or other violent felonies).357

SECTION

SECTION 2: IN THE SYSTEM: LGBT PEOPLE ARE MORE FREQUENTLY INCARCERATED AND TREATED HARSHLY

SECTION

“committed” to residential facilities that offer varying
levels of security, such as training schools, treatment
centers, boot camps, drug treatment, or private
placement facilities.363 The other three-quarters of youth
were placed under supervision but were generally
allowed to return to their homes.
In 2011, there were 41,934 young people in
juvenile justice facilities.364 Many juvenile residential
facilities are overcrowded, particularly publicly run
facilities, exacerbating existing flaws in the way young
people are treated in the system.365 In addition, many
of these facilities resemble prisons in their design and
operation, with isolation cells, locked cellblocks, razor
wire, and frequent use of restraints. Extensive research
shows that these facilities do not meet the needs of
youth and do little to ensure their safety and wellbeing or to provide effective services to help youth
when they are released.366

Immigration Enforcement and Detention
In 2013, the average number of individuals held at
any one time in immigration detention facilities in the
United States was 34,000, with a total of 440,600 people
detained over the course of the year.367 Individuals
can enter federal immigration custody through
immigration raids, being stopped by law enforcement,
or other mechanisms. These individuals may be released,
although many are detained at one of more of the 250
Immigration and Customs Enforcement (ICE) detention
facilities, city or county jails, or private facilities
throughout the United States.368
ICE has broad authority to detain individuals
without legal status to be in the United States, including
those who are awaiting a determination of whether they
should be deported and those awaiting deportation.369
There is no limit on the length of time an individual can be
detained awaiting immigration proceedings, including
deportation proceedings and asylum hearings. On
average, individuals are detained for 27 days, although
the duration of detention varies greatly.370
Immigration detention is not criminal detention. ICE
detains people during the processing and preparation
of individuals for removal from the United States. The
facilities in which individuals are detained, however,
resemble prisons in many ways—and many individuals
are in fact detained in state prisons and local jails where
ICE rents space. The Department of Homeland Security
sets standards for the conditions and procedures of

KEY TERM: Deportation
The formal removal of an individual from the
United States who has been found in violation of
immigration law.
immigration detention, but adherence to these standards
varies greatly, with private, state, and local prisons and
jails showing frequent violations.371 Unaccompanied
immigrants under age 18 are placed in the care of the
Office of Refugee Resettlement and may be placed in a
range of facilities, from shelters or foster care to juvenile
detention facilities.372
Of the individuals detained by ICE, many are
apprehended at a port of entry or near a border of the
United States. These individuals are detained and placed
into “expedited removal” proceedings unless they express
a fear of returning or an intention to apply for asylum.
Individuals seeking asylum can be released on parole or
bond, but they can still be detained as they await asylum
hearings. The average stay in detention for asylum seekers
is 102 days, compared to 27 days for all detainees.373
Immigration judges set a dollar amount for bond. This
amount is held by the court, and if an individual does not
appear at court, it is not returned. The cost of securing
bond for release from detention is prohibitively high for
many individuals, particularly if an individual has been
apprehended previously or has a criminal record.

A Broken Immigration System Harms LGBT
Undocumented Immigrants
Individuals who enter the United States
without legal authorization and who remain
without authorization are subject to
deportation. They are frequently referred to
as “unauthorized” or “undocumented” immigrants.
Estimates suggest there are approximately 11.4 million
people in the United States without legal
authorization.374 Of these, there are 267,000 LGBT
undocumented immigrants in the United States, 71%
of whom identify as Hispanic.375 Additionally, there are
an estimated 637,000 documented LGBT immigrants,
30% of whom are Hispanic.376
PA

Research shows that undocumented LGBT
immigrants face an array of unique challenges.
Individuals in same-sex couples who are non-citizens
have lower incomes, are more likely to be raising children,

and are younger than the general population.377 LGBT
and HIV-affected immigrants experience hate violence
at higher rates than the LGBT population in general.378

Given heightened policing of immigrants, people of
color, and LGBT people, LGBT immigrants, particularly
LGBT immigrants who are also people of color, are more
likely than the broader population to be targets of law
enforcement. These interactions with police can result
in the detention and deportation of LGBT immigrants,
many of whom are returned to countries where they can
face discrimination, persecution, and even death.
Under the Obama Administration, deportation has
reached a record high. In 2013, the United States deported
240,000 people without criminal records and 198,000
people with criminal records.379 Many immigrants living
in the United States (including 46% of Hispanics) say
they worry “a lot” or “some” that they, a family member, or
someone close to them will be deported.380
In 2012, President Obama created a program
to allow qualifying undocumented immigrants the
opportunity to live and work temporarily in the United
States without fear of deportation. Under the Deferred
Action for Childhood Arrivals (DACA) policy, young
people born after June 15, 1982 who were brought
to the United States before they turned 16 and have
lived in the United States continuously since June 15,
2007 and lack legal immigration documentation, are
eligible to apply for work authorization and can exempt
themselves from deportation.381 Approximately 1.2
million youth were initially eligible for deferred
action.382 Specifically, this opportunity is available
to young people who meet certain other conditions
(such as being enrolled in school, having a high school
diploma, serving in the military, and not having been
convicted of a felony or significant misdemeanor).383
The program does not offer any relief to the parents
of youth who qualify for DACA, nor are qualifying
youth eligible for healthcare coverage through
the Affordable Care Act.384 With a second action in
November 2014, President Obama expanded the
options available to individuals in the United States
without legal authorization, including permitting
parents of U.S. citizens and lawful permanent residents

Individuals granted asylum are permitted to
immigrate to the United States because they are
persecuted or fear persecution in their home
country because of membership in a social group,
race, religion, nationality, or political opinion.
Individuals who receive asylum are eligible for
permanent resident status.
to requested deferred action.385 An estimated 4 million
undocumented people would be directly impacted by
the executive action, and an additional 290,000 youth
would be newly eligible for DACA.386 However, this
executive order is currently on hold pending review by
the federal court system. In November 2015, a federal
appeals court ruled that the federal government did
not have the legal authority to issue these new deferred
action initiatives.387 The administration has indicated it
will appeal the decision to the U.S. Supreme Court.
Asylum Status. Some individuals enter the United
States seeking asylum from persecution and violence
in their countries of origin. The climate for LGBT people
around the globe varies greatly, and there are many
places where LGBT people face discrimination, family
rejection, sexual assault, violence, and even death
because of who they are.388
In 1994, Fidel Armando Toboso Alfonso was
permitted to stay in the United States because of the risk
of persecution based on his sexual orientation in Cuba.389
In the years following this case, individuals have been
granted asylum based on their identities as gay, lesbian,
bisexual, transgender, and/or HIV positive. However,
these cases can be challenging to win, and very few LGBT
individuals are granted asylum status in a given year.
The asylum process can be challenging for LGBT
people. Applications must be completed within a year,
but for individuals who have faced extreme persecution in
their countries of origin, immediately coming out as LGBT
and filing an asylum application can be difficult and even
dangerous.390 By definition, LGBT asylum seekers are fleeing
persecution in their countries of origin—often at the hands
of the government or at the least without protection from
the government. As a result, they may be particularly
hesitant to share their identities and circumstances with
another government. In addition, some asylum seekers

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The U.S. Department of Homeland Security oversees
Immigration and Customs Enforcement (ICE), which
operates Enforcement and Removal Operations (ERO)
and Customs and Border Protection.

KEY TERM: Asylum

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Story: Fleeing Violence Before Finding a Tenuous Safety in the United States
Johanna Vasquez came to the United States when she was 16 after she’d been brutally raped and
harassed in El Salvador. As a transgender woman, she hoped that the United States would be a safer
place. When Johanna arrived from El Salvador, she didn’t know that she could apply for asylum. As a
result, she missed the one-year time limit for applying. She worked as a house painter, in a factory, and
on the streets as a sex worker when no one would hire her.
After living without legal documentation for 11 years, Johanna was arrested in Houston in May
2009 for having a fake permanent resident card. She was placed in the men’s section of the Harris
County Jail.
“From the moment they arrest you they already start treating you differently, as if you’re someone from another
planet,” Johanna told TakePart online magazine in 2015. “They start treating you badly. They don’t know how to
treat you, like a man or a woman. That’s when you start suffering and being afraid.”
A month and a half after she was arrested, Johanna was transferred from the county jail to a detention center run
by federal Immigration and Customs Enforcement (ICE). Guards verbally harassed her and forced her to expose
her breasts. She was placed in solitary confinement for a week but was then placed in a cell with three other men.
Despite her request to be transferred, she was forced to stay in the cell, where one of her cellmates beat her with
a broomstick. After that, she was again placed in solitary confinement while she awaited an asylum hearing. Even
though she could leave her cell for one hour each day, she feared for her life and stayed inside.
Under such bleak circumstances, and with no end in sight, Johanna returned to El Salvador four months after being
arrested. Conditions in the country hadn’t improved for LGBT people, and after just a few weeks, Johanna made her
way from El Salvador back to Laredo, Texas.
Because Johanna had already been officially deported, she was immediately placed in federal prison for reentering the United States illegally. In September 2010, she was again deported and returned to El Salvador. She
faced extreme discrimination and violence there. She was abducted and gang raped and forced to perform oral
sex on a local police officer when she tried to report the rape. Again, she decided she couldn’t stay in El Salvador.
In February 2011, she again entered the United States.
With the help of the advocacy group Immigration Equality, Johanna was able to obtain a judgment from an
immigration judge that would allow her to stay in the United States but with fewer protections than asylum. In
June 2012, she was released from detention thanks to the help of Immigration Equality, given a worker’s permit,
a Social Security card, and a government identity document.
Johanna moved to New York City, where she works cleaning offices. Every year she must renew her status and risk potential
deportation. She cannot travel outside of the United States, which means she cannot visit her aging mother in El Salvador.
Adapted from Jake Naughton, “Nowhere to Run: Detained Transgender Immigrants Are Abused, Beaten, and Worse,” TakePart; Tony Merevick, “Report Details Discrimination Faced By
Undocumented Transgender Immigrants,” BuzzFeed, October 3, 2013; Johanna Vasquez, “Why the Transgender Community Needs Immigration Reform,” Gay City News, October 15, 2013.

Story: Struggling to Make Ends Meet for Gay Immigrant

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Rayita left his home in Colombia 21 years ago to find safety in the United States. He came to the United
States on a tourist visa and never left. Because he lacks legal work authorization, work is unstable. He’s held
countless jobs, including factory work, cleaning apartments, selling cosmetics to hair salons, telemarketing
for a phone company, a busboy and waiter, and selling ice cream at the beach and empanadas on the
street. Despite the difficulties of getting by, he wouldn’t return to the discrimination, violence, and
harassment he experienced in Colombia.
Adapted from Andres Duque, “The Land of the Free, For Some,” The Advocate, March 3, 2015.

Criminal Justice Issues on Tribal Lands

For LGBT and non-LGBT Native American people living on native lands, such as reservations, their relationship
to the criminal justice system is complicated. Federally recognized Native American and Alaskan Native tribes
have substantial rights of self-government, including the ability to make and enforce civil and criminal laws, to
tax, and to establish membership.395 Tribal courts generally have jurisdiction over civil issues for both native and
non-native individuals living on or doing business on a federally recognized reservation. They also have criminal
jurisdiction over crimes committed by tribal members residing or doing business on the reservation, including
maintaining a judicial, prosecutorial and defense bar, correctional systems, and law enforcement. Tribes use
a variety of forums for handling disputes, including family and community forums, traditional courts, quasimodern tribal courts, and modern tribal courts that function much like federal and state courts.396
Frequently, however, criminal violations in Native American and Alaskan Native communities fall under several
jurisdictions, and individuals who commit crimes interact with multiple criminal justice agencies.397 Who has
jurisdiction is dependent on several factors, including the identity of the alleged offender and the victim, the
severity of the crime, and where the crime occurred. In general, crimes committed on reservations fall under
the jurisdiction of the tribe. However, only alleged offenders who are Native American are covered by the tribe’s
jurisdiction.398 Most serious crimes, such as murder, manslaughter, arson, burglary, and robbery, are under the
authority of federal law enforcement, including the U.S. Attorney and the Federal Bureau of Investigation. If a
Native American alleged offender was involved, the tribe may also have jurisdiction.399 Tribal courts can sentence
individuals to no more than three years in reservation correctional facilities.400
Across the country, there are more than 200 police departments operating on reservations ranging in size
from two or three officers to more than 200 officers.401 Some law enforcement departments on tribal land are
autonomous and the officers are tribal employees. Other departments are administered by the Bureau of Indian
Affairs and the officers are federal employees. In 2013, there were 79 jails or detention centers operating on
reservations holding 2,287 individuals.402
While the experiences of Native American people within tribal criminal justice systems is outside the scope of this
report, several reports indicate that the treatment of Native American people within these systems, particularly
in jails and correctional facilities, is poor. For example, a 2004 report by a Department of the Interior inspector
found that many tribal jails were over capacity, understaffed, and in need of physical repairs.403 Individuals in
tribal jails received poor medical care and there were higher levels of suicide, attempted suicide, and death of
individuals in tribal jails than in comparable prisons and jails.404

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Analysis of data from the National Health Interview Survey conducted by the Williams Institute finds that 2.4%
of Native American, American Indian, and Alaskan Native adults ages 18 and older identify as lesbian, gay, or
bisexual.393 The National Transgender Discrimination Survey included approximately 350 respondents who
identified as American Indian or Alaskan Native and transgender or gender non-conforming (often using terms
such as “Two-Spirit” to describe their gender identity and expression).j These respondents were more likely to
live in extreme poverty, to report living with HIV, and to have experienced extreme violence or harassment at
work, in schools, and when seeking health care.394

See the glossary on page for a definition of this term.

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may not be “out” to their extended family or friends in the
United States; as a result, they may be forced to remain silent
about their identity so they can be assured of a place to
stay.391 Adding to the challenges they face, asylum seekers
are not eligible for many public assistance programs and
cannot work legally for at least 180 days after filing their
applications392; as a result, they often struggle to make
ends meet. Some work in survival economies, increasing
their chances of arrest and prosecution and jeopardizing
their physical safety. Combined, all of these factors make
LGBT asylum seekers reticent about approaching the
government for assistance.
What’s more, individuals lacking authorization to
be in the United States can face substantial barriers
to seeking asylum, refugee status, or protected status
based on fear of torture if they have been convicted
of drug offenses, crimes of moral turpitude, and other
crimes. Many immigrants, particularly those who
are detained or surrender at a border, are placed in
immigration detention facilities while they seek asylum.
As described later, the conditions in these facilities vary
greatly, with LGBT individuals reporting high rates of
abuse, neglect, and assault.

Discrimination in Legal
Proceedings
In Section 1, we explored the various
reasons why LGBT people find themselves
interacting with law enforcement. In this section,
we examine why LGBT people are more likely to be
incarcerated following their interactions with law
enforcement. Specifically, within the legal system, LGBT
people face disadvantages that reduce the chances of
receiving adequate, fair representation and that increase
the likelihood that they will spend time in a detention
facility and eventually be convicted of a crime. LGBT
people receive less competent representation, face
discrimination by court and legal staff, and discrimination
by juries as well. They are also less likely to have their
cases heard fairly and to receive a just sentence if they
are found guilty. This section examines the following
problems affecting LGBT people:

•• Lack of access to legal counsel and representation;
•• Discrimination by judges, prosecutors, and court staff;
•• Use of sexual orientation and gender identity in
legal cases; and
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•• Discrimination in juror selection and by juries.

PROBLEM: INADEQUATE ACCESS
TO COUNSEL
The U.S. legal system is difficult to navigate; filings, hearings, and appeals all require special knowledge of the law
and the ins and outs of the system. But many low-income
LGBT people, particularly LGBT immigrants and LGBT people
of color, cannot afford to pay an attorney to help them.
According to the Sentencing Project, a research
organization working for criminal justice reform, many
state programs intended to provide counsel for lowincome people, often called Indigent Defense Programs,
are sorely underfunded.405 Also, the right to counsel in
criminal trials does not generally extend to proceedings
in which the potential penalty is less than a one-year
imprisonment, although this varies by state.406 As a
result, low-income people, including many people of
color and LGBT people, do not receive adequate defense.
Even when legal assistance is available—for
example, through the public defender service for lowincome criminal defendants—attorneys are frequently
overloaded with other cases or unable to help a
defendant with a particular case407; consequently, an
attorney may push the defendant to take bad deals
offered by the prosecution.408 Adding to the challenges
for LGBT people, attorneys frequently lack even
basic LGBT competency. They may be uncomfortable
discussing sexual orientation or gender identity or may
refer to a client by the wrong name or pronoun. Without
an understanding of LGBT people and the circumstances
of their lives, it is difficult to provide effective counsel.
Young people, in particular, are frequently
encouraged to waive the right to counsel,
leaving them without a legal advocate during
court proceedings.409 Only 42% of youth in
custody in 2007 reported they had legal counsel.410 For
LGBT youth lacking strong family support, lack of counsel
can be even more detrimental. And even if they do have
counsel, LGBT young people, like LGBT adults, may
receive counsel from attorneys who lack basic
understanding of LGBT issues and are unable to
effectively advocate for their clients.411

While criminal defendants, particularly those
facing a potential prison or jail sentence, are
generally entitled to legal representation
even if they cannot afford it, applicants in

•• In an examination of immigration cases in New York
City, researchers found that 74% of immigrants with
representation were successful in their immigration
cases and were not detained, compared to just 3%
of individuals who lacked legal representation and
were detained.

•• Individuals

facing deportation in New York
immigration courts with attorneys were found to
be 500% more likely to win their cases compared to
those without representation.414

•• Individuals facing deportation with access to counsel
were six times more likely to successfully challenge
removal than those without representation.415

Some programs, like the Legal Orientation
Program,416 which provides legal education to people
moving through immigration proceedings, have helped
immigrants better understand their rights. However,
programs like these are underfunded and cannot reach
every person in immigration proceedings.
For LGBT asylum seekers who have experienced
trauma in their countries of origin because of their sexual
orientation and gender identity, the need for legal
counsel is even more urgent. But when immigration
attorneys and judges lack basic competency and
understanding of the LGBT community, LGBT people
do not receive fair consideration of their asylum
requests. Entering an immigration proceeding without
counsel, and having to advocate for one’s own issues
and specific needs, would be daunting under any
circumstance. These challenges are compounded in
asylum proceedings by frequent language barriers.
Immigration officials are required to ask all detainees
if they fear persecution or torture in their country of
origin or if they are afraid of returning. Given that these
questions are frequently asked while surrounded by other

Increasing Access to Counsel Helps LGBT People

When LGBT youth lack support from their families and communities, they may be more likely to lack legal
representation in the juvenile justice system. In 2014, it was estimated that 98% of low-income youth in
Louisiana’s juvenile justice system had never been visited by an attorney.417 Lack of counsel can have serious
ramifications, including increased risk of being adjudicated, increased punishments, and difficulties receiving
needed assistance while in the system.
Launched in 2006, the LGBTQ and HIV/AIDS Project of the Juvenile Justice Project of Louisiana focuses on
protecting the rights of incarcerated LGBTQ youth and youth living with HIV/AIDS in secure care facilities. One
of the objectives of the project is to ensure that LGBTQ youth in the juvenile justice system receive quality
representation in delinquency proceedings.
Similarly, having access to counsel is crucial in ensuring that immigrants receive a fair hearing and can avoid
deportation (as outlined on pages 78-79). Started in 2013, the New York Immigrant Family Unit Project provides
free, high-quality legal representation to every indigent immigrant facing deportation in or near New York City
(including in New Jersey).

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civil proceedings, including immigration proceedings,
are not guaranteed counsel.412 Lacking counsel has
serious consequences, particularly in complicated
immigration cases and cases in which deportation could
put an individual at grave risk, such as an LGBT individual
from a country where LGBT people are treated harshly.
According to a study in New York, a key factor in whether
a person going through removal proceedings was
deported was access to counsel.413 Specifically:

And while they cannot take on every case, several organizations focus specifically on providing legal assistance
and representation to LGBT immigrants in immigration proceedings, including those seeking asylum. Among
these organizations are Immigration Equality, which provides assistance to LGBT and HIV-positive immigrants,
and the National Immigrant Justice Center, which provides legal representation through its LGBT Immigrant
Rights Initiative.
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individuals, many LGBT detainees are uncomfortable and
fearful to disclose their identities or their fear of returning
to their countries of origin. Unless an individual says yes
to either question, they will not be referred to an asylum
counselor who can ask them to detail their experiences
and determine if they qualify for asylum.

PROBLEM: DISCRIMINATION BY JUDGES,
PROSECUTORS, AND COURT STAFF
As explored below, LGBT people face discrimination
in the justice system that makes it more difficult for them
to have their cases adjudicated in a fair and unbiased
manner. Among the problems: LGBT people are less
likely to receive pre-trial release; judges, prosecutors,
and court staff frequently discriminate against LGBT
people in the courtroom; and LGBT people are more
likely to receive harsh sentences. The net result is that
LGBT people are disproportionately likely to be held in
confinement facilities, including prisons, jails, juvenile
facilities, and immigration detention facilities.

Bias in Pre-Trial Release
Judges, prosecutors, and pre-trial service
coordinators make recommendations and decisions
about whether an individual can be released before or
during a trial. Factors taken into consideration in these
decisions include the severity of the crime, an individual’s
connection to the community, family support, and the
risk of the individual not appearing for trial. There is
evidence that judges and other legal staff are biased in
their assessment of risk for individuals based on nonpertinent characteristics, such as race, sexual orientation
and gender identity. For example, black and Hispanic
people are more likely to be confined while awaiting
trial, compared to white people.418 Research finds that
being confined prior to trial increases the possibility of a
prison sentence, even when controlling for the type and
severity of the offense.419
Frequently, individuals are required to pay money
for their release, often in the form of a bond or bail.420 For
low-income individuals, including individuals lacking
strong family support, it can be impossible to raise the
money necessary to obtain pre-trial release. Given the
lack of support from family and higher rates of poverty
among LGBT people, particularly transgender people
and people of color, LGBT people often face unique
barriers in affording bond. In Black and Pink’s 2015

Figure 33: Most Incarcerated LGBTQ People
Could Not Afford Bail
Percent of Currently Incarcerated LGBTQ People

Able to
afford bail,
26%
Held in jail;
couldn’t
afford bail,
74%

Source: Jason Lydon et al., “Coming Out of Concrete Closets: A Report on Black & Pink’s National
LGBTQ Prisoner Survey,” Black & Pink, 2015.

survey of LGBTQ prisoners in the United States, 74% of
individuals currently incarcerated had been held in jail
prior to their trial because they could not afford bail as
shown in Figure 33.421 Individuals forced to stay in jail
because they cannot afford bond can lose their jobs,
suffering additional financial consequences.
Several states, including New Jersey, have worked
to change bail laws to allow for more non-monetary
release options. In these instances, judges release
lower-risk low-income individuals without bond, with
monetary bail set only if no other conditions of release
will assure appearance in court.422 Research finds that
unsecured bonds, which do not require individuals to
put up any money but have monetary penalties if an
individual fails to appear, are as effective as secured
bonds in achieving public safety.423
Judges in juvenile cases frequently look at an
individual’s family system, support, school
environment, and other factors in determining
whether a young person should be detained
or released prior to their case being adjudicated. Judges
also consider these factors when determining appropriate
sentencing for youth. Youth are frequently released into
alternative community programs both pre-trial and as
part of sentencing, where they may be required to
complete community service, attend substance abuse
classes, or meet regularly with a probation officer.
LGBT young people face disadvantages in the
arraignment process and are also more likely to be

•• In a 2008 survey of youth in detention in several sites
in California, 40% of LGBTQ youth had been held in
juvenile detention for running away compared to
13% of straight youth (see Figure 34).427

•• In a survey of youth in Louisiana, 50% of gay young
people arrested for nonviolent offenses in 2009 were
sent to jail to await trial compared to fewer than 10%
of non-gay peers.428
Figure 34: LGBTQ Youth Held At Higher Rates
Percent of Youth in California Being Held in Detention for
Running Away

Youth of color face similar disparities when compared
to LGBT youth. For example, in Cook County, which
includes the City of Chicago, the Cook County Juvenile
Temporary Detention Center detained 4,267 youth in
2013, of whom 85% were black.429 Most of these youth
were awaiting trial. In 2007, the facility was taken over
by a federal judge after several lawsuits alleged abuse,
overcrowding, unsanitary conditions, and inadequate
services for youth.430
Undocumented individuals who are seeking
asylum or are detained by immigration
enforcement officials can be released
pending deportation proceedings or
hearings. U.S. Immigration and Custom Enforcement
policies state that individuals who pose no flight risk or
are no danger to the community should be eligible for
release to await future immigration hearings.431
PA

Research shows that LGBT undocumented
immigrants, including asylum seekers, are more likely
to be detained, compared to the general population
of asylum seekers. As shown in Figure 35, a 2015 report
by the Center for American Progress found that 68% of
LGBT asylum seekers were detained, despite the fact
that 70% of all cases are to be considered for release.432
The report also found that individuals who were not
detained had an 11.5% greater chance of succeeding in
their claim than those who were detained.433

Figure 35: High Rates of Detention for LGBT
Asylum Seekers
Percent of LGBT Aslyum Seekers

40%

Not
detained
by ICE,
32%
13%

LGBTQ-identified
youth

Detained
by ICE,
68%

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placed in a facility to await trial, rather than being
sent home.424 As described on pages 9-12, LGBT youth
are more likely to be disconnected from their families
and to have experiences at school that result in lower
academic performance, which in turn impacts decision
made at pre-trial and arraignment hearings. In focus
groups and a survey of LGBTQ-identified youth who
had been in Washington State child welfare and juvenile
justice systems, several youth told researchers they had
been missing school due to bullying and harassment
because of their sexual orientation and gender identity.
However, they feared coming out to court staff, so they
didn’t explain why they’d been missing school.425 LGBT
youth are two times more likely to be placed in a jail
or correctional facility while awaiting adjudication for
nonviolent offenses like truancy, running away, and
prostitution, compared to non-LGBT youth.426 This time
waiting in incarceration—before a young person has
even been found guilty of a crime—is time away from
school, friends, peers, family, and work.

Non-LGBTQ identified
youth

Source: Legal Services for Children, National Center for Lesbian Rights, and National Juvenile
Defender Center, “The Equity Project,” September 2008.

Source: Sharita Gruberg and Rachel West, “Humanitarian Diplomacy: The U.S. Asylum System’s
Role in Protecting Global LGBT Rights” (Center for American Progress, June 2015).

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Story: Salutatorian and GSA Leader Stuck in Immigration Detention
Yordy Cancino came to the United States from Mexico at age six with his family. As a student at Animo
Jackie Robinson High School in Los Angeles, Yordy served as the president of the Gay-Straight Alliance.
He graduated as salutatorian of his high school class and was accepted to UCLA, but was unable to
attend college or find a job because he lacked legal authorization to be in the United States. “I was
depressed. There were days I couldn’t eat. There were days I just cried,” he told a San Diego new station.
With few options, he returned to Mexico to attend college. However, he experienced such violence
and discrimination that he returned to the United States formally seeking asylum. His first attempt was
rejected, but with assistance, he was able to restart the process and complete an application. Yordy
was held in a San Diego youth immigration detention center. But his case drew the attention of a coalition of
groups including the Gay-Straight Alliance Network, the National Queer and Trans Latin@ Alliance, the Immigrant
Youth Coalition, the Queer Undocumented Immigrant Project, and SMYAL – DC Regional GSA Network. Through
the efforts of these groups, a petition with more than 3,000 signatures was delivered to the White House and
Immigration and Customs Enforcement calling for Yordy’s release. He received assistance paying his $7,500 bond
after serving three months in a youth detention center.
Adapted from Michael Chen, “Gay Asylum Seeker Freed from ICE Detention,” 10News, June 14, 2014.

Bias in Court Proceedings
Discrimination against LGBT people is pervasive,
and it infiltrates the halls of justice. Judges, prosecutors,
and even defense attorneys tasked with representing
LGBT people often rely on misinformation, stereotypes,
and inflammatory language when interacting with
LGBT people.
A 2000 review of Arizona’s legal community by the
State Bar of Arizona found extensive discrimination
against lesbian, gay, and bisexual people.434 Nearly half
of judges and attorneys reported hearing disparaging
remarks about gay men and lesbians in public areas
like a courthouse.435 Remarks were addressed to LGB
attorneys and LGB litigants alike.436 Respondents to the
survey offered examples of unfair treatment such as:
an adoption denied because the mother was lesbian; a
man’s battery complaint dismissed as “asked for” because
the man was gay; and an order of restraint denied to
a lesbian woman because the accused was her female
partner.437 In a 2001 study of California state courts, 56%
of gay and lesbian litigants reported hearing negative
comments or receiving negative action because of their
sexual orientation, and one in five court employees
heard derogatory or negative comments from judges,
lawyers, or other court employees.438
Adding to the challenges facing LGBT people
in the system, prosecutors and judges often use

misinformation and stereotypes during trials to
persuade judges and juries of the guilt of LGBT
people. This leaves LGBT and HIV-affected people to
seek recourse from higher courts. For example, in
New York a local District Attorney misrepresented the
infectiousness of HIV, likening an HIV diagnosis to a lion
attack.439 The subsequent criminal charge was lessened
by the appeals courts.440 Similarly, an Oklahoma
judge cited his belief that transgender people were
“fraudulent” for seeking to change their names, and he
quoted Bible passages in his opinions.441 An appellate
court later overturned the judge’s rulings prohibiting
transgender people from changing their names.442
In criminal cases, some defendants have claimed that
a victim’s sexual orientation or gender identity excused
the defendant’s violent actions; this is known as the
gay or transgender “panic” defense. After beating a gay
man, Matthew Shepard, to death in 1998, his murderers
invoked this defense during their 1999 trial, although
it was ultimately unsuccessful.443 In 2014, California
became the first state to bar the use of these panic
defenses in court, stating that discovery of someone’s
actual or perceived gender, gender identity, gender
expression, or sexual orientation cannot be used as a
defense for violence.444 Similarly, in 2013 the American
Bar Association issued a proclamation urging courts and
jurisdictions to ban these defenses.445

Several courts have ruled that evidence of a criminal
defendant’s sexual orientation is highly prejudicial if
irrelevant to the charged crime.447 However, courts over
the years have made exceptions to the evidentiary rules
to permit evidence of an individual’s sexual orientation
to be brought as “proof” of their tendencies to commit
wrongful acts.
In a survey of LGBTQ youth engaged in
survival sex in New York City, many youth
reported that judges, prosecutors, and court
officers refused to use correct pronouns or
names during proceedings or made negative comments
about their gender identity or expression or sexual
orientation.448 Nearly half (44%) reported their
experience with the court system as negative, as shown
in Figure 36.
LGBT people often seek asylum from countries
where they fear violence because of their
sexual orientation, gender identity, and/or
HIV status. Within the immigration system,
immigration judges must make decisions about whether
these people should be able to remain the United States
or be deported. There are numerous examples of judges
showing a basic lack of understanding of the challenges
facing LGBT people in other countries, and even within
the United States. For example, an immigration judge in
California derided an HIV-positive asylum seeker for
engaging in sex work, without grasping that the asylum
seeker had been forced to engage in sex work because of
the economic and social climate in her home country.449
The judge denied asylum, but the Board of Immigration
Appeals overturned the denial, finding that HIV status is
not a reason to presumptively deport someone.450
Immigration attorneys frequently hear judges refer to
transgender asylum seekers using the wrong pronoun or
using an applicant’s legal name even after they have
been told that an individual uses a name in accordance
with their gender identity.
PA

Figure 36: LGBTQ Youth Report Negative
Experiences with Court System

Percent of LGBTQ Youth Engaged in Survival Sex in New York City

44%

REPORTED NEGATIVE
EXPERIENCES WITH THE
COURT SYSTEM

Source: Meredith Dank et al., “Locked In: Interactions with the Criminal Justice and Child Welfare
Systems for LGBTQ Youth, YMSM, and YWSW Who Engage in Survival Sex” (Urban Institute,
September 2015).

Bias in Sentencing
Evidence shows that bias often occurs in sentencing.
Prosecutors, for example, are more likely to charge people of
color with crimes carrying heavier sentences than whites451;
once charged, people of color are more likely to be convicted;452 and once convicted, they face stiffer sentences.453
Similarly, judges are more likely to sentence people of color
to prison and jail rather than community supervision, and
judges are more likely to give black and Latino/a defendants
longer sentences than whites.454 There are also large disparities in sentences given to citizens versus noncitizens.455 These
disparities remain even after accounting for relevant legal
differences such as crime severity and criminal history.456
Although there are no data comparing sentences for LGBT
adults versus non-LGBT adults, given the general evidence
of anti-LGBT bias in the criminal justice system, it is logical to
conclude that this bias also extends to sentencing.
Although there are no data tracking
placements of LGBT young people after
adjudication, it is likely that LGBT youth are
disproportionately committed to residential
facilities, in the same way that they are disproportionately
likely to be placed in facilities while awaiting adjudication.
Certainly this holds true for youth of color. In 2014, youth
of color ages 10 to 17 comprised just 16% of the total
youth population ages 10 to 17. By comparison, they were
34% of youth arrested, 38% of youth adjudicated, and
68% of youth in residential placements.457

SECTION 2: IN THE SYSTEM: LGBT PEOPLE ARE MORE FREQUENTLY INCARCERATED AND TREATED HARSHLY

Historically, sexual orientation has also been
used against defendants in court as evidence of “poor
character.” For example, the prosecutor in a 1994
sentencing hearing for a gay man, Calvin Burdine, told
the jury that he should be sentenced to the death penalty
rather than to prison. The reason: “sending a homosexual
to the penitentiary certainly isn’t a very bad punishment
for a homosexual.”446

SECTION

Story: Discrimination in the Justice System

SECTION 2: IN THE SYSTEM: LGBT PEOPLE ARE MORE FREQUENTLY INCARCERATED AND TREATED HARSHLY

#1: Harmful Comments from Her Own Attorney
Destiny, a 16-year-old African American transgender girl, became involved with the juvenile court
system at age 12. Over the course of the next four years, she repeatedly re-entered the system for
shoplifting women’s clothing and jewelry and fighting back against abuse at school. Even though
Destiny had not committed any violent or sexual offenses, the court ordered that she be housed
in the state’s highest-security juvenile facility for boys because no other placement would accept a
transgender girl.
During the year she was incarcerated, Destiny was regularly sexually assaulted and physically
threatened by other youth, harassed by staff, and punished for her gender expression. Destiny’s court-appointed
attorney never advocated for programs to meet her needs and never challenged the abusive conditions of her
confinement. Despite his refusal to advocate on her behalf, the court denied Destiny’s requests for a new attorney.
The National Center for Lesbian Rights (NCLR) subsequently agreed to represent Destiny. When NCLR submitted
a report with local co-counsel about the sexual assaults perpetrated against Destiny, her court-appointed
attorney remarkably suggested to the judge that Destiny was exaggerating. He told the judge, “I think this young
man has a lot of things—and I use the word man—to think about so I would just ask the court to be cautious in
any decision that it makes.”
Not only had the court-appointed attorney demonstrated a complete disrespect for Destiny’s gender identity
and failed to act when he became aware of Destiny’s abuse, he argued in favor of continued commitment in the
facility where she was clearly unsafe. As a result, the court continued Destiny’s commitment at the facility until
she completed the program.
Excerpted fromKatayoon Majd, Jody Marksamer, and Carolyn Reyes, “Hidden Injustice: Lesbian, Gay, Bisexual and Transgender Youth in Juvenile Courts,” Legal Services for Children, National
Juvenile Defender Center, and National Center for Lesbian Rights, October 16, 2009.

#2: Bias in the Court: “I Just Stood There”
When Streetwise and Safe and the Urban Institute interviewed youth trading sex in New York City, one
participant, a 21-year-old multiracial gay man, told the interviewers about this experience in court.
“When I was being arraigned they were like, ‘[Name of defendant] had an altercation inside the hotel
with his lover’ and they say his name and everyone started laughing—the whole courtroom, the
judge, the bailiff, everybody. They all started laughing. I was so mad. I could only see the people in
front of me, so that means that the prosecutors were laughing, the judge was laughing, the bailiff was
laughing, the two cops over here were laughing. Everyone was laughing.
The interviewer then asked, “And what did you do, you just stood there?”
He responded, “I was embarrassed. I just stood there.”
Excerpted from Meredith Dank et al., “Locked In: Interactions with the Criminal Justice and Child Welfare Systems for LGBTQ Youth, YMSM, and YWSW Who Engage in Survival Sex” (Urban
Institute, September 2015).

SECTION

In a survey of LGBT young people in Washington
State’s juvenile justice and child welfare systems, several
participants said they experienced discrimination by
court professionals. For example, one participant said
a judge gave him the most severe, longest sentence
possible for his crime and cited the youth’s sexual
orientation as the reason.462

PROBLEM: DISCRIMINATION IN JURY
SELECTION AND BY JURIES
In many cases, courts rely on juries to determine
an individual’s guilt or innocence and to recommend a
sentence. Juries are designed to be cross-sections of the
general population—“a jury of one’s peers”—although
prosecutors, defense attorneys, and judges are permitted
to guide the jury selection process. Frequently, jurors
are selected or disqualified based on their personal
feelings about issues raised by a case, whether they
personally know an individual involved, or other factors.
Additionally, jurors are given instructions as to what
information they can and cannot take into consideration
in reaching a verdict. On both these fronts, LGBT people
face discrimination that can result in an unfair trial.

example, 80% of African Americans who qualified for
service from 2005 to 2009 were struck by prosecutors in
death penalty cases, leaving all-white juries in half the
cases and a single black juror in the other half of cases.
In Jefferson Parish, Louisiana, between 2003 and 2012,
prosecutors were more than three times more likely to
strike a black juror than a non-black juror.464
Showing discrimination against LGBT people in
jury selection is a challenge because of a lack of data.
However, there have been several instances when
prospective jurors were challenged and not permitted
to serve based on their sexual orientation or gender
identity. For example, in a 2000 case a prosecutor
challenged a prospective juror named Chris Lewis, a
black transgender woman.465 The prosecutor stated,
“I believe that people who are either transsexuals or
transvestites … I don’t know what the proper term is …
traditionally are more liberal-minded thinking people,
tend to associate more with the defendants.”466
In early 2014, a federal appellate court ruled that
it is impermissible to base jury-selection decisions on
the potential jurors’ sexual orientation, due to federal
protections prohibiting discrimination in jury service
based on sex.467 The decision arose when a gay man was
struck from the jury in a case concerning medication for
the treatment of HIV/AIDS. As a result of the 2014 ruling,
the U.S. Department of Justice issued a department
policy that prohibits striking a juror based on sexual
orientation, as is already the case for race, gender, and
ethnicity.468 California passed a law in 2015 to prohibit
discrimination against potential jurors based on gender
identity; the state already prohibited potential jurors
from being dismissed based on sexual orientation.469
Despite California’s state law addressing LGBT people
and jury service, as well as emerging federal protections,
discrimination against potential jurors on the basis of
sexual orientation and gender identity or expression will
likely continue.

Discrimination During Jury Selection

Discrimination During a Jury Trial

Current federal law prohibits discrimination in
jury selection based on race and ethnicity, but there is
evidence that jurors are frequently excluded because of
their race or ethnicity. A report examining juries in eight
southern states found that individuals who are African
American are discriminated against when considered
for jury service.463 In Houston County, Alabama, for

Despite the fact that defendants are entitled to an
impartial jury, jurors may consider factors not related
to the case at hand in determining an individual’s
guilt or innocence or the severity of a sentence.
For example, research finds that convictions and
sentences are frequently more likely and more severe
for defendants of color.

SECTION 2: IN THE SYSTEM: LGBT PEOPLE ARE MORE FREQUENTLY INCARCERATED AND TREATED HARSHLY

Boys and young men comprise nearly all juvenile
offenders placed in residential facilities (87%).458 Girls
and young women are more likely than boys and
young men to be committed to residential facilities
for status offenses—instead of receiving supervision
or community-based services.459 Status offenses are
noncriminal behaviors that are unlawful because of
an individual’s age, but that would not be illegal if an
adult undertook the same behavior. Examples include
running away from home, truancy from school, curfew
violations, or possessing substances like tobacco or
alcohol.460 Other examples are technical violations,
including violations of the conditions of community
supervision, such as failing drug tests or not appearing
for scheduling appointments.461

SECTION

SECTION 2: IN THE SYSTEM: LGBT PEOPLE ARE MORE FREQUENTLY INCARCERATED AND TREATED HARSHLY

SECTION

There is little research examining the extent to
which juries may discriminate against LGBT defendants.
However, there are many documented instances of
prosecutors trying to bias juries or leverage jurors’
underlying biases against LGBT people to the advantage
of cases against them. For example, when arguing for
the death sentence for Jay Wesley Neill, a gay man, a
prosecutor in Oklahoma asked the jury to disregard the
man in front of them and focus only on his sexuality.
“The person you’re sitting in judgment on—disregard
Jay Neill. You’re deciding life or death on a person that’s
a vowed [sic] homosexual. . . . But these are areas you
consider whenever you determine the type of person
you’re sitting in judgment on. … The individual’s
homosexual.”470 The jury sentenced Neill to death in
2001, and an appellate court upheld the sentence,
despite one judge’s dissent saying the prosecutor’s
blatant bias had improperly swayed the jury.471

Unfair and Inhumane
Treatment in Confinement
Facilities
When LGBT people are placed in
confinement facilities to await trial or as part of a
sentence, they are extremely vulnerable to harassment,
discrimination, and inhumane treatment. In many ways,
these facilities—including juvenile justice facilities, jails or
prisons, or immigration detention facilities—are outside
of public view and understanding. Few Americans have
ever visited a prison or jail, and many don’t want to think
too deeply about how individuals in these settings are
treated on a day-to-day basis. Yet one in 35 adults in the
United States, or nearly 7 million people, are currently
under supervision of the criminal justice system—in
prison or jail or being supervised by a probation or parole
officer.472 The majority of these people have spent some
time in a confinement facility either awaiting charges,
pre-trial, or as part of their sentence.
Regardless of why someone is placed in a facility,
the conditions of their detention should ensure
their overall physical, mental, and emotional safety
and offer opportunities to build skills that will help
them successfully rebuild their lives upon release.
Unfortunately, most confinement facilities in the United
States fail at these most basic goals. For LGBT people, life
in confinement can be particularly difficult, resulting in
greater negative impact on their physical, mental, and
emotional well-being.

As noted above, rates of incarceration for LGBT
people are high. Even based on patchwork data sources,
a picture emerges of LGBT people being pushed
into prisons, jails, juvenile facilities, and immigration
detention facilities that are ill-equipped to meet their
most basic needs for safety and health care, let alone
provide support to address issues like job training and
rehabilitation. Many correctional professionals receive
little training in how best to work with LGBT individuals.
LGBT people are also vulnerable to discrimination and
harassment by other inmates.
In the following pages, we explore the key issues
facing LGBT people in confinement facilities:

•• Limited

regulation and oversight of jails, prisons,
juvenile justice facilities, and immigration detention
facilities;

•• Improper placement of LGBT individuals;
•• Harassment and sexual assault by staff

and other

inmates;

•• Inadequate access to health care;
•• Ignorance of basic needs; and
•• Lack of recourse for incarcerated

people facing
discriminatory or dangerous conditions.

Many of the issues are similar across adult, juvenile,
and immigration confinement facilities, but key
differences will be addressed throughout.

PROBLEM: LIMITED REGULATION
AND OVERSIGHT
There is very little federal oversight of state and local
criminal justice and juvenile justice systems and facilities.
The federal government oversees federal prisons through
the Bureau of Prisons and controls immigration detention
facilities through the Department of Homeland Security.
State correctional facilities are administered by state departments of corrections. State youth facilities are overseen by
state departments of corrections or separate youth correctional departments. Local cities and counties oversee their
jails. Each jurisdiction is responsible for protecting the safety of
individuals in their facilities and developing standards of care.
Several federal agencies provide funding to state
and local departments through grant programs, but
in general, federal authority over these departments is
limited and monitoring is inconsistent and scarce.473 If a

UNDERSTANDING THE PRISON
RAPE ELIMINATION ACT (PREA)

PAGE 1

TO PROTECT INDIVIDUALS FROM PRISON SEXUAL ASSAULT AND TO UNDERSTAND
THE INCIDENCE AND EFFECTS OF SEXUAL ASSAULT IN PRISONS

NATIONAL STANDARDS
PREA CREATED A NATIONAL COMMISSION THAT DEVELOPED NATIONAL STANDARDS FOR THE
DETECTION, PREVENTION, REDUCTION, AND PUNISHMENT OF SEXUAL ASSAULT IN PRISONS.
PREA CREATES NATIONAL STANDARDS FOR:
STAFFING

STAFF-INMATE
INTERACTIONS

• Training and Education
• PREA Coordinators
• Supervision and Monitoring
• Minimum Staffing Levels

• Searches and Privacy
• Reporting and Investigations
• Discipline

SECTION 2: IN THE SYSTEM: LGBT PEOPLE ARE MORE FREQUENTLY INCARCERATED AND TREATED HARSHLY

GOALS

REDUCING RISK

DATA COLLECTION

• Risk Assessments and
Screenings
• Added protections for youth
• Educating inmates about
protections and complaint
processes

• Audits
• Annual review and analysis of
incidence and effects by
Bureau of Justice Statistics

HOW
LEGAL

STICK

CARROT

ACCREDITATION

TRAINING

Federal facilities are
bound by PREA, and
other jurisdictions
may be legally
bound

Facilities that don’t
comply risk losing
Department of Justice
funding

States and local
governments can
apply for additional
funding for implementation

Accrediting organizations must include
standards or risk
losing funding

PREA Resource Center
and others provide
technical assistance
and trainings

DATA
Analyses examine
differences in reports
of sexual assault SECTION
by
facility and jurisidiction

UNDERSTANDING THE PRISON
RAPE ELIMINATION ACT (PREA)

SECTION 2: IN THE SYSTEM: LGBT PEOPLE ARE MORE FREQUENTLY INCARCERATED AND TREATED HARSHLY

PAGE 2

STATUS
STATES VARY IN THEIR ADOPTION AND COMPLIANCE WITH PREA STANDARDS
WA

NH
MT

MN
ID

PA
IL

DE
MD
DC

AR
MS

CT
NJ

MA
RI

LA
FL

CERTIFICATIONS OF COMPLIANCE
(11 STATES)

ASSURANCE STATE IS WORKING
TOWARD COMPLIANCE
(35 STATES + D.C.)

