“Equality Is Far From at Hand”: A Conversation With the Authors of “Queer (In)Justice“

Since Queer (In)Justice was first published in 2011, there has never been a time when it has not been relevant. Yet in the wake of the Supreme Court’s validation of gay marriage, and at a time when the discriminatory nature of policing and the criminal legal system as a whole is subject to more discussion and protest than it has been in a generation, this book seems particularly prescient. What has changed in the years since its release, and what remains the same?

Truthout recently corresponded with Joey L. Mogul, Andrea J. Ritchie and Kay Whitlock, the authors of Queer (In)Justice, who answered our questions in the same collective, collaborative manner in which they wrote the book.

Joe Macaré: In Queer (In)Justice you identify a need for both police accountability activists and LGBTQ organizations to put the policing of LGBTQ individuals, gender and queer sexualities at the center of their analysis. To what extent have we seen this being rectified with the emergence of groups like the Black Youth Project and #BlackLivesMatter and the focus they’ve put on police and state treatment of queer and trans Black women, femmes and gender nonconforming people?

Queer (In)Justice Authors: There has really been a sea change on this front since the publication of Queer (In)Justice in 2011 – both among mainstream LGBTQ organizations and grassroots police accountability movements, as well as some civil rights organizations like the NAACP. Highlighting and centering the experiences of LGBTQ people of color within larger conversations around policing and criminal justice is becoming increasingly common at the local, state and federal level – although there is still a lot of work to be done within more mainstream racial justice movements.

This shift has been achieved in a number of ways. The grassroots groups and campaigns we describe in the book are continuing to build and amplify their work around policing and have come together as part of the Get Yr Rights network, launched by Streetwise and Safe, a group Andrea [Ritchie] helped found and coordinate over the past five years, and BreakOUT!, a grassroots group in New Orleans that was instrumental to securing a historic consent decree from the US Department of Justice which specifically addressed many of the patterns of discriminatory policing we identified in Queer (In)Justice. The network brings together over 30 local and national LGBTQ organizations working to address policing and criminalization of LGBTQ folks, sharing resources, strategies, and support for local campaigns.

At the federal level, Urvashi Vaid brought together a group of folks to develop a national criminal justice policy agenda from the perspective of LGBTQ people and people living with HIV, released in 2014 as the report, A Roadmap for Change: Federal Policy Recommendations to Address the Criminalization of LGBT People and People Living with HIV, informed by the work of over 50 LGBT, civil rights, racial justice, and criminal justice advocacy groups. Over the past two years, a federal working group made up of mainstream and grassroots LGBTQ organizations has been working to advance the Roadmap’s recommendations on a number of fronts. Thanks to sustained advocacy by these groups, we’ve seen the issuance of an expanded guidance on racial profiling from the Department of Justice and a recently introduced, more comprehensive version of the End Racial Profiling Act, both of which ban profiling based on sexual orientation, gender and gender identity alongside race, religion and other factors. And this past May, the Presidential Task Force on 21st Century Policing released a report containing recommendations explicitly addressing the experiences of LGBTQ people and communities thanks to the active engagement, testimony, and submissions of LGBTQ groups, large and small, across the country.

LGBTQ leadership has also had an impact on broader campaigns and movements around police accountability at both the national and local levels. It’s well known that both #BlackLivesMatter and BYP 100 were launched by queer Black women who have consistently insisted on a framework for understanding state violence and anti-Black racism that centers on the lives of Black women, trans and queer folks. Of course, that insistence hasn’t always been heeded – but Black queer women on the front lines in Ferguson, in the leadership of BYP 100, and in chapters of #BlackLivesMatter and BYP 100 across the country have made it clear that this is a nonnegotiable part of the current movement and moment. Nowhere was that more clear than during the recent National Day of Action to End State Violence Against Black Women and Girls, called by BYP 100, #BlackLivesMatter and Ferguson Action, during which organizers across the country demanded that organizing efforts center the lives and experiences of queer and trans Black women, including Mya Hall, Janisha Fonville, Michelle Cusseaux, and Kayla Moore, alongside those of Freddie Gray, Walter Scott, Eric Garner and Mike Brown.

