Looking at the news recently, one might think that the frontiers of the queer community’s civil rights start and end at the bathroom door. North Carolina’s HB2 – known to most as “the transgender bathroom bill” – has touched off ideological debates as to what stance government should take towards assertions of gender identity in public buildings. While those conversations remain important, their narrow focus does not represent the breadth and significance of ongoing legal battles to secure civil rights for the lesbian, gay, bisexual and transgender (“LGBT”) communities.

Indeed, as debates continue over the perceived threat of trans women – born biologically male – in women’s bathrooms, many in the LGBT community face very real discriminatory treatment in our nation’s criminal justice system. In a recent study published by the Center for American Progress and Movement Advancement Project, researchers found that LGBT people are subject to a variety of discriminatory factors that make them more likely to be arrested, more likely to spend time in prisons or jails, and more likely to struggle to readjust once released.

The picture that report paints is a bleak one. Facing discrimination in housing, employment and even credit services, some LGBT people are forced into lives of poverty and homelessness. With no income to support themselves, they turn to “survival economies” like prostitution. Homeless and jobless, and sometimes working illicitly, LGBT individuals are more likely to come into contact with police.


Even those who avoid working in illegal economies can be targeted for arrest. For example, LGBT youth in New York City report heightened scrutiny for offenses such as skipping school, dressing in “offensive” ways and being out after dark. Officers have wide discretion in choosing whom to ticket or arrest for those offenses, and research shows that law enforcement officers often choose those who break from sexual or gender norms. On top of this, LGBT people are significantly more likely to be abused verbally, sexually and physically, by police.

The effects of discrimination do not end there, however. The MAP report highlights a number of discriminatory practices that take place even after arrests have been made. Once in custody, LGBT people are less likely than their non-LGBT peers to be released from pre-trial holding cells, making it harder to keep jobs and increasing their reliance on illegal sources of income.

All of these factors make LGBT people more likely to spend time in prison or jail, a trend reflected in data on incarcerated populations. Indeed, some reports estimate that 8% of those in jails and prisons self-report as LGBT, while only 3.8% of the broader population identify as LGBT. Similarly, 16% of transgender and gender non-conforming individuals report having spent time in jail or prison, compared to only 5% of the broader population.

These incarceration trends start early for youth, many of whom are pushed out of their homes by family who reject their identities. A 2015 survey across seven juvenile detention centers found that an estimated 20% of detained youth identified as LGBT, with the number as high as 40% for young women.


These numbers are jarring, but they are also limited. Numerous reports on discrimination in the criminal justice system recognize a lack of data as being a chief obstacle in understanding the depth of this problem. The immense task of data collection on whole populations is such that few organizations have the resources necessary to collect accurate information. The one organization that already has those capacities, the federal government, does not include crucial questions about gender and sexual identity on most national surveys, and thus hamstrings efforts to study discrimination in law enforcement practices, court proceedings and incarceration facilities.

Due to these shortfalls, a diverse and oft-marginalized group is suffering. The LGBT population has already faced violence, discrimination and rejection by many segments of society. Now, it seems, the criminal justice system offers the same. As the number of LGBT people in jails and prisons is already relatively high, our government must recognize its responsibility to at least understand the problem. The first step is to utilize current information-gathering resources to better grasp the experiences of LGBT people in the criminal justice system. That means changing census options to include gender identity and a broader range of sexual identities. Additionally, policy-makers must recognize the need for broader social services to prevent LGBT youth and adults from being forced into illicit survival economies, a measure that would decrease the likelihood of arrest and incarceration. Without these steps, the discrimination suffered by some of the most vulnerable will go unseen, and may in fact grow.

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