In this excerpt from Queer (In)Justice, the authors reveal how police continue to facilitate the oppression of queer people and the criminalization of queer sexualities.
The policing of queer sexualities has been arguably the most visible and recognized point of contact between LGBT people and the criminal legal system. In many ways, policing of queers has not changed significantly since the days when it sparked outrage and resistance from LGBT communities, although its focus has narrowed to some degree. According to the New York City Anti-Violence Project, “Young queer people of color, transgender youth, homeless and street involved youth are more vulnerable to police violence… AVP’s data analysis also reveals that transgender individuals are at a greater risk of experiencing police violence and misconduct than non trans people.” The National Center for Lesbian Rights (NCLR) and Transgender Law Center reported in 2003 that one in four transgender people in San Francisco had been harassed or abused by the police. Far from fading into the annals of LGBT history, police violence against queers is alive and well.
Since the mid-1970s resistance to abusive policing of LGBT people has largely been absent from the agendas of national mainstream LGBT organizations.
Yet with the exception of sodomy law enforcement, since the mid-1970s resistance to abusive policing of LGBT people has largely been absent from the agendas of national mainstream LGBT organizations, particularly as police have increasingly narrowed their focus to segments of LGBT communities with little power or voice inside and outside such groups. Similarly, while mainstream police accountability and civil rights organizations have called for accountability in a limited number of cases involving LGBT individuals, policing of gender and queer sexualities has not been central to their analysis of the issue. It is essential to bring the persistent police violence experienced by LGBT people to the fore of these movements to ensure the ghosts of Stonewall do not continue to haunt for years to come.
Policing Social Order
Social constructions of deviance and criminality pervade the myriad routine practices and procedures through which law enforcement agents decide whom to stop on the streets or highways, whom to question, search, and arrest, and whom to subject to brutal force.
Queers of color are firmly within the sights of enforcement of quality of life regulations, which provide police with powerful tools to target public manifestations of perceived deviance and disorder embodied in queer sexualities and gender identities. In its 2005 publication Stonewalled: Police Abuse and Misconduct Against Lesbian, Gay, Bisexual and Transgender People in the U.S., Amnesty International reported apattern of discriminatory application of quality of life regulations against LGBT people, particularly queer youth, LGBT people of color, and the significant proportion of queer youth and transgender people who are homeless or precariously housed. Gabriel Martinez, a member of FIERCE (Fabulous Independent Educated Radicals for Community Empowerment, an organization of LGBT youth of color in New York’s West Village), explains, “If there is a group of queer youth of color hanging out in front of the subway station on Christopher Street the police will tell them they are loitering, but if it’s a group of white tourists blocking the subway entrance they don’t say anything.” A 2003 FIERCE survey of LGBT youth in the West Village and Chelsea, gay neighborhoods in New York City, found that 98 percent of respondents had experienced police harassment or violence.
Public expressions of non-normative sexualities are perceived as threats to community security.
Public sexual culture spans a broad spectrum from back rooms and bathhouses, to sex clubs and sex parties, to adult bookstores, peep shows, porn theaters, and strip clubs. It encompasses street-based sex work, porn magazines on newsstands, drive-ins, lovers’ lanes, public displays of affection, and ten-story Calvin Klein billboard advertisements. And queers by no means have a monopoly on it. Yet the existence, or perceived existence, of so-called deviant sexualities in public spaces is aggressively policed and punished, while the normative sexuality that permeates almost every aspect of society goes virtually unnoticed.
Rationales offered for policing queer sex and consensual commercial sexual exchanges among adults vary. In some cases police appear to act on their own notions of ordered society. In others, they are, or claim to be, responding to public complaints and enforcing community standards, which are in turn often driven by the notion of gays and sex workers as disease spreaders, precursors of violence, and polluters of the nation’s morality. Either way, public expressions of non-normative sexualities are perceived as threats to community security, and as markers of individual and societal degradation that must be rooted out.
Far from being a relic of the days before police sensitivity training and enlightenment, raids continue to play a central role in the policing of LGBT communities. Forty years to the day after Stonewall, Forth Worth, Texas, police, accompanied by alcoholic beverage commission agents, raided a gay bar, injuring several patrons, and hospitalizing one gay man alleged to have groped an officer. The police chief justified the violence by claiming that men in the bar made sexual advances toward police. The owner quipped in response, “The groping of the police officer—really? We’re gay, but we’re not dumb.”
While targeting of “mainstream” gay and lesbian establishments may have diminished somewhat in recent decades, predominantly Black and Latina/o LGBT clubs continue to suffer constant vice surveillance, building and liquor code enforcement, and aggressive enforcement of driving while intoxicated, jaywalking, and noise codes.
For instance, New York City–based People of Color in Crisis (POCC) reports that Chi Chiz, one of the few gay bars in Manhattan catering to a predominantly African American clientele, has been the subject of “unfair and racially motivated attacks by the local police department . . . [including] unjustified police raids, bogus ‘noise violations’ and other forms of unjust surveillance.” POCC organized a petition drive highlighting the irony of the ongoing harassment of an establishment just around the corner from the Stonewall Inn, noting that “sadly, local residents of the West Village (many of whom claim to be staunch supporters of ‘gay rights’) have turned their backs on the mostly African American patrons of the bar.”
