LGBTQ+ Populations and the Criminal Justice System

By Leah Crabb, Ph.D.

In past decades, LGBTQ+ individuals were subject to discriminatory laws which led to these groups being systematically targeted by law enforcement (Daum, 2019). For instance, individuals in LGBTQ+ communities were subject to arrest and incarceration for gathering in LGBTQ+ spaces (e.g., bars) and engaging in consensual sexual activity with someone of the same sex or gender. Importantly, recent legislation reflects increased acceptance of LGBTQ+ populations. However, although it is no longer illegal to identify as LBTBQ+, the remnants of this criminalization continue to impact these communities. Data has consistently shown that LGBTQ+ people are overrepresented in the criminal justice system (Meyer et al., 2017). This often begins in adolescence, with an estimated 20% of the juvenile justice population being LGBTQ+ relative to only 4-6% of the general population (Jones, 2021). There are several factors that impact the disproportionate rates of juvenile incarceration. For instance, LGBTQ+ populations experience higher rates of mental health problems, which places them at a greater risk for contact with the criminal justice system. Further, research suggests that a substantial portion of youth that are unhoused identify as LGBTQ+. Often, LGBTQ+ youth run away from home to escape rejection from family, discrimination, abuse, and other forms of violence. As a result, they may turn to substance use and other criminalized behaviors as a means of survival (Choi et al., 2015). They can also be impacted by the school-to-prison pipeline, as LGBTQ+ youth are disproportionately targeted and disciplined related to their sexual identity or gender expression (Center for American Progress & Movement Advancement Project [CAP & MAP], 2016).

The overrepresentation of LGBTQ+ populations in the criminal justice system persists into adulthood, with research finding that LGBTQ+ adults are three times more likely to be incarcerated compared to the general population (Meyer et al., 2017). Transgender and gender-diverse individuals are at an even greater risk of being incarcerated (CAP & MAP, 2016). For transgender people of color, the additional impact of racial discrimination is apparent, as they are more than twice as likely to be arrested for engaging in sex work than their white counterparts (Fitzgerald et al., 2015). While they are incarcerated, LGBTQ+ people experience mistreatment, harsh punishment, and victimization at higher rates than heterosexual and cisgender inmates (Meyer et al., 2017). They are also more likely to be placed in solitary confinement, an experience which is associated with negative effects on mental and physical health. Upon release from the criminal justice system, LGBTQ+ individuals face distinct challenges. As a result of their criminal record and LGBTQ+ identity, they encounter discrimination in housing, employment, and healthcare (CAP & MAP, 2016). It is evident that despite the advancement in societal acceptance of LGBTQ+ communities, there is still much work to be done to ensure the equitable treatment of these groups, particularly in the criminal justice system.

A note on terminology: LGBTQ+ is an acronym for sexual and gender identities (lesbian, gay, bisexual, transgender, and queer and/or questioning). The + sign acknowledges that there are many other sexual and gender identities that are not included in this acronym.

References

Center for American Progress and Movement Advancement Project. (2016, August). Unjust: How the broken criminal justice system fails LGBT people of color.  https://www.lgbtmap.org/file/lgbt-criminal-justice-poc.pdf

Choi, S. K., Wilson, B. D. M., Shelton, J., & Gates, G. (2015). Serving our youth 2015: The needs and experiences of lesbian, gay, bisexual, transgender, and questioning youth experiencing homelessness. The Williams Institute with True Colors Fund. https://truecolorsunited.org/wp-content/uploads/2015/05/Serving-Our-Youth-June-2015.pdf

Daum, C. W. (2019). Violence against and policing of LGBTQ communities: A historical perspective. In Oxford Research Encyclopedia of Politics. https://doi.org/10.1093/acrefore/9780190228637.013.1221

Fitzgerald, E., Patterson, S. E., Hickey, D., Biko, C., & Tobin, H. J. (2015, December). Meaningful work: Transgender experiences in the sex trade. National Center for Transgender Equality. https://transequality.org/sites/default/files/Meaningful%20Work-Full%20Report_FINAL_3.pdf

Jones, A. (2021, March 2). Visualizing the unequal treatment of LGBTQ people in the criminal justice system. Prison Policy Initiative. https://www.prisonpolicy.org/blog/2021/03/02/lgbtq/

Meyer, I. H., Flores, A. R., Stemple, L., Romero, A. P., Wilson, B. D., & Herman, J. L. (2017). Incarceration rates and traits of sexual minorities in the United States: National Inmate Survey, 2011–2012. American Journal of Public Health, 107(2), 267-273. https://doi.org/10.2105/AJPH.2016.303576