It’s a less well known fact that much of the leadership of local campaigns like Communities United for Police Reform, the New York City campaign that made the NYPD’s discriminatory use of “stop and frisk” a local and national issue and, 2013, brought about the most comprehensive enforceable ban on profiling, is queer, including its director, Joo-Hyun Kang, who, in her former capacity as executive director of the Audre Lorde Project, was a central force in highlighting LGBTQ people of color’s experiences and analysis within organizing against Giuliani’s “broken windows” policing in the mid-1990s – now once again in full swing under his former Police Commissioner William Bratton.

As a direct result of her leadership and the active engagement of groups featured in Queer (In)Justice, such as the Audre Lorde Project, FIERCE, and the New York City Anti-Violence Project, alongside newer organizations like Streetwise and Safe, which focuses exclusively on community education and policy advocacy around policing of LGBTQ youth of color, and groups like Make the Road New York, an immigrant rights organization whose work has increasingly centered the voices and experiences of trans Latina women and queer youth – LGBTQ experiences of policing have been squarely at the center of the conversation throughout the campaign around “stop and frisk” and discriminatory policing in New York City.

It’s now a given that legislators and policy makers will refer to and take action around LGBTQ experiences of policing, which are both similar to those of other members of communities of color and take unique forms requiring specific remedies. Mainstream LGBTQ groups have also been engaged in the New York City campaign – including just a few weeks ago, when two dozen organizations, including Lambda Legal, took a stand, on the heels of the Supreme Court decision around marriage, for the passage of the Right to Know Act, which would increase transparency and accountability during police stops. In so doing, they explicitly acknowledged that despite recent victories, equality is far from at hand in light of the continuing discrimination and abuses experienced by LGBTQ people in the criminal legal system.

What negative developments have we seen in the time since Queer (In)Justice was published that are relevant to the harmful patterns you identify in the book? Just one example that comes to mind is how the “trafficking” narrative has become more prominent in feminist, liberal and left circles even though it’s used to justify further criminalization and policing of sex workers…

Yes, despite the failures of law enforcement-based responses in reducing interpersonal and community gender-based, homophobic and transphobic violence, the mainstream anti-trafficking movement has jumped off the same cliff, demanding more policing of the sex trades and increasingly harsh penalties for violations of prostitution-related laws, resulting in increased danger and reduced protection for LGBTQ folks in the sex trades, including LGBTQ youth and trafficking survivors.

Now that greater attention is being paid to LGBTQ youth engagement in survival sex, as well as to the profiling and criminalization of trans women and queer youth of color based on actual or perceived involvement in the sex trades, it is particularly critical for LGBTQ organizations to be thoughtful in how they engage with demands for increased policing and penalties for prostitution-related offenses made by anti-trafficking advocates. In 2011, Streetwise and Safe coordinated an LGBTQ submission on the Federal Strategic Action Plan on Trafficking that urged the administration to focus on meeting basic needs identified by LGBTQ people in the sex trades rather than funneling more resources into law enforcement-based responses and partnerships with religious and exit-based services, many of which engage in punishing deviations from gender and sexual norms rather than addressing root causes of violence against people in the sex trades – which include criminalization of poverty and survival, stigmatization of people engaged in the sex trades, barriers to immigration and access to gender-affirming healthcare.

Earlier this year, Streetwise and Safe released a report in collaboration with the Urban Institute which summarized interviews with over 300 LGBTQ youth in the sex trades, who described experiences of police profiling, criminalization, neglect, violence and abuse under current criminal legal approaches. As we point out in the book, if you are not perceived as a victim by police and other players in the criminal legal system, then you are likely to bear the full brunt of criminal legal responses ostensibly enacted to protect you. And even if you are perceived as a victim, what the system currently offers you often differs drastically from what you need in order to avoid violence and achieve sustainable forms of safety.

