What would you say if I told you being gay is still a crime in the United States? Hard to believe, right? Well, it’s true. Criminalizing the LGBTQIA+ community never went away, it just went underground.

On June 26, 2015 the United States Supreme Court ruled in the case of Obergefell v. Hodges in which the 5-4 decision reversed Baker v. Nelson. This landmark decision legalized gay marriage in all 50 states and Washington D.C. For a while it was hailed as one of the great triumphs for LGBTQ rights. But, as one of the mothers of the LGBTQIA+ movement in the U.S., Sylvia Rivera, pointed out early on, LGBTQIA+ communities were being, and continue to be, unjustly targeted by the criminal justice system. So, although the police weren’t explicitly going after white middle-class gays and lesbians anymore, they were doing so with trans queer youth of color.

And not much has changed, except perhaps our awareness that it is still a crime to be gay.

The Zealous Pursuit of Injustice

According to a 2019 report, UCLA School of Law found that LGBTQIA+ youth of color were overrepresented in the child welfare and juvenile justice systems. They concluded that this was due to a combination of systemic racism and trans/homophobia. In case that wasn’t bad enough, a 2019 paper published in a journal for the American Medical Association noted that transgender people incarcerated in prisons of their assigned gender are far more likely to face violence.

Panic at the Disco

As of 2020, only 8 states have outright banned LGBTQIA+ panic defenses in a court of law. Essentially, what this means for the other 42 states and territories is that a person may claim that another person’s queerness was at the center of why they committed an act of violence against a queer person—and get away with it. So, in other words, a man can beat up another man and in court testify that the man he beat up was flirting with him, causing him to panic, beat up the guy, and later claim justifiably before a judge and jury that there had been no other reasonable course of action in that moment.

The Threat of Being Gay

LGBTQ are at greater risk of being charged with sex crimes, too. For context, a sex crime could be as simple as urinating in public, which is a huge problem for trans people and homeless LGBTQIA+ youth. Of course, most sex crimes are notably reprehensible, but at the same time the definition of what connotes a sex crimes is a extremely loose and puts LGBTQIA+ people at a high disadvantage. The core reason why LGBTQIA+ people are at greater risk is thanks to an assessment called the Static 99. This assessment is used to determine what kind of threat a person is to society. One startling criteria is whether a victim was of the same sex as the perpetrator. This assessment can also be used to determine the likelihood of parole and on what conditions a person might be released.

Rethinking Sex Crimes

It gets worse. Thanks to shows like Law & Order: SVU, there is a cultural understanding that all sex crimes are the actions of inhuman monsters. The cultural zeitgeist that is our perception of sex crimes as especially heinous feeds the desire, not for justice, but for punishment. If society thought of LGBTQIA+ people as equal and deserving of justice, why would it judge all people assigned male at birth as higher risk if their victim was, in fact, of the same sex? While no verifiable data could be obtained about the number of LGBTQIA+ charged with sex crimes, a 2015 study conducted by Black & Pink (a prison abolitionist organization) found that LGBTQIA+ people were serving life sentences at twice the national average for state and federal prisons. LGBTQIA+ people also have an average sentence length of 10 years compared to the 2.9 years of their cisgender heterosexual counterparts.

A Lack of Integrity, Imagination, and Truth

Sex crimes are a form of harm against a person and the community in which that person belongs. How do we as a society deal with such harm? Does punishment solve the problem of people committing sex crimes in our own communities? It has already been shown that the US prison system does not rehabilitate people. What if we held those who harm people and their communities accountable, made them responsible for repairing the harm they’ve done? That is the basic premise of transformative justice. Prisons do not solve the problem of sex crimes. They erase the problem from our minds. They also erase human beings. Transformative justice acknowledges all parties involved and asks the people who harm their communities to repair that harm, to reckon with the harm they’ve caused, and be a part of the process that emphasizes healing rather than punishment. The fact that prisons are more harmful than beneficial or that the criminal justice system targets queer youth of color does not excuse the harm caused to other people and their communities. Transformative justice is not a shield under which people who cause harm can hide from the reality of the harm they’ve caused. What it suggests is that the current system offers very little justice, far too much cruelty especially towards minority groups, and that there are alternatives if society is willing to have honest discussions about it.

The Way Foward

Inspired by abolitionists such as the author of Are Prisons Obsolete?, Angela Davis, it is essential that society grapple with how it deals with people who cause harm. To paraphrase Dostoevsky, “society is judged by the way it treats the people they incarcerate.” The fact that society resorts to locking people away in remote locations, conscripting incarcerated people into forced labor, denying them adequate healthcare, and charging exorbitant rates to communicate with free world. Prisons do not keep society safe. To keep society safe, end the casual way in which human life is discarded (often without being convicted of a crime). If people should not be defined by their worst mistakes, then the world should be built to reflect that. Fund people: healthcare for all, universal basic income, and free college. Oh, and check implicit bias and take direct actions to make sure that it isn’t still illegal to be gay in America. 

  • Jamie Saoirse O'Duibhir

    Jamie Saoirse O'Duibhir is an ordained minister and contributor for the ENnie award-nominated project Uncaged Anthology with a BA in Social Science from Shimer College. Jamie does everything while listening to some variety of metal, folk, or Disney Showtunes.