Discussions about queer people always need to start with a definition of those whom we are talking about. We are looking at people who openly identify as gay, lesbian, bisexual, and/or transgender. We also need to look at those who are closeted and those who do not identify with those same terms. Often, predominantly white gay and lesbian organizations forget to look at same-gender loving folks and those who use terms like “on the down low,”1 as well as people who simply do not fit into society’s, or the queer subulture’s, norms of gender and sexuality. This article attempts to include all of these people.

Prisoners have experienced similar socialization around sexuality and gender as those of us not in prison. As dangerous as we know our culture to be for people outside of prison who do not identify as heterosexual or fall within the accepted ideas of gender, we must understand how much more dangerous it is inside the prison walls for queer identified persons.

Rape and other Coercive Sex Abuses

The organization Stop Prisoner Rape www.spr.org, a national nonprofit that works to end sexual violence against those who are incarcerated in men’s prisons, women’s prisons, and youth facilities, has examined the impact of rape on all prisoners. Many studies by this group make clear that those who are gay or perceived to be gay are much more likely targets for harassment and rape than other prisoners.

Rape in U.S. prisons is a huge problem. Much of the rape in prison is violently forced and brutal, leaving people’s bodies bloody and broken. Prison rape also comes in the form of coercion. In order to maintain safety, some prisoners will find another prisoner to “protect” them soon after entering prison. In exchange for oral or anal sex on command the “man,” “daddy,” or “jocker” will protect his “bitch,” “boy,” or “catcher,” and stop others from harassing or raping him. However, there are times when the “man” will trade his “boy” in order to settle debts or in exchange for other benefits. If as a result the “boy” is forced to have sex against his will, this constitutes sexual slavery.

Because of how coerced rape occurs, guards will often ignore rape reports from inmates. Ignoring reports of sexual slavery and rape is abusive, and prison guards are supposedly ordered to keep prisoners safe. It is also important to recognize that sexual abuse by guards can take other forms as well. There are guards who place prisoners they do not like, or whom they want to discipline, in the same cells as known sexual predators. The outcomes of those situations are known and deliberately set up by prison guards. We don’t need to look to Guantanamo Bay or Abu Ghraib to find torture in prisons.

Trangender Persons and Medical Treatment

Transgender women in men’s prisons are at an especially high risk for sexual assault. To make classification based on genitalia is to place certain women at high risk in men’s prisons. Incarcerated women need to be placed in women’s prisons. This is not to say that all transgender men should therefore be placed in men’s prisons. They, too, would be particularly vulnerable. Clearly the best solution is the abolition of the prison system, but until then alternatives need to be created to protect people’s bodies and identities.

There are a number of organizations around the country working to serve transgender folks in prison. The National Center for Lesbian Rights, the Transgender Law Center, and the Sylvia Rivera Law Project are the best known, but more advocacy is clearly needed. Since the U.S. Supreme Court’s decision in Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970 (1994), advocacy concerning the responsibility of prisons to protect inmates has become even more difficult. The Farmer decision made it more difficult to bring Eighth Amendment lawsuits by requiring that plaintiffs prove “deliberate indifference” on behalf of an offending prison guard or institution before they could recover for cases of severe abuse or neglect.

Having to prove deliberate indifference is of great concern for transgender prisoners who file lawsuits seeking hormone replacement therapy. The federal Bureau of Prison has adopted a “freezing” policy for transsexual people. Transgender people who were legally prescribed hormones when they entered prison would continue to receive them. All others would be denied treatment, even if they had been receiving hormones without prescription. Stopping hormones abruptly can be very dangerous to a person’s health, but is inevitable for many when they begin to serve their sentences.

The problem for transgender prisoners who have not been on hormones before being incarcerated is acute. They should have the right to hormones as well. In Kosilek v. Maloney, 221 F.Supp.2d 156 (2002), a Massachusetts court found that the plaintiff’s transsexualism constituted a “serious medical need” and directed prison officials to provide adequate treatment as recommended by a physician experienced with treating gender identity disorder. If hormones and psychotherapy were insufficient to treat Kosilek’s serious medical need, the DOC was to consider whether sex reassignment surgery “might be deemed medically necessary.” This establishes a precedent that goes well beyond the policy of the Bureau of Prisons. Even if one was not on hormones before being incarcerated, they should have the right to receive the treatment if it is deemed medically necessary by a doctor. This certainly brings up the long debated question about the impact of having “Gender Identity Disorder” as a medical diagnosis, a question that seriously affects many people.