IS NOT IN COMPLIANCE AND DID
NOT SUBMIT ASSURANCE OF
FUTURE COMPLIANCE (4 STATES)

CAUTIONS
!

CAUTION

THERE IS DISAGREEMENT AS TO
WHETHER PREA IS BINDING ON
CITY AND COUNTY-RUN
SECTION
FACILITIES

CAUTION

SOME LGBT INMATES NOTE THAT
PREA HAS BEEN USED TO
PENALIZE CONSENSUAL
SAME-SEX CONTACT IN PRISONS

IMPLEMENTATION ON THE
GROUND LEVEL VARIES GREATLY
AND INMATES MAY NOT
EXPERIENCE IMPROVEMENTS IN
DAY-TO-DAY SAFETY

state facility does not receive federal funds, it is generally
exempt from federal authority and oversight.

Adding to the problems, knowledge about the
conditions in prisons, jails, and other confinement facilities
is scarce. No national mandatory reporting system tracks
basic confinement facility conditions, such as the size or
configuration of cells, daily program offerings, or even how
long individuals are permitted to be out of their cells.474 As
a result, courts serve as the primary form of oversight,475
chiefly through the filing of complaints by individuals
who have exhausted their administrative options within
the correctional system (see below for more about the
lack of recourse for incarcerated people).
The Prison Rape Elimination Act (PREA)
An important exception to the lack of oversight of
criminal justice facilities are the changes brought about
by the 2003 Prison Rape Elimination Act (PREA). PREA is
groundbreaking in its increased oversight of federal, state,
and local detention facilities. At its core, this law seeks
to enforce basic regulations that reduce and eliminate
sexual assault within all facilities where individuals are
held—both by fellow inmates and by staff.
PREA is significant for LGBT people in detention
facilities because it explicitly identifies LGBT people as
a vulnerable population and provides specific guidance
and regulations as to how LGBT people should be treated
and protected (more about the LGBT-specific aspects of
PREA will be discussed on pages 91-95). The law applies
to both facilities housing adults and those housing
young people, though it applies a little differently across
different levels of government.

•• Federal facilities. The law is mandatory for all federal
facilities, including prisons, immigration detention
facilities, and other confinement facilities operating
under contract with the federal government, such
as state prisons or county jails that house federal
prisoners or detainees.

•• State

facilities. PREA’s standards are binding on
state prisons, but the federal government has
a limited ability to enforce these requirements.

•• Local

facilities. Although PREA states that all
confinement facilities are required to follow PREA
standards, compliance of local jails is difficult to
ensure, especially since state agencies do not generally
regulate local jails.477 Local county and city jails that
do not contract with federal or state governments
will not face financial penalties for noncompliance.
However, local jails that house state detainees or that
do contract with the federal government (including
Immigration and Customs Enforcement) must comply
with PREA standards or face financial penalties,
including the loss of such contracts.

•• Accrediting

agencies. Agencies that accredit
correctional facilities risk losing their federal grant
funding if they do not incorporate PREA standards
into their accreditation. In other words, if an agency
accredits an institution that does not adhere to PREA
standards, it risks losing federal funding.

PREA contains many new standards for jails, prisons,
juvenile facilities, and all other confinement facilities.
The law’s provisions fall into five broad categories (as
shown in graphic below): data collection; prevention
and prosecution; grants; creation of the National Prison
Rape Reduction Commission; and adoption of national
standards. PREA includes standards for the placement
of LGBT and intersex people, how they should be
treated by staff and fellow inmates, and standards for
ensuring their safety.
As of May 15, 2015, the deadline by which states
had to submit certifications or assurances of compliance
with PREA, 11 states were fully in compliance; 34 states
and the District of Columbia submitted assurances they
were working toward compliance (see infographic on the
previous page).478 Four states—Alaska, Arkansas, Idaho,
and Utah—declined to submit such certifications or
assurances and were subject to the 5% decrease in federal
grant funding as a result.479
Although there are no financial penalties for
noncompliance with PREA at the local level, many
county and city jails have worked to incorporate PREA
standards into their facilities, including in states that
have not certified compliance with PREA standards for

SECTION 2: IN THE SYSTEM: LGBT PEOPLE ARE MORE FREQUENTLY INCARCERATED AND TREATED HARSHLY

Even within a particular state, various departments at
the state, county, and city levels intersect in their oversight.
As a result, even among jurisdictions and facilities within
one state, there is wide variation in policies, conditions
for those in detention, and services and programs such as
health care, job training, and education.

States that do not certify that they have adopted
the standards and are in compliance across all their
facilities—or at least working to be in compliance—
risk losing federal funding, but would not face other
consequences from the federal government.476

SECTION

Story: PREA Protections Assist Transgender Maryland Woman

SECTION 2: IN THE SYSTEM: LGBT PEOPLE ARE MORE FREQUENTLY INCARCERATED AND TREATED HARSHLY

Sandy Brown, who is transgender, spent 66 days in solitary confinement, during which time she was
repeatedly harassed by the staff at the Patuxent Institution, a mental health assessment correctional
facility in Jessup, Maryland. She filed a complaint, and in September 2015 an administrative law judge
found that her rights were violated under the protections of the Prison Rape Elimination Act (PREA).
In February 2014, when Sandy arrived at Patuxent, she was examined by medical personnel to
determine if she “had made the transition from female to male.” A female officer strip-searched the
upper part of her body, then a male officer strip-searched the lower part of her body.
Staff at the facility then determined her placement solely based on the fact that she was transgender and posed
a “possible threat to the security of the institution.” As a result, she was held in administrative segregation, where
she remained for 66 days. Her privileges were very limited, and she was only allowed recreation one time.
Patuxent employees repeatedly taunted and harassed her. For example, a sergeant referred to her as an “it,” told
her that she was not a real woman, and that she should kill herself. Correctional officers would stare in her cell to
gawk and giggle at her, threaten her, and call her names, leaving her in tears.
On at least one occasion, officers pulled back a curtain to stare at her while she showered.
“They didn’t see me for the human being I am; they treated me like a circus act,” Brown said in a statement
through her lawyers. “I understand how animals at the zoo feel now. They gawked, pointed, made fun of me, and
tried to break my spirit. These were people I’d never met, people I’d never done anything to.”
Sandy was represented by the FreeState Legal Project, a civil legal aid organization that serves low-income
LGBT people in Maryland. According to her attorney, Jer Welter, this is the first case in which an incarcerated
transgender person successfully found protection under PREA. “It’s a huge win,” he told ThinkProgress.
As Welter explained to ThinkProgress, “PREA mandates a policy of zero-tolerance of abuse of inmates.” Patuxent
had no such policies on the books regarding the sexual abuse or harassment of transgender people, nor did any
of its employees receive any kind of training with regard to PREA and its impact on transgender people. Thanks
to the opinion by Administrative Law Judge Denise Oakes Shaffer, that will now change. Her order stated:
“Patuxent must promulgate comprehensive policies and institute mandatory training regarding transgender
inmates, in compliance with the Prison Rape Elimination Act. These policies are to include guidance regarding:
strip-search procedures for transgender inmates; housing determinations for transgender inmates; and
appropriate interaction between correctional officers and transgender inmates.”
Brown was also awarded $5,000 for her mistreatment. According to Welter, it’s very unusual for incarcerated
people to be compensated when no physical violence took place.
“What our client went through is really degrading conduct that really shakes the conscience,” Welter said. “The
unfortunate thing is that I don’t think her experience is exceptional for transgender inmates.” Indeed, according
to the Bureau of Justice Statistics, 40% of transgender people in U.S. prisons from 2011 to 2012 reported
experiencing sexual assault or abuse by either another prisoner or staff.
Welter also noted that incarcerated people very rarely have legal representation for these sorts of internal
grievances. This decision “points to the difference a lawyer can make.”
Despite the humiliation she experienced, Brown hopes this victory helps others. “To the other transgender and
intersex women behind bars, don’t give up,” she said. “There is hope out there for us.”
SECTION

Adapted and excerpted from Zack Ford, “Judges Rules Against Jail Whose Staff Systematically Sexually Harassed Trans Inmate,” ThinkProgress, September 24, 2015; “FreeState Legal Wins
Groundbreaking Victory on Protections for Transgender People in Prison” (FreeState Legal, September 24, 2015); Brown v. Patuxent Institution (Maryland Office of Administrative Hearings 2015).

Limited Oversight of Youth Facilities
A 2008 report by the U.S. Government
Accountability Office found that states
license and regulate public and private youth
facilities to varying degrees, with some
private facilities freely operating without licenses.481
PREA helps set some basic standards for the
treatment of youth (including LGBT and intersex youth)
within juvenile justice facilities, though as noted
above, implementation of PREA standards has been
inconsistent, with some states opting out altogether.
In general, PREA standards establish that youth
should be involved in determining the best placement
given their safety and vulnerabilities, and they should
be respected when they identify as LGBT or intersex or
express concern that they will be perceived as such.
The federal Juvenile Justice and Delinquency
Prevention Act also sets standards and provides funding
for preventing youth from being involved in the juvenile
justice system and for evaluating and improving youth
facilities. The 2002 reauthorization of the law included
provisions to protect youth in the juvenile justice
system. For example, it stated that young people cannot
be placed in secure adult facilities or have contact with
adult detainees or prisoners, even if they are being
temporarily housed in a jail or adult prison. Additionally,
youth cannot be placed in an adult jail or lockup for
more than six hours—even if they are being tried as
an adult—unless they are being tried or convicted of a
felony. Importantly, the law also requires states to gather
information to better understand how and why youth
of color have disproportionate contact with the justice
system.482 Bolstering these protections, as of 2014, 34
states and the District of Columbia had explicit policies

requiring that youth be separated from adult prisoners
by “sight and sound,” and eight states ban youth from
being confined in adult facilities altogether.483

Inconsistent Oversight of Immigration Facilities
Because immigration detention facilities are operated by the federal government, they are
bound by PREA standards.484 U.S. Immigration
and Customs Enforcement (ICE), a division of
the Department of Homeland Security, also sets forth its
own detention standards through the Office of Detention
Policy and Planning.485 Many immigrants in detention are
not held in facilities owned by ICE but operated under contract with ICE, such as private facilities or local jails. These
facilities are technically bound by PREA standards, but the
Department of Homeland Security has taken a more relaxed
approach to requiring them to meet standards. There is
great variation in the standards used by ICE across facilities.486 Some are only required to meet PREA or Department
of Homeland Security standards when contracts are renegotiated or there are “substantial contract modifications.”
PA

PROBLEM: IMPROPER PLACEMENT
The Prison Rape Elimination Act (PREA) provides
standards regarding the placement of individuals in
confinement facilities. PREA states that placement
decisions in all settings should be individualized and
should take into consideration an individual’s safety as
well as the overall safety and day-to-day operations of
the facility. All adult prisons and jails must conduct an
intake screening within 72 hours of arrival to assess risk
for sexual victimization and abuse, including whether an
individual is, or is perceived to be, LGBT or gender nonconforming. This is based on the fact that LGBT people in
prisons and jails are at increased risk for sexual assault.
PREA also states that:

•• LGBT

and intersex people may not be placed in
“facilities, units, or wings solely on the basis of such
identification or status”;

SECTION 2: IN THE SYSTEM: LGBT PEOPLE ARE MORE FREQUENTLY INCARCERATED AND TREATED HARSHLY

their state facilities. For example, in Indiana, Elkhart
County Sheriff Brad Rogers has worked to bring his jail
into PREA compliance. The county has applied for a grant
from the National PREA Resource Center to purchase
software and equipment to install new cameras, create
orientation videos for incarcerated people detailing
protections under PREA and how to report violations,
and ensure that software is compliant with PREA data
requirements. This comes despite the fact that Indiana
Governor Mike Pence stated that PREA standards are too
costly and the state would not certify that it is complying
or actively working toward compliance.480

••
Individualized

decisions must be made in the
placement of transgender and intersex people,
taking into consideration an individual’s health and
safety and overall facility management and safety;

••
Transgender
separately;

people must be able to shower
SECTION

•• Placement decisions must be assessed at least twice
92

a year for transgender and intersex people;

•• Staff may not search or examine a transgender or

Figure 37: High Rates of Solitary Confinement for LGBT People
Percent of Adults Reporting Time Spent in Solitary Confinement

SECTION 2: IN THE SYSTEM: LGBT PEOPLE ARE MORE FREQUENTLY INCARCERATED AND TREATED HARSHLY

intersex person with the sole purpose of determining
genital status.

SECTION

Despite PREA regulations, two key problems
arise when it comes to placement for LGBT people in
confinement facilities. First, LGBT people are frequently
placed in segregated units or solitary confinement. Second,
transgender people are placed in cells according to the sex
on their birth certificate rather than their gender identity.

Placement of LGBT People in Segregated Units or
Solitary Confinement
In many cases, placement decisions are not made
on a case-by-case basis, taking into consideration an
individual’s safety, but are based solely on an individual’s
identification as LGBT. However, emerging research
shows that LGBT people are more likely to be placed in
solitary confinement. For example:

•• A

2015 report from the U.S. Bureau of Justice
Statistics found that people in prisons and jails who
identified as LGB were more likely to report being
placed in solitary confinement during the past year
than heterosexual-identified people. According
to the report, 28% of LGB people in prisons and
22% of LGB people in jails had been placed in
disciplinary or administrative segregation or solitary
confinement in the past 12 months, compared to
18% of heterosexual people in prisons and 17% of
heterosexual people in jails (see Figure 37).487

•• In

Black and Pink’s 2015 survey of 1,100 LGBTQ
prisoners currently incarcerated, nearly all (85%) had
been placed in solitary confinement during their
time in prison or jail.488

Correctional officers often incorrectly think that
segregating LGBT people or placing them in solitary
confinement is best either for the individual’s own
safety or because the officers believe that LGBT
people are a danger to others.489 In many cases, these
placements are made automatically and without facility
personnel thinking through the best way to ensure an
individual’s safety and overall well-being. For example,
correctional staff often automatically place LGBT people
in segregated units for sex offenders. These types of
placement decisions are in direct contradiction with
PREA regulations. Nevertheless, prison officials have

85%

28%
18%
Prisons: in the
past year

22%

17%

Jails: in the past
year

Non-Heterosexual

At some point during
current incarceration (for
currently incarcerated
LGBTQ people)

Heterosexual

Source: Allen J. Beck, “Use Of Restrictive Housing In U.S. Prisons And Jails, 2011–12” (Bureau of
Justice Statistics, October 23, 2015); Lydon et al., “Coming Out of Concrete Closets: A Report on Black
& Pink’s National LGBTQ Prisoner Survey.”

discretion in how they run their prisons. Many decisions
are justified as being in the best interests of either
individuals or the prison as a whole.
Vast research shows the negative impact of
segregated units and isolated units on incarcerated
people’s mental health.490 Segregating or isolating
incarcerated people limits their ability to access
programs and services available to the general prison
population. Segregation also further stigmatizes LGBT
people—highlighting their status as LGBT and increasing
hostility toward them.491 Additionally, when individuals
are placed in protective custody or isolated, they are at
increased risk for harassment and abuse by correctional
officers because of reduced visibility and oversight.
Research also finds a link between isolation and risk
of suicide, particularly in young people.492 In a study
of incarcerated individuals in New York City between
January 2010 and January 2013, individuals placed in
solitary confinement were 2.1 times more likely while in
solitary confinement to commit an act of self-harm, and
were 6.6 times more likely to commit an act of self-harm
in the days following such confinement.493
In January 2016, the U.S. Department of Justice
released policy guidance to the Bureau of Prisons
limiting the use of solitary confinement for adults and
prohibiting its usage for juveniles in federal prisons.494
These changes do not impact state or local confinement

facilities, but provide a model for further curtailing the
use of solitary, restrictive housing. They also direct the
Civil Rights Division to ensure state and local facilities
follow existing laws around the treatment of youth and
individuals with mental illness.

Although PREA standards call for individualized
placement determinations that take into consideration
an individual’s identity as transgender, transgender
people are almost exclusively placed in facilities
in accordance with the sex recorded on their birth
certificates. In other words, transgender women are
frequently placed in men’s facilities and transgender men
are frequently housed in women’s facilities. According to
a study of California Department of Corrections facilities,
over three-quarters (77%) of transgender women in
men’s prisons identified as women and lived their lives
as women outside of prison, as shown in Figure 38.495
Placing transgender women in a men’s prison not
only ignores how these women understand themselves
and live their lives, it also increases the risk of harassment,
violence, and sexual assault by fellow inmates and staff. In
every interaction with correctional officers, transgender
people may have their gender identity ignored.496 The
majority of showers in correctional facilities are open, and

PREA contains specific standards for
placement of LGBT and intersex young
people.
For
example,
placement
determinations must occur at least twice a
year and must take into account not only a youth’s
identification as LGBT or intersex, but other
considerations including: the young person’s perception
of their safety and vulnerability; medical records;
conversations with staff; answers to an initial intake
screening; and medical practitioner evaluations. Youth
are only to be placed in isolation or segregated units if
no other means would ensure their safety—not as a
default simply because they are LGBT or intersex.
Additionally, LGBT and intersex youth should have an
individualized assessment and not be automatically
placed in a segregated unit or in units for sex offenders.498
Transgender and intersex youth, specifically, are to be
permitted to shower separately from other residents.
In immigration detention facilities, LGBT
detainees,
particularly
transgender
detainees, are frequently placed in isolation
or in segregated units. In some cases, this
placement happens immediately when an individual
identifies as LGBT or is identified by staff as LGBT; it also
happens in response to a safety concern.499 Complaints
about the treatment of LGBT detainees prompted ICE to
create a specialized facility to house LGBT immigrants at
the Santa Ana City Jail in California.500 Staff in this facility
have received specialized training, but the number of
beds is limited and individuals are transferred there only
when space permits and it has been determined that the
unit is the only safe option for a particular detainee.501
For LGBT detainees housed at the other hundreds of ICE
facilities around the country, including many contract
facilities in county or city jails or state prisons, being
placed in isolation or in units that do not correspond
with one’s gender identity is a frequent occurrence.
PA

Figure 38: Transgender Women Frequently Placed in
Men’s Prisons in California
Percent of Transgender Women in Men’s Prisons in California
Identified as women
and lived as women
prior to being
incarcerated

77%

Source: Lydon et al., “Coming Out of Concrete Closets: A Report on Black & Pink’s National LGBTQ
Prisoner Survey.”

Despite PREA regulations, which are binding on
the federal government, transgender detainees in
immigration detention facilities are frequently housed in
units according to the sex on their birth certificate rather

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Placement of Transgender People According to the Sex
on their Birth Certificates

lack of privacy is particularly troubling for transgender
people, as it makes it difficult for them to shower safely.497
Incorrect placements also make it more difficult for
transgender people to receive appropriate services,
including access to gender-specific clothing, personal
care products, and medical care such as hormones (see
pages 100-107 for more about access to health care).

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SECTION 2: IN THE SYSTEM: LGBT PEOPLE ARE MORE FREQUENTLY INCARCERATED AND TREATED HARSHLY

than their gender identity, putting their physical safety
at risk.502 According to the Government Accountability
Office, 20% of substantiated assaults in immigration
facilities involved transgender detainees.503 This is true
despite transgender people representing only one
in every 500 individuals in immigration detention.504
When transgender detainees are placed in units that do

not reflect their lived gender, it can present challenges
in seeking asylum. For example, if a transgender woman
detainee is unable to wear clothing in accordance with
her gender identity, it can make her asylum case less
persuasive to judges, many of whom conduct hearings
via videoconference.

Story: Gay, Bisexual, and Transgender Prisoners Sue San Bernardino County For Discriminatory Treatment
In October 2014, the ACLU of Southern California sued San Bernardino County Sheriff John McMahon and the
county, alleging discriminatory policies at the West Valley Detention Center.
In general, individuals held in the jail’s general population area have access to myriad services, including work
and rehabilitative programs that allow individuals to earn time credits and reduce their sentences. However,
people who are gay, bisexual and transgender are housed in the “alternative lifestyle tank,” where they are denied
access to those same programs. They have no access to drug treatment, educational programming such as GED
classes and occupational or vocational classes, nor are they permitted to participate in work programs. They are
limited in their time with visitors and are given less time outside than other inmates.
For example, Ilich Vargas, a bisexual man, was placed in the alternative lifestyle tank in December 2013. He’s
confined to his cell for 22 to 23 hours a day, so he is unable to participate in educational and vocational classes
and he is prohibited from attending religious services.
Christopher Crawford, a gay man, and Veronica Pratt, a transgender woman, were both confined to their cells
for 23 hours a day, and were unable to participate in the work program. As a result, they couldn’t earn money or
work credits, so they served longer sentences as a result of the placement.
Individuals who are gay, bisexual and transgender are forced to serve longer sentences than other inmates
convicted of the exact same offense because they can’t receive the sentence reduction benefits that come
with programs they cannot access. Ultimately, denying access to these programs also means that formerly
incarcerated LGBT people are less prepared to succeed upon release.
Adapted from McKibben v. McMahon (U.S. District Court of Central California 2014); “McKibben v. McMahon,” ACLU of Southern California, October 22, 2014.

New Transgender Unit on New York City’s Rikers Island

In November 2014, Rikers Island, which houses nearly 11,400 individuals held by the New York City Department
of Corrections, opened a 30-bed facility specifically for transgender women. As deputy commissioner for the
city’s Department of Corrections, Erik Berliner, explained, “We are finding ways to keep people safe, giving them
a place where they don’t have to worry about being themselves. This is a place that can be sensitive to them. It
is the right time for it. We are reassessing everything about safety and security.”506
Several LGBT advocacy and legal organizations, including the ACLU and the Sylvia Rivera Law Project, provided input
and advice in the design of the facility. Placement in the facility is voluntary. Staff have been trained on transgender
issues, and the facility is designed to provide supportive and social services to the transgender women housed there.
Adapted from from Andy Humm, “Exclusive: Rikers Ready With Housing Unit for Some Trans Inmates,” Gay City News, November 18, 2014.

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In June 2015, ICE released guidance on the treatment
of transgender detainees.505 Specifically, the guidance
requires officials to explicitly ask detainees if they identify
as transgender. If the answer is yes, officials are advised
to consider placing transgender detainees in facilities that
have capacity to provide medical care and appropriate
placement for transgender people.

PROBLEM: HARASSMENT AND SEXUAL
ASSAULT BY STAFF AND INMATES
LGBT people are particularly vulnerable in
confinement facilities. They experience harassment and
discrimination by staff and inmates; they frequently
experience sexual assault and violence; and, all too
often, they are poorly protected because of a lack of staff
training and insufficient oversight.
The Prison Rape Elimination Act (PREA) has been an
important advance in protecting people in prisons and
jails from sexual assault, but it is not enough. In 2012, the
Department of Justice released final PREA rules that were
binding on all federal prisons. As noted above, within 72
hours of intake, prisons and jails are required to screen
prisoners to assess risk for abuse or sexual assault; the
screening must take into consideration whether the
individual is LGBT or is perceived to be. Administrators
are required to consider this assessment when making
housing and program assignments, with the goal of
protecting incarcerated individuals.507 Additionally, the law
requires more stringent protections for individuals who
report sexual assault by staff and other inmates; provides
grants to jurisdictions to conduct trainings; and supports
the sharing of best practices and standards designed to
reduce sexual assault in confinement settings. The passage
by Congress of PREA is a positive step in ensuring the safety
of incarcerated people. However, the need for increased
protections against sexual assault—by other inmates and
staff—remains, particularly for LGBT people.
Below we look separately at the dangers to LGBT
people from staff and other prisoners, as well as the overall
impact of sexual assault in prisons in the United States.

Given the power dynamic in confinement facilities,
incarcerated and detained people lack agency and too
often are the victims of sexual and physical assault by staff.
Individuals who choose to have sex with other inmates
are targeted for harassment, labeled gay, and prevented
from living or working with their sex partner.508
Incarcerated transgender people, in particular,
report high levels of unnecessary searches, including
strip searches, which are demeaning and can increase
the risk of harassment and violence by other inmates
and correctional staff.509 As shown in Figure 39, in a
Bureau of Justice Statistics survey conducted in 20112012, 5.4% of inmates identifying as LGB or other had
been sexually assaulted by facility staff, compared
to 2.1% of heterosexual inmates.510 The same survey
found that 16.7% of transgender people in prisons and
jails reported being sexually assaulted by facility staff
compared to 2.4% of all inmates.511 This mirrors findings
from a survey of transgender women in men’s prisons in
California in which 14% reported being sexual assaulted
by a correctional staff member.512
In a 2001 visit to Albion Correctional Facility in
western New York, incarcerated women said they were
frequently harassed by correctional officers, and that
“lesbians, particularly those who appear masculine,”
were targeted for harassment.513
Figure 39: High Rates of Sexual Assault by
Facility Staff in Prisons and Jails
Percent of People in Prisons and Jails Reporting Sexual
Assault by Facility Staff
16.7%

5.4%
2.4%
All inmates

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Advocates argue that LGBT people, particularly
transgender women, cannot be detained safely by ICE
and should therefore be released to await hearings or
deportation proceedings. This would not be unusual;
many undocumented immigrants, including those seeking
asylum, are released while awaiting immigration hearings.

Interactions with Staff

2.1%
Heterosexual

Non-heterosexual

Transgender

Source: Allen J. Beck et al., “Sexual Victimization in Prisons and Jails Reported by Inmates,
2011–12” (U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, May
2013); Allen J. Beck, “Sexual Victimization in Prisons and Jails Reported by Inmates, 2011–12 –
Supplemental Tables” U.S. Department of Justice, Office of Justice Programs, Bureau of Justice
Statistics, December 2014.

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Kentucky Stands Up For Its LGBT Policy in Juvenile Detention Centers

SECTION 2: IN THE SYSTEM: LGBT PEOPLE ARE MORE FREQUENTLY INCARCERATED AND TREATED HARSHLY

In June 2013, the Liberty Counsel threatened to sue the Kentucky Department of Juvenile Justice (DJJ) over its
policy that protects LGBT and other youth held in state facilities from hate speech or other language that may
demean LGBT people. According to the policy, this includes telling youth they are “abnormal, deviant, sinful, or
that they should change their sexual orientation or gender identity.” Rather, the policy requires “fair and equal
treatment without bias.”
The Department defended the policy, stating that it was crucial in “developing a trusting, therapeutic relationship
with the children in DJJ custody, which requires an environment of unconditional acceptance.” This policy is
an important component of protecting LGBT youth in Kentucky, particularly given that the state lacks any
nondiscrimination provisions explicitly covering sexual orientation and gender identity.
Adapted from John Cheves, “Kentucky Juvenile Justice Department Says It Won’t Change Policy Prohibiting Anti-Gay Comments,” Lexington Herald Leader, July 31, 2015.

A Model Approach in the Santa Clara Juvenile Division

Santa Clara County (CA) is considered a model site nationally for the treatment of LGBT youth in the juvenile
justice system. The Santa Clara County Probation Department underwent a system-wide transformation to
improve care for LGBT youth.
As Lorie Brisbin, a program specialist with the Department of Justice’s Office of Juvenile Justice and Delinquency
Prevention, noted, “Santa Clara County is phenomenal. … Santa Clara probation has worked hard to redefine
juvenile corrections. Now when a youthful offender who is LGBTQ comes in, they are processed much differently,
providing the best possible outcome for the general population and the staff.”520
Specifically, system-wide change was implemented through a steering committee, which oversaw the work
and identified priorities, and three workgroups: policy, training, and youth and family engagement. The Chief
Probation Officer attended all steering committee meetings, and her leadership was essential to implementing
the work. The workgroups represented a cross-section of juvenile justice stakeholders, including judges, public
defender, prosecutor, probation (both institutions and services), and community providers.
The policy workgroup first created a policy for housing and services to trans youth in the juvenile hall, and then
created a broader policy for LGBTQ youth across the system. The Juvenile LGBT Policy released in 2013 outlined
core principles and detailed policies.521 One important aspect of the policy is the guiding principles, which clearly
state the department’s values and mission. Among the key provisions, LGBT-affirming materials will be available
to youth; discrimination, harassment, and violence are not tolerated; and all youth are to be respected and made
to feel safe. The policies detail issues from names and language to housing placement to training for employees,
volunteers, and contractors. The policy also spells out processes for responding to harassment and discrimination.
The training workgroup worked initially with The Equity Project staff to develop a “train the trainer” model. They
have trained several local trainers from different parts of the system, who have trained over 700 personnel across
county public systems. They have adjusted the curriculum over time in response to feedback from attendees,
and to make it specific to Santa Clara County.

SECTION

The youth and family engagement committee was formed later in the process to ensure that youth and families
were part of the reform process. They created materials for families about the critical role that family plays in
promoting the well-being of LGBT youth. They also recruited young adults with systems experience to serve on
the Steering Committee.
Written in consultation with Shannan Wilber, Youth Policy Director, National Center for Lesbian Rights.

Story: Enduring Six Months in Detention as Transgender Asylum Seeker

U.S. Immigration and Customs Enforcement refused to release Nicoll even though local
organizers working with Mariposas Sin Fronteras in Tucson, Arizona, had arranged for
housing and support. After spending six months in an immigration detention facility,
Nicoll was finally released. Mariposas Sin Fronteras helped raised money to pay her
$3,000 bond. In May 2015, an immigration judge granted her asylum.
Adapted from Caitlin Donohue, “Immigration and LGBTs: Central Americans Limbo,” The Advocate, March 10, 2015; Mitch Kellaway, “Immigration Advocates Demand Release of Abused Trans
Asylum Seeker,” The Advocate, January 14, 2015; Matthew Bultman, “Transgender Woman From Guatemala Secures Asylum,” Law360, May 1, 2015.

Other research shows that incarcerated LGBT
people are treated more harshly by staff for the
same behavior, compared to incarcerated non-LGBT
people.514 Touching by or between LGBT people is
often perceived by staff to be sexual and triggers a
harsher response, when the same action by a non-LGBT
person is not seen in the same way or is punished less
harshly. As part of punishment for these behaviors,
LGBT people are placed in isolation or solitary
confinement or have food or medical care withheld.
Research suggests that people of color, including
LGBT people, are particularly at risk for punishment by
correctional staff. For example, incarcerated people
of color are confined in long-term isolation at higher
rates than their white counterparts.515
Several surveys of young people find high
rates of sexual misconduct and assault by
staff in juvenile detention facilities. Of all
youth in juvenile justice facilities, half of
those reporting sexual assault identified facility staff as
their assailant.516 LGBT youth are particularly vulnerable
to sexual assault by staff. In a survey of LGBT youth,
more than one in five non-heterosexual youth reported
sexual victimization involving another youth or facility
staff member compared to slightly more than one in 10
heterosexual youth.517 Staff may also implicitly condone
abusive behavior on the part of staff and other youth
towards LGBT youth.518

LGBT youth also report that staff frequently
overreact to displays of affection, between girls in
particular.519 They say they are unfairly disciplined
compared to other youth.
Transgender women, in particular, face safety
concerns within immigration detention
facilities. In a U.S. Government Accountability
Office study of substantiated sexual abuse
and assault allegations in Immigration and Customs
Enforcement detention facilities between October 2009
and March 2013, 20% of cases involved transgender
detainees.522 This is despite the fact that transgender
detainees comprise a small percentage of individuals
detained overall (less than 10%).523
PA

Interactions with Fellow Inmates
LGBT people are at high risk of harassment,
assault, and violence from other inmates. In most
facilities, such incidents occur under the surveillance of
correctional staff, suggesting a lack of attentiveness or
commitment to ensuring the safety of LGBT people.524
Among inmates, it is not uncommon for some who are
incarcerated to espouse extreme views, such as racial
intolerance or hostility toward gay men, lesbians, and
bisexual people.525 For LGBT people, this can create a
climate of danger and fear.
LGBT adults, as well as those perceived to be
LGBT, are at increased risk for sexual abuse from fellow

SECTION 2: IN THE SYSTEM: LGBT PEOPLE ARE MORE FREQUENTLY INCARCERATED AND TREATED HARSHLY

In October 2014, Nicoll Hernandez Polanco, a transgender woman, entered the
United States seeking asylum from Guatemala. She was placed in a male detention
facility in Florence, Arizona, where she was subject to harassment by other inmates
and guards. Guards patted her down multiple times a day, intentionally groping her
breasts and buttocks, making sexual comments, and pulling her hair. She was
frequently called homophobic names and “the woman with balls” in front of other
inmates. She was sexually assaulted by one inmate and threatened by another.
When Nicoll complained about the treatment, she was placed in solitary confinement.

SECTION

SECTION 2: IN THE SYSTEM: LGBT PEOPLE ARE MORE FREQUENTLY INCARCERATED AND TREATED HARSHLY

inmates in prisons. In a 2008 study by the Bureau of
Justice Statistics, 11.2% of people in prisons and jails
who identified as something other than heterosexual—
including lesbian, gay, bisexual, or other—reported
sexual victimization by another inmate, compared to
1.3% of heterosexual people.526 As shown in Figure 40,
data from the 2011-2012 National Inmate Survey also
found higher rates of sexual victimization: 12.2% of
individuals who identified as lesbian, gay, bisexual, or
other had been sexually assaulted by other inmates,
compared to 1.2% of heterosexual people.527
Transgender people in particular report high levels
of harassment and violence by fellow inmates, in large
part because of their frequent placement in facilities
that disregard their gender identity and expression.528

••
The

2011-2012 National Inmate Survey found
that 24.1% of transgender people in prisons and
jails reported being sexually assaulted by another
inmate, compared to 2.0% for all people.529

•• Of

those transgender people who reported being
incarcerated at some point during their lives, nearly
half (47%) reported being victimized; black, Latina,
and mixed-race transgender women were more likely
to be victimized than white transgender women.

•• In a survey of transgender women placed in men’s
prisons in California, more than half (59%) had been
sexually assaulted compared to 4.4% of all male
respondents—meaning that transgender people
were 13 times more likely to be assaulted than
other incarcerated men.530 Officers and guards were
less likely to be aware of the incidents involving
transgender people (29% compared to 61% of
incidents involving all inmates). In a follow-up study
two years later, researchers found that the same
percentage of transgender people reported sexual
victimization (59%).531
Physical assault and sexual violence are an
enormous problem in juvenile justice
facilities across the nation. Studies find that
girls, in particular, who are in juvenile justice
facilities report incredibly high rates of sexual violence,
and they rarely receive adequate support or protection
within facilities.532 In some instances, staff may “blame
the victim” of a sexual or physical assault for being open
about their sexual orientation or gender identity.533

•• In
SECTION

a national survey of youth in 205 residential
juvenile justice facilities conducted between 2003

Figure 40: High Rates of Sexual Assault by Other
Inmates in Prisons and Jails
Percent of People in Prisons and Jails Reporting Sexual
Assault by Other Inmates
24.1%

12.2%

1.2%
2.0%
All inmates

Heterosexual

Non-heterosexual

Transgender

Source: Allen J. Beck et al., “Sexual Victimization in Prisons and Jails Reported by Inmates, 2011–12”
(U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, May 2013); Allen J.
Beck, “Sexual Victimization in Prisons and Jails Reported by Inmates, 2011–12 – Supplemental Tables”
U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, December 2014.

and 2005, more than one-quarter (29%) of youth
reported being a victim of physical assault or facing
threats of physical violence during their stay.534
Four percent of youth reported being sexually
assaulted, 41% of whom were forcibly penetrated.
Of youth reporting sexual assault, 60% reported
being assaulted by another resident—with some
indicating they had been assaulted by both a staff
member and another resident.

•• In

a 2010 survey of youth in juvenile confinement
facilities across the country, 20.4% of nonheterosexual youth had experienced forced sexual
activity with another youth or had sexual contact—
either consensual or nonconsensual—with a staff
member, compared to 11.1% of heterosexual youth.535

•• A 2009 report by the Department of Justice found that
LGBT youth were 12 times more likely than non-LGBT
youth to be sexually assaulted by a fellow inmate.536

•• In another study, youth who identify as lesbian, gay,
bisexual, or other were almost 10 times more likely to
report they’d been sexually abused by other youth while
in custody than heterosexual youth (12.5% vs. 1.3%).537

••
When

youth are placed in adult facilities—for
example, when they are charged or convicted as
adults—they are five times more likely to be sexually
assaulted than youth in juvenile facilities.538

Passion Star, a black transgender woman, has been in Texas Department of Criminal
Justice prisons since 2003, when she pleaded guilty to a felony and was sentenced to 20
years in prison. Since that time, Passion has been in at least six male facilities, where she
has endured sexual assault with little response from correctional staff.
For example, a gang member threatened to hurt her if she didn’t perform sexual acts
or pay him with commissary items. Passion complained to prison staff, telling them
she feared for her safety. They did nothing, but instead disciplined her for refusing to
leave her cell out of fear. In another incident, Passion was harassed by her cellmate.
Guards did nothing, and a few days later, she was raped. She was moved to solitary
confinement for two weeks after reporting the incident. In another facility, after telling
staff about her fear for her safety, a guard told her, “You can’t rape someone who’s gay.” Multiple sexual assaults
have followed, and she once was violently attacked with a razor blade, requiring 36 sutures to her face.
Passion wrote to prison officials in November 2013: “I am gay and have been taken advantage of in the past.
… TDCJ does not control the gang-influenced general population enough to ensure … homosexual offenders’
safety from being assaulted, threatened or extorted.” In July 2014, she wrote again to officials: “I have been told
that I will be killed if I remain in population.” A prison official responded to her fears by telling a committee, “It’s
a man’s prison. You can’t expect to walk around acting like that and not have problems.”
After meeting with an attorney for Lambda Legal about her experiences in the prison in July 2014, Passion was
placed in solitary confinement and remained there for more than 80 days. She was unable to attend church or
work, or to speak with her family.
In November 2014, Passion was transferred to a different prison and again placed in the general population.
In March 2015, after legal advocacy by Lambda Legal, Passion was finally placed in safekeeping, a status that
increases attention paid to her safety but is not solitary confinement.
Adapted from “Complaint: Star v. Livingston,” Lambda Legal, October 23, 2014.

LGBT people, particularly transgender
people, are extremely vulnerable within
immigration detention facilities. Many are
seeking asylum from their home countries
where they are persecuted for who they are, and yet
they are placed in detention facilities with individuals
from those same countries and who may carry the same
hatred toward them. According to a study by the Center
for American Progress, more than half of the complaints
by LGBT detainees to the Department of Homeland
Security’s Office of Inspector General over a five-year
period included reports of sexual or physical abuse.539 A
2013 analysis found that transgender people comprise
one out of every 500 individuals in immigration
detention, but one out of every five confirmed sexual
assault incidents involved a transgender person.540
PA

SECTION 2: IN THE SYSTEM: LGBT PEOPLE ARE MORE FREQUENTLY INCARCERATED AND TREATED HARSHLY

Self portrait printed with permission from Lambda Legal

Story: Passion Star’s Fight For Safety in a Texas Prison

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Impact of Sexual Assault in Prison

SECTION 2: IN THE SYSTEM: LGBT PEOPLE ARE MORE FREQUENTLY INCARCERATED AND TREATED HARSHLY

100

Beyond the obvious physical and emotional harm
that the threat or experience of being assaulted can
have on an individual, research shows that people in
prisons and jails who are victimized in these ways are
at increased risk of many other negative outcomes. For
example, people who have been victimized in prisons
and jails have been shown to have higher rates of
disciplinary infractions, requests for services, or requests
for housing transfers.541
To cope and defend themselves, incarcerated
individuals often take steps such as carrying a weapon,
engaging in aggressive, protective behavior, joining a
gang for protection, or taking drugs. All of these activities
can have detrimental and harmful impact on life while in
detention and can result in increased disciplinary action,
as well as negative consequences for release.542
Given the incredibly high rates of sexual and physical
assault reported by LGBT people in detention facilities,
the trauma they experience while in prison can also
have substantial, debilitating impacts on their ability to
rebuild their lives after they are released.
For individuals who were assaulted in prison
(often without adequate medical and mental health
assistance), who lived in fear of victimization, or who
witnessed violence, the impact can be profound.543 In
a survey of 1,600 formerly incarcerated individuals over
two-and-a-half years, researchers found that those who
reported violent victimization while in prison were more
likely to be rearrested than those who did not (53%
were rearrested compared to 45%) and more likely to
return to prison (51% vs. 37%).544 They were also more
likely to struggle during parole, receiving violations or
having their parole revoked or terminated. Individuals
who witnessed violent victimization, particularly sexual
assault, but were not themselves victimized while in
prison, were also at increased risk for recidivism or
struggles with parole conditions.

PROBLEM: INADEQUATE ACCESS
TO HEALTH CARE

SECTION

Because many people who are incarcerated are
economically and medically disadvantaged prior
to incarceration, prisons, jails, and other facilities
have become responsible for addressing a wide
range of physical and mental health issues in their

populations.545 In many parts of the United States,
prisons serve as de facto public health institutions.546
For example, three-quarters of women in state prisons
in 2004 had symptoms of a current mental health
problem, as did 55% of men.547 At the Cook County
Jail, which serves Chicago and the surrounding area, it
is estimated that one in three prisoners has a mental
illness.548 Among young people in the juvenile justice
system, it is estimated that 70% have a diagnosable
mental health or substance use disorder, and 30% have
attempted suicide at least once.549 At their best, prisons
can be places where people receive quality treatment
and are released with a treatment plan. At their worst,
prisons struggle to provide minimal care to a large
population amid overcrowding, underfunding, and
other pressures.
Voluntary accreditation organizations provide
standards of care and model policies for prisons. However,
it is estimated that only 17% of correctional facilities
are accredited by these organizations.550 A 2007 study
found that just 53 of the approximately 3,500 juvenile
justice residential facilities in the United States (roughly
1.5%) received voluntary accreditation551 despite the
recommendation to do so from the American Academy
of Pediatrics.552
A 1976 Supreme Court decision found that
indifference to the medical needs of incarcerated people
violates the Eighth Amendment’s prohibition on cruel
and unusual punishment. Since then, courts have been
the primary oversight body for correctional facilities
when it comes to health care.553
Prisons must pay for health care for incarcerated
people out of their own budgets. Incarcerated people
cannot receive health care through federal or state
programs for lower-income individuals, such as Medicaid.
In fact, the federal government prohibits the use of
Medicaid funds to pay for healthcare services for adults
and young people in correctional facilities through
the “inmate exclusion,” even though most adults and
youth entering and leaving facilities are likely eligible
for Medicaid and related programs designed to provide
health insurance to low-income people (see more about
the barriers for individuals leaving facilities in section
3).554 In some places, incarcerated people must pay to
see a physician. This can be incredibly burdensome,
particularly for people who lack familial financial support
or the opportunity to work while in prison. In the Black
and Pink 2015 survey of LGBTQ prisoners, 43% of

respondents didn’t seek medical care when they needed
it because of the cost.555 The bottom line: Prison health
services are generally under-resourced,556 especially
given the cost of treatment for chronic illnesses such
as hepatitis, an aging prison population, and increased
need for mental health services.

LGBT adults in general report healthcare
discrimination and lack of competency on the part of
medical practitioners.557 This is particularly true within
confinement facilities, where the experiences of LGBT
people accessing medical and mental health care vary
greatly.558 Frequently, medical staff in prisons are outside
contractors or experience high turnover. In addition,
there is inadequate training and education to ensure 1)
that medical staff treat LGBT people with respect and
dignity; and 2) that staff can address health concerns
that LGBT people have.
Compounding the lack of quality medical care for
LGBT adults in prisons is the increasing number of older
adults in these facilities. Between 1999 and 2007, the
number of individuals ages 55 or older in state and federal
prisons increased by 77%.559 Health care for older adults
in prisons can be costly,560 and older adults frequently
require care that exceeds what prisons regularly offer.561
As a result, older adults in prisons and jails may face
long waits and travel time for care.562 A minority of states
have created confinement facilities specifically for older
adults.563 These facilities may include access to skilled
nursing care, hospice, and more advanced medical care.564
Despite the large number of individuals in prisons
and jails who have substance use dependence, very
few individuals receive treatment while incarcerated.
According to a 2012 study, fewer than one-third of
individuals in prisons received clinical or non-clinical
treatment,565 even though 65% of people held in prisons
and jails are estimated to meet the clinical criteria for
alcohol or drug abuse or addiction.566 Despite studies
finding that evidence-based substance use treatment
services reduce recidivism, these programs remain
severely underfunded and are not offered in many
facilities. In one study, individuals who participated
in an in-prison treatment program and completed an
aftercare program had the lowest three-year recidivism
rate (31%) when compared to those who did not receive
treatment and only received some after care (79%).567
And even as advances are made in medically assisted

101

Under the Prison Rape Elimination Act, youth
facilities are required to conduct mental and
physical health screenings. But a 2007 study
found that fewer than half of juvenile
detention facilities conducted a screening for healthcare
needs upon admission.574 The quality and level of care for
LGBT young people vary despite many of them having
unmet physical and mental health needs. For example,
LGBT youth can be at increased risk for suicide, and many
transgender youth need to receive medical care, including
hormones, related to gender dysphoria. Inadequate
transgender health care in these facilities goes against the
recommendations of the National Institute of Corrections,
which states that it is important for a medical professional
with experience in transgender health care and gender
dysphoria to evaluate transgender and gender nonconforming youth, as recommended by leading health
organizations. If an experienced practitioner is not
available, the institute states that whoever evaluates the
youth should be educated appropriately.575

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Lack of Competent, Respectful Health Care

detoxification, very few incarcerated individuals are
given pharmacological therapy, such as methadone
or Suboxone to assist with opiate addiction, or even
professional counseling.568 According to a 2011 survey
of prison systems nationwide, 55% offer methadone,
half of which offer it only to pregnant women or patients
with chronic pain.569

While in juvenile justice facilities, or as part of
community supervision, some LGBT young people
have been forced to undergo counseling or treatment
that punishes them for expressing, or that aims to
change, their sexual orientation or gender identity. In
some instances, LGBT youth are required to undergo
sex offender counseling based solely on their sexual
orientation or gender identity.