Take the issue of the use of presence or possession of condoms as evidence of intent to engage in prostitution-related offenses. After years of advocacy, organizations like Streetwise and Safe have been somewhat successful in convincing policy makers of the wrongheadedness of handing out condoms on the one hand as a public health intervention, only to turn around and use their presence to make a criminal case against someone – not everyone, mind you, but specifically women of color and LGBTQ people of color.

However, a minority of anti-trafficking advocates have successfully blocked a comprehensive ban on the use of condoms as evidence of intent to engage in any prostitution-related offense on the grounds that they might be necessary to make a trafficking case. Not only does such a position continue to deter populations most at risk of new infections from carrying condoms, it actively puts LGBTQ youth and trafficking victims in harm’s way by creating a strong disincentive for people who are exploiting others in the sex trades to at least make condoms available to those they are exploiting. It also creates a situation where sharing condoms among LGBTQ youth in the sex trades – defined by law as “trafficked” by virtue of their age alone, regardless of circumstance – is a dangerous proposition, placing them at risk of serious felony charges carrying long sentences secured through sustained advocacy by people who claim to be acting in their best interests.

Fortunately, the vast majority of anti-trafficking organizations and LGBTQ groups have come out against the use of condoms as evidence in any circumstance – as did the President’s Task Force on 21st Century Policing – and it’s something we are hoping to see reflected in the update to the National HIV AIDS Strategy. But it’s definitely a cautionary tale to LGBTQ groups to assess very carefully initiatives that promote intensified policing and harsh penalties that ultimately harm those they purport to protect.

Mainstream “LGBT” advocacy organizations have been criticized for the arguably overwhelming emphasis they’ve put on the (now successful) fight for marriage equality. Has the marriage equality struggle had any positive impact in dispelling from the public imagination the criminalizing of queer archetypes you discuss in the book?

Sadly, no – to the contrary, it has intensified the cultural power and resonance of those archetypes.

We say in Queer (In)Justice, “As LGBT movements have institutionalized, visions of queer liberation have been tamed into a narrow rhetoric of equality within existing systems rather than challenges to the systemic violence and oppression they produce.”

By promoting the message that, “We’re just like you,” the movement for same-sex marriage situated itself within a reassuring framework of “respectability politics.” The strategic vision for same-sex marriage always lifted up what its architects call “emotionally compelling” stories and images that focus almost exclusively on middle-class couples who slot seamlessly into the mainstream of social and civic life. An enormous amount of white gay money went into the campaigns, framing the strategy, tactics and messages.

Same-sex marriage was framed as a battle for dignity, equality and inclusion. But there’s a huge contradiction when a campaign seeks to achieve these only by reassuring the mainstream of compliance and not by challenging a society toward transformative ends. Because whether you acknowledge it or not, you’re actively distancing yourself from the people in your own communities who don’t conform to or are not seen by others as conforming to these warm, fuzzy, reassuring images that tell you, “These people are safe. It’s OK to let them in because they’re just like us. Nothing really has to change.”

Respectability politics always works to limit its gains to the people who already most fit within white, middle- and upper-class norms. The LGBT, queer and gender nonconforming people who are presumptively criminalized are not seen as “safe.” They are predominantly people of color and trans and gender nonconforming people who are poor or struggling for economic survival. They’re young, they’re immigrants, they’re involved in the sex trades, they engage in public sex, they’re homeless. Their households may not conform to the image of a cozy, middle-class, nuclear family. Now, at least in terms of access to public benefits and legal recognition, they are considered less worthy than married couples.

Their very existence is construed as the presence of actual danger. These are the same queer communities who’ve always borne the brunt of multiple forms of violence – and especially the violence of race-, gender-, and class-based police misconduct and abuse.

