The third installment in Beacon Press’s Queer Action/Queer Ideas series, edited by Michael Bronski, Queer (In)justice: The Criminalization of LGBT People in the United States is co-authored by law professor Joey L. Mogul, police misconduct attorney Andrea J. Ritchie, and community organizer Kay Whitlock. Hanna saw it on the new book wall at the library and correctly ascertained it was the sort of title I’d be interested in. So she brought it home, I read it, and now I’m gonna blog about it.
Queer (In)justices is far more than an examination of the ways in which our legal system polices “deviant” gender and sexuality qua gender and sexuality. Yes, the authors look at the laws and policing practices related specifically to penalizing folks who engage in (publicly or privately) non-heteronormative sexual practices, or whose appearance suggests that they identify outside the gender/sex/sexuality binary. However, their analysis goes much deeper than these targeted laws. Instead, they argue that “the policing of sex and gender ‘deviance’ is central to notions of crime, and serves both as a tool of race-based law enforcement and as an independent basis for punishment” (xiii). In other words, notions about the relationship between non-normative sex and gender expression and criminality influence the way in which the legal system treats people perceived to be queer whether or not they are caught in the system specifically because of sex- or gender related policing. As they argue:
As queer identities substituted for individual perverse acts [in the late nineteenth century] the process of criminalizing sexual and gender nonconformity was facilitated through the construction of ever-shifting and evolving archetypal narratives [of deviance]. Rooted in historical representations of Indigenous peoples, people of color, and poor people as intrinsically deviant, fueled and deployed by mass media and cultural institutions, these narratives now permeate virtually every aspect of the criminal legal system (19).
They make a compelling case for us to question the usefulness of narrowing our focus specifically on anti-gay laws, and on enacting new laws seeking to protect LGBT people from homophobia … particularly when the very law enforcement officials meant to ensure those laws are respected are among the primary culprits when it comes to bigotry and violence around sexual and gender nonconformity. In chapters on gender and sex policing on the street, in the courtroom , in prison, and in uneven police responses to violence against LGBT people, we see how presumptions of criminality systematically influence how queer people are treated in the context of the legal system, whether they are perpetrators, victims, or both. They make the particularly important point that, regardless of what laws are officially on the books, “police and other law enforcement agents are given considerable latitude in deciding which laws to enforce, how to enforce them, and which people to target for law enforcement” (48).*
Being queer, or being perceived as queer can cause law enforcement officials to treat individuals as criminally guilty whether or not they actually are — and can bring harsher punishments (when compared to those perceived as straight and gender conforming) when those individuals are sentenced. Likewise, criminal behavior is often associated — implicitly or explicitly — with sexual depravity. Using examples that will be familiar to anti-sexual harassment or anti-sexual violence activists, Mogul, Ritchie, and Whitlock describe how individuals known or perceived to be queer are treated by law enforcement officials as if they are incapable of being victims of sexual violence. They describe victims of same-sex domestic violence who themselves were put in jail or ruled incapable of being abused because of their orientation or gender identity.
Ultimately, Queer (In)justice argues that LGBT activists must take a much more comprehensive approach to their agitation for change within the framework of law and law enforcement. While much of the mainstream LGBT work in this area in recent years has involved the quest to enact anti-discrimination and anti-hate crime legislation, and to grant same-sex couples the right to marry, Mogul, Ritchie, and Whitlock point out that a much broader cultural shift within law enforcement must take place in order for such changes in the law to have an on-the-ground effect. As they write, “The hate crime framework is … compromised by placing primary responsibility for preventing violence in the hands of a criminal legal system that is itself responsible for much LGBT violence” (129). We would do well, they seem to be pointing out, to pay closer attention to the experiences of those most vulnerable to police brutality, discrimination and abuse sanctioned by the legal system, and persecution based on presumptive criminality … not just because of their sexual identity, but because their mere presence as a non-conforming body evokes powerful notions of danger and violence whether or not these reactions are warranted in specific instances. Comprehensive reform is needed before the passage of laws will have real-world implications for the majority of the LGBT population.
Queer (In)justice is a must-read for anyone who wants to re-consider the current LGBT approach to legal reform.
*This point is exactly why I am uneasy with Jim Wallis’ argument that police force is preferable to military force. Wallis’ assumption that police only use force when it is necessary to enforce agreed-upon laws ignores all of the situations in which law enforcement officials abuse the power vested in them … something which, as a person who works in anti-poverty and anti-racism circles, Wallis ought to know full well.