Consensual Sex and Safer Sex Supplies

Within the prison walls there are those queer people who do find love, or affection, or some kind of consensual sex. Their love and/or sex should not be disciplined or shamed. Love can indeed be found in strange places, including prisons. When imprisoned with others for years or the rest of one’s life, it is not unlikely that one might meet another person with whom one develops a deep connection. This could become a friendship, romantic relationship, or simply sexual exchange. Prohibiting all consensual sex creates an atmosphere of secrecy and denial.

Sex between prisoners and guards is inherently questionable because of power. The relationship between guards and prisoners is extremely out of balance and to include sex in those relationships would very likely not be consensual or based in shared power. There is also reason to be concerned about sex between prisoners. Much like on the outside, people in prison engage in sex they are not totally comfortable with. Power imbalance exists between those with more money in their canteen and those with out any money; between those who have been in for a long time and are familiar with the structure and those who are new; between those with strong support systems and those with no one.

However, sex is going to happen, in both healthy and unhealthy relationships in and out of prison. When sex happens protection needs to be available (i.e. condoms, dental dams, etc.). Because safer sex supplies are not made available to prisoners, the rate of HIV/AIDS and other STDs is much higher than they need to be2. By not providing safer-sex supplies someone who was sentenced to a few months or years in prison can receive a death sentence because of exposure to sexually transmitted infections. The healthcare available to people in prison is atrocious, we should not be creating more reasons to increase the line at the prison infirmary.

Other Forms of Discrimination

Many prisons around the country do not allow printed material into the prison that could be considered homosexual or transgender. Some parole boards have denied prisoners parole because of their sexuality. Our culture should not be criminalizing queerness while we claim that all are created equal.

While supporting queer folk in prison is imperative, we also need to look at why they are getting into the system in the first place. Even after the Supreme Court overturned the “sodomy” laws that criminalized essentially all sex between “same sex” people, other homophobic laws and policies continue to exist. There are still discrepancies between “same sex” and “opposite sex” age of consent laws. Therefore, more queer folks are targeted with these charges and imprisoned. Furthermore, we know that queer youth make up a disproportionate percentage of homeless youth. Homelessness is directly correlated with “crimes” of poverty and survival such as theft, sex work, and drug use. The prison system is a modern-day plantation incarcerating adult Latino males at a rate of 1,717 per 100,000, and adult black males at a rate of 4,919 per 100,000 (Prison and Jail Inmates at Midyear 2004). This racism places queers of color behind bars far more often than white queers. While the many mainstream gay and lesbian organizations can spend seemingly unlimited funds to secure the right to get married, far more marginalized queers are being targeted and intimidated by the police.

Future Directions and Resources

We need to build healthy communities of support for everyone, including those who are locked up in our prisons. It is not uncommon to find references to prison rape that sexualize and sensationalize while simultaneously trivializing the horror of the experience and ignoring the cries of those most negatively affected. We need to make visible the struggle of all people in prison and help their voices emerge from behind the walls and into our individual and collective consciousness. Becoming aware is an important first step.

The following is a list of great websites with useful resources and guidance for further action.
Critical Resistance: www.criticalresistance.org
Human Rights Watch: www.hrw.org
Prison Talk Online: www.prisontalk.com
Just Incarceration: www.spr.org
The Sylvia Rivera Law Project: www.srlp.org
The National Center for Lesbian Rights: www.nclrights.org
Transgender Law Center: www.transgenderlawcenter.org
Trans, Gender-Vairant, & Intersex Justice Project www.tgijp.org
______________________________
1 A term used for men who have sex with men, but who identify neither as homosexual or bisexual.

2 In 2000, the rate of HIV infection among those Massachusetts’ prisons was 10 times the rate of infection among the general population. Massachusetts Public Health Association, Correctional Health: The Missing Key to Improving the Public’s Health and Safety, October 2003, 8.

Dear members of the GENDA coalition and all allies in the struggle for trans liberation:
    
     We write to you today because we are deeply concerned with the
version of the Gender Employment Non-Discrimination Act (GENDA) that
was recently introduced in the New York State Assembly. We are members
of transgender and gender non-conforming communities of color, allies
to these communities, and representatives of organizations that work to
advocate for and increase the political voice of these communities. As
written, the GENDA bill adds gender identity and gender expression to
the protected categories of NY anti-discrimination law by adding it to
the State Human Rights statute.
 
  We are excited and heartened by progress on this front, as many of us
have struggled to end discrimination against trans people for years.
Unfortunately, the GENDA bill also includes gender identity and gender
expression as a “protected” category under the NY hate crimes statute.
We want and deserve legal protection from discrimination in the
workplace, in housing, and in public accommodations.