SECTION

Individuals with untreated mental illness are at
increased risk for incarceration, and despite the growing
number of incarcerated people with mental illnesses,
prisons and jails are ill-equipped to address their needs.
It is estimated that 37% of individuals in prisons and 44%
of those in jails have been diagnosed with a mental health
disorder, compared to 4% of the general population.570
Individuals may not receive appropriate treatment
and reports find they are frequently placed in solitary
confinement or shackled.571 Facilities rarely have sufficient
numbers of qualified mental health staff.572 Since 2000,
suicide has been the leading cause of death in local jails;
one-third of deaths in local jails were due to suicide.573

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102

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Cook County Makes Changes to Better Help LGBT Youth

In 2007, a federal judge appointed new leadership for Cook County’s Juvenile Temporary Detention Center, which is
one of the largest youth facilities in the entire country.576 Substantial policy and leadership changes took place at the
facility. As part of those changes, staffing was increased, mental and physical healthcare services were improved, and
staff received increased training. Integral to that work was how LGBT youth were treated within the center.
In 2010, Illinois created the Illinois Court-Involved LGBTQ Youth Task Force, which has led trainings for all frontline staff and has informed policy change within the facility. In 2013, the center adopted a 12-page LGBTQI policy
document, which created an LGBTQI Multidisciplinary Team that makes individualized recommendations about
placement, clothing, name and pronouns, medical care, and other services for all youth who identify as LGBTQI.577
As part of its commitment to improved health care for LGBT youth, the center established a collaboration with
Stroger Hospital.578 All youth receive a medical exam upon entrance, and LGBT-identified youth receive weekly
care at the “Same-Gender Loving Clinic” operated through Stroger.
In immigration detention facilities, medical
care for all detainees, including LGBT people,
has
been
consistently
considered
substandard, even for basic care. In July 2015,
several organizations filed a complaint with the
Department of Homeland Security about the lack of
adequate medical care provided to individuals detained
in facilities in Texas and Pennsylvania.579 Included in the
complaint were examples of individuals waiting up to 14
hours for medical care, never receiving follow-up care,
and not receiving prescribed medications.
PA

Limited Access to HIV Testing and Care
Individuals held in confinement settings are at
increased risk of acquiring and transmitting HIV and
other sexually transmitted infections, such as hepatitis
and tuberculosis, given the close living quarters and
the high rates of sexual assault within these facilities.
That said, the majority of individuals with HIV in
correctional settings acquired the disease before they
were incarcerated.580 In fact, 20-26% of Americans living
with HIV have spent time in a correctional facility.581 In
2008, 1.4% of the total adult prison population (state
and federal combined) were living with HIV, with slightly
higher rates for female prisoners (1.7%) and lower rates
for male prisoners (1.3%).582 The proportion of prisoners
with HIV was 2.4 times the rate of the general population
in 2007, the latest year for which data are available.583
In New York State, 3.0% of men and 10.7% of women in
state prisons had HIV, the highest reported rate among

state prison populations in the United States.584 At the
California Medical Facility, which has a transgender
health clinic, rates of HIV for transgender women in the
male prison ranged from 60% to 89%.585
Testing. During initial screening and intake, the
Centers for Disease Control and Prevention recommends
testing all incarcerated individuals for HIV as part of their
routine medical care. Federal and state prisoners in 2004
reported relatively high rates of being tested (77%), with
much lower rates in local and county jails (18.5%).586
Testing rates are generally lower in states that only test
when an individual requests it, compared to those states
that conduct mandatory testing or that test incarcerated
people unless they explicitly state they do not wish to
be tested.587 For this reason, the CDC recommends optout testing for all incarcerated people, ideally with tests
administered upon entry into a facility and then offered
as part of routine medical care.588
Confidentiality and discrimination. Privacy is a
general concern in prisons, but particularly when it
comes to medical care. Maintaining confidentiality
about incarcerated people’s health can be challenging
in confinement facilities, given that many spaces within
facilities are open and visible for safety reasons.589 An
incarcerated person’s medical records are frequently
handled by many staff members, including non-medical
personnel.590 Some courts have held that prisons must
maintain a high level of privacy when it comes to
certain personal information, including transgender
status and HIV status.591

Access to medication. For many individuals with HIV,
prison can provide access to antiretroviral therapy (ART).
In a study of HIV-positive prisoners in Connecticut, twothirds received ART for the first time in prison.595 As noted
above, medical budgets are included in prison budgets,
so medication for treating HIV comes out of that budget.
HIV drugs can be expensive, especially as they require
daily doses or multiple doses each day. Some advocates
have suggested this presents an adverse incentive for
facilities when it comes to testing patients.
Furthermore, it can be very difficult to ensure
adherence to a medication regimen for patients with
HIV in prison settings. Some drugs need to be taken
at certain times each day, and this can be challenging
in a prison context. Additionally, continuity of care is
challenging for individuals with HIV and other chronic
diseases—incarcerated people are often transferred
or moved—and there can be delays in medications
arriving and being stocked.596 As discussed in Section
3, access to medical care upon release is particularly
problematic for individuals with HIV.
Individuals with HIV have reported difficulties
continuing their medical regime while held
in immigration detention facilities. For
example, Bamby Salcedo, a transgender
Latina immigrant from Mexico, was placed in the San
Pedro Detention Center in California for 45 days. She’d
been taking an HIV antiretroviral drug, which she needed
to take twice a day. Even after notifying authorities upon
arrival of her medication needs, she did not receive the
drug for two weeks.597
PA

Poor Access to Transgender-Related Care
Transgender people in the United States face
discrimination, insurance refusals, and other challenges
in accessing competent, medically necessary health
care. For transgender people in prisons, the challenges
are even more substantial. An article published in the
Journal of Correctional Health Care examined letters
written by transgender people in state and federal
facilities to the TIP Journal (Trans in Prison).598 Of 129
letters examined, 55% addressed transgender health
issues and 42% reported abuse (23% involving physical
abuse or harassment and 19% involving sexual abuse by
other inmates, corrections officers, or both).
In a survey of transgender people in the New York
City jail system currently receiving transition-related
hormone therapy, more than half (60%) had filed a
medical care complaint, many related to previously not
receiving hormone therapy.599 Virtually all respondents
reported that health staff lacked familiarity and
sensitivity. Six months after LGBT trainings for all clinical
staff, complaints by incarcerated transgender patients in
the jail system dropped to zero.
Even when hormone therapy or surgery is deemed
medically necessary, officials may give an incarcerated
person antidepressants and/or counseling instead.
Some prisons and jails will only permit hormone therapy
if an individual received such therapy before being
incarcerated under a so-called “freeze frame policy.”600
Transgender people who were already receiving
hormone therapy prior to incarceration cannot be
denied necessary medication unless there is a clear
medical reason to do so.601 However, limiting hormone
therapy only to these circumstances is not considered
best practice. Access to transgender-related health care
varies across the country (see sidebar on the next page).
The federal Bureau of Prisons ended its “freeze frame
policy” in May 2011 in a memorandum regarding the
treatment of transgender people.602 According to this
memorandum, individuals with a possible diagnosis of
Gender Identity Disorder (GID) (now frequently referred
to as gender dysphoria following changes to the most
recent edition of the Diagnostic and Statistical Manual
of Mental Disorders603), including those who “assert
they have GID,” will receive medical and mental health
evaluations by medical personnel who have received
training. Incarcerated people who receive a diagnosis
of GID will receive a treatment plan that “promotes the

103

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In some instances, facilities offer HIV-specific care
on particular days or at specific times; as a result, a
person’s participation effectively discloses her status.
For example, in 2009, the Massachusetts Department
of Correction no longer allowed incarcerated adults
to keep HIV medications themselves, rather requiring
them to report to the infirmary for medication,
sometimes multiple times each day.592 Doing so
enabled other inmates and correctional staff to identify
these individuals as HIV-positive. For individuals with
HIV, verbal harassment, isolation, limitation of access to
services (including work assignments), and assault are
not uncommon.593 Courts in the United States are split
as to whether disclosing an incarcerated person’s HIV
status constitutes a violation of privacy.594

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104

Access to Transgender-Related Health Care Across the Country

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Individuals in state prisons and local jails have varied access to transgender-related care. For example:

SECTION

California is home to the only two prisons in the country that have a physician dedicated to providing
competent care for transgender people, including hormone therapy.604 They are: the California
Medical Facility, a California Department of Corrections facility located in Vacaville that provides
medical and psychiatric health care for male prisoners in California prisons ; and the California Men’s
Colony in San Luis Obispo.
California also is leading the country in other ways. In August 2015, the California Department of
Corrections and Rehabilitation and the Transgender Law Center reached a settlement in the case of Shiloh
Quine, a transgender woman held in a male prison (see page 106 for more about Shiloh’s case). As part of the
settlement, the state agreed to revise its policies regarding transgender people’s access to medically necessary
health care, including hormones and surgery. Incarcerated individuals’ requests for transition-related surgery are
now reviewed by a committee, and requests can be reviewed annually.605
Until recently, Wisconsin had a ban on providing hormone therapy to incarcerated individuals who
were biologically male at birth but identify as female. In 2010, however, a federal judge found this
state law was unconstitutional because it violated the equal protection clause and constituted cruel
and unusual punishment by not taking into consideration an individual’s medical needs or the
judgment of their physicians.606 This decision was upheld by the Seventh Circuit Court of Appeals.607
In 2013, the Illinois Department of Corrections issued an administrative directive regarding the
evaluation and treatment of people with Gender Identity Disorder (GID).608 It states that individuals
who self-identity as transgender or who may have GID should undergo a detailed medical and
mental health examination within 24 hours of arriving at a facility. Based on these examinations, the
Gender Identity Disorder Committee makes decisions about placement, hormone therapy, clothing,
showers, and searches. However, any surgery for the purpose of gender confirmation is prohibited
unless “in extraordinary circumstances”; and hormone therapy is to be offered only with prior
approval from the medical director.
physical and mental stability of the patient,” rather than
using treatment prior to incarceration, or lack thereof, as
a benchmark.

However, young transgender people in confinement
may have to seek a court order, with the assistance of
legal counsel, to receive this medical care.

Given the incomplete or inadequate medical care
that confinement facilities often offer to incarcerated
transgender people, some have turned to courts to seek
the care they need (see the stories on the next page).

In some instances, transgender detainees in
immigration detention facilities are required
to prove they had been receiving medical
care related to gender dysphoria, such as
hormone therapy, before entering the United States.
But, particularly for individuals seeking asylum from
home countries where they face persecution for being
transgender, this is frequently an impossible standard.
Additionally, because of the geographic and physical
isolation of immigrants in detention facilities, it can be
very difficult to obtain medical records, if they even
exist.610 The result is that transgender detainees are
regularly denied medically necessary care.

Similar to the situation for adult transgender
people in prisons and jails, medical care for
transgender youth in confinement varies
greatly; obtaining appropriate care may be
very challenging. Research finds that a majority of
juvenile justice professionals do not understand the
medical needs of transgender youth.609 Medically
necessary medical care for youth may include transitionrelated hormones or hormone blockers to delay puberty.

#1: Ashley Diamond’s Fight for Safety and Adequate Medical Care
Ashley Diamond, a black transgender woman from Georgia, was sentenced to 12 years for
violating probation for a previous conviction related to a nonviolent offense.
Ashley notified the staff that she was transgender and was receiving hormone therapy
upon admission. But despite PREA standards and the Georgia Department of Corrections’
own guidelines, she was not evaluated for gender dysphoria, referred for adequate
medical care, or given an appropriate placement. Instead, Ashley was placed in a series of
facilities designated for violent and dangerous male felons.
Less than a month after her incarceration began, Ashley was sexually assaulted by six inmates and knocked
unconscious. She was subsequently moved to prisons considered equally if not more dangerous. At one facility,
she was told to guard her “booty” and be prepared to fight. She suffered repeated physical and sexual assaults
while in prison—eight sexual assaults in all. Each time she reported the incidents to the staff, but correctional
staff did not take steps to ensure her safety. After one sexual assault in early 2014, even after she reported the
incident, Ashley continued to be housed with her assailant.
In addition to denying Ashley safekeeping, Georgia corrections officials refused to provide Ashley with transitionrelated care, despite the fact that she started receiving hormone therapy at age 17 and medical staff recommended
that she receive hormone therapy. Correction officials acknowledged Ashley’s gender dysphoria and that hormone
therapy was necessary treatment, but staff refused to provide her with proper medical care. She was also forced
to shave her head. One prison official told Ashley that she had “forfeited the right to receive hormone therapy
when she became a prisoner.” As a result, Ashley’s body underwent extreme hormonal and biological changes, and
Ashley experienced mental stress. She attempted suicide and self-castration several times. Ashley explained while
incarcerated, “I continue to feel trapped in the wrong body and look more ‘male’ than I have in my entire life.”
Ashley has been harassed and punished for her female gender identity, including being thrown into solitary
confinement for “pretending to be a woman.” She was frequently told to look and act like a man, and she had her
female clothing and undergarments confiscated. One prison official called her a “he-she-thing” in front of other staff
and inmates. Another told her, “I am not going to refer to you as Inmate Diamond, you ain’t no miss, you’re an it.”
Even after she filed legal complaints against the State of Georgia with the assistance of the Southern Poverty Law
Center, Ashley was sexually assaulted by a cellmate. After reporting the incident, she was threatened and was
afraid to leave her dormitory, including for meals.
Under widespread media scrutiny and attention following the lawsuit’s filing, Ashley was released from prison in
August. In September 2015, a court denied the state’s motion to dismiss, finding that Ashley’s case seeking safety
and healthcare can move forward. And in February 2016, Ashley and her attorneys reached a settlement with the
Georgia Department of Corrections.
Adapted from case materials available at Diamond v. Owens, et al., available at Southern Poverty Law Center, https://www.splcenter.org/seeking-justice/case-docket/ashley-diamond-v-brian-owens-et-al.

#2: Whitney Lee’s Fight for Health Care in an Ohio Prison
Whitney Lee, a black transgender woman, is serving a sentence in the Mansfield Correctional Institution
in Ohio. Despite having received continuous hormone therapy since 1999, in 2012 the Ohio Department
of Rehabilitation and Correction refused to continue her health care. A prison psychiatrist stated that
Whitney did not meet the criteria for gender dysphoria, and that the health care she requested was
not necessary. As a result of the treatment stoppage, Whitney’s voice deepened, she began growing
facial hair, was increasingly irritable and angry, and was placed on suicide watch.
In 2014, with the assistance of the Ohio Justice and Policy Center, Whitney sued the Department of Rehabilitation
and Corrections. A federal judge ruled that the prison must provide her with medically necessary hormone
treatments for the remainder of her sentence.
Adapted from “Whitney Lee to Receive Hormones for Her Entire Sentence,” Equality Ohio, accessed May 3, 2014; Associated Press, “Transgender Inmate in Ohio Asks for Hormone Treatment to Be
Continued,” The Guardian, May 1, 2014.

105

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Courtesy: Southern Poverty Law Center/Robin Henson

Story: Safety and Health Care in Confinement

SECTION

Story: Safety and Health Care in Confinement (continued)
106

#3: Incarcerated Transgender People Fight in the Courts for Medical Care

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Individuals in prison who are diagnosed with gender dysphoria frequently seek medical
care to affirm their gender. In some cases, that care includes hormones; for others, it may
include surgeries, frequently called “sex reassignment surgeries” or “gender-affirming
surgeries.” For transgender people in prison, such medical care can be incredibly difficult
to obtain. Several recent legal cases highlight the challenges for transgender people.

SECTION

In California, the Transgender Law Center represents Michelle Norsworthy, a transgender woman serving in Mule
Creek State Prison in California. In 2000, Michelle was diagnosed with gender identity disorder, now referred to as
gender dysphoria. Shortly after being diagnosed, she began hormone treatment, which has continued to the present.
The prison allows Michele to shower out of sight from other prisoners, let her hair grow long, purchase and wear
brassieres, and use her name Michelle, rather than her legal name.
In 2012, her psychologist concluded that Michelle was still suffering from debilitating symptoms related
to her gender dysphoria, including anxiety, sleeplessness, cold sweats, panic attacks, and mood swings. The
psychologist affirmed the necessity of a “sex change medical operation before normal mental health can be
achieved for this female patient.” Despite these recommendations, the Department of Corrections has refused to
authorize treatment for Michelle.
On April 2, 2015, a federal judge ruled that the prison’s denial of medical care violated Michelle’s right to adequate
medical care under the Eighth Amendment’s prohibition of cruel and unusual punishment. The court ordered
the state to provide her with medical care, including surgery. However, just a day before a federal court was
scheduled to consider the state’s appeal, Michelle was released on parole. She served 28 years and was released
to a halfway house.
Just prior to Michelle’s release from prison, the California Department of Corrections and Rehabilitation settled a
case with another transgender woman held in a men’s prison, Shiloh Quine. As part of the settlement, Shiloh will
be moved to a women’s prison and will receive medically necessary transition-related care, including surgery.
The state also agreed to improve conditions for transgender people across its system, including allowing them
to purchase clothing and commissary items consistent with their gender identity and to have access to medical
treatment for gender dysphoria.
Upon hearing the news of the settlement, Shiloh told the Transgender Law Center, “After so many years of almost
giving up on myself, I will finally be liberated from the prison within a prison I felt trapped in, and feel whole,
both as a woman and as a human being. I’m just overwhelmed, especially knowing that this will help so many
other people. I know I can never truly make amends for what I’ve done in the past, but I am committed to making
myself a better person, and to helping others so they don’t have to struggle the way I have. I’m so grateful to
Transgender Law Center, to my lawyers, and to California Department of Corrections and Rehabilitation (CDCR).
I will appreciate this from the bottom of my heart, forever.”
Earlier in 2015, the U.S. Supreme Court refused to hear the case of Michelle Kosilek, a transgender woman serving
time in a men’s prison in Massachusetts since 1994. When a Department of Corrections physician recommended
that Michelle receive hormone treatment and potentially transition-related surgery, the Department of
Corrections terminated its relationship with that physician. Nevertheless, in 2003, Michelle began receiving
hormones, and she was provided with gender-appropriate items, such as undergarments and makeup. A court
in 2012 ruled that the prison’s refusal to grant Michelle surgery was unconstitutional, and the prison was required
to provide her with sex reassignment surgery as quickly as possible. The state appealed, and Michelle’s care was
put on hold. In 2014, the First Circuit Court of Appeals affirmed the ruling, but the state appealed to the full
court, which reversed its decision. Given that the Supreme Court refused to hear the case, Michelle’s avenues for
further medical treatment are currently closed.
Adapted from Norsworthy v. Beard et al (N.D. Cal. 2005); “State of CA and Transgender Law Center Reach Historic Settlement over Trans Prisoner Health Care,” Transgender Law Center, August 7,
2015; Kosilek v. Spencer (1st Circuit 2014); “Kosilek v. Spencer,” Gay & Lesbian Advocates & Defenders, May 4, 2015.

Story: Teen Paves the Way for Improvements in Transgender Health Care
In 2006, Alyssa Rodriguez, with assistance from Lambda Legal and the Sylvia Rivera Law Project, sued
the New York Office of Children and Family Services. While she was in state custody in the male facility
at Red Hook Residential Center and other juvenile detention facilities in New York State, Alyssa was
denied prescription hormone medication and was punished for expressing her gender identity as a
transgender youth. She experienced severe health consequences and emotional trauma as she went
through withdrawal when she didn’t receive hormones.

Source: Aisha C. Moodie-Mills and Christina Gilbert, “Restoring Justice: A Blueprint for Ensuring Fairness, Safety, and Supportive Treatment of LGBT Youth in the Juvenile Justice System” (Center
for American Progress, The Equity Project, FIRE, December 17, 2014); “Red Hook Residential Center,” New York State, Office of Children and Family Services.

Story: Physically Isolated with No Medical Care: Barbra’s Story
Barbra Perez came to the United States from Cuba at age four. She worked and cared for her elderly
father. After being convicted for writing fraudulent checks, she was picked up by immigration authorities.
For a month, she was held in immigration detention. Although she is transgender, she was placed in a
men’s facility where the other detainees made gestures at her and the guards called her “it.” When she
was initially detained, she was placed in the Davidson County Jail in Tennessee. Facility staff took away
her bra and underwear and forced her to wear men’s boxers. She was placed in a holding tank with eight
other men, and she was denied her hormone medication.
Once in an immigration detention facility, she was told that she could receive testosterone blockers but that
receiving her hormone medication, estrogen, would require approval by a review board. Despite taking medication
for 15 years consistently, she did not receive hormones for a month, until her last day in detention.
When she told a guard she was afraid of the other detainees, the facility responded by putting her in solitary
confinement. She spent 20 days alone in a cell. “When you’re in solitary confinement it starts to break you down,”
she told a reporter for Fusion. On several occasions, guards and staff told her that she had few options and should
just self-deport—signing an order for her removal from the United States.
After nearly a month of detention, she was released. Her paperwork stated that her detention was “no longer in
the best interest of the government.”
Adapted from Cristina Costantini, Jorge Rivas, and Kristofer Rios, “Why Are Transgender Women Locked up with Men in the Immigration System?,” Fusion, November 19, 2014; affidavit obtained
from Olga Tomchin.

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As part of the settlement, the Office of Children and Family Services agreed to evaluate their policies. Two
facilities within the system have since been designated as facilities specifically trained to care for gay, bisexual
and transgender youth, including Red Hook Residential Center. That center now has medical and support staff
trained to assist youth who have experienced trauma. Youth are permitted to access items from both the male
and female commissaries, effectively deeming Red Hook’s grooming products gender-neutral.

107

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108

SECTION

PROBLEM: BASIC NEEDS ARE UNMET
As described in the previous sections, confinement
facilities may fail to meet even the most basic needs
of LGBT people—their safety is constantly in question,
they do not receive appropriate medical care, and
they are frequently harassed and abused. But there are
numerous other, less blatant ways in which LGBT people
in confinement facilities have their needs ignored.
Facilities rarely ensure that incarcerated people, and
particularly transgender people, can maintain their
dignity or have opportunities to gain needed skills that
will help them successfully rebuild their lives after being
released. People in detention are also seldom permitted
to maintain connections with their families.

Overall Lack of Respect for Transgender People
In addition to denying transgender people access to
medically necessary health care, many facilities do not
allow transgender people the ability to express their
gender.611 For example, some states prohibit incarcerated
people from changing their names and having access
to cosmetics and gender-appropriate clothing, such as
bras for transgender women housed in men’s prisons,
even if such items are available to individuals of the
opposite sex.612 If incarcerated people have prohibited
items, they can be punished if they are discovered. As
part of a survey of transgender, gender non-conforming,
and intersex prisoners by Sylvia Rivera Law Project, a
transgender woman reported she’d received a 30-day
sentence of solitary confinement for possessing a bra.613
But there is some progress, particularly in California.
For example, San Francisco jails have a proposed model
policy allowing gender-affirming access to clothing,
underwear, and bras.614 A case in California held that
prisons must balance safety concerns with an individual’s
medical needs and the psychological harm of denying

gender-specific items such as bras.615 And, as part of an
August 2015 settlement in a case involving a transgender
woman housed in a male prison, California prisons now
permit transgender individuals to purchase commissary
items and obtain clothing consistent with their gender
identity.616
Adding to the challenges for transgender people,
prisons and other confinement facilities often have
grooming standards by which incarcerated people
must abide. Transgender inmates placed in facilities in
accordance with the sex on their birth certificate rather
than their lived gender can face constant struggles.
For example, in many prisons there are limitations on
hair length for individuals in men’s prisons, and male
prisoners are not permitted access to grooming products
listed in the catalog available in the women’s prison.
Staff in confinement facilities also often refuse to
use a transgender person’s name if it differs from their
legal name. Compounding the problem, individuals in
confinement struggle to obtain the legal name changes
that correctional institutions often demand.617 Without
a legal name change, they are often subject to constant
harassment and humiliation as staff and other inmates
refuse to use their current name. The ability to access
a name change is crucial for transgender individuals
seeking employment, housing, and other necessities
upon release.
In May 2012, the Sylvia Rivera Law Project won a
case affirming the right of incarcerated transgender
people to change their names in New York. When an
inmate legally changes their name, prison officials have
to call them by their updated, legal names.618 In June
2015, Delaware passed legislation allowing inmates in
state prison to seek a name change.619 The legislation
was the result of advocacy efforts after a transgender
man, placed at a Delaware state women’s correctional
facility, petitioned the Delaware Supreme Court to
change his name with the help of the ACLU of Delaware.

Select County and City Jails Make a Commitment to Working with Incarcerated Transgender
People

In June 2012, the Denver Sheriff’s Department issued a policy that prohibited discrimination against and verbal
or physical harassment of transgender inmates. The policy also instructed staff to use inmates’ preferred names and
pronouns.620 The policy also created a Transgender Review Board to address the medical, psychological, and housing
needs of transgender inmates.
In 2006, the King County Department of Adult and Juvenile Detention (WA) adopted a policy requiring the use
of preferred names, access to medical and mental health care, processes to ensure individuals’ privacy, and access to
commissary to purchase gender-appropriate clothing for transgender people in confinement.621
Shawnee County (KS) requires that transgender inmates receive an evaluation to determine the best housing
placement and other services needed by transgender inmates. Decisions are made in consultation with an evaluation
team comprised of health experts and a community liaison. Shawnee County corrections director Brian Cole explained
that placing transgender inmates in segregation was both “unfair and humiliating.”622
In Cumberland County (ME), transgender inmates may dress, groom, and use names/pronouns that are consistent
with their gender identity. A Transgender Review Committee reviews housing placements and other services.623
By the end of 2015, San Francisco County (CA) will place transgender inmates according to their stated placement
preference in collaboration with a review committee. Transgender inmates are also able to access education and
substance use programs and women’s empowerment classes, if appropriate.624

Juvenile Facility in New York Strives to Do Better by LGBT Youth

Located north of Poughkeepsie in New York State, Red Hook Residential Center houses youth between the ages
of 12 and 18 who were adjudicated by the New York State Family Courts. Though a male facility, Red Hook has
become a leading facility in working effectively with gay, bisexual, transgender, and questioning youth.
The staff have made a strong commitment to soliciting feedback and input from youth about programs and
services and integrating their suggestions. For example, all youth in state Office of Children and Family Services
facilities are permitted to wear undergarments that correspond to their gender identity. But youth at Red Hook
complained that they were unable to access gender-appropriate items through the commissary. The facility now
permits youth to purchase gender-specific personal care items, such as deodorant. Several transgender youth
were interested in hosting a voguing night, and Red Hook provided the space for that program to occur.
Using a positive youth development framework, they emphasize building relationships with the youth and focus
on rehabilitation rather than punishment. As Judy Yu from the Correctional Association of New York wrote after
visiting Red Hook, “We were impressed by the positive, caring relationships between staff and youth that we saw
on our visit. … Their work shows that it is possible to transform a punitive discriminatory facility into one that
supports and affirms LGBTQ youth.”631

SECTION 2: IN THE SYSTEM: LGBT PEOPLE ARE MORE FREQUENTLY INCARCERATED AND TREATED HARSHLY

Ensuring the safety of transgender inmates is more than simply thinking about where they are placed (that is, according
to birth sex or lived gender). A number of county and city jails across the country have developed policies that seek to
address the broader needs of transgender inmates, including placement, access to health care, appropriate clothing,
and more, including:

109

SECTION

Lack of Supportive Services

SECTION 2: IN THE SYSTEM: LGBT PEOPLE ARE MORE FREQUENTLY INCARCERATED AND TREATED HARSHLY

110

Funding for educational and vocational programs
in prisons has declined, even as the prison population
has increased across the nation. Legislation passed in
the 1990s prohibited the use of federal grant money
on education for incarcerated people.625 Most prisons
offer some academic or educational programs, such
as GED programs, basic literacy programs, or special
education programs, but many fewer offer college
courses, particularly after legislation was passed in 1994
to make inmates ineligible for Pell Grants.626 As part
of a pilot program announced in July 2015, a limited
number of inmates may be able to use Pell grants to take
college courses.627 Inmates are also often barred from
participating in educational and vocational programs for
disciplinary reasons or because there is excess demand.628
Without education or vocational training,
inmates lack skills needed upon release, leaving them
disadvantaged when rebuilding their lives. This is
particularly detrimental for LGBT inmates, who already
face discrimination because of their sexual orientation
and/or gender identity in many areas of life, including
employment, housing, and public accommodations.
Also, when LGBT inmates are placed in solitary
confinement or segregated units simply because
they are LGBT, they are unable to access the limited
supportive services offered in prisons.
Juvenile facilities are required to offer
educational programming to youth in their
care. This is vitally important, particularly for
LGBT youth, for whom education may be
able to serve as a protective factor against
discrimination. Research finds that more than half of
incarcerated youth have reading and math skills
significantly below their grade level, many have been
suspended or expelled from school or dropped out,
and at least one in three youth are in need of learning
support services.629 Yet a 2015 survey by the Council of
State Governments finds that in many states, youth do
not receive access to the same educational and
vocational services as youth not in state facilities.630

Restricted Visitation by Family

SECTION

Maintaining connections with family can be incredibly
important for individuals who are detained. Research
finds that when inmates keep up their connections with
family, they are less likely to return to prison.632 And the

benefits extend beyond just the individuals in prison.
When children, in particular, can regularly visit a parent
who is detained, outcomes for the child are improved.633
Despite this research, prison administrators have
broad discretion in the ways in which they allow inmates
to receive visitors. From facility to facility, policies
regarding visitation vary greatly.634 For example, the
Federal Bureau of Prisons requires that inmates place
individuals on a visiting list; individuals added to the list
must be approved by the bureau.635 For visiting purposes
in federal prisons, individuals who are not legally related
and are not visiting an inmate for a specific purpose—
such as a member of the clergy, civic group, an attorney,
or an employer—are limited to 10 “friends or associates.”
In a study examining state bureau of prison regulations,
32 states limit the number of visitors an inmate is
permitted have, with South Dakota restricting inmates
to only two individuals plus immediate family.636
Several court cases have addressed the ability of
inmates in a same-sex relationship to see their partners
or spouses. In general, agencies that permit conjugal
visits cannot prohibit conjugal visits for legally married
same-sex couples if other married couples are provided
opportunities for conjugal visits.637 And inmates in state
prisons cannot be denied the right to marry someone of
the same sex given that the Supreme Court’s ruling in
June 2015 extended the freedom to marry to all couples
across the United States.638 However, given the lack of
protections from abuse and harassment by both staff
and fellow inmates, some LGBT inmates may be too
afraid to have partners or spouses visit.
Added challenges to maintaining family connections
include facilities that are often far from family and the
high cost of phone calls. In a survey of families with an
incarcerated family member, 34% families accrued debt
as a result of the high cost of phone calls and visits.639
Visitation for children of LGBT inmates. It is
estimated that 1.7 million children in the United States
have at least one parent in prison; 52% of state inmates
and 63% of federal inmates have a child under age
18.640 Black children are more than seven-and-a-half
times more likely than white children to have a parent
in prison; for Hispanic children the ratio is two-and-ahalf times. More than one-third of minor children with
a parent currently in prison will turn 18 while the parent
is incarcerated. Many young people in juvenile or adult
detention facilities are also parents. An estimated 30%

111

In May 2014, Thomas Hamm visited his partner, to whom he is engaged, at Rikers
Island, a men’s correctional facility. While waiting for his partner to be brought to
the visitation room, several guards called Thomas anti-gay slurs. While other
couples hugged, held hands, and even kissed, Thomas was told that he could not
embrace his partner. After holding hands, guards told them, “We don’t want that
faggot, gay shit in here.” The guards ended their visit early and required Thomas to
leave the facility.
As Thomas was leaving, several staff continued to verbally harass him. Then, he was
grabbed from behind, hit in the head, and kicked repeatedly while being called antigay slurs. As he lay bleeding on the ground, begging the officers to stop, one said,
“Don’t touch him. He might have AIDS.”
As a result of the beating, Thomas suffered a broken eye bone, a broken nose, and head trauma. The officers
involved claimed that Thomas had attacked them. He was arrested and taken into custody after receiving
medical treatment. He was subsequently charged with assault and harassment, but the charges were dismissed.
As Thomas explained, “I went to Rikers to visit my loved one, and left beaten, my face shattered, in shackles, and
charged with a crime I did not commit. The corrections officers’ anti-gay hate crime against me was covered up.”
Adapted from “Complaint: Hamm v. City of New York,” Lambda Legal, accessed February 16, 2016; “Lambda Legal Joins Federal Lawsuit After Antigay Attack at Rikers Island,” Lambda Legal,
October 29, 2015.

of incarcerated teen boys have children of their own.641
While similar estimates are not available for LGBT people
in prisons and jails nationwide, 44% of LGBTQ-identified
prisoners surveyed by Black and Pink in 2015 reporting
having children of any age, as shown in Figure 41.642
It can be challenging for children to visit a parent
who is in jail, in prison, or detained. The spaces for
visitation are frequently not child-friendly, making
it difficult for children to remain seated and calm.
Telephone calls are expensive and difficult, particularly
for young children. Of LGBTQ inmates with children in
the Black and Pink survey, nearly three-quarters (71%)
did not have any contact with their children during
their time in prison, as shown in Figure 41.643
For LGBT inmates, there can be added challenges.
First, there are repercussions resulting from the difficulty
of creating legal ties to children. Prior to the availability
of marriage nationwide, many LGBT couples were
raising children together but only one parent was legally
related either through biology or adoption. In addition,
it was difficult or impossible for the second parent to
obtain legal rights. In theory, such parents can now
access stepparent adoption if they are legally married
to the child’s legal parent, but there are still difficulties.

Figure 41: Many Incarcerated LGBTQ People Are Parents
Percent of Currently Incarcerated LGBTQ People
71% of these parents
did not have any
contact with their
children while
in prison

Have a child
of any age,
44%

SECTION 2: IN THE SYSTEM: LGBT PEOPLE ARE MORE FREQUENTLY INCARCERATED AND TREATED HARSHLY

Printed with permission from Lambda Legal

Story: Prison Visit With Partner Turns Into a Nightmare

Source: Jason Lydon et al., “Coming Out of Concrete Closets: A Report on Black & Pink’s National
LGBTQ Prisoner Survey,” Black & Pink, 2015.

Particularly for non-legally recognized parents who are
currently in prison or jail, they may be unable to petition
for a second-parent or stepparent adoption. In addition,
avenues for securing legal ties between children and
their LGBT parent can be costly.
SECTION

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112

SECTION

Connecting LGBT People in Prison with the LGBT Community

People serving time in prison can be extremely isolated. For LGBT people, who may not be connected to family or
who may not be “out” to fellow inmates, isolation can be more severe. Several programs currently work to connect
LGBT people in prison with members of the LGBT community on the outside through “pen pal” programs and
newsletters. These resources can provide individuals in prison with important information about health care, legal
rights, and more. For example:
Black and Pink, which supports LGBTQ prisoners and allies, offers a pen pal program and a holiday card program.
In 2014, parties were held in 150 cities and every Black & Pink member received an individualized holiday card.
Black and Pink also publishes a free newspaper distributed to more than 7,600 prisoners. The newspaper includes
submissions from incarcerated members, news, history, and opinions.
The California Coalition for Women Prisoners publishes and circulates a quarterly publication to more than 2,800
women, transgender women, and gender non-conforming prisoners throughout California prisons. The newspaper
allows these individuals to communicate with each other and the public about the issues and experiences they
face through articles, art, and poetry.
The Transgender Gender-Variant & Intersex Justice Project, also in California, publishes Stiletto, a newsletter for
transgender, gender non-conforming, and intersex people in prison.
In Colorado, the Gender Identity Center of Colorado publishes The Transgenders in Prison Journal each quarter,
which is sent to 600 individuals in Colorado prisons.
The Transformative Justice Law Project in Illinois runs the Write to Win Pen Pal Project, which connects transgender
and gender non-conforming people in Illinois prisons with allies and activists who help provide support, resources,
and friendly communication.
In 2015, the Sero Project in association with Prison Health News published “Turn It Up! Staying Strong Inside,” a
single-issue magazine for people living with HIV and/or hepatitis in prison.
LGBT parents in the criminal justice system who
lack legal ties to the children they have been raising
may be denied all visitation from those children. In
2003, in Overton v. Bazzetta, the U.S. Supreme Court
upheld restrictions on prison visits by legally unrelated
children if they are not accompanied by a legal parent
or guardian.644 The unique burdens facing LGBT parents
in maintaining contact with their children can add to
the challenges they face in confinement.
Maintaining legal ties to children. Even when an
LGBT inmate is a legal parent, the federal Adoption
and Safe Families Act of 1997 makes it difficult for
incarcerated parents to maintain custody of their
children. Some children enter the foster care system
when the parent from whom they’d been receiving
care becomes incarcerated. If a child has been in foster
care for 15 of the last 22 months, states are required

to begin the process of terminating parental rights.
Given the long sentences for drug crimes, including
non-violent offenses, many parents see their rights
terminated, particularly if they were parenting on their
own prior to being incarcerated or if there isn’t another
legally recognized parent to care for the child.

•• In a study of child welfare adoption cases from 1997
through 2007, researchers found that 54% of the
children adopted from foster care in San Francisco
in those 10 years had mothers incarcerated in local
jails, juvenile halls, or state prisons.645

•• A 2014 survey of formerly incarcerated individuals
found that 39% of formerly incarcerated parents
either lost custody or had their parental rights
terminated.646

PROBLEM: INCARCERATED PEOPLE
LACK RECOURSE
Under the U.S. Constitution, inmates are protected
by the Eighth Amendment’s prohibition against cruel
and usual punishment. For example, prison officials who
fail to protect inmates from violence at the hands of
other inmates despite having knowledge of the potential
danger can be found to have violated the inmate’s Eighth
Amendment protections.648
However, in reality, inmates in correctional facilities
have very little recourse even when their basic rights
are violated. For example, inmates cannot individually
sue other prisoners or prison officials for violating the
Prison Rape Elimination Act.649 Inmates who are sexually
assaulted must follow the reporting procedures
and, in many ways, are at the mercy of the system. In
1995, the Prison Litigation Reform Act greatly limited
incarcerated people’s access to the courts to challenge
the conditions of their confinement.650 Under this law,
incarcerated people must exhaust all administrative
routes first and cannot recover monetary damages.
They can only seek an improvement in conditions.
Inmates, and especially LGBT inmates, who are
disproportionately the victims of violence and abuse,
risk retribution for filing complaints and have little
protection against such retaliation.

Adding to the challenges for inmates, they have
very limited access to legal support while in prison,
so accessing the courts as a way to enforce their
rights is difficult, even when their rights have been
violated.651 Inmates also have limited recourse under
state laws, such as those applying to assault or battery,
as they must prove that a correctional officer acted
intentionally.652 Courts generally give great leeway to
correctional officers.
Despite these challenges, many of the improvements
in the conditions of confinement for LGBT inmates, and
inmates generally, have resulted from legal challenges
and courts finding that the correctional and detention
systems have violated inmates basic rights. As noted
above, for example, several courts have held that
denying transgender inmates medical care violates their
constitutional protections.653 Additionally, individuals in
states with legislation prohibiting discrimination based
on sexual orientation and/or gender identity may have
recourse through state human rights commissions.
In some states, prisons, jails and juvenile facilities are
considered public accommodations or are covered by
laws prohibiting discrimination in housing, particularly
government-funded housing.654 For example, in 2007
the Vermont Supreme Court ruled that the state’s public
accommodation law applied to state prisons because
the legislature intended to make “all government
entities” subject to the law.655

113

SECTION 2: IN THE SYSTEM: LGBT PEOPLE ARE MORE FREQUENTLY INCARCERATED AND TREATED HARSHLY

Many LGBT youth who have had negative
experiences with their families are cut off
from their families entirely and do not
receive
any
visitors
during
their
confinement—further disconnecting them from a
support system. At the same time, many young LGBT
people are not “out” to their parents but understand
themselves to be LGBT. For these individuals, visits
from family can mean that they will be “outed” to the
family. For example, if they share their sexual orientation
or gender identity with correctional staff, perhaps as
part of conversations related to safety or health care,
this information is not always treated with respect in
terms of interactions and conversations with parents or
other family members. Social workers assisting youth,
particularly those who are leaving the system, may
share information about the youth with family
members, which may violate a youth’s privacy.647

SECTION

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114

Story: The Public Supports Reforming Prisons and Jails
Americans agree that the criminal justice system needs reform. In 2014, seven in ten Americans thought the
system needed major improvements or a complete redesign.656 Half of voters agree that there are too many
people being held in prisons.657 Of young people ages 18 to 29, fewer than half think the legal system treats
people fairly across race and ethnicity; only 27% of black youth, 37% of Latino/a youth, and 41% of white youth
think the system treats people of different races and ethnicities fairly.658
There is broad support for rethinking whether prisons and the criminal justice system are effective at addressing
the underlying causes of crime and helping individuals turn their lives around. A 2013 survey found that
more than three-quarters (78%) of Americans think the criminal justice system does a poor or “just fair” job
rehabilitating criminals, and 68% believe the system does a poor or “just fair” job discouraging people from
committing crimes.659 Almost half (46%) of Americans think that society would be better served by investing in
efforts to rehabilitate people convicted of crimes.660

Recommendations
LGBT people frequently face challenges in
receiving a fair chance in the justice system. They face
discrimination by judges, court staff, attorneys, and
juries, which means they are more likely to be placed
in a confinement facility. Once within those facilities,
LGBT people face an array of indignities and abuses
that jeopardize their physical and mental safety, their
relationship with their families, and their very lives.
Reduce the number of people held in confinement
facilities—including adults in prisons and jails, youth
in juvenile justice facilities, and undocumented
immigrants in detention centers.
1. Federal and state legislators should revisit mandatory
sentencing guidelines, mandatory minimums,
and increased penalties, especially for non-violent
offenses, including non-violent drug crimes.
2. Federal and local jurisdictions and judges should
reduce reliance on bail and increase the ability of
individuals to be released pre-trial.
3. Federal, state, and local agencies should use risk
assessment instruments to determine whether
individuals should be released while awaiting trial
and to determine the least burdensome bail amount,
including nonmonetary pre-trial release options.
4. Federal, state, and local legislators should increase
funding for the expansion of community-based
alternatives to incarceration, including drug
treatment programs and mental health programs.

SECTION

Improve access to counsel for youth, adults, and
immigrants.
1. Federal, state, and local governments should
increasing funding for legal aid organizations and
indigent defense programs.
Reduce discrimination in the justice system.
1. Federal and state governments should fund and
provide cultural competency training for judges
and attorneys. Cultural competency training may
help reduce discrimination and stigma on the part
of judges, attorneys, and court staff.
2. Legislators should pass federal and state laws
prohibiting discrimination in jury selection on the
basis of sexual orientation and gender identity.
3. Legislators should pass federal and state laws
requiring courts, upon request of a party
in a case, to instruct the jury not to let bias,
sympathy, prejudice, or public opinion about
sexual orientation or gender identity influence
its decision. Courts also should improve juror
guidance to reduce discrimination by juries. Juries
should be given clear guidance and instructed
not to consider the race, ethnicity, national origin,
sexual orientation, gender identity, or other factors
unrelated to the case in their determination of
guilt or during sentencing.
4. Legislators should pass federal and state laws
and policies to eliminate the use of the “gay
panic” and “trans panic” defenses. Judges also
should provide explicit guidance that a nonviolent sexual advance or the discovery of an

individual’s sexual orientation or gender identity
may not legally mitigate the crime of murder to
manslaughter, for example.
Improve conditions of confinement for LGBT
people.

2. Implement PREA requirements for placement of
LGBT people based on an individual’s concerns
about safety. All confinement facilities should
implement and enforce PREA regulations for
placement of LGBT people. LGBT individuals
should be consulted about their needs and safety
concerns in determining the most appropriate
housing assignments.661 In particular, transgender
individuals should be housed based on the
gender identity they express rather than based on
anatomical sex or the sex on their birth certificate.
Some transgender individuals may prefer
single rooms or showering in a private room for
safety. LGBT individuals should not be placed in
solitary confinement based solely on their sexual
orientation and/or gender identity.
3. Reduce sexual assault in prisons and improve
systems for addressing assault when it occurs.
Departments of corrections should improve
training for correctional staff to proactively address
safety concerns to reduce instances of sexual
assault; educate incarcerated people about their
rights to safety and procedures for reporting
misconduct and sexual assault by staff and fellow
prisoners; and allow incarcerated people to quickly
and easily file complaints and do so without fear of
retribution or punishment.
4. Develop and implement nondiscrimination
policies with education and ongoing training for
staff. Departments of corrections should develop
policies and implement training for the treatment
of incarcerated LGBT people, including procedures
for searches and prohibitions on harassment,
violence, abuse, or discrimination.