Policing “Public” Sex
Aggressive policing of queer sexualities extends beyond bars and bathhouses to public spaces where gay men and transgender women are known to congregate or engage in sexual activity.
Sodomy laws may have been declared unconstitutional, but lewd conduct statutes, still on the books in all fifty states and the District of Columbia, continue to be used by law enforcement agents against gay men and transgender people. They allow officers to arrest any person perceived to be engaged in what is alternately described as “indecent exposure,” “public sexual indecency,” commission of a “lewd, obscene or indecent act,” “obscenity” or “sexual misconduct.” As a general rule, lewd conduct statutes allow individual law enforcement officers and agencies to set the standard for decency, and then decide who violates it.
While the number of lewd conduct arrests is reported to have declined in some cities in recent years as a result of organizing efforts, legal challenges, and declining law enforcement resources, the impact on gay men, and increasingly gay men of color and immigrant gay men, continues to be devastating. For instance, in Los Angeles, between 1999 and 2001, 54 percent of lewd conduct arrests were of Black and Latino men. Police targeting of locations where South Asian, Black, Latino, and immigrant gay men are known to congregate— from the bathrooms of subway stations in Jackson Heights, New York City, to Detroit’s Rouge Park to LA’s barrios—is commonplace across the country. Latino gay men in LA point out that regardless of where policing of public sex takes place, it has a particular impact on low-income and young gay men who cannot afford to go to clubs or bathhouses—and often cannot afford the costs of mounting a defense to charges that are in many cases baseless. Disproportionate numbers of arrests of men of color for lewd conduct offenses are no doubt at least in part a product of saturation of communities of color with police officers in the context of war on drugs and quality of life policies. Additionally, archetypes framing men of color and gay men as highly sexualized and predatory meld to inform heightened policing of gay men of color’s sexualities in public spaces.
The repeal of lewd conduct statutes alone is unlikely to be enough to stop such practices. Laws may change, but often law enforcement practices simply shift and adjust to achieve the same results. In New York State a 2003 investigation revealed that 400 people were arrested over a twenty-year period and charged under a state law prohibiting consensual sodomy that had been invalidated in 1980. This was not simply a regrettable instance of the news of the change in the law not making it to far-flung areas of the state—296 of the arrests were made in New York City. Officials dismissed the seriousness of the wrongful arrests, claiming that, had they known of the error, most of the charges brought under the invalid law would simply have been changed to something else, starkly proving the point that if one law is struck down, another works just as well.
Much of the mainstream movement’s resistance to policing of queers has focused on these experiences of gay men, to the exclusion of those of other LGBT people and larger communities. The false arrests of twenty-seven gay men on prostitution charges in New York City in 2008 brought the issues into sharp focus. The men maintained their innocence of any crime, and the arrests appeared to be part of a gentrification-driven scheme to shutter businesses selling pornography in up-and-coming neighborhoods. Rob Pinter, a white, middle-class, licensed massage therapist arrested in late 2008, outraged at being falsely charged with prostitution, contacted every elected official and community organization he could think of, sparking widespread community organizing. His conviction was eventually overturned, and, according to the NYPD, the operation that resulted in the arrests was mothballed. By many accounts, justice was done. However, throughout the process, efforts were made to broaden the discussion to address widespread profiling and false arrests of transgender women on prostitution-related charges in many of the same neighborhoods, as well as abuses of LGBT sex workers in the context of policing prostitution more generally. Although Pinter himself repeatedly expressed solidarity with all queers who experience police misconduct, for the most part, others insisted on narrowly framing the issue to exclude the experiences of queers who are, or are profiled as, sex workers, as well as those of New York City’s larger communities of color.
The policing of sex work ensnares heterosexuals and queers alike. Yet punishment of consensual exchanges of sex for money or some other benefit among adults can be seen as an extension of policing queer, as in non-normative, sex. Moreover, it particularly punishes LGBT sex workers, transgender women—who are endemically profiled as sex workers by police—and LGBT youth.
The policing of sex work particularly punishes LGBT sex workers, transgender women and LGBT youth.
Transgender women, particularly transgender women of color, are so frequently perceived to be sex workers by police that the term walking while trans, derivative of the more commonly known term driving while Black, was coined to reflect the reality that transgender women often cannot walk down the street without being stopped, harassed, verbally, sexually and physically abused, and arrested, regardless of what they are doing at the time. Gender nonconformity is perceived to be enough to signal “intent to prostitute,” regardless of whether any evidence exists to support such an inference. When combined with hailing a cab or carrying more than one condom, it’s an open and shut case.