  Transgender people in New York are frequently fired from jobs;
kicked out of housing, restaurants, restrooms and hotels; and harassed
in schools and public institutions. It is essential that we have legal
recourse to take action when trans people are discriminated against in
this way. It is also essential that this form of discrimination is
publicly declared unacceptable—in our state, in our society, and across
the world.

    It pains us that we nevertheless cannot support the current
GENDA bill, because we cannot and will not support hate crimes
legislation. Rather than serving as protection for oppressed people,
the hate crimes portion of this law may expose our communities to more
danger—from prejudiced institutions far more powerful and pervasive
than individual bigots. In New York, the hate crimes portion of the
penal code adds automatic penalty enhancements to certain crimes that
are deemed to be hate crimes: crimes based on a person’s race, color,
national origin, ancestry, religion, religious practice, age,
disability, or sexual orientation.

    If a particular crime is deemed a hate crime by the state, the
supposed perpetrator is automatically subject to a higher mandatory
minimum sentence. For example, a crime that would carry a sentence of
five years can be “enhanced” to eight years. As GENDA is currently
written, if passed it would further expand this law, providing
additional grounds for penalty enhancement.
 
    As a nation, we lock up more people per capita than any other
country in the world; one in one hundred adults are behind bars in the
U.S. Our penalties are harsher and sentences longer than they are
anywhere else on the planet, and hate crime laws with sentencing
enhancements make them harsher and longer. By supporting longer periods
of incarceration and putting a more threatening weapon in the state’s
hands, this kind of legislation places an enormous amount of faith in
our deeply flawed, transphobic, and racist criminal legal system. The
application of this increased power and extended punishment is entirely
at to the discretion of a system riddled with prejudice, institutional
bias, economic motives, and corruption. 
 
    Trans people, people of color, and other marginalized groups are
disproportionately incarcerated to an overwhelming degree. Trans and
gender non-conforming people, particularly trans women of color, are
regularly profiled and falsely arrested for doing nothing more than
walking down the street. Almost 95% of the people locked up on Riker’s
Island are black or Latin@. Many of us have been arrested ourselves or
seen our friends, members, clients, colleagues, and lovers arrested,
often when they themselves were the victims of a violent attack.

    Once arrested, the degree of violence, abuse, humiliation, rape,
and denial of needed medical care that our communities confront behind
bars is truly shocking, and at times fatal.  In popular conception,
hate crime laws were enacted to protect oppressed minorities against
bigots who would seek to terrorize a community through violent crime:
racist lynchings, gay-bashing, anti-Semitic violence, and so forth.
Unfortunately, the popular imagining of the operation of hate crime
laws does not bear out in reality. Hate crime laws do not distinguish
between oppressed groups and groups with social and institutional power.

     Compared to white men, Black men are disproportionately
arrested for race-based hate crimes. The second-largest category of
race-based hate crimes tracked by the FBI is crimes committed against
white people. Every year, the FBI reports a number of so-called
“anti-heterosexual” hate crimes—incidents where members of the LGBT
community have been prosecuted for supposedly targeting straight people
with criminal acts.

     If GENDA is passed with the hate crime component intact, trans
people could be subject to “enhanced penalties” for crimes against
non-trans people. The possibility of hate crime charges could arise in
any dispute that involves gender identity or expression.  In the case
of the “New Jersey 4,” a group of young queer women of color were
incarcerated for defending themselves against the homophobic attacks
and slurs of a straight man, who accused them of committing a “hate
crime” against him. It is all too easy for a prejudice-motivated attack
to become a fight for survival, and for a fight to be turned against
oppressed communities.
  
    There might be some cold comfort in “enhanced sentencing” if it
actually benefited our communities in any way. Unfortunately, the
harsher penalties of hate crime laws have not been shown to prevent or
deter hate crimes. It is hard to imagine that someone moved to brutally
attack a trans person would pause to consider that they might get a
longer sentence. In fact, there is some evidence that longer sentences
actually increase the chance that an incarcerated person will repeat a
crime after they are released. Incarceration does nothing to address
the root reasons why someone was violent or hateful; it only plunges
them into deeper poverty, further isolates them from their community,
and subjects them to further violence and trauma.

    In many cases, incarceration may worsen prejudices and make
people more likely to be alienated and violent when they are released.
Worst of all, when our society incarcerates someone who truly hates
trans people, we provide them more opportunities to commit anti-trans
hate crimes while incarcerated. Our many transgender community members
in prison face intimidation, harassment, and violence on a daily basis.