6. Provide access to appropriate clothing and
grooming products for transgender people.
Agencies should give all inmates the ability to
choose between available clothing and grooming
items so they can express their gender identity
through choice of clothing, name, hairstyle, and
other means of gender expression.
7. Improve visitation polices to help inmates
remain connected to loved ones. Departments
of corrections should update policies to permit
individuals who may not be legally related to an
inmate, but who have a family-like relationship, to
visit. For example, policies should include children
for whom an inmate may have served as a de facto
parent or another non-legally recognized parent,
such as a spouse or partner of a child’s legal parent.
Programs that provide assistance to families to visit
a loved one in a detention facility should also take
a broad approach to defining family to ensure that
LGBT parents and children remain connected.

115

SECTION 2: IN THE SYSTEM: LGBT PEOPLE ARE MORE FREQUENTLY INCARCERATED AND TREATED HARSHLY

1. Intake procedures in jails, prisons, and detention
facilities should be individual-centered and
in compliance with PREA’s requirements
for addressing safety for LGBT individuals.
Departments of corrections should develop and
implement intake processes to identify individuals
who are or who are perceived to be LGBT, as they
are more vulnerable to physical and sexual assault.

5. Improve health care in prisons. Medical personnel
in confinement facilities should provide consistent,
research-based medical care according to approved
standards of care, including prompt access to HIV
medication and transition-related health care
for transgender people. All staff should ensure
confidentiality for all inmates by protecting medical
records and allowing only necessary information to
be shared with non-medical staff. This includes an
individual’s HIV status and identification as LGBT.

SECTION

SECTION 3: LIFE AFTER CONVICTION: LGBT PEOPLE FACE ADDED CHALLENGES TO REBUILDING THEIR LIVES

116

SECTION 3: LIFE AFTER
CONVICTION: LGBT PEOPLE
FACE ADDED CHALLENGES TO
REBUILDING THEIR LIVES
Each year, more than 650,000 individuals are
released from state and federal prisons in the United
States and struggle to find their way back into their
communities and families.662 Rebuilding one’s life after
being incarcerated can be an enormous, multifaceted
challenge.663 On the most basic level, individuals must
find a way to support themselves and find a place to
live, as well as decent medical care and other essentials.
What makes re-entry into society so challenging when
leaving prison or detention is the lack of employment,
money, and housing—as well as broken connections to
community and family. In many areas across the country,
individuals leaving jail or prison are simply given a small
amount of cash and sent on their way.
Because of these challenges, many people who
have been incarcerated and have criminal records end
up back in the criminal justice system. The National
Employment Law Project estimated that in 2014, 70
million adults in the United States had an arrest or
conviction record.664 As shown in Figure 42, it is estimated
that two-thirds of individuals released will be arrested
again in three years,665 and 77% will be arrested again
within five years.666

As described in Section 1, even before they have
a criminal record, many LGBT people are rejected by
their families, lack employment opportunities because
of discrimination, face bullying, harassment and unfair
treatment in school, have their lives criminalized, and
are targeted by police. These challenges don’t go away
while someone is in detainment; in fact, they can become
even more pronounced when one gets out. Like other
formerly incarcerated people, released LGBT people
also may have a history of substance abuse and physical
and mental health issues. Few will have completed high
school, let alone college. Many are parents. Together, all
of these factors are linked to high rates of insecurity and
instability, and all of them add up to huge challenges for
an LGBT person who has a criminal record or has spent
time in prison or jail.
LGBT people can have a uniquely hard time
rebuilding their lives. Across the United States, doors are
frequently closed to any individual with a criminal record
when it comes to jobs, housing, and more. Many parole,
probation, and re-entry programs are understaffed
and underfunded. Most focus heavily on employment
without addressing the wider range of challenges—and
substantial barriers—that formerly incarcerated people
face when securing even basic necessities such as food,
shelter, and family reunification. As explored throughout
this report, LGBT people often face their own unique
challenges with all of these issues. Add in the fact that

Figure 42: High Rates of Recidivism in the United States

In 2005

Three Years Later...

Five Years Later...

450,000
PEOPLE RELEASED
FROM PRISON

68%
had been
arrested

77%
had been
arrested

IN 30 STATES

SECTION

Source: Matthew R. Durose, Alexia D. Cooper, and Howard N. Synder, “Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010,” Special Report (U.S. Department of Justice, Office
of Justice Programs, Bureau of Justice Statistics, April 2014).

LIFE AFTER CONVICTION:

LGBT PEOPLE FACE ADDED

117

CHALLENGES TO REBUILDING THEIR LIVES

RE-ENTRY
SUPPORT
PROGRAMS

PUBLIC
ASSISTANCE

EMPLOYMENT

HOUSING

RECIDIVISM

LIFE AFTER
CONVICTION

HEALTH CARE

FAMILY
CONNECTIONS

CIVIC
ENGAGEMENT

SUCCESSFUL RE-ENTRY

IN THE
SYSTEM

SECTION 3: LIFE AFTER CONVICTION: LGBT PEOPLE FACE ADDED CHALLENGES TO REBUILDING THEIR LIVES

ENTERING THE
SYSTEM

EDUCATION

ROADBLOCK #2

ROADBLOCK #1

CONSEQUENCES OF HAVING
A CRIMINAL RECORD

LACK OF CULTURAL COMPETENCY
IN RE-ENTRY PROGRAMS

SECTION

ACCURATE
IDENTITY
DOCUMENTS

SECTION 3: LIFE AFTER CONVICTION: LGBT PEOPLE FACE ADDED CHALLENGES TO REBUILDING THEIR LIVES

118

SECTION

most re-entry programs are not inclusive or culturally
competent when it comes to addressing the unique
concerns and challenges of LGBT people, and it’s clear
that they are left struggling and at risk for future law
enforcement contact.
Recently released individuals also struggle with
the changes in technology and culture. Shifting from
the extremely proscribed, regimented environment of
prison back into society can be very challenging. People
also face barriers to becoming valued members of a
community because of limitations on voting, serving in
public office, volunteering, and other civic activities.
There is broad public consensus that the
discrimination facing people who have served time in
prison is wrong.

Having a criminal record harms LGBT
people’s ability to support themselves
and be a part of their families and
communities.
The
challenges
for
individuals with criminal records are
substantial in the United States and touch every aspect
of one’s life. In many ways, these individuals continue to
be punished for their crimes long after they have
completed their sentences. For people who already
struggle with pervasive discrimination, such as LGBT
people and people of color, a criminal record compounds
daily discrimination to create substantial barriers to
rebuilding one’s life and avoiding future interactions
with the criminal justice system. For LGBT immigrants,
regardless of immigration status, having a criminal
record can easily lead to deportation.

•• Sixty

percent of Americans think the unequal
treatment faced by people who have served time
is a serious problem,667 and 56% support legislation
designed to reduce discrimination against people
with criminal records.668

•• Additionally,

80% of Americans think the current
level of recidivism is unacceptable,669 and nearly
three-quarters (74%) support increased spending on
programs to reduce the likelihood that an individual
will commit another crime.670

•• Two in three Americans support increased spending
on job training and placement programs for formerly
incarcerated people, and 55% support tax incentives
for employers who hire individuals who have served
time in prison.671
In this section, we explore the impact of having a
criminal record on LGBT people, as well as the challenges
they face re-entering society after being incarcerated.
Specifically we examine:
Lack of support for LGBT people in probation, parole, and re-entry programs. LGBT
people often face unique needs for support
in finding housing and jobs and accessing
essential services. They experience discrimination at high rates and frequently lack family support,
and transgender people and those living with HIV may
need additional assistance finding appropriate health
care. Rarely do probation, parole, and re-entry programs
take into consideration the discrimination that LGBT people experience in many areas of life, including employment, housing and public accommodations.

Lack of Support in Probation,
Parole, and Re-Entry Programs
The problems facing all people being
released from the criminal justice system
are significant. Compounding these problems for LGBT
people is the fact that parole and re-entry programs lack
competency to address their specific needs. Both within
prisons and in parole and re-entry programs, very few
staff are trained to support LGBT people in being prepared
for release, finding jobs and housing, and successfully
completing probation or parole. Given the many challenges
that individuals face in being successful post-incarceration,
probation, parole, and re-entry programs can make a huge
difference in whether someone has the skills and guidance
to get back on their feet and succeed. To the extent that
these programs fail, LGBT people, including low-income
people and people of color, may be more likely to violate
the terms of their probation or parole.
This section explores the following barriers to
successful re-entry for LGBT people with criminal
records, including:

•• Lack of LGBT cultural competency in prison re-entry
programs for individuals leaving prison, jails, and
juvenile justice facilities;

•• Lack of understanding and respect for LGBT people
in probation and parole systems; and

•• The

use of indefinite detention through civil
commitment.

First, however, we give an overview of how probation
and parole systems work in the United States.

How Probation and Parole Work

At the end of 2013, 4.8 million U.S. adults, or one in 51,
were under community supervision, such as probation or
parole, following incarceration.673 It is estimated that nearly
675,000 juveniles are also under probation supervision,
which is imposed in an estimated 62% of adjudicated
juvenile cases.674 Some individuals released from prisons or
jails are sent to facilities such as re-entry centers designed
to ease their transition back into daily life.
If an individual on parole or probation violates the
conditions placed on them, they frequently are subject
to new restrictions or are re-incarcerated.675 From 1980
to 2000, the share of prison admissions due to parole
violations increased from 17% to 36%.676 In other words,
over one-third of prison admissions are due to reincarceration for a parole violation.
Just as the network of detention facilities is
complicated and is overseen by various levels of
government, the same is true for community supervision.
Federal, state, county, and city systems have their own
agencies responsible for supervising individuals who
are not placed in a detention facility.677 Despite the fact
that the majority of individuals sentenced in the criminal
justice system will interact with probation or parole
systems, those systems remain underfunded, particularly
compared to the amount spent on prisons and jails.678
Supervision (parole and probation) officers frequently
carry heavy caseloads. In Alabama, for example, a single
probation officer supervised 143 people on average in

It is estimated that 100,000 young people are
released from juvenile justice facilities each
year.680 Rarely are plans in place to support
these youth as they return to their families,
schools, and communities.681 To succeed in rebuilding
their lives and staying out of the criminal justice system,
youth need to be reconnected with schools, health
services, employment services (particularly for young
people who are over age 18), housing, and families.
Without appropriate support, many young people
released from the system face substantial barriers to
successful re-entry. These barriers include: unsafe and
underfunded schools that are unprepared to integrate
young people back into the educational system;
families frequently struggling with financial, health,
or other challenges that make welcoming a young
person home difficult; and unsafe communities lacking
in social support and adequate medical and mental
health services.682 As a result, young people who leave
the juvenile justice system are at high risk of recidivism.
Programs employing models that engage young people,
families, peers, schools, and communities in re-entry
have shown great promise of reducing recidivism.683

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As explained in Section 2, some people who are
convicted of a crime are sentenced to community
supervision, often called probation. Other times,
individuals who have spent time in a jail or prison are
released and are supervised through a system called
parole. In both parole and probation systems, individuals
frequently have limitations put on their actions and
receive supervision by law enforcement or legal system
officers, such as probation or parole officers. Individuals
on parole may have to meet regularly with their parole
officers in person, by mail, or through electronic
monitoring. Typically, parolees must meet other specified
conditions of their parole, such as: not committing any
new crimes, remaining employed, not using drugs,
keeping a curfew, supporting dependents such as
children through child support payments, participating
in drug treatment programs, and potentially avoiding
certain locations or people.672

2005, compared to 60 in similarly sized, better-funded
states.679 Given these caseloads, supervision officers
struggle to provide individualized, thoughtful guidance
to individuals as they are released from the criminal
justice system. For example, with 143 people to manage,
a probation officer would only be able to spend about
15 minutes per person per week, and that is assuming
the officer has no general administrative duties and can
dedicate 100% of time to working with parolees.

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Story: Coming home homeless, financially broke, convicted, and aging

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I was released from the Federal Correction Institution, Tallahassee, one year ago. I was taken to
the Greyhound bus station and given a ticket to head home to New York. For the first time in
close to a year, I went unescorted to a store to buy a cup of coffee. I didn’t feel free. I felt anxious.
Prior to my arrest, I worked for decades. I had a home, family, extended family, and friends.
At an age when most of my friends were preparing for retirement, I was released from the
higher-security prison as a homeless, financially broke, convicted, and aging woman. I
had nothing to call my own, and my legal bills had consumed a lifetime of savings. I was
full of fear and anxiety. I came home an orphan with a living family.
After I arrived back in New York, I had to report to a residential re-entry center (RRC, aka a halfway house). Under
current law, RRC placements can last up to one year. However, I was permitted to stay only six weeks—a very
short amount of time for re-entry, especially given that I was 63, homeless, and penniless.
On top of that, this halfway house’s rules were borderline Kafkaesque. Phones were prohibited within the house.
There was no Internet. Permission to leave the house was limited and often unattainable. If you managed to get
permission to go somewhere that had a computer, you could apply for a job online. However, since there was
no way for an employer to call you, the effort was futile. Even if you got an email response, you might not get
permission to go to the job site for an interview.
Because I couldn’t demonstrate proof of employment on an application for housing or pass a background check,
the only choice I had after the halfway house was a homeless shelter, aka the last place I wanted to live. And so, I
arranged to join a three-quarter house, which are unlicensed facilities that rent shared rooms to people leaving
mental hospitals, drug treatment programs, and prisons or jails. It’s a profitable business. This one was run by a
purported feminist who claimed to care about the women she was housing.
It was a frightening sight. Eleven women were crowded into a few rooms. One working bathroom was available.
I lived in a space half the size of my prison cell. My roommate and I could not stand in the room at the same time.
One of us had to stay on the bed for the other to get her clothes.
I worked a $9.00 an hour job at Old Navy for the Christmas season. Standing on my feet seven hours a day was
painful, and I couldn’t straighten out my back and needed to sleep to endure the next full day of work. And,
although I was assigned evening hours, the house curfew was at 11:00. Women who didn’t get home on time
found their belongings in garbage bags on the street. The so-called feminist found it easy to throw women out,
and I had to call her when I arrived at the house from work each night to get back in after hours.
My struggles to obtain housing in New York City haven’t ended, as I don’t have credit or a job. In one telling
instance, I had three in-person interviews in one week with an agency whose work focused on the formerly
incarcerated. Although I was hired, the job offer was retracted only two days later. I was—and I still am—stunned
by the lack of interest in employing formerly incarcerated returning citizens.
In short, I’m writing this story because I believe in coming out as a convicted felon. I believe in disclosing my
history to employers, friends, and practically everyone. And as there are as many as 100 million Americans with a
criminal record, if everyone “came out as a criminal,” most people would know someone. We would see increased
momentum for reform on jobs, housing, and criminal justice reform more broadly. And we could build an elder
justice movement that works for alternatives to incarceration for the elderly; the release of incarcerated elders;
and responsible re-entry specifically focused on the needs of the elderly who are returning home.
But right now I have no job and no housing. I am 64 years old and fearful I will end up in a shelter. I have fought
every day to jumpstart my life, but I feel I am losing the battle.
- Evie Litwork

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Excerpted, with permission, from Evie Litwok, “I Went to Prison at Age 60. Here’s What I Learned.,” Talk Poverty, October 16, 2015.

PROBLEM: LACK OF LGBT COMPETENCY
IN PRISON RE-ENTRY PROGRAMS

Other components of job preparedness training or
career counseling do not regularly address the unique
concerns of LGBT people either. For example, LGBT
people in these programs rarely if ever receive advice

PROBLEM: LACK OF LGBT COMPETENCY
IN PROBATION AND PAROLE
Once released from prison and placed on parole
or probation, individuals are often required to adhere
to strict requirements and regularly meet with a
parole or probation officer. However, probation and
parole programs are notorious for lack of support
for those seeking to re-enter the local community. In
addition, programs often place strict requirements on
individuals, such as stating that they cannot visit certain
communities and not socialize with certain people, or
that they need to maintain employment. There have
been cases in which a transgender person’s dressing in
accordance with their gender identity has resulted in a
violation of parole terms.684
Together, lack of support and the rigorous requirements placed on people on probation or parole contributes
to high levels of recidivism among parolees and recently
released individuals, particularly LGBT people.
Some individuals on probation or parole are
required to attend job training or educational programs,
or to hold a steady job as a condition of their parole.

City of New York Department of Probation’s LGBTQI Policy

In June 2015, the City of New York and its Department of Probation released a revised policy designed to ensure
that LGBT, questioning, and intersex youth, adults, and families served by the department are treated with respect
and experience a safe environment. Staff are advised to identify and address the individual needs of each client.
Harassment and discrimination is not tolerated, and staff are advised that they may not impose their personal or
religious beliefs on clients.

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In federal and state prisons, re-entry planning
includes helping inmates with employment searches
and job search skills prior to being released. In addition,
some state and local corrections departments provide
inmates who are due to be released with assistance in
obtaining identity documents, either directly or through
referrals to other agencies. For transgender inmates,
however, it is difficult, if not impossible, to obtain identity
documents that accurately reflect their gender identity.
The reason, as explored earlier in this report, is that
transgender individuals face a high likelihood of being
housed in correctional facilities that do not reflect their
gender identity. As a result, staff are likely unaware of the
necessary paperwork or the route for obtaining accurate
identity documents for transgender people. Without
a driver’s license with an accurate gender marker and
name, transgender people who are released from prison
face additional challenges in finding jobs. Either they will
be “outed” as transgender during the job search, or else
they will face added discrimination. Mismatched identity
documents can also make future interactions with law
enforcement more difficult (as discussed in Section 1).

on what to do when they face discrimination in the job
application process. In addition, when given tips on how
to dress for a job interview, transgender inmates may
not receive appropriate guidance or they may be told
not to dress in accordance with their gender identity.

Beyond these general principles, the policy provides detailed guidance for the language to be used by staff, names
and pronoun policies, disclosure and confidentially, family concerns, personal grooming issues, procedures for
searches, training, and policies for reporting harassment and discrimination. For example, staff are advised to use
“respectful language” that will not result in harm in group or shared spaces for LGBT clients. To the extent possible
and only with the approval of a client, staff are to use preferred names and pronouns rather than legal names,
including in internal Department case management notes and communications and when addressing clients.
Source: “New York City Department of Probation Lesbian, Gay, Bisexual, Transgender, Questioning, and Intersex Anti-Discrimination Policy” (The City of New York Department of Probation, June 23, 2015).
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As shown in Section 1 of this report, LGBT people in
general face difficulty in applying for jobs compared
to non-LGBT applicants. With a criminal record, LGBT
people have an even harder time. When job training
and employment services for individuals with criminal
records are unaware of the job discrimination faced by
LGBT people—or fail to acknowledge the impact it can
have on their ability to find economic stability—they
do their LGBT clients a disservice. Without an inclusive
and culturally competent approach, these programs
fail to provide the support needed to help LGBT people
succeed and reduce the likelihood of reoffending.
Some parole conditions include restrictions on travel
by individuals. For example, in California, individuals on
parole generally must receive permission to travel more
than 50 miles from home, leave their “home” county
for more than two days, or leave the state.685 These
limitations can be particularly onerous for transgender
people and people living with HIV, particularly those
living in rural areas. Such individuals may not be able
to access competent, respectful medical care without
traveling. And if a parole officer is not supportive of an
individual’s gender transition—which is not an unlikely
turn of events, given the lack of competency training
for law enforcement generally—the officer may not
approve a request to travel or may consider an individual
in violation of parole if he travels for medical care.

PROBLEM: LACK OF LGBT COMPETENCY
IN RE-ENTRY PROGRAMS
Federal, state, and local governments frequently
contract with private agencies to provide re-entry services
to recently released individuals, including job training, reentry counseling, and residential re-entry centers.
Some people who are nearing release are placed in
residential re-entry programs, such as halfway houses,
where they live for a period of time before being released
into the community. As a condition of placement in
a residential re-entry program, individuals in these
facilities have many aspects of their lives controlled by
the facility but are able to go out into the community to
find work, to complete job training, or to visit family.
LGBT people placed in residential settings like these
report violence and harassment by fellow residents and by
staff. In addition, transgender people have been housed
in residential re-entry programs that do not match their

gender identity, and have had their clothing taken away
for violating house policies. Denying transgender people
the ability to live their lives authentically makes it all the
more challenging for them to focus on addressing the
difficulties of having a criminal record, such as finding
employment, completing their education, and receiving
substance abuse counseling.
Some of these programs are religiously affiliated
and may not be accepting of, or may be hostile towards,
LGBT people.686 Even centers that do not actively
discriminate against LGBT individuals frequently lack an
understanding of the specific support that LGBT people
need when seeking employment or education. They fail
to help LGBT people deal with crucial questions such
as: how to react when you are discriminated against
when applying for a job; or how best to respond to
a background check that “outs” you as a transgender
applicant. Staff in re-entry programs also may not
understand the healthcare needs of transgender people
and can therefore fail to connect them to healthcare
providers that will provide appropriate medical care.
Young people leaving juvenile justice facilities,
particularly youth who have been committed
to residential facilities, have a wide range of
needs. Among the most important: resuming
their education, finding good, affordable healthcare
services; and reconnecting with family. Support for young
people leaving these systems is limited and varies greatly
across states and within cities and counties. In some
instances, youth are simply given a bus ticket or released
to a family member. Other young people benefit from a
much more strategic and thoughtful approach: engaging
in pre-release planning alongside a “reintegration team”
that includes family members, correctional staff, social
workers, and school staff to help ease the transition.
Some youth who have come out as LGBT only while
in a residential facility may struggle with when or how
to come out to their family members or friends. These
youth need support to help them navigate family conflict
and reduce the opportunity for family rejection. They
also need help accessing resources to be safe at school.
Without such support, LGBT youth risk family rejection,
leaving their homes, and school violence that pushes
them out of school. Each of these outcomes increases the
likelihood of repeated interaction with law enforcement.
And to the extent that young people are not able to stay
in their homes or in school, they may violate the strict
probation and parole conditions placed on them.

Story: Life as a Transgender Woman in a Halfway House

In August of 2010, I was sentenced to two years in federal prison. I began three years of supervised
release in April of 2012, but was sent back because I tested positive for drug use. That was a real
wake up call for me, and I started attending Narcotics Anonymous (NA) meetings. With hard work
and prayer, I have been drug free since April 15, 2013.
In October 2013, I was paroled to The H Group, a halfway house in Marion, Illinois, to complete
my sentence and begin a drug rehabilitation program. At the halfway house, I was able to enroll
in college, and attend counseling and substance abuse treatment. I was excited about the
opportunity to focus on my rehabilitation and to set myself up to succeed once I was released. I was sorry about the actions
that had landed me in jail and truly believed that I was capable of more, but the way I was treated at The H Group made it
nearly impossible for me to think about the future.
Almost as soon as I started living at The H Group, I was told by the staff members that I was a man, which is not true, and that if
I didn’t stop acting like a woman, I would be sent back to jail. The staff members addressed me with male pronouns and titles,
I was forced to sleep in a room with four men, even though I didn’t feel safe, and the staff at The H Group periodically raided
my belongings and confiscated anything they viewed as remotely feminine. They took my makeup, clothing, pedicure kit,
magazines, and curlers. They even took my pink shower cap. I tried to “take the high road,” “turn the other cheek,” and “let go
and let God,” but I was hurt, and I knew this treatment was wrong. Instead of focusing on improving myself to build a new life, I
was just focused on surviving each day.
Being the first transgender resident at this facility, I realized that I had the opportunity and responsibility to speak out, not
only to protect myself, but to make sure that other transgender individuals aren’t discriminated [against] in the same way.
After some investigation, I reached out to Lambda Legal, a national LGBT advocacy group. They agreed to advocate for me,
but I had to do my part.
On April 21, I filed a formal grievance with The H Group about the way I was being treated. I wasn’t convinced that the
grievance would cause The H Group to change, but I had learned that if I didn’t exhaust The H Group’s internal grievance
procedure, I could be barred from filing a lawsuit in federal court. There was a tight deadline to file a grievance, but I was able
to file the grievance within 20 days of the last raid of my room. In the grievance, I demanded four things: 1) that my personal
possessions be returned; 2) that I be allowed to live and present as the woman I am; 3) that staff address and refer to me with
feminine pronouns and titles; and 4) that I be removed from the male dormitory. On May 1, Lambda Legal sent a demand
letter to the CEO of The H Group with copies forwarded to my probation officer, my U.S. Senator, the regional director of the
Bureau of Prisons, and the U.S. Attorney General.
On May 5, I was summoned by the facility director. She extended a formal apology on behalf of the facility. She informed
me that all of my personal belongings would be returned, staff would refer to me using appropriate pronouns and treat
me with respect, I would start eating meals with the other female residents, and I would be reassigned to a single room.
Talk about a grand slam!
I felt proud and grateful. I felt that I had spoken up not only for myself but for transgender women everywhere. When The
H Group was refusing to respect me, I felt as though they were forcing me to take a step backward. After my personal items
were returned and The H Group staff started treating me as a woman, I found for the first time that I was able to concentrate
on the real reason I was at The H Group – treating my substance abuse and preparing myself for my release.

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Printed with permission from Lambda Legal

I am a transgender woman. I first realized that I felt more like a girl than a boy when I was four
years old, but it wasn’t until 1999 that I started hormone therapy. For the past 15 years, I have lived
openly in the world as a woman.

I have since found a job and nice apartment in the area. I have a growing support network in the community, and I love the progress
that I’m making with my therapist. I feel like my trust in God allowed me to trust the process and myself.
I hope that my story can help to further transgender rights in correctional institutions. What happened to me should
never happen to anyone just because of who they are. I’m thankful I stood up for myself and thankful that Lambda Legal
was able to help me.

Reprinted, with permission, from Donisha McShan, “In My Own Words: Donisha McShan,” Lambda Legal.

- Donisha McShan
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124

Young people in the juvenile justice system regularly
struggle to continue their education. It is estimated that
two-thirds of young people eventually drop out of school
after being involved in the system. This should not be a
surprise. When students are in the juvenile justice system,
their educational studies are interrupted. Even if they are
able to continue their studies while detained, returning to
school is a challenge. For example, students have difficulty
re-enrolling in school if they do not have adequate
records to show what courses they completed while in a
facility. Often, young people are pushed into alternative
programs that lack academic rigor or supportive services.

Meeting Immediate Needs After
Release
Being released from jail, prison, and immigration
detention can be challenging. Time spent disconnected
from family and friends—geographically, emotionally,
and otherwise—means that many people feel isolated
and alone. For LGBT people, some of whom have been
rejected by family, there can be very few places to
turn for immediate help with transportation, clothing,
a place to stay, and more. But several programs have
been created to help:
The Transformative Justice Law Project of Illinois
offers Glam Team Re-entry Support. Through
the program, volunteers assemble items to help
transgender people make the transition from prison
or jail to the outside. In some cases, volunteers may
meet individuals at a prison or jail, or individuals can
pick items up from the project’s office. The project
may also provide gender-appropriate clothing,
accessories, or other items as needed.
In New York City, the Queer Detainee Empowerment
Project provides direct assistance to individuals
released from immigration detention, including
housing through a host home program, clothing,
employment assistance, help accessing medical
care, and more.
Mariposas Sin Fronteras, based in Tucson, Arizona,
works to assist LGBT individuals in immigration
detention facilities in Arizona through visits,
raising funds to make bond, and assisting released
individuals with housing and other necessities.

SECTION

Young people also face challenges in finding health
care in their communities when they are released from
the system. This is a particular problem for many LGBT
young people who often face unique physical and
mental healthcare needs. Succeeding in their re-entry
may require them to find accessible, affordable and
competent health care. Transgender youth, for example,
often struggle to find physicians and counselors who
can provide appropriate care. Another problem facing all
young people leaving the system is a lack of continuity
of care; even simply obtaining healthcare records once
released can be a major challenge.

PROBLEM: INDEFINITE DETENTION
THROUGH CIVIL COMMITMENT
In some instances, individuals who complete their
sentences are not actually released. A court may conclude that an individual has a psychological condition that
makes it difficult to control their behavior, putting them
at higher risk of committing a crime in the future. The process of “civil commitment” has been used at high rates for
individuals convicted as sex offenders. According to a 2012
survey, 20 states and the federal government have laws
that permit civil commitment.687 According to analysis by a
researcher in Minnesota, 10% of adults who are held under
civil commitment in Minnesota had been initially convicted
as juveniles, despite the fact that many were found to have
very little risk of reoffending as adults.688
Given that LGBT people, including youth, may be
more likely to be convicted of sex-related crimes, both
as a result of targeting by police and laws that heighten
punishments for same-sex contact, the risk of civil
commitment is heightened for LGBT people.

Impact of a Criminal Record
Regardless of whether an individual spent
time in prison or was sentenced to community supervision, having a criminal record
makes it more difficult to rebuild one’s life. In many ways,
individuals with criminal records continue to be punished
by society even after they have completed their adjudicated sentences.689 As described below, a criminal record
creates barriers to fair treatment in many areas of daily
life—obtaining public assistance, which can be essential
for individuals just out of prison; obtaining stable, fair
employment to earn a living wage; and accessing educational
programs to improve employment opportunities.

For example, one study found that in the year
following the release of a father, a family’s income drops
by 15% from what it was before he was incarcerated.692
Similarly, researchers find a strong link between increased
rates of incarceration and increased rates of poverty
in the United States.693 In a five-year study of women

cycling in and out of prisons in Massachusetts, only
three women out of 47 had found stable employment
and secure, stable housing, and had avoided substance
abuse five years after release.694

125

As detailed in this section, LGBT people with criminal
records face numerous challenges, including:

•• Difficulty finding housing;
•• Inadequate health care after release;
•• Difficulties finding employment;
•• Ineligibility for public assistance;
•• Overuse and misuse of sex offender registries;
•• Educational barriers;
•• Severed or denied parenting rights;
•• Challenges reconnecting with family;
•• Difficulty obtaining name changes; and
•• Loss of political participation.

Story: Stopping the Revolving Door: Milan’s Story
The discrimination that I faced on a daily basis as a transgender woman of color was intensified when I was
incarcerated in a men’s jail in New Orleans. With little to no interaction with sunlight and unsanitary, unlivable
conditions, my days in jail felt doubled.
I was emotionally traumatized and mentally damaged going into jail, and even more so coming out of jail.
After my involvement with the prison system, I returned to a world where I still needed to protect myself from
hate and violence in order to ensure my survival. During job interviews, when a potential employer realized I’m
trans, the energy of the room changed, and immediately the interview went downhill.
To me it is so clear why there is such a revolving door for trans women of color who find ourselves in and out of
jail as we persist to find security and meet basic needs.
I now fight endlessly for those who don’t have the energy to fight anymore. I’m a founding member and volunteer
of BreakOUT!, where I advocate for and provide mentorship for trans women of color. Through my journey and
organizing career, I encourage others in my community to seek resources for survival and continue to plan for a
life of challenges.

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A number of states have worked to reduce the
roadblocks for people with criminal records. In contrast,
the Legal Action Center identified the 15 states with the
worst record when it comes to having laws on the books
that are designed to make life more difficult for people
with criminal records.690 These states limit people with
criminal records from accessing employment and
public assistance, including housing; allow expansive
public access to criminal records; limit voting rights
and parenting rights; and restrict individuals’ ability to
obtain driver’s licenses. Given the rise in incarceration
and policing, the number of individuals in the United
States who have barriers to economic opportunity,
family stability, and public life because of these
limitations has expanded immensely.691

As Black trans women, we are constantly told that we are unworthy to be loved, unworthy to get an education,
unworthy to get respect and to even live. My goal is to get girls like me to think: Who’s going to hire me? How
am I going to live, to survive? And to tell them, “I am here for you.” I encourage others to do the same. Whether
it’s offering a shower, a place to stay, a meal or health care—anyone can offer support to a trans woman of color
who faces experiences like mine.
- Milan, New Orleans, LA
Excerpted from Saneta deVuono-powell et al., “Who Pays? The True Cost of Incarceration on Families” (Ella Baker Center, Forward Together, and Research Action Design, September 2015).
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PROBLEM: DIFFICULTY FINDING
HOUSING
Finding safe, stable housing is one of the most
immediate needs for individuals leaving correctional
facilities, and one of the most difficult barriers to
rebuilding one’s life. It is estimated that in major urban
areas, between 30-50% of individuals currently under
community supervision, such as parole, are homeless.695
In a 2014 survey of formerly incarcerated individuals,
79% reported being denied housing because of their
criminal records.696
Residential facilities. The federal correctional
system relies heavily on what are frequently called
“halfway houses.” These are residential re-entry centers
or community corrections centers where inmates are
housed prior to release. These centers provide housing,
supportive services, and connections to job training or
employment programs.697 However, less than 1% of state
inmates are released to these transitional housing options.
The Reentry Employment Opportunities Program
(REO) is a federally funded program that supports
programs for eligible youth and formerly incarcerated
adults. The REO program provides pre- and post-release
services, including work experience and internships,
basic skills training, GED preparation, mentoring, and
case management. In 2014, the program had a total
national budget of $80 million.
Many of the organizations receiving REO funding are
religiously affiliated.698 While not an outright barrier for
LGBT people, religious affiliation may present challenges,
particularly if the organization is not supportive of or is
hostile to LGBT people. LGBT people in these environments
may face discrimination due to their sexual orientation or
gender identity. LGBT youth, in particular, also are unlikely
to receive advice or guidance on how to create healthy
relationships with families and peers, how to navigate
returning to school, or how to find support in their
communities. This support is crucial to young people who
were not “out” prior to being committed but are now out
as LGBT and wish to be out in their home communities.
Private market rental housing. Formerly incarcerated
individuals struggle to find private housing even if they
can afford it. It is estimated that 80% of landlords use
background checks to assess prospective tenants, and
this unfairly disadvantages individuals with criminal

records who pose no safety risk to other tenants.699 The
state of Oregon and several municipalities across the
country have passed so-called “fair chance” housing
policies that prohibit discrimination based on an arrest
record or certain criminal convictions. Some of these
laws also require landlords to state why they are denying
housing, which gives prospective tenants an opportunity
to address the results of a background check.700
This discrimination is compounded by the high levels
of housing discrimination reported by LGBT people in
general (as described on pages 28-31).701 No federal law
explicitly prohibits discrimination in housing based on
sexual orientation or gender identity, and only 20 states and
the District of Columbia have laws outlawing such housing
discrimination. In federally funded housing programs,
however, discrimination based on sexual orientation,
gender identity, and family status is prohibited.
Public housing and rental assistance. Federal
housing assistance programs are administered by
public housing agencies. These federal programs
include Section 8, which provides financial assistance to
individuals for housing on the private market. However,
this housing assistance has broad restrictions for those
with criminal records. For example:

•• Federal law explicitly excludes—for life—individuals
on a state sex offender registry from receiving
federal housing assistance of any kind.702

•• Individuals who have been convicted of manufacturing
or producing methamphetamines on federal assisted
housing sites are ineligible for assistance.703

••
If

an individual was evicted from federally
assisted housing for drug-related criminal
activity, they cannot receive assistance for three
years following the conviction. 704

•• Anyone

currently engaged in illegal drug use or
whose use of a substance may threaten the health
or safety of other residents is also ineligible.705

Federal law also allows individual housing agencies
great flexibility in developing their own policies. As a
result, in a majority of states, local housing agencies
make it virtually impossible for an individual with a
criminal background, or even a drug charge, to obtain
housing assistance. An entire family can be evicted if a
single member is charged with a drug offense, even if
the charge is dropped.706 In 2011, the U.S. Department of
Housing and Urban Development (HUD) issued guidance

PROBLEM: INADEQUATE HEALTH
CARE AFTER RELEASE
Individuals in detention rely on the juvenile justice
facility, jail, prison, or immigration detention facility to
provide them with the health care they need. This can
make it challenging to ensure continuity of care and
treatment of chronic conditions upon release.
Many formerly incarcerated individuals qualify for
government assistance in obtaining health care, such as
through Medicaid. However, they may not be aware that
they qualify—especially because they were ineligible
while in detention. Adding to the challenge, most
states terminate an individual’s enrollment in Medicaid
following a period of incarceration, typically longer than
30 days, requiring them to reapply upon release.710 This
application process can take several weeks (or months),
causing a gap in coverage and care.
Some states have allowed individuals who are
incarcerated to put a hold on their Medicaid eligibility,
rather than being dropped entirely, which allows
individuals to more quickly receive benefits upon
release, reducing gaps in care.711 In addition, some
states and localities have worked to address healthcare
needs as part of re-entry planning. For example,
in Cook County, Illinois, which includes Chicago,
individuals held in the jail are screened for eligibility for

the county’s Medicaid expansion program. Individuals
who are held pending disposition of charges and those
who are preparing for release can obtain assistance in
enrolling in Medicaid. Of the applications submitted
through this partnership with the sheriff’s office, local
nonprofits, and the county health system, 94% of
applications had been approved.712
Delays in Medicaid enrollment can mean missed
medication, lack of urgently needed medical care,
and, particularly for individuals with mental health
concerns, increased likelihood of future criminal justice
involvement.713 Formerly incarcerated individuals are 12
times more likely to die from health problems in the first
two weeks after release when compared to the general
population—most frequently from drug overdose or
cardiovascular disease.714
When individuals aren’t able to afford medicine or do
not have a regular physician, the gaps in health care or
medication regimens can pose serious risks, particularly
for individuals with HIV. Research shows that among
men and women with HIV, women were less likely than
men to access continuous HIV care in the six months
following release from jail, resulting in increased health
risks.715 Of individuals released from prison in one study,
only 5.4% had filled their antiretroviral prescriptions
within 10 days of release, 18% within 30 days, and only
30% within 60 days.716
Continuity of coverage and care is also important for
transgender individuals who are taking hormones and
receiving other transgender-related health care. Medicaid
exclusions for transgender-related care in many states
mean that individuals may have received care while in
prison (although as discussed in Section 2, the availability
of this care should not be overstated), but are unable to
access appropriate health care upon release.

PROBLEM: DIFFICULTIES FINDING
EMPLOYMENT
As described on pages 25-26, LGBT people frequently
experience employment discrimination because of who
they are or whom they love. This is particularly problematic
for LGBT people with criminal records, who also face
barriers to stable employment because of their records.
Not only does the difficulty of finding employment create
financial challenges for individuals and their families, but a
lack of stable employment is the single greatest predictor
of recidivism among individuals with criminal records.717

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to local public housing agencies encouraging more
“flexible, reasonable admissions” policies for formerly
incarcerated individuals. The guidance was issued in
recognition of the immense challenges individuals with
criminal records face in securing stable, safe housing
and the impact of homelessness and housing instability
on rates of recidivism.707 However, according to a 2014
survey, nearly one in five families still faced eviction, were
denied housing, or were unable to qualify for housing
assistance once a formerly incarcerated family member
rejoined their family.708 Guidance released in November
2015 further clarified that public housing agencies
may not use arrest records to deny housing or evict
tenants and that agencies are not required by federal
law to automatically deny housing or evict individuals if
anyone in their household engages in criminal activity.
Importantly for LGBT individuals with a criminal record,
HUD has also issued regulations ensuring equal access to
federally funded housing programs regardless of sexual
orientation, gender identity, or marital status.709

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128

Thus, the inability to obtain a job due to a criminal record
contributes to the cycle of incarceration.

•• In a three-year study following people released from

SECTION 3: LIFE AFTER CONVICTION: LGBT PEOPLE FACE ADDED CHALLENGES TO REBUILDING THEIR LIVES

prison, individuals with one year of employment had
a 16% recidivism rate over three years, compared to
52% for all individual released at the same time.718

SECTION

••
It

is estimated that imprisonment reduces an
individual’s annual wages by 40% and results in a
nearly four times greater loss in aggregate lifetime
earnings for black men than for white men.719

•• In a 2014 survey of formerly incarcerated individuals,
76% said they had a very difficult or nearly impossible
time finding employment, and two-thirds (67%)
were unemployed or underemployed five years after
release from prison.720
Individuals with criminal records also struggle to
obtain occupational licenses, such as commercial driver’s or
pilot’s licenses and commercial hunting or fishing licenses,
or certifications for particular jobs, such as nursing.
Discrimination based on criminal records. Given the
racial imbalances in the U.S. criminal justice system, workers
of color—most often black and Latino men, including those
who are LGBT—are more substantially impacted when
employers improperly rely on criminal records to influence
hiring decisions. Of all nonworking men between the ages
of 24 and 54, 34% are men with criminal records.721
Research has also uncovered the particular barriers to
re-entry for formerly incarcerated women. In one study,
of women submitting resumes, women with criminal
records were least likely to receive positive responses;
and African American women were the most likely to
face barriers related to having a criminal record.722
Many employers require that job applicants undergo
a background check, including a criminal record check,
before they are offered employment. Also, in many
job applications, individuals are asked whether they
have a criminal record. Being asked to check yes or no
on the “box” where this question is asked discourages
individuals with records from applying for jobs. It also
narrows the pool of otherwise qualified job applicants.
In one study, employers disqualified applicants in 50%
of cases solely based on the presence of a “checked box.”
Anger over the impact of these practices on people who
were incarcerated and who are struggling to rebuild their
lives has led to a nationwide “Ban the Box” movement.

A patchwork of federal and state laws provides
guidelines for employers on how and when they can
use these background checks to influence employment
decisions. However, there is evidence that many
employers use a criminal record of any kind as an
automatic reason to disqualify candidates, even in
situations where the information generated during
the background check is not directly related to the job
for which someone is applying.723 For example, a drug
possession conviction when an individual was 18 may
have little bearing on that individual’s ability to do
construction work at age 40.724 Indeed, there is little
evidence that the existence of a criminal record is at all
predictive of an individual’s likelihood to commit a crime
at work, let alone their potential job performance.725
A 2012 survey by the Society for Human Resource
Management found that 69% of organizations
reported conducting criminal background checks on
all job candidates, and 18% completed checks on some
candidates.726 A slim majority of these organizations
(58%) allowed job candidates to explain the results of
the criminal background check before a decision was
made about whether to hire the applicant.
Among applicants with criminal records, employers
often give a greater benefit of the doubt to white
applicants. The Equal Employment Opportunity
Commission (EEOC) has noted that criminal
background checks and their use in hiring decisions
have a disparate impact on applicants of color. In a
study of applicants with criminal records, only 5% of
African Americans with a criminal record received a call
back from a potential employer (as did 14% of African
American applicants without a record) compared to
17% of white applicants with the same criminal record
(and 34% of white applicants without a record).727
These are dismal numbers for both groups, but show a
clear disadvantage for black applicants.
The EEOC recently released guidance to employers
that use of an individual’s criminal history in making
employment decisions, in some instances, violates the
prohibition against employment discrimination under Title
VII of the Civil Rights Act of 1964.728 The EEOC’s guidance
recommends that employers limit their use of criminal
background checks when there is no compelling business
necessity. In November 2015, President Obama issued an
executive order directing the federal government’s hiring
agencies to delay inquiries into criminal histories until the
latter stages of the hiring process.

Figure 43: LGBT People Report High Rates of Food Insecurity
Percent Reporting Food Insecurity in the Past Year
55%

37%

36%
29%
18%

23%
7%

Non-LGBT
Adults

LGBT
Adults

White

Latino/a

Black

Asian/Pacific
Islander

Native
American

Among LGBT Adults

PROBLEM: INELIGIBILITY FOR PUBLIC
ASSISTANCE
Research shows that LGBT people are more
likely to rely on public assistance, such as the federal
Supplemental Nutrition Assistance Program (SNAP),
than non-LGBT people. SNAP, formerly known as food
stamps, provides low-income individuals with assistance
in purchasing food based on household size and income.
SNAP is a critical resource for individuals and families
across the country who experience food insecurity,
including many LGBT people, as shown in Figure 43.

•• More

than one in four (29%) LGBT people reported
being unable to feed themselves or their families during
the past year, compared to 18% of non-LGBT adults.732

•• LGBT people of color reported higher rates of food
insecurity than the broader LGBT population.733

•• The

2006-2010 National Survey of Family Growth
found that one in five LGB adults received SNAP in
the previous year, as did 43% of LGB adults raising
children and 26% of same-sex couples raising
children.

Given their high reliance on SNAP and research
showing that LGBT people are disproportionately likely
to be incarcerated, prohibiting individuals with a criminal
record from receiving this kind of government assistance
likely has a disproportionate effect on the ability of LGBT
people to feed themselves and their families.
Other programs providing important assistance to
individuals and families in poverty include Temporary
Assistance for Needy Families (TANF), which provides

129

Source: Gary J. Gates, “Food Insecurity and SNAP (Food Stamps) Participation in LGBT
Communities” (The Williams Institute, February 2014).

direct cash assistance, child care, education and job
training, transportation assistance, and other services
to low-income individuals with children. In addition,
housing assistance programs provide vouchers and
other support to individuals and families so they can
find affordable, stable housing. SNAP, TANF and housing
assistance are all joint federal-state programs. Federal
laws govern some aspects of the programs, but states
can also implement their own policies.
All federal programs have limitations for individuals
with a criminal record. TANF and SNAP, for example, have
a federal lifetime “drug felon ban,” meaning individuals
with a drug-related felony cannot receive assistance at
any point in their life. Research shows that the TANF drug
felon ban disproportionately harms women, children,
and communities of color.734 It is estimated that as many
as 92,000 women in 23 states have been or will be unable
to access TANF assistance because of the ban.735
Many states have used their discretion within the
program to opt-out or modify the TANF ban at the state
level. As of 2011, 13 states had opted out of the drug
felon ban for TANF cash assistance, 26 had modified
the ban, and 12 states still had a full ban on TANF cash
assistance. SNAP has similar drug felon limitations, but
the majority of states have modified or eliminated the
ban.736 However, SNAP remains inaccessible to many
formerly incarcerated individuals, including those who
lack stable housing or a mailing address and those
without a state-issued ID.737

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As of 2015, 18 states and over 100 cities and
counties have adopted “fair chance” policies that remove
questions about criminal history from job applications
for most government jobs.729 When these questions are
removed from job applications, all candidates are able to
be judged based on their qualifications. Concerns about
criminal background can then be more appropriately
addressed during interviews, reference checks, or
background checks. In addition, seven states have
passed “Ban the Box” legislation that limits employers’
ability to ask about a candidate’s criminal background
on employment applications.730 An analysis of Hawaii’s
1998 “Ban the Box” legislation found that it reduced
the likelihood that someone would be charged with a
subsequent felony by 57%.731

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130

PROBLEM: OVERUSE AND MISUSE OF
SEX OFFENDER REGISTRIES
Labeling individuals convicted of certain crimes
as “sex offenders” originated out of public fear about
sexual crimes, primarily against children.738 Between
2007 and 2008, alone, more than 1,500 bills were
proposed in state legislatures aimed at sex offenders.739
The laws, in general, do two things. First, they increase
sentences for certain crimes under sex offender laws.740
Second, they place limitations on individuals convicted
of these offenses even after they serve their sentence.
These include limitations on where someone can or
cannot live, whether they have to receive ongoing
supervision, and whether they must register or be
tracked using electronic monitoring.741 Parole and
probation officers are often notified of someone’s sex
offender status, further allowing officers to monitor
and limit their behavior.