The policing of sex work is highly sexualized and characterized by routine forms of misogynist, homophobic, transphobic, and racist abuse. According to a 2003 report by the Sex Workers Project (SWP) about street-based sex work in New York City, not only is sexual harassment of sex workers by police endemic, but “transgender women described officers checking their genitals and making comments about their gender.” It is also marked by physical violence, rape, and extortion of sexual acts on threat of arrest—a threat that is particularly powerful where transgender women are concerned, given that they are frequently subjected to abusive and invasive searches and dangerous placement with male detainees when in police custody.
A 2002 Chicago-based study of women in the sex trades found that 30 percent of erotic dancers and 24 percent of street-based sex workers who had been raped identified a police officer as the rapist. Approximately 20 percent of other acts of sexual violence reported by study participants were committed by police. A participatory research report conducted by young women and girls in the sex trades at Chicago’s Young Women’s Empowerment Project (YWEP) found that police violence, coercion, and failure to help are by far the most significant forms of institutional violence they experience. The report states, “Many girls said that police sexual misconduct happens frequently while they are being arrested or questioned.” According to 2003 and 2005 studies by the SWP, up to 17 percent of sex workers interviewed were sexually harassed, abused, and assaulted by law enforcement officers. One in five actual or perceived sex workers surveyed by Different Avenues in Washington, DC, who had been approached by police indicated that officers asked them for sex. Close to 30 percent of outdoor sex workers and 14 percent of indoor sex workers who participated in the New York City studies reported experiencing physical abuse at the hands of police officers.
Law enforcement officers have fairly consistently and explicitly policed the borders of the gender binary. Historically and up until the 1980s, such policing took the form of enforcement of sumptuary laws, which required individuals to wear at least three articles of clothing conventionally associated with the gender they were assigned at birth, and subjected people to arrest for impersonating another gender.
According to sexuality scholar Katherine Franke, “Butch lesbians experienced the weight of these rules every day during the 1950s when police would arrest them if they could not prove that they were wearing at least three pieces of women’s clothing.” As Leslie Feinberg, author of Stone Butch Blues, put it, “The reality of why I was arrested was as cold as the cell’s cement floor: I am considered a masculine female. That’s a gender violation.”
Although “official prohibitions against cross dressing have, for the most part, gone the way of other sumptuary laws . . . the effect of these laws—like an imprint—is with us.” They contributed to the development of archetypes of gender transgressive people as inherently criminal, and continue to act as unwritten rules, which, when violated, signal disorder and fraud to law enforcement. Franke underscores their enduring impact by noting that persons whose appearance, dress, or behavior conflicts or challenges heteronormative expectations about sex/gender conformity “are either punished for trying to get away with something or pathologized as freaks.”
Gender is often policed through arbitrary and violent arrests of transgender and gender-nonconforming people for using the “wrong” restroom.
Currently, gender is often directly policed through arbitrary and violent arrests of transgender and gender-nonconforming people for using the “wrong” restroom—even though there is generally no law requiring individuals who use bathrooms designated as for men or women to have any particular set of characteristics. As Franke notes, sumptuary laws and bathroom signs serve similar functions, creating and reinforcing an “official symbolic language of gendered identity that rightfully belongs to either sex. ‘Real women’ and ‘real men’ conform to the norms; the rest of us are deviants. Curiously, in life and in law, bathrooms seem to be the site where one’s sexual authenticity is tested.”
Beyond bathrooms, gender policing takes place through routine harassment. Verbal abuse of transgender and gender-nonconforming people is commonplace. According to a Los Angeles study of 244 transgender women, 37 percent of respondents reported experiencing verbal abuse from a police officer on at least one occasion. It also takes place through arrests of individuals who carry identification reflecting the “wrong” gender. Such policing draws on and reinforces the criminalizing archetype of transgender and gender-nonconforming people as intrinsically dishonest and deceptive.
Gender nonconformity is also often punished in and of itself, through physical violence, drawing on a toxic amalgam of queer criminalizing archetypes. Controlling narratives framing women of African descent as masculine and women of color as sexually degraded are also at play, dictating punishment for failure to conform to racialized gender norms. For instance, Black lesbians frequently report being punched in the chest by officers who justify their violence by saying something along the lines of, “You want to act like a man, I’ll treat you like a man.” A Latina lesbian arrested at a demonstration in New York City in 2003 reported that an officer walked her by cells holding men and told her, “You think you’re a man, we’ll put you in there and see what happens.” A Black lesbian in Atlanta reported being raped by a police officer who told her the world needed “one less dyke.”
In Feinberg’s words, “Even where the laws are not written down, police are empowered to carry out merciless punishment for sex and gender difference.” Beyond the daily violence and humiliation law enforcement officers mete out on the streets, police also serve as a first point of contact with the criminal legal system, thereby playing a critical role in shaping how queers will be treated within it. Alternately determining whether queers will be seen as victims or suspects, fueling archetype-driven prosecutions, and driving incarceration and punishment, policing of queers continues to warrant concerted attention on the part of LGBT, police accountability, and civil rights movements.
Excerpted from Queer (In) Justice: The Criminalization of LGBT People in the United States by Joey L. Mogul, Andrea J. Ritchie, and Kay Whitlock (Beacon Press, 2012). Reprinted and condensed with permission from Beacon Press.