Hate crime laws are an easy way for the government to act like it is
on our communities’ side while continuing to discriminate against us.
Liberal politicians and institutions can claim “anti-oppression”
legitimacy and win points with communities affected by prejudice, while
simultaneously using “sentencing enhancement” to justify building more
prisons to lock us up in. Hate crime laws foreground a single accused
individual as the “cause” of racism, homophobia, transphobia, misogyny,
or any number of other oppressive prejudices. They encourage us to lay
blame and focus our vengeful hostility on one person instead of paying
attention to institutional prejudice that fuels police violence,
encourages bureaucratic systems to ignore trans people’s needs or
actively discriminate against us, and denies our communities health
care, identification, and so much more.

 Anything that expands the power of a system that damages our
communities so severely is against our long-term and short-term
interests. Any legal weapon that’s created to make our justice system
more harsh and punitive cannot be trusted in the hands of institutions
that have shown their prejudices and corruption time and time again.
Because of the way this legislation has been turned against the
communities they were intended to protect, we regard “sentence 
enhancement” hate crime laws as one of the greatest follies of
late-20th-century liberal politics.

    Some of us have expressed this concern to (other) members of the
GENDA Coalition after we became aware of the hate crime aspect of the
proposed bill. We know that this coalition of many organizations and
hard-working community members has been working for years to make
anti-discrimination law a reality in our state and we respect their
dedication to this work.  We were happy that some of us had an
opportunity recently to engage in dialogue about the hate crimes
provisions of GENDA with them. We left the conversation with the shared
knowledge that the United States criminal legal system is deeply
flawed, that it would be entirely possible to leave out the hate crimes
portion of the GENDA bill when it was re-introduced this session, and
that making such a change could mean that it would take more time to
get the bill passed because of the need to educate our elected
officials about these issues.

      We are deeply disappointed that, with this knowledge, the
majority of the GENDA Coalition decided that they would rather “come
back to hate crimes legislation later” and still actively work to pass
a version of the bill that would expand hate crime laws now. Trans
communities know all too well what it’s like to be told “we’ll come
back later to protect you.”  One argument made in our conversation was
that because so many other groups are covered by the New York hate
crimes statute, trans people should not be “the sacrificial lamb.”
Unfortunately, because “sentence enhancements” actually make
communities more vulnerable to prejudice in the criminal legal system,
it is the many other “protected classes” that have already been
sacrificed on the altar of hate crimes.

     The real victims who are liable to be thrown to the wolves in
this case are the most marginalized members of trans and gender
non-conforming communities: poor people, people without jobs or
housing, people who resort to survival crimes in order to get by or
access health care, people with substance abuse problems, sex workers,
youth, people with disabilities, and so many more who are
disproportionately targeted for violence, harassment, prejudice in the
courts, and incarceration. These are the same people our community must
mourn every year at the Trans Day of Remembrance. Can we really
continue to shed tears and flowers for the dead if we eagerly hand the
state more power to crush the same people?

     The signatories to this letter cannot and will not support this
version of the bill. We can not help pass a bill through the state
legislature that could further endanger our communities. We hope and
plead for a better GENDA bill that will make the hard-fought dream of
anti-discrimination law a reality for all trans and gender
non-conforming people in New York state, without sacrificing the most
endangered members of our community. We also commit and ask others to
join us in our commitment to work on real ways to address hate violence.

When thinking about responding to hate violence, we believe the most
important question is not “who is the perpetrator and how can we punish
them?” Rather, we want to ask “how can we help the survivor(s) and the
community heal from this violence? How can we prevent it from happening
again?” Many people and organizations in New York and around the world
are doing creative, transformative work to find real solutions to these
questions. Some organize communities to intervene in violence without
relying on law enforcement. 

     Some develop alternate ways to resolve conflicts. Some help
break down prejudice and fear with public education and training.  Some
help make sure that our communities have access to basic necessities in
life and are not forced to be in situations where they are particularly
vulnerable to violence.  Some fight to hold the state accountable for
violence it perpetrates against our communities.  Some educate
community members about ways to defend themselves and deescalate
confrontations. Some provide services, advocacy, and support for
survivors of violence.

     These are just a few of the strategies that we have used and
seen others use locally to develop the approaches to hate violence that
we and our loved ones need and deserve.Please join with us in working
to make New York State a safer and more just place for trans and gender
non-conforming people. Please join us in supporting an improved version
of GENDA that will provide much-needed legal protections against
discrimination without endangering our communities and strengthening
the prejudiced system of criminal punishment.

Sincerely,

Sylvia Rivera Law Project
FIERCE
Queers for Economic Justice
Peter Cicchino Youth Project
Audre Lorde Project