Sex Offender Status
Laws labeling people as sex offenders, requiring
registration and monitoring, and imposing limitations on
these individuals often are overly broad and are applied in
many situations where they shouldn’t be. Examples may
include when someone is charged with public indecency
for an offense such as urinating in public. Under the parole
regulations in some states, if that person is convicted and
sentenced to supervision or incarceration for a completely
unrelated crime, the previous offense could be used as
justification to put that person on sex offender status.
This would bring additional restrictions and limitations
as part of parole. For example, parolees with sex offender
status may have to undergo polygraph testing and other
invasive forms of questioning.
As described in Section 1, discriminatory laws and
policing strategies mean that sex offender laws unfairly
impact LGBT people. An LGBT person may have been
convicted in the past of a crime that carried sex offender
status, such as consensual sex between people of the
same sex, even though these convictions are now
unconstitutional. The following are among the other
situations in which LGBT people can unfairly end up with
sex offender status:

•• Some state laws criminalize consensual sex among
SECTION

some LGBT youth, but not youth in different-sex
couples, such as Texas (as described on pages 40-41).

•• Some HIV criminalization laws require sex offender
status or listing an individual on a sex offender
registry (page 37).

•• Policing strategies target men who have consensual
sex with men (see pages 39-40).

••
Some

laws allow law enforcement to cite the
possession of condoms as evidence of solicitation or
prostitution (see page 50), and some prostitutionrelated convictions carry with them sex offender status.

•• Many laws unfairly target transgender women. For
example, in Louisiana some LGBT people, mainly
transgender women of color, report being arrested,
charged, and convicted of soliciting “crimes against
nature.” This is a separate and more serious charge
than general solicitation, and multiple convictions
for crimes against nature require registration as a sex
offender. According to a report from the Department
of Justice, people convicted of crimes against nature
comprise 40% of the Orleans Parrish sex registry.742
Of those convicted, 80% were African American.743

Sex Offender Registries
Some convictions may require individuals to register
as sex offenders for a specific period of time after release
or for the rest of their lives. State laws on this issue differ
widely, with listings on the sex offender registry ranging
from five years to life.744 Individuals can petition to be
removed from a registry after a certain period of time,
depending on the state and the conviction.
In general, these laws exact an enormous toll on
individuals. Not only does being on the registry make
it difficult to rebuild one’s life, but it may actually lead
an individual into other areas of crime. Furthermore,
research finds that the broad application of these laws
has done little to curtail sexual abuse and assault,
particularly of minors.745 Nor have these laws reduced
recidivism among individuals labeled as sex offenders.746

Post-Release Restrictions
In many instances, convictions under sex offender
statutes carry other requirements that have long-lasting
impacts on the ability of people to rebuild their lives.
Restrictions related to sex offender status may include:
checking in at set intervals; indicating whenever one
moves or, if an individual is homeless, checking in more
frequently; or sharing car registration information.
Violation of the terms of an individual’s release can

result in a criminal charge and potential re-incarceration
(see pages 121-122 for discussion on violating parole or
release). Parole officers set the conditions of parole and
have great discretion when deciding if an individual is
meeting those conditions. For example, transgender
people may not be permitted to dress in accordance
with their gender identity.

The implications of registration are long lasting. It
can be difficult to get and maintain a job, adding to the
economic insecurity faced by LGBT people and people
who have been involved in the criminal justice system.
While the motivation to keep communities
safe from people who might pose harm to children
is understandable, the misuse and overuse of sex
offender registries can ruin the lives of many people
who pose no threat to their community, and whose
criminal records are the result of discriminatory and
overly aggressive policing.

PROBLEM: EDUCATIONAL BARRIERS
Education is a building block in creating a stable,
financially secure life. Statistics show that many
individuals who have interacted with law enforcement
and the criminal justice system have lower educational
attainment. As part of correctional facility programming,
some inmates have access to GED or high school
equivalency programming, or can take classes that count
toward obtaining an associate’s or bachelor’s degree.
But people exiting the criminal justice system still face

Accessing student financial aid. Obtaining a college
education is very expensive. Many students access
federal grants, such as Pell grants, which do not need
to be repaid, and federal loans such as Direct Loans or
Perkins Loans. Other students participate in the Federal
Work-Study program, which provides on-campus jobs to
students, allowing them to earn money to pay for their
education expenses. There are also several federal tax
credits that can help offset the cost of education, such
as the American Opportunity Credit and the Hope and
Lifetime Learning Credits.
However, beginning in 2001, any student convicted
of a drug offense became ineligible for federal student
financial aid for one or two years post-conviction,
depending on whether the student had been convicted
before.748 The law was amended in 2006 to prohibit
only those students who were convicted of a drugrelated felony or misdemeanor while receiving federal
student aid.749 Cutting off an individual’s ability to access
higher education—at the exact moment when they
are most in need of assistance to rebuild their lives—is
counterproductive and shortsighted. Research finds that
excluding individuals with drug convictions from student
aid has reduced the probability that such students will
attend college immediately after graduating from high
school.750 Students with drug convictions took, on
average, two-and-a-half years longer to enroll in college
than students without such convictions.751
Applying to college. Many colleges ask applicants
about their criminal history, and approximately 20% of
colleges complete background checks on applicants.752
This can discourage individuals with criminal records
from even applying to college. At the same time, it leaves
applicants who do apply vulnerable to discrimination by
colleges and universities; they may be entirely unaware
of why they were denied admission. Research shows
that some schools impose conditions and restrictions on
a student’s attendance based on a prior criminal record,
and there are even schools that make note of a student’s
background on their transcript.753

131

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Additionally, an individual may have restrictions on
where they can live, such as not within so many feet of a
church, park, school, or other place where children may
gather; whether they can use the internet; and where
they can work. In some jurisdictions, registration as a
sex offender can prohibit an individual from working
as a plumber or a land surveyor, for example. In many
areas, the limitations on where an individual can live
can essentially push people into homelessness—they
are unable to find suitable, affordable housing that
meets the conditions of their conviction. In 2016, federal
legislation was passed that created a special designation
on U.S. passports for some individuals with sex offender
status. What’s more, these individuals are less likely to
receive the specialized services they need to successfully
re-enter society after spending time in prison.747

considerable barriers to pursuing higher education. These
barriers can be even more pronounced for LGBT people.
Given the harassment, violence, and disproportionate
discipline that LGBT students experience in educational
settings, combined with the high rates of discrimination
they experience in the workplace, programs that allow
LGBT people with a criminal record to pursue education
are incredibly important.

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132

SECTION

PROBLEM: PARENTING RIGHTS
SEVERED OR DENIED
Individuals with certain criminal convictions are
barred by federal law from fostering or adopting children.
The federal Adoption and Safe Families Act of 1997 requires
that agencies conduct criminal record checks on prospective
parents or risk losing federal funding. Not surprisingly, the
law recommends a lifetime bar on fostering or adoption
by individuals with child-related convictions (such as child
abuse or neglect, crimes against a child, spousal abuse) or
violent crimes. However, people with drug-related felonies
are banned for five years, while 13 states explicitly ban all
people with criminal records from becoming adoptive or
foster parents. A prospective 35-year-old parent could
therefore be banned from adoption for life because they
possessed marijuana at age 22.
These restrictions are particularly detrimental for
LGBT parents who are more likely to lack legal ties to
their children, since both parents in a same-sex couple
are not generally biological parents. If a non-biological
LGBT parent could not secure legal ties to the couple’s
children prior to being convicted, or became a parent
after being convicted, these restrictions can make it
impossible to obtain second-parent adoption.754 Some
states require applicants for stepparent adoption to
undergo a criminal background check, but others do
not.755 If they are not legally recognized as a parent,
LGBT parents can jeopardize their ability to care for
their own children, ensure a child’s access to safety-net
programs, and risk losing any connection to the child
in the case of separation from or death of the child’s
legally recognized parent.
Many people who have been incarcerated have
families and children. In California, 90% of women in
state prisons are mothers.756 Retaining parental rights
after being incarcerated is extremely difficult even
for those parents with legal ties to their children,757
and gaining those ties can be virtually impossible for
individuals who lack legal parenting ties. Given the high
cost of formalizing an adoption and the discrimination
that LGBT people still face across the country, obtaining
a second-parent or stepparent adoption can still be
difficult. As a result, LGBT people who have been
incarcerated and who were raising children at the time
of their incarceration can be cut off from their children
permanently and with little legal recourse.

PROBLEM: CHALLENGES
RECONNECTING WITH FAMILY
It is estimated that in 2015, 33 to 36.5 million
children in the United States have at least one parent
with a criminal record; this is nearly half of children.758
Individuals recently released from prison or jail have
not been a part of day-to-day family activities and
have likely missed major milestones in their families’
lives. Reconnecting with family and reestablishing
those relationships can be challenging. Many LGBT
people, particularly those who have experiences with
the criminal justice system, have a history of family
rejection. After time spent in the criminal justice
system, many individuals with criminal records find
their family relationships even more strained. For LGBT
people with criminal records, lack of traditional family
support, increased reliance on support networks that
are not based on blood ties, and lack of legal parental
recognition can make re-entry and rebuilding one’s life
even more difficult. Narrow definitions of family, which
rely on legal relationships, may mean that LGBT people
and their families aren’t sure if they can participate or
may be excluded.
Research shows that adults who had more contact
with family members while in prison and who report
positive relationships with their families were less likely to
be arrested again or be re-incarcerated.759 Families provide
much-needed support for people exiting the criminal
justice system; many people recently released from a
correctional facility rely heavily on family for economic
support—housing, food, and financial assistance. In a
study of 740 formerly incarcerated men conducted by
the Urban Institute, 66% indicated their primary source of
income two months after release was family and friends.760

PROBLEM: DIFFICULTY OBTAINING
NAME CHANGES
Frequently transgender people seek a legal name
change. It is an important step in living their lives and
bringing their legal identities in line with the gender
that they live every day. The process for obtaining a
legal name change varies from state to state and even
within states. However, states will sometimes place
restrictions on the ability of people to change their
names because of the fear that they are doing so in

PROBLEM: LOSS OF POLITICAL
PARTICIPATION
When LGBT individuals return to their communities
after spending time in prison, they are frequently
excluded from making decisions about the future of
their communities—through restrictions on identity
documents, voting, serving on juries, and holding
public office. Combined with the pervasive stigma and
discrimination experienced by LGBT people in general,
these barriers can leave them feeling less invested in and
excluded from their communities.
Obtaining a state-issued ID. Individuals who have
spent time in prison need assistance obtaining current
identity documents, which are crucial for securing
housing, opening a bank account, getting a job, and
obtaining health benefits. Many individuals leaving
prison do not have identity documents, as they have
been lost during the criminal justice process or are out
of date. In addition, some states automatically suspend
or revoke driver’s licenses for drug-related offenses,
and 11 states do not even offer a restricted license for
these individuals to work, attend drug treatment, or
obtain an education.762
Ability to vote. It is estimated that 5.9 million
Americans are unable to vote because of laws
disenfranchising people with felony convictions.763
Felony disenfranchisement laws impact local, state, and
federal voting rights. These laws make it more difficult
for people with criminal records to be connected to their
communities and feel invested and empowered to make
a difference. For individuals who are already impacted
by discriminatory laws—such as LGBT people, people
with disabilities, older people, and people of color—the

inability to vote and perhaps have an influence on laws
and policy can be especially frustrating.
Only two states (Maine and Vermont) have no
limitations on voting by individuals convicted of a
crime.764 In 12 states, individuals with felony convictions
are unable to vote while in prison or on probation
and even once they have served their sentence. In the
remainder of states, individuals have their right to vote
limited for a period of time, such as while they are serving
time in prison; while they are in prison and on parole; or
while they are in prison, on parole, and probation.
Even in states where individuals with criminal
records can apply to restore their right to vote, there
are disparities in the application of these laws. Despite
the fact that two-thirds of people in Alabama’s prisons
are black, nearly two-thirds of individuals whose voting
rights have been restored in recent years have been
white.765 In Alabama, 30% of voting-age black men lack
the right to vote because of criminal records.766
Serving on a jury. Individuals convicted of a felony
are unable to serve on a federal jury. However, in many
states once an individual’s civil rights have been restored
(such as after the completion of a sentence), individuals
can serve on state juries.767
Elected office. Some states have limitations on
individuals with a criminal record serving in public
office. This can further limit an individual’s abilities to
make change in the local community. Given the low
representation of LGBT people in public office, this
limitation is also an added barrier for LGBT people
seeking to represent their communities.

Recommendations
The collateral damage of having a criminal record
can make rebuilding one’s life incredibly challenging.
Probation, parole, and re-entry programs frequently
lack basic LGBT competency and rarely provide the
assistance LGBT people need to successfully find
economic, physical, and emotional security and health.
For LGBT people, added discrimination and stigma
related to being LGBT can make it even more difficult to
find employment, housing, and other basic necessities.
In all efforts to improve the lives of formerly incarcerated
people, service providers, advocates, and organizers
should center the experiences of formerly incarcerated
people themselves, including hiring, training, and
highlighting them.

133

SECTION 3: LIFE AFTER CONVICTION: LGBT PEOPLE FACE ADDED CHALLENGES TO REBUILDING THEIR LIVES

order to commit fraud or evade law enforcement.
For transgender people with criminal records, these
restrictions can create hurdles to rebuilding one’s life,
even though fraud or evasion is not the motivation for
a legal name change. For individuals on probation or
parole, for example, a judge may require written consent
from a probation or parole officer before an individual
may change their name.761 Adding to the challenges,
name changes are granted by individual judges. Given
a judge’s own biases and lack of understanding, they
may be unwilling or more hostile toward a transgender
individual seeking a name change, particularly if the
individual has a criminal record.

SECTION

SECTION 3: LIFE AFTER CONVICTION: LGBT PEOPLE FACE ADDED CHALLENGES TO REBUILDING THEIR LIVES

134

SECTION

Include nondiscrimination provisions
government-funded re-entry programs.

all

relationships with family and peers, reconnecting
with schools, and more.

1. Federal, state, and local governments should
require all organizations receiving government
funding for re-entry programs to include
nondiscrimination provisions that enumerate race,
sex, sexual orientation, and gender identity, among
other characteristics.

Remove barriers that people with criminal records,
including LGBT people, face when it comes to finding
employment, housing, health care, and participating
in civic life.

2. Legislators should pass nondiscrimination
legislation that explicitly prohibits discrimination
based on sexual orientation and gender identity at
the federal, state, and local levels in employment,
housing, and public accommodations to ensure
equal access to all programs and services.
Ensure that prison and jail re-entry programs
provide a holistic assessment of an individual’s needs.
1. Parole and probation officers and staff in prisons
and re-entry facilities should assess needs including
access to safe, affordable housing; competent,
affordable health care; educational resources;
employment; and more.
2. Program staff should receive training and be aware
of the added barriers LGBT people face in accessing
many of these services and programs.
3. Federal, state, and local jails, prisons, and detention
facilities should make supplementary resources
available for LGBT people as part of release
planning.

1. Legislators should pass federal, state, and local
nondiscrimination laws prohibiting discrimination
based on sexual orientation and gender identity.
2. Congress should repeal the federal ban on TANF
cash assistance and SNAP food assistance for
individuals with drug-related felony convictions. In
the meantime, states should exercise their ability
to extend such benefits.
3. States should pass fair change hiring legislation
limiting employers’ consideration of criminal
records.
4. Congress should pass legislation prohibiting the
federal government and federal contractors from
requesting criminal history information until a
conditional offer has been extended.
5. Employers should incorporate recent EEOC
guidance about the consideration of criminal
records during employment decisions into their
policy handbooks and hiring practices.

4. As part of pre-release planning, federal and state
departments of corrections should connect
incarcerated people with Medicaid and other
public assistance benefits. States should suspend
Medicaid coverage, as opposed to terminating
coverage, for incarcerated individuals to improve
health insurance coverage upon release.

6. Federal, state, and local housing authorities should
reform restrictions on accessing public housing
for individuals with criminal records. Specifically,
the federal Department of Housing and Urban
Development should release additional guidance
making clear when and how public housing
agencies and landlords should consider an
applicant’s criminal history. States and cities should
pass fair housing legislation and policies to limit
the use of criminal history by private landlords.

Employ wraparound assessments to help youth
succeed following release from juvenile justice
facilities.

7. Congress should reinstate Pell grant access for
currently incarcerated individuals, allowing them
to use student aid to pursue higher education.

1. Juvenile justice facility staff and child welfare staff
should engage youth, particularly LGBT youth, in
re-entry planning, as well as engage community
members in supporting youth upon release.

8. Federal, state, and local legislators should increase
funding for educational and vocational training
programs within prisons and jails.

2. Juvenile justice facility staff and child welfare
staff should connect youth to supportive services
including assistance finding health care, navigating

9. Congress should remove bans on educational
assistance for students with drug convictions,
including for federal student loans and educational
tax credits.

10. Colleges and universities should remove questions
about criminal records from application materials
and revise admissions policies to ensure they are
not overly broad or exclusionary.

1. Jurisdictions should not impose sex offender
status and registration on a discriminatory basis,
especially against LGBT people and people of color.
2. Jurisdictions and lawmakers should review
implementation of sex offender registration laws to
ensure that consensual conduct among LGBT youth
does not result in mandatory sex offender registration.
3. Legislators should revise sex offender laws to
ensure stricter guidance for parole and probation
officers to ensure that status restrictions and
restrictions following release are tailored to and
match an individual’s risk to re-offend.768

135

1. States pass legislation allowing individuals to
expunge their records, including to clear nonconvictions, misdemeanors, and less serious
felonies.
2. Resources for legal representation, such as funding
for legal aid and expungement clinics, should be
expanded by federal, state, and local governments,
to expand the accessibility of expungement.

SECTION 3: LIFE AFTER CONVICTION: LGBT PEOPLE FACE ADDED CHALLENGES TO REBUILDING THEIR LIVES

Revise laws governing the use of sex offender
status and registries to better balance community
safety and the rehabilitation of individuals convicted
under sex offender statutes.

Expand opportunities for individuals to clear their
records.

SECTION

136

CONCLUSION
America’s criminal justice system is under a spotlight.
High-profile instances of police misconduct, combined
with high rates of incarceration for nonviolent offenses,
and shocking rates of recidivism for formerly incarcerated
people, have made criminal justice reform the rare issue
where there is widespread, bipartisan agreement that
change is needed.

•• In 2014, seven in ten Americans said they thought the
criminal justice system needed major improvements
or a complete redesign.769

•• Half of voters agree that there are too many people
being held in prisons.770

•• Of young people ages 18 to 29, fewer than half think
the legal system treats people fairly across race and
ethnicity; only 27% of black youth, 37% of Latino/a
youth, and 41% of white youth think the system treats
people of different races and ethnicities fairly.771

CONCLUSION

•• Almost

half (46%) of Americans think that society
would be better served by investing more deeply in
efforts to rehabilitate people convicted of crimes.772

Based on these beliefs, there is broad support for
rethinking whether prisons and the criminal justice
system are effective at addressing the underlying causes
of crime and helping individuals turn their lives around.

As the American people and their elected leaders
continue to discuss these issues, it is crucial to consider
the experiences of LGBT people before, during and
after their encounters with the criminal justice system.
As we have described in this report, LGBT youth and
adults face unique challenges that disproportionately
increase their likelihood of run-ins with law
enforcement and having their lives criminalized. They
also are overrepresented in correctional and detention
facilities, they often are treated violently and unfairly
while in detention, and they face unique challenges
rebuilding their lives after serving time.
“Fixing” America’s criminal justice system means
fixing it for everybody, including nine million LGBT
people across the nation. A “fix” would also mean
thinking more broadly about what we can do at all levels
to reduce discrimination and increase opportunity and
equality—so that LGBT people, people of color, and
other frequently marginalized populations can live
more safely and securely with the understanding that
law enforcement and criminal justice systems exist for
protection, not discrimination.

ACKNOWLEDGEMENTS
The Movement Advancement Project and the Center for American Progress wish to thank the following individuals
who provided thought leadership, issue perspectives, and strategic input. We gratefully recognize their willingness
to share their time and expertise.

137

Tosh Anderson, Program Manager, The Center for HIV Law & Policy
Natalia Aristizabal, Lead Organizer, Youth & School Partnerships, Make the Road NY
Paul Ashton, Development and Research Associate, Justice Policy Institute
Sienna Baskin, Co-Director, Sex Workers Project, Urban Justice Center
Adam Bates, Policy Analyst, Project on Criminal Justice, Cato
Verónica Bayetti Flores, (former) Policy Coordinator, Streetwise and Safe
Flor Bermudez, Detention Project Director, Transgender Law Center
Aisha Canfield, Program Associate, Impact Justice
Marco Castro-Bojorquez, Community Educator, Lambda Legal
Dominique Chamley, (former) Public Policy Fellow, National LGBTQ Task Force
Roger Coggan, Director of Legal Services, Los Angeles LGBT Center
Heather Cronk, Co-Director, Get Equal
Chris Daley, Deputy Executive Director, Just Detention
Meredith Dank, Senior Research Associate, Justice Policy Center, Urban Institute
Chelsea Davis, Research Analyst, Substance Use and Mental Health Program, Vera Institute of Justice
Ayesha Delany-Brumsey, Senior Research Associate, Substance Use and Mental Health Program, Vera Institute of Justice
Alexander De Leon, Southern California Field Organizer, GSA Network
Heidi Dorow, Senior Program Officer, Wellspring
Iván Espinoza-Madrigal, (former) Legal Director, The Center for HIV Law & Policy
Andrew Extein, Executive Director, Center for Sexual Justice
Clair Farley, Associate Director of Economic Development, Transgender Economic Empowerment Initiative, San
Francisco LGBT Center
Michelle Fine, Distinguished Professor, CUNY
Raffi Freedman-Gurspan, (former) Policy Advisor, Racial and Economic Justice Initiative, NCTE
Christina Gilbert, Director, The Equity Project, National Juvenile Defender Center
Frederick Ginyard, Organizing Director, FIERCE in NYC
Joey Grant, Creative Associate Director and Graphic Designer, TransTech Social Enterprises
Emily Greytak, Director of Research, GLSEN
Jorge Gutierrez, National Coordinator, Familia
Jamila Hammami, Executive Director, Queer Detainee Empowerment Project
Amira Hasenbush, Jim Kepner Law and Policy Fellow, Williams Institute
Kathryn Himmelstein, (former) Student, Yale University

ACKNOWLEDGEMENTS

Larry Cohen, Co-Director, Point Source Youth

Tara Huffman, Director, Criminal and Juvenile Justice Program, Open Society Foundations
138

Angela Irvine, Vice President, Impact Justice
Chai Jindasurat, Co-Director of Community Organizing and Public Advocacy, NYC Anti-Violence Project
Anthony Johnson, GSA Organizer, Youth Empowerment Project
Brigitt Keller, Executive Director, National Police Accountability Project, National Lawyers Guild
Mik Kinkead, Director, Prisoner Justice Project, Sylvia Rivera Law Project
Manuel La Fontaine, Organizer, All of Us or None, Legal Services for Prisoners with Children
Clement Lee, Staff Attorney, Detention Program, Immigration Equality
Rev. Jason Lydon, National Director, Black and Pink
Suraj Madoori, Manager, HIV Prevention Justice Alliance, AIDS Foundation of Chicago
Christy Mallory, Anna M. Curren Fellow and Senior Counsel, Williams Institute
Meghan Maury, Senior Policy Counsel and Criminal and Economic Justice Project Director, National LGBTQ Task Force
Ali Muldrow, Racial Justice Youth Organizer, GSAFE WI
Angela Peoples, Co-Director, Get Equal

ACKNOWLEDGEMENTS

Marco Antonio Quiroga, National Field Officer, Immigration Equality
Andrea J. Ritchie, Senior Soros Justice Fellow, Co-Author Queer (In)Justice: The Criminalization of LGBTQ People in
the United States
Lindsay Rosenthal, Fellow and Research Associate, Center on Youth Justice and Substance Use and Mental Health
Program, Vera Institute of Justice
Malika Saada Saar, Special Counsel on Human Rights, Raben Group; Director, Human Rights Project for Girls
(Rights4Girls)
Julia Sàenz, (former) Hanna S. Cohn Equal Justice Fellow, Empire Justice Center
Salma Saley Safiedine, Director, Racial Justice Improvement Project, American Bar Association
Valerie Schmitt, Human Trafficking Advisory Specialist, Polaris Project
Terry Schuster, Senior Associate, Pew Public Safety Performance Project
Amy Schwartz, Senior Staff Attorney, Domestic Violence Unit, Empire Justice Project
Ryan Shanahan, Research Director, Center on Youth Justice, Vera Institute of Justice
Jama Shelton, Deputy Executive Director, True Colors Fund
Melissa Sklarz, Board Member, Empire State Pride Agenda
Nathan Smith, Director of Public Policy, GLSEN
Dean Spade, Associate Professor of Law, Seattle University School of Law
Sharon Stapel, (former) Executive Director, NYC Anti-Violence Project
Lovisa Stannow, Executive Director and Board Secretary, Just Detention
Charles Stephens, Founder and Director, Counter Narrative
Chase Strangio, Staff Attorney, LGBT & HIV Project, ACLU
Sean Strub, Executive Director, Sero Project
Ria Tabacco Mar, Staff Attorney, LGBT & HIV Project, ACLU
Glennda Testone, Executive Director, The Lesbian, Gay, Bisexual & Transgender Gender, New York City

Laura Thomas, Deputy State Director, San Francisco, Drug Policy Alliance
Ian Thompson, Legislative Representative, ACLU Washington Legislative Office, ACLU

139

Juhu Thukral, Director of Law and Advocacy, Opportunity Agenda
Harper Jean Tobin, Director of Policy, NCTE
Olga Tomchin, Deportation Defense Coordinator & Staff Attorney, National Day Laborer Organizing Network
María Elena Torre, Research Scientist, CUNY; Director, The Public Science Project
Urvashi Vaid, CEO, Vaid Group LLC
Wesley Ware, Co-Director, BreakOUT!
Amy Whelan, Senior Staff Attorney, NCLR
Shannan Wilber, Youth Policy Director, NCLR
Geoffrey Winder, Co-Executive Director, GSA Network
Ming Wong, Supervising Helpline Attorney, NCLR
Judy Yu, Associate Director of LGBTQ Issues, Juvenile Justice Project, Correctional Association of New York
Nahal Zamani, Advocacy Program Manager, Center for Constitutional Rights
George Zuber, President, Buddha Dog Productions LLC
ACKNOWLEDGEMENTS

Keren Zwick, Managing Attorney, LGBT Immigrant Rights Initiative and Adult Detention Project, National
Immigrant Justice Center

140

KEY RESOURCES
This report cites many groundbreaking and influential reports, policy guides, and best practice documents. While
not meant to be an exhaustive list, these key resources, which provide more detailed discussion of the issues raised
in this report, offer recommendations for federal, state, and local level policy change, and model best practices for
community education and engagement.
A Guide to Juvenile Detention Reform: Lesbian, Gay, Bisexual and Transgender Youth in the Juvenile Justice System
Annie E. Casey Foundation, authored by Shannan Wilber at the National Center for Lesbian Rights
Released in late 2015, this guide offers detailed recommendations and examples of how sites serving youth in the
juvenile justice system can better meet the needs of LGBT youth and improve the safety and well-being of such youth.
The guide covers a wide range of policies and practices—from broad organizational measures such as staff training and
nondiscrimination policies, to specific practices such as talking with youth about sexual orientation and gender identity
and making individualized classification and housing decisions.
http://www.nclrights.org/wp-content/uploads/2015/09/AECF_LGBTinJJS_FINAL2.pdf

KEY RESOURCES

A Quick Guide for LGBTI Policy Development for Youth Confinement Facilities
The National Institute for Corrections
This guide is designed to help agencies and facilities develop a comprehensive response to working with LGBTI youth
in custody. It provides an overview of the important issues that agencies should consider when working to house and
treat LGBTI youth in a way that is safe and consistent with an agency’s mission, values, and security guidelines.
https://s3.amazonaws.com/static.nicic.gov/Library/026701.pdf
A Quick Guide for LGBTI Policy Development for Adult Prisons and Jails
The National Institute for Corrections
This guide is designed to help agencies and facilities develop a comprehensive response to working with LGBTI
inmates. It provides an overview of the important issues that agencies should consider when working to house and
treat LGBTI inmates in a way that is safe and consistent with an agency’s mission, values, and security guidelines.
https://s3.amazonaws.com/static.nicic.gov/Library/026702.pdf
A Roadmap for Change: Federal Policy Recommendations for Addressing
Criminalization of LGBT People and People Living with HIV
Catherine Hanssens, Center for HIV Law and Policy; Aisha C. Moodie-Mills, Center for American
Progress; Andrea J. Ritchie, Streetwise and Safe (SAS); Dean Spade, Center for Gender and Sexuality
Law, Columbia Law School; Urvashi Vaid, Center for Gender and Sexuality Law, Columbia Law School
Published in May 2014, A Roadmap for Change is a comprehensive publication that
offers federal policy recommendations to address the criminal justice issues that
impact LGBT people and people living with HIV (PLWH). The document outlines policy
initiatives that address the following issues: discriminatory and abusive policing
practices, improving conditions for LGBT prisoners and immigrants in detention, decriminalizing HIV, and preventing LGBT youth from coming in contact with the system
in the first place. It also identifies many areas of opportunity for the federal government to support improved
outcomes for LGBT people and eliminate some of the systemic drivers of incarceration.
http://web.law.columbia.edu/sites/default/files/microsites/gender-sexuality/files/roadmap_for_change_full_report.pdf

Ending and Defending Against HIV Criminalization: A Manual for Advocates, Volume
3, This Is How We Win: A Toolkit for Community Advocates
Positive Justice Project and the Center for HIV Law and Policy

141

This toolkit is a step-by-step guide with resources for state advocates to modernize
state laws related to HIV criminalization. It provides quick-reference resources (e.g.,
HIV criminalization talking points and references), links to longer reference materials
(including, links to HIV criminalization resources by issue/subject), and guidance on the
legislative process and advocacy strategy prepared by The Center for HIV Law and Policy.
http://www.hivlawandpolicy.org/sites/www.hivlawandpolicy.org/files/Community%20
Advocacy%20Toolkit.pdf

Hidden Injustice: Lesbian, Gay, Bisexual, and Transgender Youth in Juvenile Courts
National Juvenile Defender Center, National Center for Lesbian Rights, and Legal Services for Children
This report examines the experiences of LGBT youth in juvenile courts across the country. The report is based on
information collected from 414 surveys and 65 interviews with juvenile justice professionals, including judges,
defense attorneys, prosecutors, probation officers, detention staff, and other juvenile justice advocates; focus groups
and interviews of 55 youth who possess relevant firsthand experience; and an extensive review of relevant social
science and legal research findings.

Get Yr Rights: A Toolkit for LGBTQTS Youth and LGBTQTS Youth-Serving Organizations
BreakOUT! And Streetwise and Safe
This toolkit is a resource for LGBT youth and youth-serving organizations focused on
profiling, policing, and criminalization. Get YR Rights shares the ways people directly
impacted by profiling, policing, and criminalization have made these kinds of changes in
their communities.
http://getyrrights.org/wp-content/uploads/2015/02/GYR-Toolkit-FINAL-02-05-2015.pdf

Know Your Rights: Laws, Court Decisions, and Advocacy Tips
ACLU and NCLR
This guide identifies laws, court decisions, advocacy tips, and other resources that may be helpful for adult
transgender prisoners, family members, and advocates. Know Your Rights includes the following sections: the Prison
Rape Elimination Act, Safety and Protection from Violence, Medical Care, Housing and Administrative Segregation,
Searches and Privacy, Safely Preserving/Enforcing Your Rights, and Resources (which includes lists of organizations
and helpful documents).
https://www.aclu.org/files/assets/121414-aclu-prea-kyrs-1_copy.pdf

KEY RESOURCES

http://www.equityproject.org/wp-content/uploads/2014/08/hidden_injustice.pdf

142

Model Standards: Sexual Health Care for Youth in State Custody
The Center for HIV Law & Policy and Teen SENSE
Model Standards: Sexual Health Care for Youth in State Custody outlines sexual health standards for youth in state
custody. Informed by a comprehensive review of existing resources and inclusive practices and policies, these
standards reflect minimum requirements that facilities should meet in order to appropriately address the sexual
health care needs of youth in the state’s care.
http://hivlawandpolicy.org/sites/www.hivlawandpolicy.org/files/Teen%20SENSE%20Model%20Standards%20-%20
Sexual%20Health%20Care%20for%20Youth%20in%20State%20Custody.pdf
Policy Review and Development Guide: Lesbian, Gay, Bisexual, Transgender, and Intersex Persons in Custodial Settings
The National Institute for Corrections

KEY RESOURCES

This detailed policy review and guide provides updated key information to correctional agencies about PREA’s
impact on agency practice as it relates to LGBTI individuals in custody. This guide is made up of three chapters:
Introduction and Overview—introduction, evolving terminology and definitions, core principles for understanding
LGBTI individuals in custody, and emerging data on LGBTI individuals in custodial settings and the challenges they
face; LGBTI Youth Under Custodial Supervision—the law, PREA standards, other governing principles (state human
rights laws and professional codes of ethics), and elements of legally sound and effective policy and practice; and
LGBTI Adults Under Custodial Supervision—the law, PREA standards, and elements of legally sound and effective
policy and practice.
https://s3.amazonaws.com/static.nicic.gov/Library/027507.pdf
Position Statement: Transgender, Transsexual, and Gender Nonconforming Health Care in Correctional Settings
The National Commission on Correction Health Care
Adopted in 2009 and revised in 2015, the National Commission on Correction Health Care’s position statement
outlines best practices for transgender, transsexual, and gender non-conforming health care in correctional settings.
The statement includes recommendations on Health Management, Patient Safety, and Discharge Planning, and
incorporates best practices from the World Professional Association for Transgender Health (WPATH).
http://www.ncchc.org/transgender-transsexual-and-gender-nonconforming-health-care
Power in Partnerships: Building Connections at the Intersections to End the School-to-Prison Pipeline
The Equality Federation, Gay Straight Alliance Network, and Advancement Project
Power in Partnerships is a resource for advocates and organizations working to address the challenges that LGBT
youth, particularly LGBT youth of color, experience in schools that result in them being pushed out of school and
into the criminal justice system. Designed for advocates in all stages of organizing, this comprehensive resource
includes basic facts and information on the school-to-prison pipeline and a framework for collaboration between
organizations and inclusion of youth voices, as well as several tools and strategies to advance existing campaigns
against school pushout.
http://www.equalityfederation.org/new/wp-content/uploads/powerinpartnerships.pdf

Practice Guide: Creating a Juvenile Justice LGBTQ Task Force
The National Council on Crime & Delinquency - Bernadette E. Brown, Aisha Canfield, and Angela Irvine

143

This publication is part of a series of reports and practice guides regarding LGBTQ youth in the juvenile justice and
child welfare systems, developed by the National Council on Crime and Delinquency. This guide provides instruction
regarding how to establish a task force along with guidance on handling possible challenges to this work.
http://www.nccdglobal.org/sites/default/files/publication_pdf/practice-guide-lgbtq-task-force.pdf
Queer (In)justice: The Criminalization of LGBT People in the United States
Andrea J. Ritchie, Joey L. Mogul, and Kay Whitlock
Drawing on years of research, activism, and legal advocacy, Queer (In)Justice is a examination of the queer experience
in the criminal justice system. The authors unpack queer criminal archetypes– like “gleeful gay killers,” “lethal lesbians,”
and “disease spreaders”– to illustrate the punishment of queer expression and queer lives, regardless of whether a
crime was ever committed. And tracing stories from the judicial bench to the streets and behind prison bars, the
authors prove that the policing of sex and gender both bolsters and reinforces racial and gender inequalities.
http://www.queerinjustice.com
Standing with LGBT Prisoners: An Advocate’s Guide to Ending Abuse and Combating Imprisonment
National Center for Transgender Equality, Jody Marksamer and Harper Jean Tobin

http://transequality.org/sites/default/files/docs/resources/JailPrisons_Resource_FINAL.pdf
Stonewalled: Police Abuse and Misconduct against Lesbian, Gay, Bisexual and Transgender People in the U.S.
Amnesty International
This extensive report from Amnesty International draws on data and reports from the justice system to confirm that
in the United States, LGBT people are targeted for human rights abuses by the police based on their real or perceived
sexual orientation or gender identity. The report also shows, through data and reports, that certain people in the LGBT
community - specifically, transgender and gender non-conforming individuals, people of color, youth, immigrants,
homeless individuals, and sex workers - experience a higher risk of police abuse and misconduct. This report concludes
with recommendations for federal, state, and local authorities to prevent these human rights violations by police and
the criminal justice system.
https://www.amnesty.org/en/documents/AMR51/122/2005/en/
Still We Rise: A Resource Packet for Transgender and Gender Non-Conforming People in Prison
The Transgender Gender-Variant and Intersex Justice Project (TGI Justice Project)
This resource packet includes legal, medical, and community resources for transgender and gender non-conforming
individuals who are incarcerated. Most of the legal information is specific to California’s prison system, but includes
some national resources and information that would be relevant to incarcerated individuals around the United States.
http://www.tgijp.org/still-we-rise---prison-resource-guide.html

KEY RESOURCES

This toolkit offers an introduction to the issues and policies that affect incarcerated LGBT people (in jails, prisons,
and detention facilities), and provides recommendations for advocacy work with local or state corrections/detention
agencies.

144

Stronger Together, A Guide to Supporting LGBT Asylum Seekers in the United States
LGBT Freedom Asylum Network, The National LGBTQ Task Force, and the Human Rights Campaign Foundation
Released in 2015, Stronger Together focuses on helping LGBT asylum seekers adjust to life in the United States, and
provides best practices, basic background information, and tips about legal traps to avoid. It is directed toward the
organizations that serve LGBT asylum seekers, but also has relevant information for asylum seekers themselves. It also
includes a code of ethics and a short directory of helpful organizations.
http://hrc-assets.s3-website-us-east-1.amazonaws.com//files/assets/resources/LGBT_Asylum_Seekers_FINAL.pdf
Surviving Prison in California: Advice By and For Transgender Women
The Transgender Gender-Variant and Intersex Justice Project (TGI Justice Project)
The TGI Justice Project compiled this prison survival guide after transgender women in San Francisco area jails
requested detailed information about day-to-day prison life. The guide includes information on housing, selfprotection, education, dress code, and health.

KEY RESOURCES

http://www.tgijp.org/prison-survival-guide.html

ENDNOTES
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38

ENDNOTES

Harlan Pruden, “HIV/AIDS in the Two-Spirit Community: A Hidden Crisis,” AIDS.gov, March 20, 2013, https://blog.aids.gov/2013/03/hivaids-in-the-two-spirit-community-a-hidden-crisis.html.
Gary J. Gates and Frank Newport, “LGBT Percentage Highest in D.C., Lowest in North Dakota,” Gallup, February 15, 2013, http://www.gallup.com/poll/160517/lgbt-percentage-highest-lowest-northdakota.aspx.
Criminal Justice Reform Gains Bipartisan Momentum, PBS NewsHour, 2015, http://www.pbs.org/newshour/bb/criminal-justice-reform-gains-bipartisan-momentum.
Maurice Emsellem and Jason Ziedenberg, “Strategies for Full Employment Through Reform of the Criminal Justice System” Center on Budget and Policy Priorities, March 30, 2015, http://www.cbpp.
org/research/full-employment/strategies-for-full-employment-through-reform-of-the-criminal-justice#_ftnref17.
Allen J. Beck et al., “Sexual Victimization in Prisons and Jails Reported by Inmates, 2011–12” (U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, May 2013), http://www.
bjs.gov/content/pub/pdf/svpjri1112.pdf.
Gates and Newport, “LGBT Percentage Highest in D.C., Lowest in North Dakota.”
Allen J. Beck, “Sexual Victimization in Prisons and Jails Reported by Inmates, 2011–12 – Supplemental Tables” U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics,
December 2014, http://www.bjs.gov/content/pub/pdf/svpjri1112_st.pdf.
Jaime M. Grant et al., “Injustice at Every Turn: A Report of the National Transgender Discrimination Survey,” Washington: National Center for Transgender Equality and National Gay and Lesbian Task
Force, 2011, http://www.thetaskforce.org/static_html/downloads/reports/reports/ntds_full.pdf.
Allen J. Beck and Thomas P. Bonczar, “Lifetime Likelihood of Going to State or Federal Prison” (Bureau of Justice Statistics, March 6, 1997), http://www.bjs.gov/index.cfm?ty=pbdetail&iid=1042.
Angela Irvine, “Time to Expand the Lens on Girls in the Juvenile Justice System,” National Council on Crime & Delinquency, March 26, 2015, http://www.nccdglobal.org/blog/time-to-expand-the-lenson-girls-in-the-juvenile-justice-system.
Nico Sifra Quintana, Josh Rosenthal, and Jeff Krehely, “On the Streets: The Federal Response to Gay and Transgender Homeless Youth” (Center for American Progress, June 2010), https://www.
americanprogress.org/wp-content/uploads/issues/2010/06/pdf/lgbtyouthhomelessness.pdf.
Gary J. Gates, “How Many People Are Lesbian, Gay, Bisexual and Transgender?” (The Williams Institute, April 2011), http://williamsinstitute.law.ucla.edu/research/census-lgbt-demographics-studies/
how-many-people-are-lesbian-gay-bisexual-and-transgender.
Gary J. Gates and Frank Newport, “Special Report: 3.4% of U.S. Adults Identify as LGBT,” Gallup, October 18, 2012, http://www.gallup.com/poll/158066/special-report-adults-identify-lgbt.aspx.
Frank Newport and Gary J. Gates, “San Francisco Metro Area Ranks Highest in LGBT Percentage,” Gallup, March 20, 2015, http://www.gallup.com/poll/182051/san-francisco-metro-area-rankshighest-lgbt-percentage.aspx; Gates and Newport, “LGBT Percentage Highest in D.C., Lowest in North Dakota.”
Movement Advancement Project, “Paying an Unfair Price,” November 2014, http://www.lgbtmap.org/policy-and-issue-analysis/unfair-price.
Movement Advancement Project, “Marriage & Relationship Recognition Laws,” accessed July 21, 2015, http://www.lgbtmap.org/equality-maps/marriage_relationship_laws.
Movement Advancement Project, “Non-Discrimination Laws,” accessed July 21, 2015, http://www.lgbtmap.org/equality-maps/non_discrimination_laws.
Movement Advancement Project, “Understanding Issues Facing LGBT Americans,” accessed July 21, 2015, http://www.lgbtmap.org/lgbt-movement-overviews/understanding-issues-facing-lgbt-americans.
Ritch C. Savin-Williams, The New Gay Teenager (Cambridge, MA: Harvard University Press, 2005), http://www.hup.harvard.edu/catalog.php?isbn=9780674022560.
Christy Mallory et al., “Ensuring Access to Mentoring Programs for LGBTQ Youth,” The Williams Institute, January 2014, http://www.nwnetwork.org/wp-content/uploads/2014/04/TWI-Access-toMentoring-Programs.pdf.
Ibid.
Kathryn E.W. Himmelstein, “Scared Straight: Institutional Sanctions Against LGBTQ Youth,” Unpublished Senior Essay, Program in Ethics, Politics and Economics at Yale University, 2009.
Jason Lydon et al., “Coming Out of Concrete Closets: A Report on Black & Pink’s National LGBTQ Prisoner Survey,” Black & Pink, 2015, http://www.blackandpink.org/wp-content/upLoads/Coming-Outof-Concrete-Closets.-Black-and-Pink.-October-16-2015..pdf.
Human Rights Campaign, “Growing Up LGBT in America: HRC Youth Survey Report Key Findings,” accessed July 3, 2015, http://www.hrc.org/files/assets/resources/Growing-Up-LGBT-in-America_
Report.pdf.
Grant et al., “Injustice at Every Turn: A Report of the National Transgender Discrimination Survey.”
Ibid.
Bryan N. Cochran et al., “Challenges Faced by Homeless Sexual Minorities: Comparison of Gay, Lesbian, Bisexual, and Transgender Homeless Adolescents With Their Heterosexual Counterparts,”
American Journal of Public Health 92, no. 5 (May 2002): 773–77.
Caitlin Ryan and Rafael Diaz, “Family Responses as a Source of Risk & Resiliency for LGBT Youth,” paper presented at the Child Welfare League of America Preconference Institute, Washington, DC,
February 2005.
Soon Kyu Choi et al., “Serving Our Youth 2015: The Needs and Experiences of Lesbian, Gay, Bisexual, Transgender, and Questioning Youth Experiencing Homelessness,” Los Angeles: The Williams
Institute with True Colors Fund, June 2015, http://williamsinstitute.law.ucla.edu/wp-content/uploads/Serving-Our-Youth-June-2015.pdf.
Katayoon Majd, Jody Marksamer, and Carolyn Reyes, “Hidden Injustice: Lesbian, Gay, Bisexual and Transgender Youth in Juvenile Courts,” Legal Services for Children, National Juvenile Defender Center,
and National Center for Lesbian Rights, October 16, 2009, http://www.modelsforchange.net/publications/237.
Angela Irvine, “LGBT Kids in the Prison Pipeline,” The Public Intellectual, May 2, 2011, http://thepublicintellectual.org/2011/05/02/lgbt-kids-in-the-school-to-prison-pipeline.
Ellen L. Bassuk et al., “America’s Youngest Outcasts: A Report Card on Child Homelessness,” Waltham, MA: The National Center on Family Homelessness at American Institutes for Research, November
2014, http://www.homelesschildrenamerica.org/mediadocs/280.pdf.
Carmen DeNavas-Walt and Bernadette D. Proctor, “Income and Poverty in the United States: 2014,” Current Population Reports, P60-252, Washington, DC: U.S. Census Bureau, 2015, https://www.
census.gov/content/dam/Census/library/publications/2015/demo/p60-252.pdf.
Meredith Dank et al., “Surviving the Streets of New York: Experiences of LGBTQ, YMSM, and YWSW Youth Engaged in Survival Sex,” Urban Institute, February 2015, http://www.urban.org/sites/
default/files/alfresco/publication-pdfs/2000119-Surviving-the-Streets-of-New-York.pdf.
Katie Ishizuka and Paul Ashton, “Fostering Change: How Investing in D.C.’s Child Welfare System Can Keep Kids out of the Prison Pipeline,” Justice Policy Institute, accessed July 6, 2015, http://www.
justicepolicy.org/uploads/justicepolicy/documents/fostering_change.pdf.
Bianca D.M. Wilson et al., “Sexual and Gender Minority Youth in Foster Care: Assessing Disproportionality and Disparities in Los Angeles” (Los Angeles: The Williams Institute, 2014), http://
williamsinstitute.law.ucla.edu/wp-content/uploads/LAFYS_report_final-aug-2014.pdf.
Ibid.
Ibid.