This historical tension has always been there. When the US Supreme Court struck down sodomy laws, we rejoiced. But we knew that wouldn’t really change the ongoing, dire situation for poor, queer communities of color who were always criminalized and policed in many arenas, under many different pretexts.

Not coincidentally, the marriage juggernaut and flood of (white) gay money that supported it adversely affected any number of LGBT and queer organizations whose constituencies are the most heavily criminalized. Some of them, like Queers for Economic Justice, went under during this time. That’s a tragedy because progressive queers proposed specific, alternative ways to fight for legal recognition and basic economic security for diverse kinds of individuals, households and kinship arrangements; marriage was one option, but not the only one. But the marriage movement had only its own goals in sight.

Legal equality on the books almost never translates into equality in practice – precisely because of entrenched histories of structural white supremacy, gender violence, and economic violence. Until we address those, even movements for justice will replicate systemic injustice.

Some say now that marriage is won, more money will flow into other important efforts. We hope new and significant support to dismantle structural violence that affects queer communities appears, and does not, in the end, represent too little, too late, as it has so often before.

One striking thing about Queer (In)Justice is that you don’t limit the book’s concerns to queer people who are “innocent.” You also discuss the role of narratives of “criminal queers,” sentencing disparities and other unequal treatment by the criminal legal system, even in cases where the individual suffering this treatment may have committed substantial harm. Can you talk about the need to avoid focusing on “innocence/guilt,” the challenges this raises and any pushback you’ve encountered?

Regardless of whether someone is allegedly “innocent” vs. “guilty,” they should not be convicted or sentenced on the basis of racist, sexist, transphobic or homophobic archetypes, sentiments or arguments. Honestly, that seems like a no-brainer.

Unfortunately, as we discuss in Queer (In)Justice, police and prosecutors routinely and shamelessly mobilize racist, transphobic and homophobic sentiments to convict and kill people, without any objection or outrage from LGBTQ communities. And it is readily apparent that these law enforcement officials mobilize these arguments because it is a quick and easy way to persuasively convince people that the person accused of a crime is guilty or deserving of harsh punishment. This pattern and practice of argument demonstrates that the concepts of guilt and innocence are constructs that are influenced by race, gender, gender identity, sexual orientation, as well as class, religion, nationality and ethnicity. And these phenomena continue to play out every single day. We continue to see how people of color, particularly Black women and men (trans or cis), are demonized by prosecutors, the media and general public and presumed to be guilty and deserving of punishment when they are summarily executed by the police or vigilantes or convicted and harshly sentenced for violent crimes. The “guilty”/ “innocent” “armed”/ “unarmed” dichotomies have very much been at play in the recent debates not only around police killings, but also around criminal justice reform and decarceration, as well as immigration.

There are many challenges to fighting on behalf all people, including those accused of criminal conduct, regardless of their culpability. We continue to live in a society that is bent on punishment, thirsts for revenge and refuses to see the systemic forms of oppression that contribute to the conditions where people may transgress the law or engage in violence. In fighting on behalf of people accused of violent crimes in particular, it is much easier to garner sympathetic support if one can argue the person is innocent – otherwise too many people continue to believe the ends justify the means regardless of how oppressive, wrong or ineffective both the means and ends may be. While a person’s innocence is relevant and a potent argument, it can also become a straight-jacket that pushes us to myopically think about individual cases and lose sight of how biased and unfair the entire system is for all those ensnared in it.

How much does a lingering remnant of plain old puritanism, even among progressives/liberals/the left and among mainstream LGBTQ groups, account for the failure to address policing of public sex (even when used as a pretext) and public expression of queer sexuality?

Sentiments against queer sexuality, including sex that is non-monogamous, continue to play a huge role as to why mainstream LGBTQ organizations do not want to address the policing of public sex and the presence of gender nonconforming bodies in public spaces, particularly involving queer and trans folks. Some of this stems from puritanism, some from the politics of respectability that was re-enforced and inscribed by the push for same sex marriage. It also stems from the sex panic that rose during the AIDS crisis here in the US that we continue to suffer from to this very day.

