Illinois Prisons Sued for Unconstitutional Ban on LGBTQ Literature

The Uptown People’s Law Center and the MacArthur Justice Center filed a lawsuit on October 17 that alleges Illinois prisons are censoring correspondence and publications that have been mailed to prisoners by Black and Pink, a prisoners’ rights organization focused on supporting incarcerated LGBTQ and HIV-positive people.

Jason Lydon founded Black and Pink in 2005 after his own incarceration and was the national director of the group until 2017. “Prisoners are entitled to communication with people on the outside and are entitled to knowledge and stories that validate their humanity,” Lydon told Truthout. “This lawsuit is about ensuring that.”

Black and Pink, which seeks the abolition of the prison system, produces several publications for prisoners featuring writing and artwork by incarcerated people. Nationally, Black and Pink distributes a monthly newsletter to tens of thousands of prisoners; in Illinois, there are hundreds of subscribers.

The lawsuit, filed on behalf of the Chicago chapter of Black and Pink, alleges that Black and Pink publications and correspondence — including its Stop Solitary Zine, introductory letters, chapter updates, newsletters, and birthday and holiday cards — have been banned from several Illinois prisons since at least 2016. Lindsey Hess, the media administrator for the Illinois Department of Corrections (IDOC), stated in an email to Truthout that “the publication has not been banned at any IDOC facilities.” It’s not clear which publication Hess was referring to, and further communication to the IDOC had not been responded to at the time of publication.

“Prison is isolating in general,” said Alan Mills, the executive director of the Uptown People’s Law Center. This isolation, which is particularly acute for LGBTQ prisoners, Mills says, is why it’s critical that Black and Pink “be able to communicate with people inside who desperately need that support.”

The censorship of Black and Pink in Illinois prisons has taken several forms, according to the lawsuit. Items from the organization have been marked “Return to sender, unable to forward,” “Contraband,” “Black & Pink-Banned Correspondence” or “Correspondence not approved.”

“Getting mail from people shows [that] someone on the outside is paying attention to what is going on,” said Kim Sammons, a volunteer with Black and Pink Chicago. “Prisons do a lot of work to dehumanize people. Any kind of connection is important.”

The lawsuit alleges that Western Illinois and Danville facilities informed prisoners a holiday chapter mailing, which included holiday cards, was rejected by stating: “We are discouraging communication between our prisoners and the Pink & Black [sic] organization, so we cannot allow the receiving of more propaganda.”

According to the lawsuit, people incarcerated at several prisons — including Western Illinois, Centralia, Danville, Decatur, Dixon and Big Muddy River — were told: “The [Stop] Solitary Zine promotes violence with strong language and strange artwork found on several pages. If we suspect that mail being sent to prisoners is encouraging any sort of rebellious attitude, we must keep that mail from them.”

The censorship, Mills said, has been “totally random,” as Black and Pink publications have been banned at some prisons in Illinois but not at others.

This is far from the first time LGBTQ publications have been censored in prisons. In 2016, the ACLU of Kentucky demanded that the Eastern Kentucky Correctional Complex end its ban on publications that “promote homosexuality.” In response, the Department of Corrections rescinded the ban.

“To us, it was just a very clear First Amendment violation,” said Amber Duke, communications director for the ACLU of Kentucky. Duke said the organization first learned of the policy when prisoners reported that their issues of LGBTQ publications like Out and The Advocate were being confiscated when they arrived in the mail.

A 2015 national survey of more than 1,000 prisoners conducted by Black and Pink found that just 20 percent of prisoners reported having access to “LGBT affirming books.” Of the respondents to the survey, 65 percent identified as LGBTQ before their incarceration.

While prisoners’ First Amendment rights are limited, they are “not annihilated,” explained David Fathi, director of the ACLU National Prison Project.

“The most clearly prohibited government misconduct under the First Amendment is viewpoint discrimination, which is suppressing literature or advocacy or speech because the government doesn’t like the point of view that’s being expressed,” said Fathi. “That’s something the government can virtually never do. To the extent that prisons are suppressing LGBT advocacy materials, that is presumptively unconstitutional.”

Targeting publications like those produced by Black and Pink is indicative of the broader experience of LGBTQ prisoners who experience higher rates of sexual violence, harassment and solitary confinement, according to Naomi Goldberg, policy director of Movement Advancement Project, a think tank that works to advance equality for LGBTQ people. Of the respondents to Black and Pink’s survey, 85 percent reported being held in solitary confinement.

Those who bear the brunt of this abuse are people of color who are disproportionately represented in the prison system, notes Goldberg, who is the author of “Unjust: How the Broken Criminal Justice System Fails LGBT People of Color.”

“[Censorship] is one data point of many around the harassment and discrimination [LGBTQ prisoners] experience,” Goldberg told Truthout. “Just as staying connected to family and friends is really important for people who are incarcerated, staying connected to a community is really important.”

Building community to combat the isolation imposed upon LGBTQ and HIV-positive prisoners, Lydon says, is at the core of Black and Pink’s mission.

“[Black and Pink] is a reminder that they’re cared for,” said Lydon. “It’s a reminder to everybody that they’re not forgotten.”