145

146

43
44

45
46
47

48
49

50
51
52

ENDNOTES

57
58
59
60
61
62
63
64

66
67
68
69
70
71
72

73
74
75
76
77

78
79
80

Ibid.
Meredith Dank et al., “Locked In: Interactions with the Criminal Justice and Child Welfare Systems for LGBTQ Youth, YMSM, and YWSW Who Engage in Survival Sex” (Urban Institute, September 2015),
http://www.urban.org/sites/default/files/alfresco/publication-pdfs/2000424-Locked-In-Interactions-with-the-Criminal-Justice-and-Child-Welfare-Systems-for-LGBTQ-Youth-YMSM-and-YWSWWho-Engage-in-Survival-Sex.pdf; Gerald P. Mallon, Lesbian and Gay Youth Issues: A Practical Guide for Youth Workers (Washington, DC: Child Welfare League of America Press, 2001); Colleen Sullivan,
Susan Sommer, and Jason Moff, “Youth in the Margins: A Report on the Unmet Needs of Lesbian, Gay, Bisexual, and Transgender Adolescents in Foster Care” (New York: Lambda Legal, Summer 2001),
http://www.lambdalegal.org/publications/youth-in-the-margins.
Barbara Fedders, “LGBT Youth in the Child Welfare and Juvenile Justice Systems: Charting a Way Forward,” SSRN Scholarly Paper (Rochester, NY: Social Science Research Network, April 23, 2014), http://
papers.ssrn.com/abstract=2598143.
Heather M. Berberet, “Living in the Shadows: An Assessment of Housing Needs among San Diego’s LGBTQ Youth in Living Outside the Home” (American Psychological Association annual meeting,
Honolulu, HI, July 2004).
Sarah Ganzhorn, Michael Curtis, and Darcy Kues, “Listening to Their Voices,” Center for Children & Youth Justice, February 2015, http://ccyj.org/wp-content/uploads/2015/04/LTTV_Full.pdf.
C Angel Torres and Naima Paz, “Bad Encounter Line 2012: A Participatory Action Research Project,” Young Women’s Empowerment Project, 2012, https://ywepchicago.files.wordpress.com/2011/06/
bad-encounter-line-report-20121.pdf.
Choi et al., “Serving Our Youth 2015.”
Gerald P. Mallon, We Don’t Exactly Get the Welcome Wagon: The Experiences of Gay and Lesbian Adolescents in Child Welfare Systems (New York: Columbia University Press, 1998).
Lauren Kirchner, “From the System to the Street,” Pacific Standard, February 12, 2015, http://www.psmag.com/health-and-behavior/the-factors-and-figures-behind-the-so-called-foster-care-toprostitution-pipeline.
Joseph J. Doyle, Jr., “Child Protection and Adult Crime: Using Investigator Assignment to Estimate Causal Effects of Foster Care,” Journal of Political Economy 116, no. 4 (2008): 746–70.
The Children’s Aid Society, “Aging Out of Foster Care: Youth Aging Out of Foster Care Face Poverty, Homelessness and the Criminal Justice System,” accessed December 30, 2015, http://www.
childrensaidsociety.org/files/upload-docs/FosterCare.pdf.
Doyle, Jr., “Child Protection and Adult Crime.”
Gretchen Ruth Cusick et al., “Crime during the Transition to Adulthood: How Youth Fare as They Leave Out-of-Home Care,” February 2010, https://www.ncjrs.gov/pdffiles1/nij/grants/229666.pdf.
Taffy Compain et al., “Supporting Permanency for LGBTQ Youth in Foster Care,” Children’s Bureau webinar, May 14, 2015, https://www.childwelfare.gov/CWIG/includes/display_objects/
fostercaremonth/more/LGBTQYouth.pdf.
National Alliance to End Homelessness, “LGBTQ Youth Homelessness,” April 2012, http://www.endhomelessness.org/page/-/files/4552_file_LGBTQ_Youth_National_Policy_Statement_
April_2012_Final.pdf.
Quintana, Rosenthal, and Krehely, “On the Streets: The Federal Response to Gay and Transgender Homeless Youth.”
Tara Bahrampour, “Nearly Half of Homeless Youth Are LGBTQ, First-Ever City Census Finds,” The Washington Post, January 13, 2016, https://www.washingtonpost.com/local/social-issues/nearly-halfof-homeless-youth-are-lgbtq-first-ever-city-census-finds/2016/01/13/0cb619ae-ba2e-11e5-829c-26ffb874a18d_story.html.
Laura E. Durso and Gary J. Gates, “Serving Our Youth: Findings from a National Survey of Service Providers Working with Lesbian, Gay, Bisexual, and Transgender Youth Who Are Homeless or At
Risk of Becoming Homeless,” The Williams Institute with True Colors Fund and The Palette Fund, 2012, http://fortytonone.org/wp-content/uploads/2012/06/LGBT-Homeless-Youth-Survey-FinalReport-7-11-12.pdf.
Choi et al., “Serving Our Youth 2015.”
“The Crib – as Seen in ‘The Homestretch,’” The Night Ministry, accessed January 4, 2016, http://www.thenightministry.org/001_programs/040_youth_services/030_youth_housing/040_the_crib.
Yumiko Aratani, “Homeless Children and Youth: Causes and Consequences” (National Center for Children in Poverty, September 2009), http://nccp.org/publications/pdf/text_888.pdf.
Choi et al., “Serving Our Youth 2015.”
Meredith Dank et al., “Surviving the Streets of New York.”
Choi et al., “Serving Our Youth 2015.”
National Coalition for the Homeless, “LGBT Homeless,” June 2009, http://www.nationalhomeless.org/factsheets/lgbtq.html.
“National Recommended Best Practices for Serving LGBT Homeless Youth,” Solutions Brief (Lambda Legal, National Alliance to End Homelessness, National Network for Youth, and National Center for
Lesbian Rights, April 10, 2009), http://www.lambdalegal.org/sites/default/files/publications/downloads/bkl_national-recommended-best-practices-for-lgbt-homeless-youth_0.pdf.
Joseph G. Kosciw et al., “The 2013 National School Climate Survey: The Experiences of Lesbian, Gay, Bisexual and Transgender Youth in Our Nation’s Schools” (New York: GLSEN, 2014), https://www.
glsen.org/sites/default/files/2013%20National%20School%20Climate%20Survey%20Full%20Report_0.pdf.
Growing Up LGBT in America: HRC Youth Survey Report Key Findings.
Mark A. Schuster et al., “A Longitudinal Study of Bullying of Sexual-Minority Youth,” New England Journal of Medicine 372, no. 19 (May 7, 2015): 1872–74, doi:10.1056/NEJMc1413064.
Kosciw et al., “The 2013 National School Climate Survey.”
Shannon D. Snapp et al., “Messy, Butch, and Queer LGBTQ Youth and the School-to-Prison Pipeline,” Journal of Adolescent Research 30, no. 1 (January 1, 2015): 57–82, doi:10.1177/0743558414557625.
Kosciw et al., “The 2013 National School Climate Survey.”
Mallory et al., “Ensuring Access to Mentoring Programs for LGBTQ Youth.”
Joel Anthony Muraco and Stephen T. Russell, “How School Bullying Impacts Lesbian, Gay, Bisexual, and Transgender (LGBT) Young Adults.,” Frances McClelland Institute for Children, Youth, and Families
ResearchLink (Tucson, AZ: The University of Arizona, 2011), https://mcclellandinstitute.arizona.edu/sites/mcclellandinstitute.arizona.edu/files/ResearchLink_Vol.%204%20No.%201_Bullying.pdf.
Kosciw et al., “The 2013 National School Climate Survey.”
Choi et al., “Serving Our Youth 2015.”
Ibid.
An Act to Add Section 782.1 to the Evidence Code, Relating to Crimes., 2014, http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201320140AB336.
Andrew Sum et al., “The Consequences of Dropping Out of High School: Joblessness and Jailing for High School Dropouts and the High Cost for Taxpayers,” Boston, Massachusetts: Center for Labor
Market Studies, Northeastern University, October 2009, http://www.northeastern.edu/clms/wp-content/uploads/The_Consequences_of_Dropping_Out_of_High_School.pdf.
Mallory et al., “Ensuring Access to Mentoring Programs for LGBTQ Youth.”
U.S. Department of Justice, “Types of Educational Opportunities Discrimination,” accessed January 12, 2016, http://www.justice.gov/crt/types-educational-opportunities-discrimination.
Movement Advancement Project, “Safe Schools Laws,” accessed January 5, 2016, http://www.lgbtmap.org/equality-maps/safe_school_laws.

NAACP Legal Defense and Educational Fund, “School to Prison Pipeline,” accessed July 6, 2015, http://www.naacpldf.org/case/school-prison-pipeline; Amnesty International, “United States of
America: Stonewalled: Police Abuse and Misconduct against Lesbian, Gay, Bisexual and People in the U.S.,” September 2005, https://www.amnesty.org/en/documents/AMR51/122/2005/en.
82
Kathryn E. W. Himmelstein and Hannah Brückner, “Criminal-Justice and School Sanctions Against Nonheterosexual Youth: A National Longitudinal Study,” Pediatrics 127, no. 1 (January 1, 2011):
49–57, doi:10.1542/peds.2009-2306.
83
Snapp et al., “Messy, Butch, and Queer LGBTQ Youth and the School-to-Prison Pipeline.”
84
Kosciw et al., “The 2013 National School Climate Survey.”
85
Lauren Frederico and Ujala Sehgal, “Dignity for All? Discrimination Against Transgender and Gender Nonconforming Students in New York State” (New York: New York Civil Liberties Union, June 2015),
http://www.nyclu.org/files/releases/Dignity_for_All_Report.pdf.
86
Kimberlé Williams Crenshaw, Priscilla Ocen, and Jyoti Nanda, “Black Girls Matter: Pushed Out, Overpoliced and Underprotected,” African American Policy Forum and the Center for Intersectionality and
Social Policy Studies, 2015, http://static1.squarespace.com/static/53f20d90e4b0b80451158d8c/t/54d21a9be4b09fd8a176baa1/1423055515927/BlackGirlsMatterReport.pdf; Monique W. Morris,
“Race, Gender, and the School to Prison Pipeline: Expanding Our Discussion to Include Black Girls” (African American Policy Forum, 2012), http://works.bepress.com/cgi/viewcontent.cgi?article=10
02&context=monique_morris.
87
Kosciw et al., “The 2013 National School Climate Survey.”
88
Emily Morgan et al., “The School Discipline Consensus Report: Strategies from the Field to Keep Students Engaged in School and Out of the Juvenile Justice System,” New York: The Council of State
Governments Justice Center, 2014, https://csgjusticecenter.org/youth/school-discipline-consensus-report.
89
Kosciw et al., “The 2013 National School Climate Survey.”
90
Lambda Legal, “Protected and Served? School Security, Policing and Discipline,” accessed January 7, 2016, http://www.lambdalegal.org/protected-and-served/schools.
91
Lambda Legal, “Protected and Served? Survey of LGBT/HIV Contact with Police, Courts and Prisons,” 2013.
92
Russell J. Skiba et al., “Race Is Not Neutral: A National Investigation of African American and Latino Disproporationality in School Discipline,” School Psychology Review 40 (2011): 85–107.
93
Civil Rights Data Collection, U.S. Department of Education Office for Civil Rights, “Data Snapshot: School Discipline,” March 2014, https://www2.ed.gov/about/offices/list/ocr/docs/crdc-disciplinesnapshot.pdf.
94
Morgan et al., “The School Discipline Consensus Report.”
95
Nathan James and Gail McCallion, “School Resource Officers: Law Enforcement Officers in Schools” (Congressional Research Service, June 26, 2013), https://www.fas.org/sgp/crs/misc/R43126.pdf.
96
Lambda Legal, “Protected and Served? School Security, Policing and Discipline.”
97
Morgan et al., “The School Discipline Consensus Report.”
98
Chongmin Na and Denise C. Gottfredson, “Police Officers in Schools: Effects on School Crime and the Processing of Offending Behaviors,” Justice Quarterly 30, no. 4 (2013): 1–32; Nicole L. Bracy,
“Student Perceptions of High-Security School Environments,” Youth & Society 43, no. 1 (2011): 365–95; Anastasia Kitsantas, Herbert W. Ware, and Rosario Martinez-Arias, “Students’ Perceptions of
School Safety: Effects by Community, School Environment, and Substance Use Variables,” The Journal of Early Adolescence 24, no. 4 (2004): 412–30; Jeremy D. Finn and Timothy J. Servoss, “Misbehavior,
Suspensions, and Security Measures in High School: Racial/Ethnic and Gender Differences” (Washington, DC: Center for Civil Rights Remedies and the Research-to-Practice Collaborative, National
Conference on Race and Gender Disparities in Discipline, 2012); Aaron Kupchik and Thomas J. Catlaw, “Discipline and Participation: The Long-Term Effects of Suspension and School Security on
the Political and Civic Engagement of Youth” (Washington, DC: Center for Civil Rights Remedies and the Research-to-Practice Collaborative, National Conference on Race and Gender Disparities in
Discipline, 2013); David M. Osher et al., “Avoid Simple Solutions and Quick Fixes: Lessons Learned from a Comprehensive Districtwide Approach to Improving Conditions for Learning” (Washington, DC:
Center for Civil Rights Remedies and the Research-to- Practice Collaborative, National Conference on Race and Gender Disparities in Discipline, 2013); Paul Hirschfield, “School Surveillance in America:
Disparate and Unequal,” in Schools Under Surveillance: Cultures of Control in Public Education (New Brunswick, NJ: Rutgers University Press, 2013), 38–54; Michael Powell, “In a School Built on Trust,
Metal Detectors Inject Fear,” New York Times, September 17, 2012.
99
Morgan et al., “The School Discipline Consensus Report.”
100
Steven C. Teske, “A Study of Zero Tolerance Policies in Schools: A Multi-Integrated Systems Approach to Improve Outcomes for Adolescents: A Study of Zero Tolerance Policies in Schools: A MultiIntegrated Systems Approach to Improve Outcomes for Adolescents,” Journal of Child and Adolescent Psychiatric Nursing 24, no. 2 (May 2011): 88–97, doi:10.1111/j.1744-6171.2011.00273.x.
101
Ibid.
102
Padres & Jóvenes Unidos and the Advancement Project, “Books Not Bars: Students for Safe & Fair Schools,” December 2011, http://www.padresunidos.org/files/media-root/PDFs/BooksNotBars_
StudentsForSafe%2526FairSchools.pdf.
103
Padres & Jóvenes Unidos, “Denver Public Schools and Denver Police Department Serve as National Model for Limiting the Role of Police in Schools!” February 22, 2013, https://padresunidos.
ourpowerbase.net/civicrm/mailing/view?reset=1&id=15.
104
Ibid.
105
Padres & Jóvenes Unidos and the Advancement Project, “Lessons in Racial Justice and Movement Building: Dismantling the School-to-Prison Pipeline in Colorado and Nationally,” accessed January 8,
2016, http://www.padresunidos.org/files/media-root/Lessons%20in%20Racial%20Justice%20and%20Movement%20Building-Dismantling%20the%20.pdf.
106
“Padres & Jóvenes Unidos Present School to Prison Pipeline Report,” North Denver Tribune, April 4, 2014, http://www.northdenvertribune.com/2014/04/padres-jovenes-unidos-present-school-toprison-pipeline-report.
107
Kavitha Mediratta, “Schools Must Abandon Zero-Tolerance Discipline,” Education Week, July 24, 2014, http://www.edweek.org/ew/articles/2014/07/24/37mediratta.h33.html?r=1326521942&tkn
=RNQF1nK22Y4JfOr2X0b1yt%2FNtHr8zODB%2F71S&print=1.
108
“Padres & Jovenes Unidos Present School to Prison Pipeline Report.”
109
Nazgol Ghandnoosh, “Black Lives Matter: Eliminating Racial Inequity in the Criminal Justice System,”The Sentencing Project, February 2015, http://sentencingproject.org/doc/publications/rd_Black_
Lives_Matter.pdf.
110
Public Counsel, “California Enacts First-in-the-Nation Law to Eliminate Student Suspensions for Minor Misbehavior,” September 27, 2014, http://www.publiccounsel.org/press_releases?id=0088.
111
Dickinson, An Act to Amend Section 48900 of the Education Relating to Pupil Discipline, 2014, http://www.leginfo.ca.gov/pub/13-14/bill/asm/ab_0401-0450/ab_420_bill_20140822_enrolled.htm.
112
D. Morgan Bassichis, “‘It’s War in Here’: A Report on the Treatment of Transgender and Intersex People in New York State Men’s Prisons,” New York: Sylvia Rivera Law Project, 2007, http://archive.srlp.
org/files/warinhere.pdf.
113
Shaun Pichler, Arup Varma, and Tamara Bruce, “Heterosexism in Employment Decisions: The Role of Job Misfit,” Journal of Applied Social Psychology 40 (2010): 2527–55; András Tilcsik, “Pride and
Prejudice: Employment Discrimination against Openly Gay Men in the United States,” American Journal of Sociology 117 (2011): 586–626; Make the Road New York, “Transgender Need Not Apply: A
Report on Gender Identity Job Discrimination,” March 2010, http://www.maketheroad.org/pix_reports/TransNeedNotApplyReport_05.10.pdf.
114
Rachel Kurzius, “Report: Transgender Job Applicants In D.C. Face Staggering Discrimination Rates,” DCist, November 3, 2015, http://dcist.com/2015/11/new_report_finds_48_percent_discrim.php.
115
M. V. Lee Badgett et al., “Bias in the Workplace: Consistent Evidence of Sexual Orientation and Gender Identity Discrimination,” The Williams Institute, June 2007, http://williamsinstitute.law.ucla.edu/
wp-content/uploads/Badgett-Sears-Lau-Ho-Bias-in-the-Workplace-Jun-2007.pdf.
81

147

ENDNOTES

Deena Fidas and Liz Cooper, “The Cost of the Closet and the Rewards of Inclusion: Why the Workplace Environment for LGBT People Matters to Employers,” Human Rights Campaign Foundation, May
2014, http://hrc-assets.s3-website-us-east-1.amazonaws.com//files/assets/resources/Cost_of_the_Closet_May2014.pdf.
117
Grant et al., “Injustice at Every Turn: A Report of the National Transgender Discrimination Survey.”
118
Brad Sears and Christy Mallory, “Documented Evidence of Employment Discrimination & Its Effects on LGBT People,” The Williams Institute, July 2011, http://williamsinstitute.law.ucla.edu/wpcontent/uploads/Sears-Mallory-Discrimination-July-20111.pdf. For a detailed examination of recent research, see Badgett et al., “Bias in the Workplace.” One researcher has found that men in samesex couples who work for public employers, including local, state, and federal governments, show a smaller wage gap when compared to men who work in the private sector. Gregory B. Lewis, “Are
Gay‐Straight Pay Disparities Smaller in the Public Sector?” (paper presented at a conference for the Midwest Political Science Association, Chicago, Illinois, April 4, 2009).
119
Gary J. Gates, “Same-Sex and Different-Sex Couples in the American Community Survey: 2005-2011,” Williams Institute, February 2013, http://williamsinstitute.law.ucla.edu/research/census-lgbtdemographics-studies/ss-and-ds-couples-in-acs-2005-2011.
120
David S. Pedulla, “The Positive Consequences of Negative Stereotypes: Race, Sexual Orientation, and the Job Application Process,” Social Psychology Quarterly 77 (2014): 75–94.
121
UCLA Center for Health Policy Research, “2011-2012 California Health Interview Survey,” accessed January 8, 2016, http://healthpolicy.ucla.edu/chis/Pages/default.aspx.
122
Grant et al., “Injustice at Every Turn: A Report of the National Transgender Discrimination Survey.”
123
Angel Kastanis and Gary J. Gates, “LGBT Asian and Pacific Islander Individuals and Same-Sex Couples” (The Williams Institute, September 2013), http://williamsinstitute.law.ucla.edu/wp-content/
uploads/Census-2010-API-Final.pdf; Angel Kastanis and Gary J. Gates, “LGBT African-American Individuals and African-American Same-Sex Couples” (The Williams Institute, October 2013), http://
williamsinstitute.law.ucla.edu/wp-content/uploads/Census-AFAMER-Oct-2013.pdf; Angel Kastanis and Gary J. Gates, “LGBT Latino/a Individuals and Latino/a Same-Sex Couples” (The Williams
Institute, October 2013), http://williamsinstitute.law.ucla.edu/wp-content/uploads/Census-2010-Latino-Final.pdf.
124
Grant et al., “Injustice at Every Turn: A Report of the National Transgender Discrimination Survey.”
125
Gary J. Gates, “LGBT Americans Report Lower Well-Being,” Gallup, August 25, 2014, http://www.gallup.com/poll/175418/lgbt-americans-report-lower.aspx.
126
M. V. Lee Badgett, Laura E. Durso, and Alyssa Schneebaum, “New Patterns of Poverty in the Lesbian, Gay, and Bisexual Community” (The Williams Institute, June 2013), http://williamsinstitute.law.
ucla.edu/wp-content/uploads/LGB-Poverty-Update-Jun-2013.pdf.
127
Grant et al., “Injustice at Every Turn: A Report of the National Transgender Discrimination Survey.”
128
Lydon et al., “Coming Out of Concrete Closets: A Report on Black & Pink’s National LGBTQ Prisoner Survey.”
129
Samantha Friedman et al., “An Estimate of Housing Discrimination Against Same-Sex Couples,” U.S. Department of Housing and Urban Development, Office of Policy Development and Research, June
2013, http://www.huduser.gov/portal/Publications/pdf/Hsg_Disc_against_SameSexCpls_v3.pdf.
130
Equal Rights Center, “Opening Doors: Investigation of Barriers to Senior Housing for Same-Sex Couples,” 2014, http://www.equalrightscenter.org/site/DocServer/Senior_%20Housing_Report.
pdf?docID=2361.
131
Grant et al., “Injustice at Every Turn: A Report of the National Transgender Discrimination Survey.”
132
Meghan Henry, Alvaro Cortes, and Sean Morris, “The 2013 Annual Homeless Assessment Report (AHAR) to Congress,” U.S. Department of Housing and Urban Development, Office of Community
Planning and Development, accessed January 11, 2016, https://www.hudexchange.info/resources/documents/ahar-2013-part1.pdf.
133
Grant et al., “Injustice at Every Turn: A Report of the National Transgender Discrimination Survey.”
134
Dwayne Bibb et al., “A Fabulous Attitude: Low-Income LGBTGNC People Surviving & Thriving with Love, Shelter & Knowledge” (Welfare Warriors Research Collaborative, 2010), http://d3n8a8pro7vhmx.
cloudfront.net/q4ej/pages/22/attachments/original/1375201785/compressed_afabulousattitudefinalreport.pdf?1375201785.
135
Grant et al., “Injustice at Every Turn: A Report of the National Transgender Discrimination Survey.”
136
Lori Sexton, Valerie Jenness, and Jennifer Sumner, “Where the Margins Meet: A Demographic Assessment of Transgender Inmates in Men’s Prisons,” University of California, Irvine, June 10, 2009,
http://ucicorrections.seweb.uci.edu/files/2013/06/A-Demographic-Assessment-of-Transgender-Inmates-in-Mens-Prisons.pdf.
137
Nicholas Ray, “Lesbian, Gay, Bisexual and Transgender Youth: An Epidemic of Homelessness,” New York: National Gay and Lesbian Task Force Policy Institute and the National Coalition for the Homeless,
2006, http://www.thetaskforce.org/static_html/downloads/HomelessYouth.pdf.
138
Lydon et al., “Coming Out of Concrete Closets: A Report on Black & Pink’s National LGBTQ Prisoner Survey.”
139
Sexton, Jenness, and Sumner, “Where the Margins Meet.”
140
U.S. Department of Justice, Office of Public Affairs, “Justice Department Files Brief to Address the Criminalization of Homelessness,” August 6, 2015, http://www.justice.gov/opa/pr/justicedepartment-files-brief-address-criminalization-homelessness.
141
Dank et al., “Surviving the Streets of New York.”
142
Ibid.
143
Ray, “Lesbian, Gay, Bisexual and Transgender Youth.”
144
U.S. Department of Housing and Urban Development, Office of Community Planning and Development, “Appropriate Placement for Transgender Persons in Single-Sex Emergency Shelters and Other
Facilities,” February 20, 2015, https://www.hudexchange.info/resources/documents/Notice-CPD-15-02-Appropriate-Placement-for-Transgender-Persons-in-Single-Sex-Emergency-Shelters-andOther-Facilities.pdf.
145
Caitlin Rooney, Laura E. Durso, and Sharita Gruberg, “Discrimination Against Transgender Women Seeking Access to Homeless Shelters,” Center for American Progress, January 7, 2016, https://www.
americanprogress.org/issues/lgbt/report/2016/01/07/128323/discrimination-against-transgender-women-seeking-access-to-homeless-shelters.
146
Jean Ann Esselink, “Jazzie’s Place, The Country’s First Homeless Shelter For LGBT Adults Opens Its Doors,” The New Civil Rights Movement, June 18, 2015, http://www.thenewcivilrightsmovement.com/
uncucumbered/jazzie_s_place_the_first_homeless_shelter_for_lgbt_people_opens_its_doors.
147
“About Us,” The Wanda Alston House, accessed January 12, 2016, http://www.wandaalstonhouse.org/about_us.html.
148
John Riley, “A Home with Heart,” Metro Weekly, March 19, 2015, http://www.metroweekly.com/2015/03/a-home-with-heart.
149
“Ruth’s House,” Ruth Ellis Center, accessed January 12, 2016, http://www.ruthelliscenter.org/ruths-house-new.
150
“Transitional Housing,” Los Angeles LGBT Center, accessed January 12, 2016, http://www.lalgbtcenter.org/transitional_housing.
151
“El Rescate Chicago,” accessed August 31, 2015, http://elrescatechicago.org.
152
“Home,” Ali Forney Center, accessed January 12, 2016, http://www.aliforneycenter.org.
153
“True Colors Residence,” West End Residences, February 26, 2012, http://westendres.org/true-colors-residence-2.
154
“Youth Transitional Living Program,” Green Chimneys, accessed January 12, 2016, http://www.greenchimneys.org/preventative-services/lgbtq-residence.
155
“Thrive Youth Center,” accessed January 12, 2016, http://www.thriveyouthcenter.com.
156
“Waltham House,” The Home for Little Wanderers, accessed January 12, 2016, http://www.thehome.org/site/PageServer?pagename=programs_waltham_house#.VpV4jhUrLtQ.
116

ENDNOTES

148

Laura Rena Murray, “The High Price of Looking Like a Woman,” The New York Times, August 19, 2011, http://www.nytimes.com/2011/08/21/nyregion/some-transgender-women-pay-a-high-price-tolook-more-feminine.html; amfAR, “Issue Brief: Trans Populations and HIV: Time to End the Neglect,” April 2014, http://www.amfar.org/issue-brief-trans-populations-and-hiv-time-to-end-the-neglect.
158
“Proposed Rule: Nondiscrimination in Health Programs and Activities,” Federal Register, September 8, 2015, https://www.federalregister.gov/articles/2015/09/08/2015-22043/nondiscriminationin-health-programs-and-activities.
159
Grant et al., “Injustice at Every Turn: A Report of the National Transgender Discrimination Survey.”
160
Greg A. Greenberg and Robert A. Rosenheck, “Jail Incarceration, Homelessness, and Mental Health: A National Study,” Psychiatric Services 59, no. 2 (2008): 170–77.
161
Choi et al., “Serving Our Youth 2015.”
162
Ron Honberg et al., “State Mental Health Cuts: The Continuing Crisis,” National Alliance on Mental Illness, 2011, http://www.nami.org/getattachment/About-NAMI/Publications/Reports/
StateMentalHealthCuts2.pdf.
163
David Cloud and Chelsea Davis, “First Do No Harm: Advancing Public Health in Policing Practices,” New York, NY: First Do No Harm, 2015, http://www.vera.org/sites/default/files/resources/downloads/
public-health-and-policing.pdf.
164
Bassichis, “‘It’s War in Here’: A Report on the Treatment of Transgender and Intersex People in New York State Men’s Prisons.”
165
Bibb et al., “A Fabulous Attitude.”
166
Grant et al., “Injustice at Every Turn: A Report of the National Transgender Discrimination Survey.”
167
Megan McLemore, “Letter to the Office of National AIDS Policy,” April 13, 2015, https://www.hrw.org/news/2015/04/13/letter-office-national-aids-policy.
168
Mitch Kellaway, “WATCH: TransTech Offers Employment Solutions for Aspiring Transgender Coders,” The Advocate, September 11, 2014, http://www.advocate.com/politics/transgender/2014/09/11/
watch-transtech-offers-employment-solutions-aspiring-transgender.
169
U.S. Department of Homeland Security, “What Is Human Trafficking?” September 14, 2015, http://www.dhs.gov/definition-human-trafficking.
170
U.S. Department of State, Office to Monitor and Combat Trafficking in Persons, “Trafficking in Persons Report 2014: Definitions and Methodology,” June 19, 2014, http://www.state.gov/j/tip/rls/
tiprpt/2014/226645.htm.
171
Verité, “Strengthening Protections Against Trafficking in Persons in Federal and Corporate Supply Chains,” U.S. Department of State, 2015, http://www.state.gov/documents/organization/237137.pdf.
172
Heather J. Clawson et al., “Human Trafficking Into and Within the United States: A Review of the Literature,” U.S. Department of Health & Human Services, Office of the Assistant Secretary for Planning
and Evaluation, August 30, 2009, http://aspe.hhs.gov/hsp/07/humantrafficking/litrev/#What.
173
Polaris, “Sex Trafficking,” accessed January 14, 2016, http://polarisproject.org/sex-trafficking.
174
U.S. Department of Homeland Security, “What Is Human Trafficking?”
175
U.S. Department of State, Office to Monitor and Combat Trafficking in Persons, “Trafficking in Persons Report 2014: Topics of Special Interest,” Report, (June 19, 2014), http://www.state.gov/j/tip/rls/
tiprpt/2014/226646.htm.
176
Polaris, “Breaking Barriers: Improving Services for LGBTQ Human Trafficking Victims,” June 2015, https://polarisproject.org/sites/default/files/breaking-barriers-lgbtq-services.pdf.
177
Ibid.
178
U.S. Department of State, Office to Monitor and Combat Trafficking in Persons, “The Use of Forced Criminality: Victims Hidden Behind the Crime,” June 20, 2014, http://www.state.gov/j/tip/rls/
fs/2014/233726.htm.
179
Movement Advancement Project, “HIV Criminalization Laws,” accessed July 22, 2015, http://www.lgbtmap.org/equality-maps/hiv_criminalization_laws.
180
The White House Office of National AIDS Policy, “National HIV/AIDS Strategy for the United States,” July 2010, https://www.whitehouse.gov/sites/default/files/uploads/NHAS.pdf.
181
Centers for Disease Control and Prevention, “HIV-Specific Criminal Laws,” last updated March 18, 2015, http://www.cdc.gov/hiv/policies/law/states/exposure.html.
182
John Murawski, “UNC Researchers: Drug Cocktails Can Stop Sexual Transmission of HIV,” The News & Observer, July 20, 2015, http://www.newsobserver.com/news/business/health-care/
article27928615.html.
183
Rashida Richardson, Shoshana Golden, and Catherine Hanssens, “Ending and Defending Against HIV Criminalization: State and Federal Laws and Prosecutions,” The Center for HIV Law and Policy,
November 2010 (updated May 2015), http://www.hivlawandpolicy.org/resources/ending-and-defending-against-hiv-criminalization-state-and-federal-laws-and-prosecutions.
184
Ibid.
185
Sergio Hernandez, “How We Built Our HIV Crime Data Set,” ProPublica, December 1, 2013, http://www.ProPublica.org/article/how-we-built-our-hiv-crime-data-set.
186
Trevor Alexander Hoppe, “Disparate Risks of Conviction under Michigan’s Felony HIV Disclosure Law: An Observational Analysis of Convictions and HIV Diagnoses, 1992–2010,” Punishment & Society
17, no. 1 (January 1, 2015): 73–93, doi:10.1177/1462474514561711.
187
Amira Hasenbush, Ayako Miyashita, and Bianca D.M. Wilson, “HIV Criminalization in California: Penal Implications for People Living with HIV/AIDS,” The Williams Institute, December 2015, http://
williamsinstitute.law.ucla.edu/wp-content/uploads/HIV-Criminalization-California-December-2015.pdf.
188
“HIV Criminalization Discourages HIV Testing, Disclosure and Treatment for Transgender and Third Sex Individuals [Press Release],” Sero Project and Transgender Law Center, July 2, 2013.
189
William N. Eskridge, Dishonorable Passions: Sodomy Laws in America, 1861-2003 (New York, NY: Penguin, 2008).
190
Ibid.
191
“12 States Still Ban Sodomy a Decade after Court Ruling,” USA Today, April 21, 2014, http://www.usatoday.com/story/news/nation/2014/04/21/12-states-ban-sodomy-a-decade-after-courtruling/7981025.
192
Amnesty International, “United States of America: Stonewalled: Police Abuse and Misconduct against Lesbian, Gay, Bisexual and People in the U.S.”
193
Jim Mustian, “Gays in Baton Rouge Arrested under Invalid Sodomy Law,” The Advocate, July 28, 2013, http://theadvocate.com/news/police/6580728-123/gays-in-baton-rouge-arrested.
194
Joseph Goldstein, “Lawyers Challenge Lewdness Arrests at Port Authority Bus Terminal,” The New York Times, October 7, 2014, http://www.nytimes.com/2014/10/08/nyregion/lawyers-challengelewdness-arrests-at-port-authority-bus-terminal.html.
195
Jessica M. Salerno, Mary C. Murphy, and Bette L. Bottoms, “Give the Kid a Break—but Only If He’s Straight: Retributive Motives Drive Biases against Gay Youth in Ambiguous Punishment Contexts.,”
Psychology, Public Policy, and Law 20, no. 4 (2014): 398–410, doi:10.1037/law0000019.
196
Michael H. Meidinger, “Peeking Under the Covers: Taking a Closer Look at Prosecutorial Decision-Making Involving Queer Youth and Statutory Rape,” BCJL & Soc. Just. 32 (2012): 421; “HB 2403 by
Gonzalez,” Equality Texas, accessed December 21, 2015, http://www.equalitytexas.org/content.aspx?id=865.
197
Salerno, Murphy, and Bottoms, “Give the Kid a Break—but Only If He’s Straight.”
198
Heidi Strohmaier, Megan Murphy, and David DeMatteo, “Youth Sexting: Prevalence Rates, Driving Motivations, and the Deterrent Effect of Legal Consequences,” Sexuality Research and Social Policy 11,
no. 3 (June 4, 2014): 245–55, doi:10.1007/s13178-014-0162-9.
157

149

ENDNOTES

E. Ann Carson, “Prisoners in 2013” (U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, September 2014), http://www.bjs.gov/content/pub/pdf/p13.pdf.
Ibid.
201
Samuel A. Taxy, “Drivers of Growth in the Federal Prison Population” (Charles Colson Task Force on Federal Corrections and the Urban Institute, March 10, 2015), http://www.urban.org/research/
publication/drivers-growth-federal-prison-population.
202
Ibid.
203
Julie Samuels, Nancy La Vigne, and Samuel Taxy, “Stemming the Tide: Strategies to Reduce the Growth and Cut the Cost of the Federal Prison System” (Washington, DC: The Urban Institute, 2013),
http://www.urban.org/sites/default/files/alfresco/publication-pdfs/412932-Stemming-the-Tide-Strategies-to-Reduce-the-Growth-and-Cut-the-Cost-of-the-Federal-Prison-System.PDF.
204
The Opportunity Agenda, “An Overview of Public Opinion and Discourse on Criminal Justice Issues,” August 2014, http://opportunityagenda.org/files/field_file/2014.08.23-CriminalJusticeReportFINAL_0.pdf.
205
Ghandnoosh, “Black Lives Matter.”
206
U.S. Attorney General Eric H. Holder, “Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases” (Office of the Attorney General, August
12, 2013), http://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/ag-memo-department-policypon-charging-mandatory-minimum-sentences-recidivist-enhancements-in-certaindrugcases.pdf.
207
Ezekiel Edwards, Will Bunting, and Lynda Garcia, “The War on Marijuana in Black and White: Billions of Dollars Wasted on Racially Biased Arrests” (New York, NY: American Civil Liberties Union, June
2013), https://www.aclu.org/files/assets/1114413-mj-report-rfs-rel1.pdf.
208
“A Provider’s Introduction to Substance Abuse Treatment for Lesbian, Gay, Bisexual, and Transgender Individuals,” Substance Abuse and Mental Health Services Administration, August 1, 2012, http://
store.samhsa.gov/product/A-Provider-s-Introduction-to-Substance-Abuse-Treatment-for-Lesbian-Gay-Bisexual-and-Transgender-Individuals/SMA12-4104.
209
Ibid.
210
Michael P. Marshal et al., “Sexual Orientation and Adolescent Substance Use: A Meta-Analysis and Methodological Review,” Addiction 103, no. 4 (April 1, 2008): 546–56, doi:10.1111/j.13600443.2008.02149.x.
211
Ibid.
212
Caitlin Ryan et al., “Family Rejection as a Predictor of Negative Health Outcomes in White and Latino Lesbian, Gay, and Bisexual Young Adults,” Pediatrics 123, no. 1 (January 1, 2009): 346–52,
doi:10.1542/peds.2007-3524.
213
Lydon et al., “Coming Out of Concrete Closets: A Report on Black & Pink’s National LGBTQ Prisoner Survey.”
214
The Center for Health and Justice at TASC, “No Entry: A National Survey of Criminal Justice Diversion Programs and Initiatives” (Chicago, December 2013), http://www2.centerforhealthandjustice.org/
sites/www2.centerforhealthandjustice.org/files/publications/CHJ%20Diversion%20Report_web.pdf.
215
Ibid.
216
Susan E. Collins, Heather S. Lonczak, and Seema L. Clifasefi, “LEAD Program Evaluation: Recidivism Report” (University of Washington, Harborview Medical Center Harm Reduction Research and
Treatment Lab, March 27, 2015), http://leadkingcounty.org/storage/LEAD_EVALUATION_4-7-15.pdf.
217
Majd, Marksamer, and Reyes, “Hidden Injustice: Lesbian, Gay, Bisexual and Transgender Youth in Juvenile Courts.”
218
Frank Newport, “Gallup Review: Black and White Attitudes Toward Police,” Gallup, August 20, 2014, http://www.gallup.com/poll/175088/gallup-review-black-white-attitudes-toward-police.aspx.
219
Mark Hugo Lopez and Gretchen Livingston, “Hispanics and the Criminal Justice System: Low Confidence, High Exposure” (Washington, DC: Pew Hispanic Center, April 7, 2009), http://www.
pewhispanic.org/2009/04/07/hispanics-and-the-criminal-justice-system.
220
Ibid.
221
James Q. Wilson and George L. Kelling, “Broken Windows: The Police and Neighborhood Safety,” The Atlantic Monthly, March 1982, http://www.theatlantic.com/past/docs/politics/crime/windows.htm.
222
Community Oriented Policing Services, “Communitiy Policing Defined” (U.S. Department of Justice, 2012), http://www.cops.usdoj.gov/pdf/vets-to-cops/e030917193-CP-Defined.pdf.
223
INCITE!, “‘Quality of Life’ Policing,” accessed January 15, 2016, http://www.incite-national.org/sites/default/files/incite_files/resource_docs/3316_toolkitrev-qualitylife.pdf.
224
Katherine Beckett and Steve Herbert, “Managing the Neoliberal City: ‘Quality of Life’ Policing in the Twenty-First Century,” in The Routledge Handbook of Poverty in the United States (New York:
Routledge, 2015), 349–56.
225
Kurt Iveson, “Policing the City,” in Urban Politics: Critical Approaches (London: Sage Publications, 2014), 85–99.
226
INCITE!, “‘Quality of Life’ Policing.”
227
Beckett and Herbert, “Managing the Neoliberal City.”
228
Thomas J. Miles, “Does the ‘Community Prosecution’ Strategy Reduce Crime? A Test of Chicago’s Experience,” American Law and Economics Review, August 14, 2013, doi:10.1093/aler/aht012; Bernard
E. Harcourt and Jens Ludwig, “Broken Windows: New Evidence from New York City and a Five-City Social Experiment,” The University of Chicago Law Review, 2006, 271–320.
229
Amnesty International, “United States of America: Stonewalled: Police Abuse and Misconduct against Lesbian, Gay, Bisexual and People in the U.S.”
230
National Alliance to End Homelessness, “LGBTQ Youth Homelessness,” April 2012, http://www.endhomelessness.org/page/-/files/4552_file_LGBTQ_Youth_National_Policy_Statement_
April_2012_Final.pdf.
231
Brett G. Stoudt, Michelle Fine, and Madeline Fox, “Growing up Policed in the Age of Aggressive Policing Policies,” New York Law School Law Review 56 (2011): 1331–70.
232
Dank et al., “Locked In.”
233
BreakOUT! and the National Council on Crime & Delinquency, “We Deserve Better: A Report on Policing in New Orleans By and For Queer and Trans Youth of Color,” 2014, http://www.youthbreakout.
org/sites/g/files/g189161/f/201410/WE%20DESERVE%20BETTER%20REPORT.pdf.
234
Kathryn E.W. Himmelstein, “Scared Straight: Institutional Sanctions Against LGBTQ Youth,” Unpublished Senior Essay, Program in Ethics, Politics and Economics at Yale University, 2009.
235
Sarah Ryley, “Minorities Face Disproportionate ‘Broken Windows’ Enforcement Everywhere — Especially in Predominately White Neighborhoods,” New York Daily News, September 8, 2014, http://
www.nydailynews.com/new-york/nyc-crime/broken-windows-disproportionately-enforced-white-neighborhoods-article-1.1931171.
236
U.S. Department of Justice, Civil Rights Division, “Investigation of the Ferguson Police Department,” March 4, 2015, http://www.justice.gov/sites/default/files/opa/press-releases/
attachments/2015/03/04/ferguson_police_department_report.pdf.
237
Thomas Harvey et al., “ArchCity Defenders: Municipal Courts White Paper” (ArchCity Defenders, 2014), http://03a5010.netsolhost.com/WordPress/wp-content/uploads/2014/11/ArchCity-DefendersMunicipal-Courts-Whitepaper.pdf.
238
Alejandro del Carmen, “Profiling, Racial: Historical and Contemporary Perspectives,” in Encyclopedia of Race and Crime (SAGE Publications, 2011), 666–68, http://studysites.sagepub.com/healeyregc6e/
study/chapter/encycarticles/ch10/CARMEN~1.PDF.
239
Amnesty International, “United States of America: Stonewalled: Police Abuse and Misconduct against Lesbian, Gay, Bisexual and People in the U.S.”
199