While there has been significant movement around challenging the profiling of transgender women of color and LGBTQ youth of color, who are involved in the sex trades, and increased advocacy around the conditions of violence, exclusion and poverty that drive involvement, there continues to be a profound silence around the ways in which policing of lewd conduct and public sex continues to target low-income, homeless and immigrant queers. For instance, there was recently a story in The New York Times about continuing entrapment and false arrests for sex in public bathrooms very similar to the patterns we describe in the book – and while Legal Aid picked up the cases, to our knowledge no mainstream LGBTQ group has mounted a campaign to challenge the methods and discriminatory policing practices that surround policing of public sex. Perhaps this can be one of the issues they turn to now that marriage is secured?

Are you seeing any wider realization now among LGBTQ advocates of the limitations of hate crime laws and their potential for backfiring, now that even the police themselves are trying to claim protection through them?

There is growing realization of these limitations and the reality that the laws backfire on already-marginalized communities. Certainly, progressive LGBT and queer activists of color are in the forefront of efforts to reduce rather than intensify reliance upon law enforcement and to, as the Audre Lorde Project says, create safety “outside the system” – and they have been for a long time. LGBTQ and gender nonconforming people are, as we have noted, at the center of movements to abolish prisons and police forces. For example, Southerners on New Ground (SONG) is a progressive regional queer liberation organization that routinely addresses multiple kinds of violence in its work, including law enforcement violence and the criminalization of people of color, immigrants, transgender and gender nonconforming people, working-class people and people with disabilities.

Even some staff and board members within mainstream LGBTQ groups recognize that the hate crime strategy hasn’t worked and has even produced harmful consequences. But most of these groups don’t want to acknowledge this publicly for any number of reasons. They don’t want to lose donors, and they are not willing to educate their donors themselves. They’re afraid the right will have a field day if they admit the strategy was fatally flawed. Most of all, they don’t know what else to do. They’re not the only ones – transgender women of color faced with endemic violence resulting in the killings of over 10 transgender women this year alone and widespread and entrenched transphobic violence at every turn are demanding action from a criminal legal system which continues to fail to protect them – even when they are beaten to death directly across the street from a police station, as was the case for Islan Nettles.

And there’s still a huge segment of the LGBTQ population – especially who are white and middle-class, with little or no personal experience or historical understanding of state violence – that believes the challenge is just to get police “on our side.” So when, for instance, Seattle police provide rainbow-colored signage to groups and businesses declaring that they are a SPD-recognized “Safe Place” for LGBTQ people who are experiencing bias-based violence or harassment, there’s too little recognition of the profoundly grim irony – and contradiction – of the gesture.

It was after Ferguson and with the rise of national organizing against a seemingly endless stream of police killings of unarmed people of color that the Fraternal Order of Police, a national organization, resurrected its claim for inclusion in federal hate crime laws. They and other police organizations advance this claim periodically when they’re getting bad PR in order to frame themselves as the primary victims of violence. Part of this is theater to distract us from the structural violence embedded in everyday policing and how it devastates Black and Brown communities. And part of it reflects the utterly degraded state of political discourse about structural violence. Reframe it as “hate,” which is psychological prejudice and bigotry run amok, and you’ve performed the political magic act of making structural violence disappear.

Regrettably, along with the progress, we’re also seeing a doubling down of use of the hate frame by politicians, pundits and media who are intent on derailing any focus on race-, gender- and class-based structural violence. This is most easily seen right now in public discourse related to the mass killings in Charleston and subsequent burnings of Black churches – which to be sure, requires our concerted attention and a society-wide response, but one that effectively prevents such violence from occurring and attacks its root causes.

So we’ve got a long way to go.