ENDNOTES

150

200

Grant et al., “Injustice at Every Turn: A Report of the National Transgender Discrimination Survey.”
Amnesty International, “United States of America: Stonewalled: Police Abuse and Misconduct against Lesbian, Gay, Bisexual and People in the U.S.”
242
Ibid.
243
U.S. Department of Justice, “Guidance for Federal Law Enforcement Agencies Regarding the Use of Race, Ethnicity, Gender, National Origin, Religion, Sexual Orientation, or Gender Identity,” December
2014, http://www.justice.gov/sites/default/files/ag/pages/attachments/2014/12/08/use-of-race-policy.pdf.
244
Ibid.
245
President’s Task Force on 21st Century Policing, “Interim Report of the President’s Task Force on 21st Century Policing” (Washington, DC: Office of Community Oriented Policing Services, March 1, 2015),
http://www.cops.usdoj.gov/pdf/taskforce/Interim_TF_Report.pdf; President’s Task Force on 21st Century Policing, “Final Report of the President’s Task Force on 21st Century Policing” (Washington,
DC: Office of Community Oriented Policing Services, 2015), http://www.cops.usdoj.gov/pdf/taskforce/TaskForce_FinalReport.pdf.
246
Dank et al., “Surviving the Streets of New York.”
247
Grant et al., “Injustice at Every Turn: A Report of the National Transgender Discrimination Survey.”
248
Sexton, Jenness, and Sumner, “Where the Margins Meet.”
249
Lance Freeman and Darrick Hamilton, “A Count of Homeless Youth in New York City” (New York: Empire State Coalition of Youth and Family Services, March 26, 2008), http://www.citylimits.org/
images_pdfs/pdfs/HomelessYouth.pdf.
250
Dank et al., “Surviving the Streets of New York.”
251
Erin Fitzgerald et al., “Meaningful Work: Transgender Experiences in the Sex Trade” (Best Practices Policy Project, Red Umbrella Project, and National Center for Transgender Equality, December 2015),
http://www.bestpracticespolicy.org/wp-content/uploads/2015/12/Meaningful-Work-Full-Report.pdf.
252
Amnesty International, “United States of America: Stonewalled: Police Abuse and Misconduct against Lesbian, Gay, Bisexual and People in the U.S.”
253
Megan McLemore, Sex Workers at Risk: Condoms as Evidence of Prostitution in Four US Cities (New York, NY: Human Rights Watch, 2012), http://www.hrw.org/sites/default/files/reports/
us0712ForUpload_1.pdf.
254
Centers for Disease Control and Prevention, “Today’s HIV/AIDS Epidemic,” July 2015, http://www.cdc.gov/nchhstp/newsroom/docs/hivfactsheets/todaysepidemic-508.pdf.
255
Seth Hemmelgarn, “Breaking: DA Agrees to New Condoms Policy,” Bay Area Reporter, April 11, 2013, http://ebar.com/news/article.php?sec=news&article=68698.
256
“NYPD To Stop Seizing Condoms As Evidence Of Prostitution,” The Huffington Post, May 12, 2014, http://www.huffingtonpost.com/2014/05/12/nypd-condoms-_n_5310906.html; No Condoms As
Evidence Coalition, “Latest News,” End the Use of Condoms as Evidence, accessed January 15, 2016, http://www.nocondomsasevidence.org/blog.
257
“California AB336 | 2013-2014 | Regular Session,” LegiScan, accessed January 29, 2016, https://legiscan.com/CA/text/AB336/id/1045931.
258
Carly Schwartz, “California Quietly Adopts Landmark Condom Law To Protect Sex Workers,” The Huffington Post, September 26, 2014, http://www.huffingtonpost.com/2014/09/26/condom-lawcalifornia_n_5890684.html?utm_hp_ref=politics.
259
“NY State Senate Bill S1379,” NY State Senate, accessed January 21, 2016, https://www.nysenate.gov/legislation/bills/2013/s1379.
260
Megan McLemore, “In Harm’s Way: State Response to Sex Workers, Drug Users and HIV in New Orleans” (Human Rights Watch), accessed January 15, 2016, https://www.hrw.org/report/2013/12/11/
harms-way/state-response-sex-workers-drug-users-and-hiv-new-orleans.
261
Nahal Zamani et al., “Stop and Frisk: The Human Impact” (New York, NY: Center for Constitutional Rights, July 2012), http://stopandfrisk.org/the-human-impact-report.pdf.
262
“Louisiana’s Crime Against Nature Law: A Modern-Day Scarlet Letter,” Center for Constitutional Rights, accessed January 21, 2016, http://ccrjustice.org/node/2536.
263
Center for Constitutional Rights, “Crimes Against Nature by Solicitation (CANS) Litigation,” May 29, 2015, http://www.ccrjustice.org/crime-against-nature.
264
Alex Woodward, “Louisiana to Remove ‘Crimes against Nature’ Offenders from Sex Offender Registry,” Gambit, June 12, 2013, http://www.bestofneworleans.com/blogofneworleans/
archives/2013/06/12/louisiana-to-remove-crimes-against-nature-offenders-from-sex-offender-registry.
265
U.S. Department of Justice, Civil Rights Division, “Investigation of the New Orleans Police Department,” March 16, 2011, http://www.youthbreakout.org/sites/g/files/g189161/f/DOJ NOPD Report
2011 -BreakOUT%21 Notes.pdf.
266
Terry v. Ohio, 392 U.S. 1 (U.S. Supreme Court 1968).
267
New York Civil Liberties Union, “Stop and Frisk Facts,” accessed January 15, 2016, http://www.nyclu.org/node/1598.
268
Center for Constitutional Rights, “Floyd, et Al. v. City of New York Press Kit: 2012 Stop and Frisk Statistics,” accessed August 20, 2013, http://ccrjustice.org/floyd-trial-presskit.html#tabs1-stats.
269
Cornell William Brooks, Roslyn M. Brock, and Barbara Bolling-Williams, “Born Suspect: Stop-and-Frisk Abuses & the Continued Fight to End Racial Profiling in America” (NAACP, September 2014),
http://action.naacp.org/page/-/Criminal%20Justice/Born_Suspect_Report_final_web.pdf.
270
David A. Harris, “Across the Hudson: Taking the Stop and Frisk Debate Beyond New York City,” NYU Journal of Legislation and Public Policy 16 (2014): 853–82; ACLU of Illinois, “Stop and Frisk in Chicago,”
March 2015, http://www.aclu-il.org/wp-content/uploads/2015/03/ACLU_StopandFrisk_6.pdf.
271
Harris, “Across the Hudson.”
272
Amnesty International, “United States of America: Stonewalled: Police Abuse and Misconduct against Lesbian, Gay, Bisexual and People in the U.S.”
273
Center for Constitutional Rights, “Floyd, et Al. v. City of New York Press Kit: 2012 Stop and Frisk Statistics.”
274
Kimberlé Williams Crenshaw et al., “Say Her Name: Resisting Police Brutality Against Black Women” (New York, NY: African American Policy Forum and the Center for Intersectionality and Social Policy
Studies, 2015), http://static1.squarespace.com/static/53f20d90e4b0b80451158d8c/t/55a810d7e4b058f342f55873/1437077719984/AAPF_SMN_Brief_full_singles.compressed.pdf.
275
Stoudt, Fine, and Fox, “Growing up Policed.”
276
Ian Ayres and Jonathan Borowsky, “A Study of Racially Disparate Outcomes in the Los Angeles Police Department” (ACLU of Southern California, October 2008), http://islandia.law.yale.edu/ayers/
Ayres LAPD Report.pdf.
277
ACLU of Illinois, “Stop and Frisk in Chicago.”
278
Zamani et al., “Stop and Frisk.”
279
“Queer Youth of Color Complain of West Village Stop and Frisk,” Gay City News, May 23, 2012, http://gaycitynews.nyc/queer-youth-of-color-complain-of-west-village-stop-and-frisk.
280
Marian R. Williams et al., “Policing for Profit: The Abuse of Civil Asset Forfeiture” (Institute for Justice, March 2010), http://ij.org/images/pdf_folder/other_pubs/assetforfeituretoemail.pdf.
281
Ibid.
282
Michael Sallah et al., “Stop and Seize: Aggressive Police Take Hundreds of Millions of Dollars from Motorists Not Charged with Crimes,” Washington Post, September 6, 2014, http://www.
washingtonpost.com/sf/investigative/2014/09/06/stop-and-seize.
283
Joseph Goldstein, “Judge Rejects New York’s Stop-and-Frisk Policy,” The New York Times, August 12, 2013, http://www.nytimes.com/2013/08/13/nyregion/stop-and-frisk-practice-violated-rightsjudge-rules.html.
240
241

151

ENDNOTES

Mike Bostock and Ford Fessenden, “‘Stop-and-Frisk’ Is All but Gone From New York,” The New York Times, September 19, 2014, http://www.nytimes.com/interactive/2014/09/19/nyregion/stopand-frisk-is-all-but-gone-from-new-york.html; Becca James, “Stop and Frisk in 4 Cities: The Importance of Open Police Data,” Sunlight Foundation, March 2, 2015, http://sunlightfoundation.com/
blog/2015/03/02/stop-and-frisk-in-4-cities-the-importance-of-open-police-data-2.
285
Brooks, Brock, and Bolling-Williams, “Born Suspect.”
286
Zamani et al., “Stop and Frisk.”
287
Brooks, Brock, and Bolling-Williams, “Born Suspect.”
288
New York Civil Liberties Union, “Report: NYPD Stop-and-Frisk Activity in 2011 (2012),” May 9, 2012, http://www.nyclu.org/publications/report-nypd-stop-and-frisk-activity-2011-2012.
289
U.S. Department of Justice, Civil Rights Division, “Investigation of the New Orleans Police Department.”
290
Wesley Ware, “Consent Decree between NOPD and DOJ Includes Unprecedented Victory for LGBT Youth,” Bridge The Gulf Project, July 31, 2012, http://bridgethegulfproject.org/blog/2012/consentdecree-between-nopd-and-doj-includes-unprecedented-victory-lgbt-youth.
291
U.S. Attorney General Eric H. Holder, “Consent Decree Regarding the New Orleans Police Department,” July 24, 2012, http://www.nola.gov/getattachment/NOPD/About-Us/NOPD-Consent-Decree/
NOPD-Consent-Decree-7-24-12.pdf.
292
Osman Ahmed and Chai Jindasurat, “2014 Report on Lesbian, Gay, Bisexual, Transgender, Queer, and HIV-Affected Hate Violence” New York: National Coalition of Anti-Violence Programs, 2015, http://
www.avp.org/resources/avp-resources/405-2014-report-on-lesbian-gay-bisexual-transgender-queer-and-hiv-affected-hate-violence.
293
Ibid.
294
American Friends Service Committee, “Close to Home: Developing Innovative, Community-Based Responses to Anti-LGBT Violence,” October 2005, http://www.prisonpolicy.org/scans/afsc/close-tohome.pdf.
295
Ibid.
296
Chai Jindasurat and Emily Waters, “Lesbian, Gay, Bisexual, Transgender, Queer, and HIV-Affected Intimate Partner Violence in 2014” (National Coalition of Anti-Violence Programs, 2015), http://www.
avp.org/storage/documents/2014_IPV_Report_Final_w-Bookmarks_10_28.pdf.
297
Ahmed and Jindasurat, “2014 Report on Lesbian, Gay, Bisexual, Transgender, Queer, and HIV-Affected Hate Violence.”
298
Ibid.; Rebecca L. Stotzer, “Comparison of Hate Crime Rates Across Protected and Unprotected Groups – An Update,” The Williams Institute, May 2012, http://williamsinstitute.law.ucla.edu/research/
violence-crime/comparison-hate-crime-rates-update.
299
Ahmed and Jindasurat, “2014 Report on Lesbian, Gay, Bisexual, Transgender, Queer, and HIV-Affected Hate Violence.”
300
“Domestic Violence in the LGBT Community: A Fact Sheet,” Center for American Progress, June 14, 2011, https://www.americanprogress.org/issues/lgbt/news/2011/06/14/9850/domestic-violencein-the-lgbt-community.
301
John R. Blosnich and Robert M. Bossarte, “Comparisons of Intimate Partner Violence Among Partners in Same-Sex and Opposite-Sex Relationships in the United States,” American Journal of Public
Health 99, no. 12 (December 2009): 2182–84, doi:10.2105/AJPH.2008.139535.
302
Community United Against Violence, National Day Laborers Organizing Network, and Streetwise and Safe, “LGBTQ Organizations Come Out Against ICE’s ‘Secure Communities’ Program,” October 11,
2011, http://myemail.constantcontact.com/LGBTQ-Organizations-Come-Out-Against-ICE-s--Secure-Communities--Program-.html?soid=1101557261397&aid=chxJacxmtxM.
303
Ahmed and Jindasurat, “2014 Report on Lesbian, Gay, Bisexual, Transgender, Queer, and HIV-Affected Hate Violence.”
304
Ibid.
305
Jon C. Rogowski, “The Policing of Black Communities and Young People of Color,” Democracy Remixed: Black Youth and the Future of American Politics (Black Youth Project, 2014), http://www.
blackyouthproject.com/files/2014/08/ferguson.pdf.
306
BreakOUT! and the National Council on Crime & Delinquency, “We Deserve Better.”
307
Stoudt, Fine, and Fox, “Growing up Policed.”
308
Dank et al., “Locked In.”
309
Torres and Paz, “Bad Encounter Line 2012: A Participatory Action Research Project.”
310
Somjen Frazer and Erin Howe, “Transgender Health and Economic Insecurity: A Report from the 2015 LGBT Health and Human Services Needs Assessment Survey” (New York, NY: Empire State Pride
Agenda, 2015), http://www.prideagenda.org/sites/default/files/PDFs/TG%20health%20and%20economic%20insecurity%20report%20FINAL.pdf.
311
Christy Mallory, Amira Hasenbush, and Brad Sears, “Discrimination and Harassment by Law Enforcement Officers in the LGBT Community” (The Williams Institute, March 2015), http://williamsinstitute.
law.ucla.edu/wp-content/uploads/LGBT-Discrimination-and-Harassment-in-Law-Enforcement-March-2015.pdf.
312
Lambda Legal, “Protected and Served? Police,” accessed January 16, 2016, http://www.lambdalegal.org/protected-and-served/police.
313
Frank H. Galvan and Mohsen Bazargan, “Interactions of Latina Transgender Women with Law Enforcement” (Bienestar, 2012), http://williamsinstitute.law.ucla.edu/wp-content/uploads/GalvanBazargan-Interactions-April-2012.pdf.
314
Mallory, Hasenbush, and Sears, “Discrimination and Harassment by Law Enforcement Officers in the LGBT Community.”
315
Ibid.
316
“Best Practices Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors” (U.S. Department of Justice, Civil Rights Division, July 15, 2014), https://www.aids.gov/
federal-resources/national-hiv-aids-strategy/doj-hiv-criminal-law-best-practices-guide.pdf.
317
Ghandnoosh, “Black Lives Matter.”
318
Office of National Drug Control Policy, “National Drug Control Strategy,” 2014, https://www.whitehouse.gov/sites/default/files/ndcs_2014.pdf.
319
Ghandnoosh, “Black Lives Matter.”
320
U.S. Department of Justice, “Guidance for Federal Law Enforcement Agencies Regarding the Use of Race, Ethnicity, Gender, National Origin, Religion, Sexual Orientation, or Gender Identity.”
321
U.S. Department of Justice, “Identifying and Preventing Gender Bias in Law Enforcement Response to Sexual Assault and Domestic Violence,” December 15, 2015, http://www.justice.gov/opa/
file/799366/download.
322
Laura Kann et al., “Sexual Identity, Sex of Sexual Contacts, and Health-Risk Behaviors Among Students in Grades 9-12: Youth Risk Behavior Surveillance, Selected Sites, United States, 2001-2009,”
Morbidity and Mortality Weekly Report (Centers for Disease Control and Prevention, June 6, 2011), http://www.cdc.gov/mmwr/pdf/ss/ss60e0606.pdf.
323
Angela Irvine, “‘We’ve Had Three of Them’: Addressing the Invisibility of Lesbian, Gay, Bisexual and Gender Non-Conforming Youths in the Juvenile Justice System,” Columbia Journal of Gender and Law
19, no. 3 (2010): 675–701; Irvine, “LGBT Kids in the Prison Pipeline.”
324
Allen J. Beck, Paige M. Harrison, and Paul Guerino, “Sexual Victimization in Juvenile Facilities Reported by Youth, 2008–09” (U.S. Department of Justice, Office of Justice Programs, Bureau of Justice
Statistics, January 2010), http://www.bjs.gov/content/pub/pdf/svjfry09.pdf.
284

ENDNOTES

152

Angela Irvine, “Dispelling Myths: Understanding the Incarceration of Lesbian, Gay, Bisexual, and Gender Nonconforming Youth,” Unpublished, (Oakland, CA: National Council on Crime and Delinquency,
2014).
326
Ibid.
327
Joshua Rovner, “Disproportionate Minority Contact in the Juvenile Justice System” (The Sentencing Project, May 2014), http://www.sentencingproject.org/doc/publications/jj_Disproportionate%20
Minority%20Contact.pdf.
328
Ibid.
329
Irvine, “We’ve Had Three of Them.”
330
Irvine, “LGBT Kids in the Prison Pipeline.”
331
Allen J. Beck and Candace Johnson, “Sexual Victimization Reported by Former State Prisoners, 2008” (U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, May 2012),
http://www.bjs.gov/content/pub/pdf/svrfsp08.pdf; Beck et al., “Sexual Victimization in Prisons and Jails Reported by Inmates, 2011–12,” 2011–12.
332
Gates and Newport, “Special Report.”
333
Beck, “Sexual Victimization in Prisons and Jails Reported by Inmates, 2011–12 – Supplemental Tables.”
334
Grant et al., “Injustice at Every Turn: A Report of the National Transgender Discrimination Survey.”
335
Ibid.
336
George R. Brown and Kenneth T. Jones, “Health Correlates of Criminal Justice Involvement in 4,793 Transgender Veterans,” LGBT Health 2, no. 4 (December 2015): 297–305.
337
Sexton, Jenness, and Sumner, “Where the Margins Meet.”
338
Gary J. Gates, “LGBT Adult Immigrants in the United States” (The Williams Institute, March 2013), http://williamsinstitute.law.ucla.edu/wp-content/uploads/LGBTImmigrants-Gates-Mar-2013.pdf.
339
Ibid.
340
Cristina Costantini, Jorge Rivas, and Kristofer Rios, “Why Are Transgender Women Locked up with Men in the Immigration System?,” Fusion, November 19, 2014, http://interactive.fusion.net/trans.
341
“The Government Knows LGBTQ Immigrants Are Often Raped in Detention. It Puts Them There Anyway.,” Vox, accessed August 2, 2015, http://www.vox.com/2015/5/14/8606199/transgenderimmigrant-detention.
342
Jeremy Travis, Bruce Western, and Steve Redburn, The Growth of Incarceration in the United States: Exploring Causes and Consequences (Washington, D.C.: National Academies Press, 2014), http://www.
nap.edu/catalog/18613; “Population Clock,” U.S. Census Bureau, accessed September 17, 2015, http://www.census.gov/popclock.
343
Lauren E. Glaze and Danielle Kaeble, “Correctional Populations in the United States, 2011” (U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, December 2014), http://
www.bjs.gov/content/pub/pdf/cpus13.pdf.
344
David Cloud, “On Life Support: Public Health in the Age of Mass Incarceration” (New York, NY: Vera Institute of Justice, November 2014), http://vera.org/sites/default/files/resources/downloads/onlife-support-public-health-mass-incarceration-report.pdf.
345
Travis, Western, and Redburn, The Growth of Incarceration in the United States.
346
Glaze and Kaeble, “Correctional Populations in the United States, 2011.”
347
Travis, Western, and Redburn, The Growth of Incarceration in the United States.
348
James Stephan and Georgette Walsh, “Census of Jail Facilities, 2006” (U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, December 2011), http://bjs.gov/content/pub/
pdf/cjf06.pdf.
349
Todd D. Minton and Daniela Golinelli, “Jail Inmates at Midyear 2013 - Statistical Tables” (U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, May 2014), http://www.bjs.
gov/content/pub/pdf/jim13st.pdf.
350
Glaze and Kaeble, “Correctional Populations in the United States, 2011.”
351
“BOP: Population Statistics,” U.S. Department of Justice, Federal Bureau of Prisons, accessed September 17, 2015, http://www.bop.gov/about/statistics/population_statistics.jsp.
352
“BOP Statistics: Inmate Offenses,” U.S. Department of Justice, Federal Bureau of Prisons, accessed September 17, 2015, http://www.bop.gov/about/statistics/statistics_inmate_offenses.jsp.
353
James Austin and Garry Coventry, “Emerging Issues on Privatized Prisons” (U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Assistance, February 2001), https://www.ncjrs.gov/
pdffiles1/bja/181249.pdf.
354
Carson, “Prisoners in 2013.”
355
Ibid.
356
Mike Tartaglia, “Private Prisons, Private Records,” Boston University Law Review 94 (2014): 1689–1744.
357
Patrick Griffin et al., “Trying Juveniles as Adults: An Analysis of State Transfer Laws and Reporting” (U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency
Prevention, September 2011), https://www.ncjrs.gov/pdffiles1/ojjdp/232434.pdf.
358
Equal Justice Initiative, “All Children Are Children: Challenging Abusive Punishment of Juveniles,” accessed September 17, 2015, http://www.eji.org/files/AllChildrenAreChildren_0.pdf.
359
Griffin et al., “Trying Juveniles as Adults.”
360
Ibid.
361
Giudi Weiss, “The Fourth Wave: Juvenile Justice Reforms for the Twenty-First Century” (National Campaign to Reform State Juvenile Justice Systems, 2013), http://raisetheageny.com/wp-content/
uploads/2011/08/The-Fourth-Wave.pdf.
362
Melissa Sickmund and Charles Puzzanchera, “Juvenile Offenders and Victims: 2014 National Report” (Pittsburgh, PA: National Center for Juvenile Justice, December 2014), http://www.ojjdp.gov/
ojstatbb/nr2014/downloads/NR2014.pdf.
363
Ibid.
364
U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention, “Public and Private Placement Options, 2011,” April 24, 2014, http://www.ojjdp.gov/
ojstatbb/structure_process/qa04208.asp?qaDate=2011.
365
Juvenile Detention Alternatives Initiative, “Juvenile Detention Facility Assessment: Standards Instrument” (Baltimore, Maryland: The Annie E. Casey Foundation, December 2014), http://www.cclp.
org/documents/Conditions/JDAI%20Detention%20Facility%20Assessment%20Standards.pdf.
366
Richard A. Mendel, “No Place for Kids: The Case for Reducing Juvenile Incarceration.” (Baltimore, Maryland: The Annie E. Casey Foundation, 2011), http://www.aecf.org/m/resourcedoc/aecfNoPlaceForKidsFullReport-2011.pdf.
367
United States Government Accountability Office, “Immigration Detention: Additional Actions Needed to Strengthen Management and Oversight of Facility Costs and Standards,” October 2014, http://
www.gao.gov/assets/670/666467.pdf.
325

153

ENDNOTES

U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, “Detention Facility Locator,” accessed September 17, 2015, https://www.ice.gov/detention-facilities.
United States Government Accountability Office, “Immigration Detention.”
370
Sharita Gruberg, “Dignity Denied: LGBT Immigrants in U.S. Immigration Detention” (Center for American Progress, November 2013), https://www.americanprogress.org/wp-content/uploads/2013/11/
ImmigrationEnforcement.pdf.
371
Isabel Ricupero et al., “Immigration Detention and the Law: U.S. Policy and Legal Framework: A Global Detention Project Working Paper” (Global Detention Project, August 2010), http://www.
globaldetentionproject.org/fileadmin/docs/US_Legal_Profile.pdf.
372
Olga Byrne and Elise Miller, “The Flow of Unaccompanied Children Through the Immigration System: A Resource for Practitioners, Policy Makers, and Researchers” (New York: Vera Institute of Justice,
2012), http://www.vera.org/sites/default/files/resources/downloads/the-flow-of-unaccompanied-children-through-the-immigration-system.pdf.
373
Gruberg, “Dignity Denied: LGBT Immigrants in U.S. Immigration Detention.”
374
Jie Zong and Jeanne Batalova, “Frequently Requested Statistics on Immigrants and Immigration in the United States,” Migration Policy Institute, February 26, 2015, http://www.migrationpolicy.org/
article/frequently-requested-statistics-immigrants-and-immigration-united-states.
375
Gates, “LGBT Adult Immigrants in the United States.”
376
Ibid.
377
Ibid.
378
Ibid.
379
“Unauthorized Immigrants: Who They Are and What the Public Thinks,” Pew Research Center, January 15, 2015, http://www.pewresearch.org/key-data-points/immigration.
380
Ibid.
381
U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, “Consideration of Deferred Action for Childhood Arrivals (DACA),” USCIS, August 3, 2015, http://www.uscis.gov/
videos/consideration-deferred-action-childhood-arrivals-how-apply-or-renew-daca.
382
Max Ehrenfreund, “Your Complete Guide to Obama’s Immigration Executive Action,” The Washington Post, November 20, 2014, https://www.washingtonpost.com/news/wonk/wp/2014/11/19/yourcomplete-guide-to-obamas-immigration-order.
383
U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, “Consideration of Deferred Action for Childhood Arrivals.”
384
Ehrenfreund, “Your Complete Guide to Obama’s Immigration Executive Action.”
385
Barack Obama, “Presidential Memorandum -- Modernizing and Streamlining the U.S. Immigrant Visa System for the 21st Century,” Whitehouse.gov, November 21, 2014, https://www.whitehouse.
gov/the-press-office/2014/11/21/presidential-memorandum-modernizing-and-streamlining-us-immigrant-visa-s; Barack Obama, “Presidential Memorandum -- Creating Welcoming Communities
and Fully Integrating Immigrants and Refugees,” Whitehouse.gov, November 21, 2014, https://www.whitehouse.gov/the-press-office/2014/11/21/presidential-memorandum-creating-welcomingcommunities-and-fully-integra.
386
Ehrenfreund, “Your Complete Guide to Obama’s Immigration Executive Action.”
387
State of Texas, et al .v. United States of America, et al. (U.S. Court of Appeals for the Fifth Circuit 2015).
388
“Training Module: Guidance for Adjudicating Lesbian, Gay, Bisexual, Transgender, and Intersex (LGBTI) Refugee and Asylum Claims,” RAIO Directorate - Officer Training (U.S. Department of Homeland
Security, U.S. Citizenship and Immigration Services, December 28, 2011), http://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Refugees%20%26%20Asylum/Asylum/Asylum%20
Native%20Documents%20and%20Static%20Files/RAIO-Training-March-2012.pdf.
389
David Johnston, “Ruling Backs Homosexuals On Asylum,” The New York Times, June 17, 1994, http://www.nytimes.com/1994/06/17/us/ruling-backs-homosexuals-on-asylum.html.
390
Gretchen Rachel Hammond, “LGBT Immigrants Still Face Hurdles, Part One - Gay Lesbian Bi Trans News Archive - Windy City Times,”Windy City Times, January 14, 2015, http://www.windycitymediagroup.
com/lgbt/LGBT-immigrants-still-face-hurdles-Part-one-/50226.html.
391
Ibid.
392
Brian Jacek and Kristina Hon, “‘At Least Let Them Work’: The Denial of Work Authorization and Assistance for Asylum Seekers in the United States” (Human Rights Watch and Seton Hall University
School of Law Center for Social Justice, Immigrants’ Rights/International Human Rights Clinic, November 2013), http://www.hrw.org/sites/default/files/reports/us1113_asylum_forUPload.pdf.
393
Gary J. Gates, “LGBT Demographics: Comparisons among Population-Based Surveys” (The Williams Institute, October 2014), http://williamsinstitute.law.ucla.edu/wp-content/uploads/lgbt-demogssep-2014.pdf.
394
Jack Harrison-Quintana, Erin Fitzgerald, and Jaime Grant, “Injustice at Every Turn: A Look at American Indian and Alaskan Native Respondents in the National Transgender Discrimination Survey”
(National Center for Transgender Equality and the National Gay and Lesbian Task Force), accessed January 19, 2016, http://www.thetaskforce.org/static_html/downloads/reports/reports/ntds_
native_american_3.pdf.
395
Indian Affairs, “FAQs,” U.S. Department of the Interior, accessed September 17, 2015, http://www.bia.gov/FAQs/index.htm.
396
“Indigenous Justice Systems and Tribal Society, by Ada Pecos Melton,” accessed August 5, 2015, http://www.tribal-institute.org/articles/melton1.htm.
397
Steven W. Perry, “Tribal Crime Data Collection Activities, 2015” (U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, July 2015), http://www.bjs.gov/content/pub/pdf/
tcdca15.pdf.
398
Stewart Wakeling et al., “Policing on American Indian Reservations” (National Institute of Justice, July 2001), https://www.ncjrs.gov/pdffiles1/nij/188095.pdf.
399
“General Rules Criminal Jurisdiction in Indian Country,” accessed August 5, 2015, http://www.tribal-institute.org/lists/jurisdiction.htm.
400
Todd D. Minton, “Jails in Indian Country, 2011,” Bulletin (Bureau of Justice Statistics, September 2012), http://www.bjs.gov/content/pub/pdf/jic11.pdf.
401
Wakeling et al., “Policing on American Indian Reservations.”
402
Perry, “Tribal Crime Data Collection Activities.”
403
Joseph Summerill, “The State of Indian Jails in America,” Corrections Today, February 2005, 64–67.
404
Ibid.
405
Ghandnoosh, “Black Lives Matter.”
406
John D. King, “Beyond ‘Life and Liberty’: The Evolving Right to Counsel,” Harvard Civil Rights-Civil Liberties Law Review 48 (2013), http://harvardcrcl.org/wp-content/uploads/2013/04/King_1-49.pdf.
407
“Overloaded Public Defense Systems Result in More Prison Time, Less Justice,” Justice Policy Institute, July 27, 2011, http://www.justicepolicy.org/news/2757.
408
Laurence A. Benner, “When Excessive Public Defender Workloads Violate the Sixth Amendment Right to Counsel Without a Showing of Prejudice” (Washington, DC: American Constitution Society for
Law and Policy, When Excessive Public Defender Workloads Violate the Sixth Amendment Right to Counsel), https://www.acslaw.org/files/BennerIB_ExcessivePD_Workloads.pdf.
409
“Fact Sheet: Indigent Defense,” U.S. Department of Justice, Office of Justice Programs, December 2011, http://ojp.gov/newsroom/factsheets/ojpfs_indigentdefense.html.
368

ENDNOTES

154

369

Ibid.
Majd, Marksamer, and Reyes, “Hidden Injustice: Lesbian, Gay, Bisexual and Transgender Youth in Juvenile Courts.”
412
Lucas Guttentag and Ahilan Arulanantham, “Extending the Promise of Gideon: Immigration, Deportation, and the Right to Counsel,” Human Rights Magazine, accessed January 20, 2016, http://www.
americanbar.org/publications/human_rights_magazine_home/2013_vol_39/vol_30_no_4_gideon/extending_the_promise_of_gideon.html.
413
Peter L. Markowitz et al., “Accessing Justice: The Availability and Adequacy of Counsel in Immigration Proceedings,” New York Immigrant Representation Study (Cardozo Law Review, December 2011),
http://www.cardozolawreview.com/content/denovo/NYIRS_Report.pdf.
414
Ibid.
415
Ibid.
416
Nina Siulc et al., “Improving Efficiency and Promoting Justice in the Immigration System: Lessons from the Legal Orientation Program” (New York: Vera Institute of Justice, May 2008), http://www.
vera.org/sites/default/files/resources/downloads/LOP_Evaluation_May2008_final.pdf.
417
Louisiana Youth Justice Coalition, “Providing Legal Counsel for Children in Juvenile Prisons,” Louisiana Center for Children’s Rights, accessed January 20, 2016, http://www.laccr.org/youth-justice/
work/?jjpl_program=3503.
418
Travis, Western, and Redburn, The Growth of Incarceration in the United States.
419
Ibid.
420
Ghandnoosh, “Black Lives Matter.”
421
Lydon et al., “Coming Out of Concrete Closets: A Report on Black & Pink’s National LGBTQ Prisoner Survey.”
422
Ghandnoosh, “Black Lives Matter.”
423
Michael R. Jones, “Unsecured Bonds: The as Effective and Most Efficient Pretrial Release Option” (Washington, D.C.: Pretrial Justice Institute, October 2013), http://www.pretrial.org/download/
research/Unsecured%20Bonds,%20The%20As%20Effective%20and%20Most%20Efficient%20Pretrial%20Release%20Option%20-%20Jones%202013.pdf.
424
Randi Feinstein et al., “Justice for All? A Report on Lesbian, Gay, Bisexual and Transgendered [sic] Youth in the New York Juvenile Justice System.” (Urban Justice Center, 2001), https://www.
prisonlegalnews.org/media/publications/urban_justice_center_lesbian_and_gay_youth_project_report_on_lgbt_youth_in_the_juvenile_justice_system_2001.pdf.
425
Ganzhorn, Curtis, and Kues, “Listening to Their Voices.”
426
Daniel Redman, “‘I Was Scared to Sleep’: LGBT Youth Face Violence Behind Bars,”The Nation, June 21, 2010, http://www.thenation.com/article/i-was-scared-sleep-lgbt-youth-face-violence-behind-bars.
427
Legal Services for Children, National Center for Lesbian Rights, and National Juvenile Defender Center, “The Equity Project,” September 2008, http://www.jdaihelpdesk.org/intersiteconf2008/
LGBT%20The%20Equity%20Project.pdf.
428
Redman, “‘I Was Scared to Sleep.’”
429
Mariame Kaba, “Juvenile Justice in Illinois: A Data Snapshot” (Project Nia, April 2014), https://chiyouthjustice.files.wordpress.com/2014/04/juvenile_justice_in_illinois.pdf.
430
Ibid.
431
U.S. Immigration and Customs Enforcement, “Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture,” December 8, 2009, http://www.ice.gov/doclib/detention-reform/pdf/credible-fear.pdf.
432
Sharita Gruberg and Rachel West, “Humanitarian Diplomacy: The U.S. Asylum System’s Role in Protecting Global LGBT Rights” (Center for American Progress, June 2015), https://cdn.americanprogress.
org/wp-content/uploads/2015/06/LGBTAsylum-final.pdf.
433
Ibid.
434
Amelia Craig Cramer and Amy Todd, “Sexual Orientation Bias in Arizona’s Legal System,” Arizona Attorney, October 2000.
435
Ibid.
436
Ibid.
437
Ibid.
438
“Sexual Orientation Fairness in the California Courts: Final Report of the Sexual Orientation Fairness Committee of the Judicial Council’s Access and Fairness Advisory Committee,” January 2001, http://
www.courts.ca.gov/documents/sexualorient_report.pdf.
439
“State of New York vs. Williams, Amici Curiae Brief, New York Court of Appeals, Center for HIV Law and Policy, 2014,” The Center for HIV Law and Policy, December 2014, http://www.hivlawandpolicy.
org/resources/state-new-york-vs-williams-amici-curiae-brief-new-york-court-appeals-center-hiv-law-and.
440
“People v. Williams, Memorandum and Order (N.Y. App. Div. Nov. 15, 2013),” The Center for HIV Law and Policy, November 2013, http://www.hivlawandpolicy.org/resources/people-v-williamsmemorandum-and-order-ny-app-div-nov-15-2013.
441
Zack Ford, “Oklahoma Appeals Court Overturns Judge That Rejected Name Changes For Transgender Women,” ThinkProgress, March 27, 2014, http://thinkprogress.org/lgbt/2014/03/27/3420064/
oklahoma-transgender-name-changes.
442
Ibid.
443
Robert W. Black, “Wyo. Judge Bars ‘Gay Panic’ Defense,” The Washington Post, November 1, 1991, http://www.washingtonpost.com/wp-srv/national/daily/nov99/shepard110199.htm.
444
Parker Marie Molloy, “California Becomes First State to Ban Gay, Trans ‘Panic’ Defenses,” The Advocate, September 29, 2014, http://www.advocate.com/crime/2014/09/29/california-becomes-firststate-ban-gay-trans-panic-defenses; Bonilla, An Act to Amend Section 192 of the Penal Code, Relating to Manslaughter, 2014, http://www.leginfo.ca.gov/pub/13-14/bill/asm/ab_2501-2550/
ab_2501_bill_20140927_chaptered.html.
445
ABA Commission on Sexual Orientation and Gender Identity, “ABA Policies Related to Issues of Sexual Orientation and Gender Identity” (American Bar Association, December 2014), http://www.
americanbar.org/content/dam/aba/administrative/sexual_orientation/2014_policies_related_to_issues_of_sexual_orientation_and_gender_identity_dec_2014.authcheckdam.pdf.
446
Joey L. Mogul, Andrea J. Ritchie, and Kay Whitlock, Queer (In)Justice, Queer Action/Queer Ideas (Boston, MA: Beacon Press, 2011) citing Richard Goldstein, “Queer on Death Row,” The Village Voice,
March 13, 2001, http://www.villagevoice.com/news/queer-on-death-row-6416093.
447
“Sexual Orientation Evidence Under The FRE 403 Balance,” Federal Evidence Review, February 19, 2014, http://federalevidence.com/blog/2014/february/sexual-orientation-evidence-fre-403-balance.
448
Dank et al., “Locked In.”
449
“Matter of Lopez (Board of Immigration Appeals 2013),” The Center for HIV Law and Policy, August 2013, http://hivlawandpolicy.org/resources/matter-lopez-board-immigration-appeals-2013.
450
Ibid.
451
Sonja B. Starr and M. Marit Rehavi, “Mandatory Sentencing and Racial Disparity: Assessing the Role of Prosecutors and the Effects of Booker,” The Yale Law Journal 123, no. 2 (2013): 2–80; Charles
Crawford, Ted Chiricos, and Gary Kleck, “Race, Racial Threat, and Sentencing of Habitual Offenders,” Criminology 36, no. 3 (August 1, 1998): 481–512, doi:10.1111/j.1745-9125.1998.tb01256.x.
452
Alexes Harris and Katherine Beckett, “Racial Disparities in Criminal Justice,” accessed January 19, 2016, http://www.law.seattleu.edu/Documents/korematsu/race%20and%20criminal%20justice/
Harris_Becket_Sup_Ct_3-2-11[1].pdf.
410
411

155

ENDNOTES

Written Submission of the American Civil Liberties Union on Racial Disparities in Sentencing Hearing on Reports of Racism in the Justice System of the United States (ACLU Foundation, 2014), https://www.
aclu.org/sites/default/files/assets/141027_iachr_racial_disparities_aclu_submission_0.pdf.
454
Darrell Steffensmeier and Stephen Demuth, “Ethnicity and Sentencing Outcomes in U.S. Federal Courts: Who Is Punished More Harshly?,” American Sociological Review 65, no. 5 (October 2000):
705, doi:10.2307/2657543; Darrell J. Steffensmeier and Stephen Demuth, “Ethnicity and Judges’ Sentencing Decisions: Hispanic-Black-White Comparisons,” Criminology 39, no. 1 (2006): 145–78,
doi:10.1111/j.1745-9125.2001.tb00919.x; Cassia C. Spohn, “Thirty Years of Sentencing Reform: The Quest for a Racially Neutral Sentencing Process,” Criminal Justice 3 (2000): 427–501.
455
Michael T. Light, Michael Massoglia, and Ryan D. King, “Citizenship and Punishment: The Salience of National Membership in US Criminal Courts,” American Sociological Review 79, no. 5 (2014): 825–47.
456
Travis, Western, and Redburn, The Growth of Incarceration in the United States; The Sentencing Project, “Report of The Sentencing Project to the United Nations Human Rights Committee: Regarding
Racial Disparities in the United States Criminal Justice System” (Washington, D.C., August 2013), http://www.sentencingproject.org/doc/publications/rd_ICCPR%20Race%20and%20Justice%20
Shadow%20Report.pdf.
457
Children’s Defense Fund, “The State of America’s Children,” 2014, http://www.childrensdefense.org/library/state-of-americas-children.
458
Sickmund and Puzzanchera, “Juvenile Offenders and Victims.”
459
Francine T. Sherman, “Detention Reform and Girls: Challenges and Solutions” (Baltimore, Maryland: The Annie E. Casey Foundation, 2005), http://www.aecf.org/m/resourcedoc/AECFDetentionReformAndGirls-2005.pdf.
460
Jessica R. Kendall and Catherine Hawke, “Juvenile Status Offenses: Treatment and Early Intervention” (American Bar Association, Division for Public Education, 2007), http://www.americanbar.org/
content/dam/aba/migrated/publiced/tab29.authcheckdam.pdf.
461
Amanda Petteruti et al., “The Costs of Confinement: Why Good Juvenile Justice Policies Make Good Fiscal Sense” (Justice Policy Institute, May 2009), http://www.justicepolicy.org/uploads/justicepolicy/
documents/09_05_rep_costsofconfinement_jj_ps.pdf.
462
Ganzhorn, Curtis, and Kues, “Listening to Their Voices.”
463
Equal Justice Initiative, “Illegal Racial Discrimination in Jury Selection: A Continuing Legacy,” August 2010, http://www.eji.org/files/EJI%20Race%20and%20Jury%20Report.pdf.
464
Ursula Noye, “Blackstrikes: A Study of the Racially Disparate Use of Peremptory Challenges by the Caddo Parish District Attorney’s Office” (Reprieve Australia, August 2015), https://blackstrikes.com/
resources/Blackstrikes_Caddo_Parish_August_2015.pdf.
465
“A Jury of Your Peers – The Right to a Jury Trial Free from Discrimination,” American Civil Liberties Union, accessed January 19, 2016, https://www.aclu.org/blog/jury-your-peers-right-jury-trial-free-discrimination.
466
Carter v. Duncan (U.S. District Court, N.D. California 2005).
467
Adam Liptak, “Sexual Orientation Is No Basis for Jury Exclusion, a Federal Appeals Court Rules,” The New York Times, January 21, 2014, http://www.nytimes.com/2014/01/22/us/sexual-orientationis-no-basis-for-jury-exclusion-a-federal-appeals-court-rules.html?_r=0.
468
Office of the Attorney General, “Guidance on Application of Batson v. Kentucky to Juror Strikes Based on Sexual Orientation,” November 14, 2012, http://cdn.ca9.uscourts.gov/datastore/
general/2013/09/12/11-17357_Document.pdf.
469
“California AB87 | 2015-2016 | Regular Session,” LegiScan, accessed August 2, 2015, https://legiscan.com/CA/drafts/AB87/2015.
470
“United States of America: Death by Discrimination - the Continuing Role of Race in Capital Cases” (Amnesty International, April 2003), http://static.prisonpolicy.org/scans/amr510462003en.pdf.
471
Ibid.
472
Glaze and Kaeble, “Correctional Populations in the United States, 2011.”
473
“Residential Facilities: Improved Data and Enhanced Oversight Would Help Safeguard the Well-Being of Youth with Behavioral and Emotional Challenges,” GAO-08-346 (United States Government
Accountability Office, May 2008), http://www.gao.gov/assets/280/275275.pdf.
474
Travis, Western, and Redburn, The Growth of Incarceration in the United States.
475
Ibid.
476
“Justice Department Releases Final Rule to Prevent, Detect and Respond to Prison Rape,” U.S. Department of Justice, May 17, 2012, http://www.justice.gov/opa/pr/justice-department-releases-finalrule-prevent-detect-and-respond-prison-rape.
477
James Markham, “The Prison Rape Elimination Act and Its Impact on County Jails,” Coates’ Canons: NC Local Government Law, June 17, 2013, http://canons.sog.unc.edu/?p=7161.
478
“FY 2015 List of Certification and Assurance Submissions” (U.S. Department of Justice, Bureau of Justice Assistance, June 29, 2015), https://www.bja.gov/Programs/15PREA-AssurancesCertifications.pdf.
479
Ibid.
480
Sarah Duis, “Despite Indiana’s Stance, Elkhart County Jail Complies with Federal PREA Standards,” The Elkhart Truth, June 20, 2014, http://jailtraining.org/node/2339.
481
“Residential Facilities: Improved Data and Enhanced Oversight Would Help Safeguard the Well-Being of Youth with Behavioral and Emotional Challenges.”
482
Act 4 Juvenile Justice, “What Is the JJDPA?,” ACT4JJ, accessed September 17, 2015, http://act4jj.org/what-jjdpa.
483
U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention, “Public and Private Placement Options, 2011.”
484
“Standards To Prevent, Detect, and Respond to Sexual Abuse and Assault in Confinement Facilities; Final Rule,” Federal Register 79, no. 45 (March 7, 2014), https://www.gpo.gov/fdsys/pkg/FR-201403-07/pdf/2014-04675.pdf.
485
“ICE Detention Standards,” accessed August 4, 2015, http://www.ice.gov/factsheets/facilities-pbnds; “Office of Detention Policy and Planning (ODPP),” accessed August 4, 2015, http://www.ice.gov/
leadership/odpp.
486
United States Government Accountability Office, “Immigration Detention.”
487
Allen J. Beck, “Use Of Restrictive Housing In U.S. Prisons And Jails, 2011–12” (Bureau of Justice Statistics, October 23, 2015), http://www.bjs.gov/index.cfm?ty=pbdetail&iid=5433.
488
Lydon et al., “Coming Out of Concrete Closets: A Report on Black & Pink’s National LGBTQ Prisoner Survey.”
489
“Representing Lesbian, Gay, Bisexual, Transgender, Queer, or Questioning (LGBTQ) Youth in Juvenile Court” (Office of the Juvenile Defender, April 2011), http://www.ncids.org/JuvenileDefender/
Guides/LGBTQ_Guide.pdf.
490
Ibid.
491
Rudy Estrada and Jody Marksamer, “The Legal Rights of LGBT Youth in State Custody: What Child Welfare and Juvenile Justice Professionals Need to Know” (Child Welfare League of America, 2006),
http://hivlawandpolicy.org/sites/www.hivlawandpolicy.org/files/estrada--legal%20rights%20of%20lgbt%20youth%20in%20state%20custody.pdf.
492
Fatos Kaba et al., “Solitary Confinement and Risk of Self-Harm among Jail Inmates,” American Journal of Public Health 104, no. 3 (March 2014): 442–47, doi:10.2105/AJPH.2013.301742; Sarah Bergen
et al., “Toward Equity: A Training Curriculum for Understanding Sexual Orientation, Gender Identity, and Gender Expression, and Developing Competency to Serve LGBT Youth in the Juvenile Justice
System” (The Equity Project, 2015), http://www.equityproject.org/wp-content/uploads/2015/01/Equity_Curriculum_Complete.pdf.
493
Kaba et al., “Solitary Confinement and Risk of Self-Harm among Jail Inmates.”
494
“Report and Recommendations Concerning the Use of Restrictive Housing,”U.S. Department of Justice, Office of the Deputy Attorney General, January 27, 2016, http://www.justice.gov/restrictivehousing.
453

ENDNOTES

156

Sexton, Jenness, and Sumner, “Where the Margins Meet.”
Bassichis, “‘It’s War in Here’: A Report on the Treatment of Transgender and Intersex People in New York State Men’s Prisons.”
497
Ibid.
498
“A Quick Guide for LGBTI Policy Development for Youth Confinement Facilities” (U.S. Department of Justice, National Institute of Corrections, November 2012), https://s3.amazonaws.com/static.nicic.
gov/Library/026701.pdf.
499
Gruberg, “Dignity Denied.”
500
Ibid.
501
Thom Senzee, “Women Are Still Locked in Immigration Detention Cells With Men Just Because They’re Trans,” The Advocate, May 25, 2015, http://www.advocate.com/world/2015/05/25/women-arestill-locked-immigration-detention-cells-men-just-because-theyre-trans.
502
Gruberg, “Dignity Denied.”
503
“Immigration Detention: Additional Actions Could Strengthen DHS Efforts to Address Sexual Abuse,” GAO-14-38 (United States Government Accountability Office, November 2013), http://www.gao.
gov/assets/660/659145.pdf.
504
Glaze and Kaeble, “Correctional Populations in the United States, 2011.”
505
U.S. Immigration and Customs Enforcement, “Further Guidance Regarding the Care of Transgender Detainees,” June 19, 2015, https://www.ice.gov/sites/default/files/documents/Document/2015/
TransgenderCareMemorandum.pdf.
506
Andy Humm, “Exclusive: Rikers Ready With Housing Unit for Some Trans Inmates,” Gay City News, November 18, 2014, http://gaycitynews.nyc/exclusive-rikers-trans-housing.
507
“Know Your Rights: Laws, Court Decisions, and Advocacy Tips to Protect Transgender Prisoners” (ACLU and National Center for Lesbian Rights, December 1, 2014), http://www.nclrights.org/wpcontent/uploads/2014/12/KnowYourRights_GuidetoProtectTransgenderPrisoners.pdf.
508
Lydon et al., “Coming Out of Concrete Closets: A Report on Black & Pink’s National LGBTQ Prisoner Survey.”
509
Bassichis, “‘It’s War in Here’: A Report on the Treatment of Transgender and Intersex People in New York State Men’s Prisons.”
510
Beck et al., “Sexual Victimization in Prisons and Jails Reported by Inmates, 2011–12.”
511
Beck, “Sexual Victimization in Prisons and Jails Reported by Inmates, 2011–12 – Supplemental Tables.”
512
Valerie Jenness, “Transgender Inmates in California’s Prisons: An Empirical Study of a Vulnerable Population,” April 8, 2009, http://ucicorrections.seweb.uci.edu/files/2013/06/Transgender-Inmatesin-CAs-Prisons-An-Empirical-Study-of-a-Vulnerable-Population.pdf.
513
“State of the Prisons: Conditions of Confinement in 25 New York Correctional Facilities” (The Correctional Association of New York, June 2002), http://static.prisonpolicy.org/scans/State_of_the_Prisons.pdf.
514
Bergen et al., “Toward Equity.”
515
Beck, “Use Of Restrictive Housing In U.S. Prisons And Jails, 2011–12.”
516
Sickmund and Puzzanchera, “Juvenile Offenders and Victims.”
517
Beck, Paige M. Harrison, and Paul Guerino, “Sexual Victimization in Juvenile Facilities Reported by Youth, 2008–09.”
518
Bergen et al., “Toward Equity.”
519
Ibid.
520
Thom Senzee, “Meet the New Faces of LGBT Juvenile Corrections,” Washington Blade, November 6, 2013, http://www.washingtonblade.com/2013/11/06/meet-new-faces-lgbt-juvenile-corrections.
521
Santa Clara County Probation Department, “Juvenile Lesbian Gay Bisexual and Transgender Policy,” Juvenile Lesbian Gay Bisexual and Transgender Policy, http://www.prearesourcecenter.org/sites/
default/files/content/scc-lgbt_departmental_policy_0.pdf.
522
“Immigration Detention: Additional Actions Could Strengthen DHS Efforts to Address Sexual Abuse.”
523
Wendy Cervantes et al., “The Heart of the Matter: Women, Children and the Way Forward on Immigration Policy” (We Belong Together in partnership with First Focus and Instituto para las Mujeres en
la Migración, January 2015), http://www.webelongtogether.org/sites/default/files/The%20Heart%20of%20the%20Matter.pdf.
524
Bassichis, “‘It’s War in Here’: A Report on the Treatment of Transgender and Intersex People in New York State Men’s Prisons.”
525
Stephanie C. Boddie et al., “Religion in Prisons: A 50-State Survey of Prison Chaplains” (Washington, D.C.: Pew Research Center’s Forum on Religion & Public Life, March 22, 2012), http://static.
prisonpolicy.org/scans/ReligionInPrisons.pdf.
526
Beck and Johnson, “Sexual Victimization Reported by Former State Prisoners, 2008.”
527
Beck et al., “Sexual Victimization in Prisons and Jails Reported by Inmates, 2011–12.”
528
Bassichis, “‘It’s War in Here’: A Report on the Treatment of Transgender and Intersex People in New York State Men’s Prisons.”
529
Beck, “Sexual Victimization in Prisons and Jails Reported by Inmates, 2011–12 – Supplemental Tables.”
530
Jenness, “Transgender Inmates in California’s Prisons: An Empirical Study of a Vulnerable Population.”
531
Lori Sexton, Valerie Jenness, and Jennifer Macy Sumner, “Where the Margins Meet: A Demographic Assessment of Transgender Inmates in Men’s Prisons,” Justice Quarterly 27, no. 6 (2010): 835–66.
532
Malika Saada Saar et al., “The Sexual Abuse to Prison Pipeline: The Girls’ Story” (Human Rights Project for Girls, Georgetown Law Center on Poverty and Inequality, and Ms. Foundation for Women,
2015), http://rights4girls.org/wp-content/uploads/r4g/2015/02/2015_COP_sexual-abuse_layout_web-1.pdf.
533
Shannan Wilber, “Lesbian, Gay, Bisexual and Transgender Youth in the Juvenile Justice System,” A Guide to Juvenile Detention Reform (Juvenile Detention Alternatives Initiative, The Annie E. Casey
Foundation, 2015), http://www.nclrights.org/wp-content/uploads/2015/09/AECF_LGBTinJJS_FINAL2.pdf; Estrada and Marksamer, “The Legal Rights of LGBT Youth in State Custody: What Child
Welfare and Juvenile Justice Professionals Need to Know.”
534
Sickmund and Puzzanchera, “Juvenile Offenders and Victims.”
535
“Fact Sheet: Understanding the BJS Study of Sexual Victimization in Juvenile Facilities” (Center for Children’s Law and Policy, April 12, 2010), http://www.cclp.org/documents/Conditions/Fact%20
Sheet%20--%202010%20BJS%20Sexual%20Victimization%20Study.pdf.
536
Redman, “‘I Was Scared to Sleep.’”
537
Beck, Paige M. Harrison, and Paul Guerino, “Sexual Victimization in Juvenile Facilities Reported by Youth, 2008–09.”
538
Equal Justice Initiative, “All Children Are Children.”
539
Gruberg, “Dignity Denied.”
540
Costantini, Rivas, and Rios, “Why Are Transgender Women Locked up with Men in the Immigration System?”
495
496

157

ENDNOTES

Jane L. Ireland, “Distinguishing the Perpetrators and Victims of Bullying Behaviour in a Prison Environment: A Study of Male and Female Adult Prisoners,” Legal and Criminological Psychology 6, no. 2
(September 1, 2001): 229–46, doi:10.1348/135532501168307.
542
Shelley Johnson Listwan, Dena Hanley, and Mark Colvin, “The Prison Experience and Reentry: Examining the Impact of Victimization on Coming Home,” Final Report (U.S. Department of Justice, March
2012), https://www.ncjrs.gov/pdffiles1/nij/grants/238083.pdf.
543
Ibid.
544
Ibid.
545
Travis, Western, and Redburn, The Growth of Incarceration in the United States.
546
Ibid.
547
Ibid.
548
Matt Ford, “America’s Largest Mental Hospital Is a Jail,” The Atlantic, June 8, 2015, http://www.theatlantic.com/politics/archive/2015/06/americas-largest-mental-hospital-is-a-jail/395012.
549
Weiss, “The Fourth Wave.”
550
Cloud, “On Life Support.”
551
Catherine A. Gallagher and Adam Dobrin, “Can Juvenile Justice Detention Facilities Meet the Call of the American Academy of Pediatrics and National Commission on Correctional Health Care? A
National Analysis of Current Practices,” Pediatrics 119, no. 4 (April 2007): e991–1001, doi:10.1542/peds.2006-0959.
552
Committee on Adolescence, “Health Care for Youth in the Juvenile Justice System,” Pediatrics 128, no. 6 (December 1, 2011): 1219–35, doi:10.1542/peds.2011-1757.
553
Travis, Western, and Redburn, The Growth of Incarceration in the United States; Estelle v. Gamble, 429 U.S. 97 (U.S. Supreme Court 1976).
554
Cloud, “On Life Support.”
555
Lydon et al., “Coming Out of Concrete Closets: A Report on Black & Pink’s National LGBTQ Prisoner Survey.”
556
Chad Kinsella, “Corrections Health Care Costs” (The Council of State Governments, January 2004), http://www.prisonpolicy.org/scans/csg/Corrections+Health+Care+Costs+1-21-04.pdf.
557
Movement Advancement Project, “Paying an Unfair Price.”
558
Brenda V. Smith et al., “Policy Review and Development Guide: Lesbian, Gay, Bisexual, Transgender, and Intersex Persons in Custodial Settings” (U.S. Department of Justice, National Institute of
Corrections, August 2013), https://s3.amazonaws.com/static.nicic.gov/Library/027507.pdf.
559
Tina Chiu, “It’s About Time: Aging Prisoners, Increasing Costs, and Geriatric Release” (New York: Vera Institute of Justice, April 2010), http://www.vera.org/sites/default/files/resources/downloads/
Its-about-time-aging-prisoners-increasing-costs-and-geriatric-release.pdf.
560
Osborne Association, “The High Costs of Low Risk: The Crisis of America’s Aging Prison Population” (The Florence V. Burden Foundation, July 2014), http://www.osborneny.org/images/uploads/
printMedia/Osborne_Aging_WhitePaper.pdf.
561
Ibid.
562
Inimai M. Chettiar, W. C. Bunting, and Geoffrey Schotter, “At America’s Expense: The Mass Incarceration of the Elderly” (American Civil Liberties Union, June 2012), https://www.aclu.org/files/assets/
elderlyprisonreport_20120613_1.pdf.
563
Chiu, “It’s About Time.”
564
Ibid.
565
Center for Health and Justice, “Prison Drug Treatment Remains Sparse; Females Likelier to Access It,” Facts on Justice (Chicago, Illinois: Treatment Alternatives for Safe Communities, 2012), http://
www.centerforhealthandjustice.org/FOJ%2012-12.pdf.
566
The National Center on Addiction and Substance Abuse, “Behind Bars II: Substance Abuse and America’s Prison Population” (New York, NY: Columbia University, n.d.), http://www.casacolumbia.org/
download/file/fid/487.
567
California Department of Corrections and Rehabilitation, “2012 Outcome Evaluation Report” (Sacramento: CDCR Office of Research, October 2012), http://www.cdcr.ca.gov/adult_research_branch/
Research_Documents/ARB_FY_0708_Recidivism_Report_10.23.12.pdf.
568
The National Center on Addiction and Substance Abuse, “Behind Bars II.”
569
Amy Nunn et al., “Methadone and Buprenorphine Prescribing and Referral Practices in US Prison Systems: Results from a Nationwide Survey,” The Growth of Incarceration in the United StatesDrug and
Alcohol Dependence 105, no. 1–2 (November 1, 2009): 83–88, doi:10.1016/j.drugalcdep.2009.06.015.
570
Jamie Fellner, “Callous and Cruel: Use of Force against Inmates with Mental Disabilities in US Jails and Prisons” (Human Rights Watch, May 12, 2015), https://www.hrw.org/report/2015/05/12/
callous-and-cruel/use-force-against-inmates-mental-disabilities-us-jails-and.
571
Treatment Advocacy Center, “The Treatment of Persons with Mental Illness in Prisons and Jails: A State Survey” (Treatment Advocacy Center and National Sheriffs’ Association, April 8, 2014), http://
tacreports.org/storage/documents/treatment-behind-bars/treatment-behind-bars.pdf.
572
Fellner, “Callous and Cruel.”
573
Margaret Noonan, Harley Rohlof, and Scott Ginder, “Mortality in Local Jails and State Prisons, 2000–2013 - Statistical Tables” (U.S. Department of Justice, Office of Justice Programs, Bureau of Justice
Statistics, August 2015), http://www.bjs.gov/content/pub/pdf/mljsp0013st.pdf.
574
Travis, Western, and Redburn, The Growth of Incarceration in the United States.
575
“A Quick Guide for LGBTI Policy Development for Youth Confinement Facilities.”
576
Meredith Rodriguez, “Long-Troubled Cook County Juvenile Detention Center Gets New Leader,” Chicago Tribune, February 5, 2015, http://www.chicagotribune.com/news/ct-juvenile-detentioncenter-new-superintendent-met-20150205-story.html.
577
Earl Dunlap, “Cook County Juvenile Temporary Detention Center Policy #11.10: Lesbian, Gay, Bisexual, Transgender, Questioning, Intersex (LGBTQI) Residents,” February 11, 2013, http://www.
equityproject.org/wp-content/uploads/2014/12/11-10-LGBTQI.pdf.
578
Sammy Caiola, “Stroger LGBT Clinic to Serve Detained Youth,” News - 13th Cook County Board District Commissioner Larry Suffredin, June 5, 2013, http://www.suffredin.org/news/newsitem.
asp?newsitemid=5826.
579
“Public Version of Complaint to Office of Civil Rights and Civil Liberties, Department of Homeland Security” (American Immigration Lawyers Association, American Immigration Council, Catholic Legal
Immigration Network, Inc., Immigration Justice Corps, Refugee and Immigrant Center for Education and Legal Services, Women’s Refugee Commission, July 30, 2015), http://www.aila.org/advomedia/press-releases/2015/deplorable-medical-treatment-at-fam-detention-ctrs/public-version-of-complaint-to-crcl.
580
“HIV Among Incarcerated Populations,” Centers for Disease Control and Prevention, July 22, 2015, http://www.cdc.gov/hiv/group/correctional.html.
581
Sarah E Wakeman and Josiah D Rich, “HIV Treatment in US Prisons,” HIV Therapy 4, no. 4 (September 3, 2010): 505–10.
582
“HIV Among Incarcerated Populations.”
541

ENDNOTES

158

Ibid.
“HIV in U.S. Jails and Prisons: Building a National Dialogue for Change” (GMHC), accessed January 19, 2016, http://www.gmhc.org/files/editor/file/a_pa_prison_report0511(1).pdf.
585
Sexton, Jenness, and Sumner, “Where the Margins Meet.”
586
Travis, Western, and Redburn, The Growth of Incarceration in the United States.
587
Ibid.
588
Wakeman and Rich, “HIV Treatment in US Prisons.”
589
Ibid.
590
“HIV in U.S. Jails and Prisons: Building a National Dialogue for Change.”
591
Brenda V. Smith et al., “Policy Review and Development Guide.”
592
Jonathan Saltzman, “Mass. Inmates Sue over New Rules on HIV Medication,” Boston.com, November 22, 2010, http://www.boston.com/news/local/massachusetts/articles/2010/11/22/inmates_
sue_over_hiv_drug_rule_change.
593
“Prisoners with HIV/AIDS,” Americans for Effective Law Enforcement Monthly Law Journal 301, no. 2 (2014), http://nicic.gov/library/027943.
594
Ibid.
595
Ralf Jurgens, “Interventions to Address HIV in Prisons: HIV Care, Treatment and Support,” Evidence for Action Technical Papers (World Health Organization, 2007).
596
Wakeman and Rich, “HIV Treatment in US Prisons.”
597
Costantini, Rivas, and Rios, “Why Are Transgender Women Locked up with Men in the Immigration System?”; Brianna Lee, “Immigration Reform: Transgender Immigrants Skeptical Of New Detention
Guidelines Designed To Protect Them,” International Business Times, July 9, 2015, http://www.ibtimes.com/immigration-reform-transgender-immigrants-skeptical-new-detention-guidelinesdesigned-2000057.
598
George R. Brown, “Qualitative Analysis of Transgender Inmates’ Correspondence: Implications for Departments of Correction,” Journal of Correctional Health Care: The Official Journal of the National
Commission on Correctional Health Care 20, no. 4 (October 2014): 334–42, doi:10.1177/1078345814541533.
599
Mohamed Jaffer et al., “Improving Transgender Healthcare in the New York City Correctional System,” LGBT Health, January 8, 2016, doi:10.1089/lgbt.2015.0050.
600
“Know Your Rights: Laws, Court Decisions, and Advocacy Tips to Protect Transgender Prisoners.”
601
Ibid.
602
U.S. Department of Justice, Federal Bureau of Prisons, “Memorandum for Chief Executive Officers, Subject: Gender Identity Disorder Evaluation and Treatment,” May 31, 2011, http://hunterforjustice.
typepad.com/files/bop-policy.pdf.
603
“Fact Sheet: Gender Dysphoria” (American Psychiatric Association), accessed January 27, 2016, http://www.dsm5.org/documents/gender%20dysphoria%20fact%20sheet.pdf.
604
Sexton, Jenness, and Sumner, “Where the Margins Meet.”
605
“Calif. Sets Standards for Trans Inmates,” Washington Blade, October 23, 2015, http://www.washingtonblade.com/2015/10/23/calif-sets-standards-for-trans-inmates.
606
Fields v. Smith (7th Cir. 2011).
607
Ibid.
608
“Administrative Directive: Evaluations of Offenders with Gender Identity Disorders” (Illinois Department of Corrections, May 1, 2013), http://tjlp.org/wp-content/uploads/2013/04/IDOC-Policy-onTransgender-Prisoners-download.pdf.
609
Majd, Marksamer, and Reyes, “Hidden Injustice: Lesbian, Gay, Bisexual and Transgender Youth in Juvenile Courts.”
610
Gruberg, “Dignity Denied.”
611
Bassichis, “‘It’s War in Here’: A Report on the Treatment of Transgender and Intersex People in New York State Men’s Prisons.”
612
Norsworthy v. Beard et al (N.D. Cal. 2005).
613
Bassichis, “‘It’s War in Here’: A Report on the Treatment of Transgender and Intersex People in New York State Men’s Prisons.”
614
“Still We Rise - Prison Resource Guide,” TGI Justice, accessed January 19, 2016, http://www.tgijp.org/still-we-rise---prison-resource-guide.html.
615
Murray D. Scheel and Claire Eustace, “Model Protocols on the Treatment of Transgender Persons by San Francisco County Jail” (National Lawyers Guild and City & County of San Francisco Human Rights
Commission, August 7, 2002), https://www.prisonlegalnews.org/media/publications/model_protocols_on_the_treatment_of_transgender_persons_by_san_francisco_county_jail_nlg_and_
city_and_county_of_san_francisco_hrc_2002.pdf.pdf.
616
Calif. Sets Standards for Trans Inmates.
617
“Still We Rise - Prison Resource Guide.”
618
“SRLP Victory: Appellate Court Upholds the Right of Incarcerated Transgender People to Have Name Changed,” Sylvia Rivera Law Project, May 31, 2012, http://srlp.org/srlp-victory-appellate-courtupholds-the-right-of-incarcerated-transgender-people-to-have-name-changed.
619
Jonathan Starkey, “Del. OKs Bill Allowing Name Change for Transgender Inmates,” USA Today, June 16, 2015, http://www.usatoday.com/story/news/nation/2015/06/16/del-oks-bill-allowingtransgender-inmates-change-names/28842665.
620
“Transgender and Gender-Variant Inmates” (Denver Sheriff Department, Office of the Director of Corrections/Undersheriff, June 2012), https://s3.amazonaws.com/static.nicic.gov/Library/026337.pdf.
621
“General Policy Manual, Chapter Six, Inmate Classification and Discipline: 6.03.007 Transgender Inmates” (King County, Department of Adult and Juvenile Detention, August 31, 2006), https://www.
aclu.org/sites/default/files/images/asset_upload_file70_27801.pdf.
622
Aly Van Dyke, “Shawnee County Jail Works to Improve Conditions for Transgender Inmates,” The Topeka Capital-Journal, December 19, 2013, http://cjonline.com/news/2013-12-29/shawnee-countyjail-works-improve-conditions-transgender-inmates.
623
John Knight, “Making Jails Safer for Transgender Mainers,” American Civil Liberties Union, August 2, 2010, https://www.aclu.org/blog/making-jails-safer-transgender-mainers.
624
James Queally, “San Francisco Jails to House Transgender Inmates Based on Gender Preference,” The Los Angeles Times, September 10, 2015, http://www.latimes.com/local/lanow/la-me-lntransgender-san-francisco-jails-20150910-story.html.https://movementadvancementpro.sharepoint.com/Shared Documents/2-Strategy_Reports/Criminal_Justice_(2015)/James Queally,https://
movementadvancementpro.sharepoint.com/Shared Documents/2-Strategy_Reports/Criminal_Justice_(2015)/James Queally,
625
“Violations of Articles 1, 2 and 5 of the International Convention on the Elimination of All Forms of Racial Discrimination in U.S. Prisons: A Response to the Periodic Report of the United States of
America April 2007” (Prison Policy Initiative, October 2007), http://www.prisonpolicy.org/reports/CERD_Prison_Report.pdf.
626
Travis, Western, and Redburn, The Growth of Incarceration in the United States.
583
584

159

ENDNOTES

Nick Anderson, “Feds Announce New Experiment: Pell Grants for Prisoners,” The Washington Post, July 31, 2015, https://www.washingtonpost.com/news/grade-point/wp/2015/07/31/fedsannounce-new-experiment-pell-grants-for-prisoners.
628
Travis, Western, and Redburn, The Growth of Incarceration in the United States.
629
“Locked Out: Improving Educational and Vocational Outcomes for Incarcerated Youth” (The Council of State Governments Justice Center, 2015), https://csgjusticecenter.org/wp-content/
uploads/2015/11/LOCKED_OUT_Improving_Educational_and_Vocational_Outcomes_for_Incarcerated_Youth.pdf.
630
Ibid.
631
Judy Yu, “Protecting LGBTQ Youth in the Juvenile Justice System -- Progress and Opportunity,” National Juvenile Justice Network, June 12, 2015, http://www.njjn.org/article/protecting-lgbtq-youthin-the-juvenile-justice-system----progress-and-opportunity.
632
Chesa Boudin, Trevor Stutz, and Aaron Littman, “Prison Visitation Policies: A Fifty State Survey,” SSRN Scholarly Paper (Rochester, NY: Social Science Research Network, February 17, 2014), http://
papers.ssrn.com/abstract=2171412.
633
Julie Poehlmann et al., “Children’s Contact With Their Incarcerated Parents,” The American Psychologist 65, no. 6 (September 2010): 575–98, doi:10.1037/a0020279.
634
Boudin, Stutz, and Littman, “Prison Visitation Policies.”
635
“General Visiting Information,” Federal Bureau of Prisons, accessed January 27, 2016, http://www.bop.gov/inmates/visiting.jsp.
636
Boudin, Stutz, and Littman, “Prison Visitation Policies.”
637
Doe v. Sparks, 733 F. Supp. 227 (W.D. Pa. 1990).
638
Turner v. Safely, 482 U.S. 78 (U.S. Supreme Court 1987).
639
Saneta deVuono-powell et al., “Who Pays? The True Cost of Incarceration on Families” (Ella Baker Center, Forward Together, and Research Action Design, September 2015), http://ellabakercenter.org/
who-pays-the-true-cost-of-incarceration-on-families.
640
Lauren E. Glaze and Laura M. Maruschak, “Parents in Prison and Their Minor Children,” Special Report (U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, August 2008),
http://www.bjs.gov/content/pub/pdf/pptmc.pdf.
641
Anne M. Nurse, Fatherhood Arrested: Parenting from Within the Juvenile Justice System (Vanderbilt University Press, 2002).
642
Lydon et al., “Coming Out of Concrete Closets: A Report on Black & Pink’s National LGBTQ Prisoner Survey.”
643
Ibid.
644
Denise Johnston and Michael Carlin, “The Parents’ Project: Parent-Child Prison Visitation Issues Raised by Bazzetta, Et. Al. v. McGinnis, Et. Al.,” Prison Legal News, May 2003, https://www.
prisonlegalnews.org/news/2003/may/15/the-parents-project-parent-child-prison-visitation-issues-raised-by-bazzetta-et-al-v-mcginnis-et-al.
645
Charlene Wear Simmons and Emily Danker-Feldman, “Parental Incarceration, Termination of Parental Rights and Adoption: A Case Study of the Intersection Between the Child Welfare and Criminal
Justice Systems,” Justice Policy Journal 7, no. 2 (Fall 2010), http://www.cjcj.org/uploads/cjcj/documents/Parental_Incarceration.pdf.
646
deVuono-powell et al., “Who Pays?”
647
Wilber, “Lesbian, Gay, Bisexual and Transgender Youth in the Juvenile Justice System.”
648
“Rights of Transgender Prisoners” (National Center for Lesbian Rights, June 2006), http://www.nclrights.org/wp-content/uploads/2013/07/RightsofTransgenderPrisoners.pdf.
649
“Know Your Rights: Laws, Court Decisions, and Advocacy Tips to Protect Transgender Prisoners.”
650
Travis, Western, and Redburn, The Growth of Incarceration in the United States.
651
Bassichis, “‘It’s War in Here’: A Report on the Treatment of Transgender and Intersex People in New York State Men’s Prisons.”
652
“A Jailhouse Lawyer’s Manual, Chapter 24: Your Right To Be Free from Assault by Prison Guards and Other Prisoners” (Columbia Human Rights Law Review, 2009), http://www3.law.columbia.edu/
hrlr/jlm/Chapter_24.pdf.
653
“Rights of Transgender Prisoners.”
654
Andrea Beth Katz, “LGBT Youth in the Juvenile Justice System: Overrepresented Yet Unheard” (Seton Hall Law, May 1, 2014), http://scholarship.shu.edu/cgi/viewcontent.cgi?article=1503&context=
student_scholarship.
655
Samuel Bagenstos, “Disability Law: Vermont Supreme Court Holds State Public Accommodations Law Applies to Prison,” Disability Law, January 2, 2007, http://disabilitylaw.blogspot.com/2007/01/
vermont-supreme-court-holds-state.html.
656
The Opportunity Agenda, “An Overview of Public Opinion and Discourse on Criminal Justice Issues.”
657
C. Lake, D. Gotoff, and K. Pultorak, “Reducing Incarceration Levels in the U.S.: Opportunities for Reform” (Open Society Foundations, 2013).
658
Jon C. Rogowski, “Equal Protection? Race and Young People’s Attitudes toward the Legal System,” Democracy Remixed: Black Youth and the Future of American Politics (Black Youth Project, 2015),
http://blackyouthproject.com/wp-content/uploads/2015/11/legal_system.pdf.
659
Lake, Gotoff, and Pultorak, “Reducing Incarceration Levels in the U.S.”
660
The Opportunity Agenda, “An Overview of Public Opinion and Discourse on Criminal Justice Issues.”
661
Shannan Wilber, Caitlin Ryan, and Jody Marksamer, “CWLA Best Practice Guidelines: Serving LGBT Youth in Out-of-Home Care” (Washington, DC: Child Welfare League of America, 2006), http://www.
nclrights.org/wp-content/uploads/2013/07/bestpracticeslgbtyouth.pdf.
662
Amy L. Solomon et al., “Prisoner Reentry: Addressing the Challenges in Weed and Seed Communities” (Urban Institute and Center for Community Safety, Winston-Salem State University, 2006), http://
www.urban.org/sites/default/files/alfresco/publication-pdfs/411364-Prisoner-Reentry-Addressing-the-Challenges-in-Weed-and-Seed-Communities.PDF.
663
“Success in the Community” (Women’s Prison Association), accessed January 19, 2016, http://www.wpaonline.org/wpaassets/WPA_Success_in_the_Community_Matrix_6.11.pdf.
664
Michelle Natividad Rodriguez and Anastasia Christman, “The Fair Chance - Ban the Box Toolkit” (National Employment Law Project, March 2015), http://www.nelp.org/publication/the-fair-chanceban-the-box-toolkit.
665
“Prisoners and Prisoner Re-Entry,” U.S. Department of Justice, accessed January 19, 2016, http://www.justice.gov/archive/fbci/progmenu_reentry.html.
666
Matthew R. Durose, Alexia D. Cooper, and Howard N. Synder, “Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010,” Special Report (U.S. Department of Justice, Office of
Justice Programs, Bureau of Justice Statistics, April 2014), http://www.bjs.gov/content/pub/pdf/rprts05p0510.pdf.
667
The Opportunity Agenda, “An Overview of Public Opinion and Discourse on Criminal Justice Issues.”
668
Ibid.
669
“Evidence-Based Policy, Practice, and Decisionmaking:Implications for Paroling Authorities,” Parole Essentials: Practical Guides for Parole Leaders (U.S. Department of Justice, National Institute of
Corrections, March 2011), http://static.nicic.gov/Library/024198.pdf.
627

ENDNOTES

160

Ibid.
The Opportunity Agenda, “An Overview of Public Opinion and Discourse on Criminal Justice Issues.”
672
Jonah Aaron Siegel, “Prisoner Reentry, Parole Violations, and the Persistence of the Surveillance State” (Dissertation, University of Michigan, 2014), https://www.ncjrs.gov/pdffiles1/nij/grants/248412.
pdf.
673
Erinn Herberman and Bonczar Thomas P. Bonczar, “Probation and Parole in the United States, 2013” (U.S. Department of Justice, Bureau of Justice Statistics, January 21, 2015), http://www.bjs.gov/
content/pub/pdf/ppus13.pdf.
674
William D. Burrell, “Trends in Probation and Parole in the States” (American Probation and Parole Association), accessed January 27, 2016, https://www.appa-net.org/eweb/docs/appa/pubs/TPP.pdf.
675
Siegel, “Prisoner Reentry, Parole Violations, and the Persistence of the Surveillance State.”
676
Ibid.
677
Burrell, “Trends in Probation and Parole in the States.”
678
Ibid.
679
“Criminal Justice Reform in Alabama: A Report and Analysis of Criminal Justice Issues in Alabama” (Equal Justice Initiative of Alabama, March 2005), http://www.eji.org/files/criminaljusticereform.pdf.
680
Howard N. Snyder, “An Empirical Portrait of the Youth Reentry Population,” Youth Violence and Juvenile Justice 2, no. 1 (January 1, 2004): 39–55, doi:10.1177/1541204003260046.
681
Ashley Nellis and Richard Hooks Wayman, “Back on Track: Supporting Youth Reentry from Out-of-Home Placement to the Community” (Youth Reentry Task Force of the Juvenile Justice and Delinquency
Prevention Coalition, 2009), http://sentencingproject.org/doc/publications/CC_youthreentryfall09report.pdf.
682
Ibid.
683
Ibid.
684
“Policy Recommendations Regarding LGBT People in California Prisons” (Transgender Law Center, n.d.), January 27, 2016.
685
“Parolee Conditions,” Division of Adult Parole Operations, California Department of Corrections & Rehabilitation, accessed January 27, 2016, http://www.cdcr.ca.gov/Parole/Parolee_Conditions.
686
Majd, Marksamer, and Reyes, “Hidden Injustice: Lesbian, Gay, Bisexual and Transgender Youth in Juvenile Courts.”
687
Galen Baughman, “Questionable Commitments,” Cato Unbound, June 1, 2015, http://www.cato-unbound.org/2015/06/01/galen-baughman/questionable-commitments.
688
Ibid.
689
Ghandnoosh, “Black Lives Matter.”
690
“After Prison: Roadblocks to Reentry > Report Card,” Legal Action Center, accessed January 27, 2016, http://lac.org/roadblocks-to-reentry/main.php?view=national#.
691
Travis, Western, and Redburn, The Growth of Incarceration in the United States.
692
Bruce Western and Becky Pettit, “Collateral Costs: Incarceration’s Effect on Economic Mobility” (The Pew Charitable Trusts, 2010), http://www.pewtrusts.org/~/media/legacy/uploadedfiles/pcs_
assets/2010/collateralcosts1pdf.pdf.
693
Robert H. DeFina and Lance Hannon, “The Impact of Mass Incarceration on Poverty,” Crime and Delinquency 59, no. 4 (June 2013), http://cad.sagepub.com/content/59/4/562.
694
Susan Sered, “Alternatives to Incarceration: Be Careful What You Wish For,” Susan Sered, February 20, 2015, http://susan.sered.name/blog/alternatives-to-incarceration-be-careful-what-you-wish-for-2.
695
“Special Challenges Facing Parole,” Parole Essentials: Practical Guides for Parole Leaders (U.S. Department of Justice, National Institute of Corrections, August 2011), http://static.nicic.gov/
Library/024200.pdf.
696
deVuono-powell et al., “Who Pays?”
697
“Frequently Asked Questions About Federal Halfway Houses & Home Confinement” (Families Against Mandatory Minimums), accessed January 27, 2016, http://famm.org/wp-content/
uploads/2013/08/FAQ-Halfway-House-4.24.pdf.
698
“Reentry Employment Opportunities (REO) Grantees,” U.S. Department of Labor, June 12, 2015, https://www.doleta.gov/REO/grantees.cfm.
699
Rebecca Vallas and Sharon Dietrich, “One Strike and You’re Out” (Center for American Progress, December 2014), https://www.americanprogress.org/issues/poverty/report/2014/12/02/102308/onestrike-and-youre-out.
700
Ibid.
701
Movement Advancement Project, “Paying an Unfair Price.”
702
“Guidance on Housing Individuals and Families Experiencing Homelessness through the Public Housing and Housing Choice Voucher Programs” (U.S. Department of Housing and Urban Development,
Office of Public and Indian Housing, June 10, 2013), http://portal.hud.gov/hudportal/documents/huddoc?id=pih2013-15.pdf.
703
Ibid.
704
Ibid.
705
Ibid.
706
“After Prison: Roadblocks > Public Housing,” Legal Action Center, accessed January 14, 2016, http://lac.org/roadblocks-to-reentry/main.php?view=law&subaction=6; Geneva Brown, “The
Intersectionality of Race, Gender, and Reentry: Challenges for African-American Women,” Issue Brief (American Constitution Society for Law and Policy, November 2010), https://www.acslaw.org/
publications/issue-briefs/the-intersectionality-of-race-gender-and-reentry-challenges-for-african--0.
707
U.S. Department of Housing and Urban Development, “Reentry Letter from Secretary Donovan to Public Housing Agencies,” June 17, 2011, https://www.usich.gov/resources/uploads/asset_library/
Rentry_letter_from_Donovan_to_PHAs_6-17-11.pdf; “Guidance on Housing Individuals and Families Experiencing Homelessness through the Public Housing and Housing Choice Voucher Programs.”
708
deVuono-powell et al., “Who Pays?”
709
U.S. Department of Housing and Urban Development, “Equal Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity,” Federal Register 77, no. 23 (February 3, 2012),
http://portal.hud.gov/hudportal/documents/huddoc?id=12lgbtfinalrule.pdf.
710
Cloud, “On Life Support.”
711
Sarabeth Zemel et al., “Facilitating Access to Health Care Coverage for Juvenile Justice-Involved Youth,” Models for Change: Systems Reform in Juvenile Justice (National Academy for State Health
Policy, December 2013), http://www.nashp.org/sites/default/files/Facilitating_Access_to_Health_Care_Coverage.pdf.
712
Alexandra Gates, Samantha Artiga, and Robin Rudowitz, “Health Coverage and Care for the Adult Criminal Justice-Involved Population” (The Henry J. Kaiser Family Foundation, September 5, 2014),
http://kff.org/uninsured/issue-brief/health-coverage-and-care-for-the-adult-criminal-justice-involved-population.
713
Kamala Mallik-Kane et al., “Prison Inmates’ Prerelease Application for Medicaid” (The Urban Institute), accessed January 19, 2016, http://www.urban.org/research/publication/prison-inmatesprerelease-application-medicaid.
670
671

161

ENDNOTES

Nancy La Vigne et al., “Release Planning for Successful Reentry” (Urban Institute, September 2008), http://www.urban.org/research/publication/release-planning-successful-reentry.
Jaimie P. Meyer et al., “Gender Disparities in HIV Treatment Outcomes Following Release From Jail: Results From a Multicenter Study,” American Journal of Public Health 104, no. 3 (March 2014):
434–41, doi:10.2105/AJPH.2013.301553.
716
Jacques Baillargeon et al., “Accessing Antiretroviral Therapy Following Release from Prison,” JAMA 301, no. 8 (February 25, 2009): 848–57, doi:10.1001/jama.2009.202; Jacques G. Baillargeon et al.,
“Enrollment in Outpatient Care among Newly Released Prison Inmates with HIV Infection,” Public Health Reports (Washington, D.C.: 1974) 125 Suppl 1 (February 2010): 64–71.
717
Persis S. Yu and Sharon Dietrich, “Broken Records: How Errors by Criminal Background Checking Companies Harm Workers and Businesses” (National Consumer Law Center, April 2012), http://www.
nclc.org/images/pdf/pr-reports/broken-records-report.pdf.
718
“Safer Foundation Three-Year Recidivism Study 2008” (Safer Foundation), accessed January 27, 2016, http://www.saferfoundation.org/files/documents/Safer%20Recidivism%20Study%202008%20Summary.pdf.
719
Cloud, “On Life Support.”
720
deVuono-powell et al., “Who Pays?”
721
Binyamin Appelbaum, “Out of Trouble, but Criminal Records Keep Men Out of Work,” The New York Times, February 28, 2015, http://www.nytimes.com/2015/03/01/business/out-of-trouble-butcriminal-records-keep-men-out-of-work.html?_r=0.
722
Monique W. Morris, Michael Sumner, and Jessica Z. Borja, “A Higher Hurdle Barriers to Employment for Formerly Incarcerated Women” (Thelton E. Henderson Center for Social Justice, December 2008),
http://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1001&context=werc.
723
Michelle Natividad Rodriguez and Maurice Emsellem, “65 Million ‘Need Not Apply’: The Case for Reforming Criminal Background Checks for Employment” (National Employment Law Project, March
20111), http://www.nelp.org/publication/65-million-need-not-apply-the-case-for-reforming-criminal-background-checks-for-employment.
724
Alfred Blumstein and Kiminori Nakamura, “‘Redemption’ in an Era of Widespread Criminal Background Checks,” National Institute of Justice Journal, no. 263 (June 2009), http://nij.gov/journals/263/
Pages/redemption.aspx.
725
Yu and Dietrich, “Broken Records: How Errors by Criminal Background Checking Companies Harm Workers and Businesses.”
726
“Background Checking—The Use of Criminal Background Checks in Hiring Decisions” (Society for Human Resource Management, July 19, 2012), http://www.shrm.org/research/surveyfindings/
articles/pages/criminalbackgroundcheck.aspx.
727
Rodriguez and Christman, “The Fair Chance - Ban the Box Toolkit.”
728
“Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as Amended, 42 U.S.C. § 2000e et Seq.,” EEOC
Enforcement Guidance, April 25, 2012, http://www.eeoc.gov/laws/guidance/upload/arrest_conviction.pdf.
729
Rodriguez and Christman, “The Fair Chance - Ban the Box Toolkit.”
730
Ibid.
731
Stewart J. D’Alessio, Lisa Stolzenberg, and Jamie L. Flexon, “The Effect of Hawaii’s Ban The Box Law on Repeat Offending,” American Journal of Criminal Justice 40, no. 2 (June 2015): 336–52.
732
Gary J. Gates, “Food Insecurity and SNAP (Food Stamps) Participation in LGBT Communities” (The Williams Institute, February 2014), http://williamsinstitute.law.ucla.edu/wp-content/uploads/FoodInsecurity-in-LGBT-Communities.pdf.
733
Ibid.
734
Marc Mauer and Virginia McCalmont, “A Lifetime of Punishment: The Impact of the Felony Drug Ban on Welfare Benefits” (The Sentencing Project, 2013), http://www.sentencingproject.org/doc/
publications/cc_A%20Lifetime%20of%20Punishment.pdf; Patricia Allard, “Life Sentences: Denying Welfare Benefits To Women Convicted Of Drug Offenses” (The Sentencing Project, February 2002),
http://www.sentencingproject.org/doc/publications/women_lifesentences.pdf.
735
Mauer and McCalmont, “A Lifetime of Punishment: The Impact of the Felony Drug Ban on Welfare Benefits”; Allard, “Life Sentences: Denying Welfare Benefits To Women Convicted Of Drug Offenses.”
736
“Opting Out of the Federal Ban on Food Stamps and TANF,” Legal Action Center, accessed January 26, 2016, http://lac.org/toolkits/TANF/TANF.htm.
737
Patricia Allard, “Life Sentences: Denying Welfare Benefits To Women Convicted Of Drug Offenses” (The Sentencing Project, February 2002), http://www.sentencingproject.org/doc/publications/
women_lifesentences.pdf.
738
Joan Tabachnick and Alisa Klein, “A Reasoned Approach: Reshaping Sex Offender Policy to Prevent Child Sexual Abuse” (Association for the Treatment of Sexual Abusers, 2011), http://www.atsa.com/
pdfs/ppReasonedApproach.pdf.
739
Ibid.
740
Ibid.
741
Ibid.
742
“Investigation of the New Orleans Police Department” (U.S. Department of Justice, Civil Rights Division, March 16, 2011), http://www.justice.gov/sites/default/files/crt/legacy/2011/03/17/nopd_
report.pdf.
743
Ibid.
744
Jane Shim, “Listed for Life,” Slate, August 13, 2014, http://www.slate.com/articles/news_and_politics/jurisprudence/2014/08/sex_offender_registry_laws_by_state_mapped.html.
745
Kristen Zgobaq et al., “Megan’s Law: Assessing the Practical and Monetary Efficacy,” December 2008, https://www.ncjrs.gov/pdffiles1/nij/grants/225370.pdf.
746
Kristen M. Zgoba and Karen Bachar, “Sex Offender Registration and Notification: Research Finds Limited Effects in New Jersey,” National Institute of Justice NCJ 225402 (April 2009), https://www.ncjrs.
gov/pdffiles1/nij/225402.pdf.
747
Tabachnick and Klein, “A Reasoned Approach: Reshaping Sex Offender Policy to Prevent Child Sexual Abuse.”
748
“1998 Amendments to Higher Education Act of 1965,” Indexes; Laws, (July 12, 2006), http://www2.ed.gov/policy/highered/leg/hea98/index.html.
749
“FAFSA Facts,” Office of National Drug Policy, U.S. Department of Education, accessed January 14, 2016, https://www.whitehouse.gov/sites/default/files/ondcp/recovery/fafsa.pdf.
750
Michael F. Lovenheim and Emily G. Owens, “Does Federal Financial Aid Affect College Enrollment? Evidence from Drug Offenders and the Higher Education Act of 1998,”Working Paper (National Bureau
of Economic Research, February 2013), http://www.nber.org/papers/w18749.
751
Ibid.
752
Marsha Weissman et al., “The Use of Criminal History Records in College Admissions Reconsidered” (Center for Community Alternatives, 2010), http://www.communityalternatives.org/pdf/
Reconsidered-criminal-hist-recs-in-college-admissions.pdf.
753
Alexis Halkovic et al., “Higher Education and Reentry: The Gifts They Bring & Supplemental White Papers,” Reentry Research in the First Person (John Jay College of Criminal Justice, November 2013),
http://johnjayresearch.org/pri/2013/11/07/higher-education-and-reentry-the-gifts-they-bring-relevant-white-papers-2.
754
Julie Shapiro, “A Lesbian-Centered Critique of Second-Parent Adoptions,” Berkeley Journal of Gender, Law & Justice 14, no. 1 (1999): 17.
755
“Homestudy Requirements by State,” Adoption.NET, accessed August 5, 2015, http://www.adoption.net/a/adopting/pre-adoption/homestudy-requirements-by-state/124.
714

ENDNOTES

162

715

Monique W. Morris, Stephanie Bush-Baskette, and Kimberle Crenshaw, “Confined in California: Women and Girls of Color in Custody,” AAPF, accessed January 15, 2016, http://www.aapf.
org/2013/2013/01/7228.
757
Ibid.
758
Rebecca Vallas et al., “Removing Barriers to Opportunity for Parents With Criminal Records and Their Children: A Two-Generation Approach,” Center for American Progress, December 10, 2015, https://
www.americanprogress.org/issues/poverty/report/2015/12/10/126902/removing-barriers-to-opportunity-for-parents-with-criminal-records-and-their-children.
759
Damian J. Martinez and Johnna Christian, “The Familial Relationships of Former Prisoners Examining the Link between Residence and Informal Support Mechanisms,” Journal of Contemporary
Ethnography 38, no. 2 (April 1, 2009): 201–24, doi:10.1177/0891241608316875.
760
“Employment after Prison: A Longitudinal Study of Releasees in Three States,” accessed January 15, 2016, http://www.urban.org/research/publication/employment-after-prison-longitudinal-studyreleasees-three-states.
761
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