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Queer (In)Justice: The Criminalization of LGBT People in the United States [February 2, 2011]

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Written by Joey L. Mogul, Andrea J. Ritchie, and Kay Whitlock, $27.95; Beacon Press; 216 pages

It seems that the LGBT community now has everything it could ever ask for in its quest for “full equality.” Don’t Ask, Don’t Tell has been repealed, and while gay marriage is only legal in a few states, major gay organizations have already earmarked millions for that fight. Most significantly for some, the Supreme Court made a landmark decision in the 2003 case of Lawrence v. Texas to finally end an antiquated law against sodomy.

It’s Lawrence v. Texas which convinces many LGBTs that queers can no longer be criminalized. As gay marriage appears on the horizon, LGBTs stand at the foot of the rainbow ready to hoist themselves over it and rappel downwards on the other side to the promised land.

But, meanwhile…In 1999, Bernina Mata, a Latina lesbian in Illinois, was sentenced to the death penalty in a case where Assistant State’s Attorney Troy Owen declared that she had “a motive to commit this crime in that she is a hard core lesbian…”

In 2001, Freddie Mason, a Black gay nurse’s assistant in Chicago was arrested after a verbal argument with his landlord “and anally raped with a billy club covered in cleaning fluid by a police officer who called him a ‘nigger fag.’”

In 2008, Duanna Johnson, a Black transgender woman in Tennessee, was picked up by police despite no evidence of solicitation. At the police station, she refused to answer to an officer who called her a “she-he.” She was beaten so hard that her skull split open. Johnson filed a suit against the police but, before the matter could go to trial, was found shot execution style under mysterious circumstances.

In each case, the victims were identified as queer and suffered at the hands of a system that used their gender and sexual identities to mark them as inherently prone to violence and/or deserving of horrendous and illegal punishment. Or, as the brilliant and searing new book Queer (In)Justice forcefully reminds us, “The specter of criminality moves ceaselessly through the lives of LGBT people in the United States.”

Queer (In)Justice’s three co-authors have long worked on the prison industrial complex and the criminal legal system. Joey Mogul is well known to Chicago and national anti-death penalty activists, and has represented men who sued Jon Burge. Andrea Ritchie is a police misconduct attorney in New York City and Kay Whitlock was the national representative for LGBT Issues for the American Friends Service Committee and is now a Montana-based organizer and writer. To their great credit, despite the presence of three very distinct individuals with long-standing ties to their subject matter (which is a delicate way of saying: this could have dissolved into an incoherent mess), the book is eloquent and seamless.

In seven chapters filled with unstinting accounts filled with detail, acute analysis and historical research, the authors seek to complicate and unsettle what we might understand as the criminalization of LGBT people. The fact that they prefer the term “criminal legal system” rather than the more commonly used “criminal justice system” provides one way to understand this book’s intent. For them, this “reflects an acknowledgment of the reality that this system has not produced anything remotely approximating justice for the vast majority of people in the United States…but rather bears major responsibility for the continuing institutionalization of severe, persistent, and seemingly intractable forms of violence and inequality.”

Queer (In)Justice pulls no punches in laying how this system brutalizes the most marginalized while confident that no one will pay attention or care much. In the case of Johnson, Reverend Dwight Montgomery, president of the Southern Christian Leadership Conference, said that he was appalled but added, “I certainly don’t condone transgender [sic] or homosexuality.” At the same time, mainstream LGBT groups jumped on the opportunity to use the case to advance hate crimes legislation, without criticizing the police department for failing to end what was clearly a systemic problem that could be handled with existing laws in place.

This is the kind of contradiction that this book unpicks so artfully: the fact that the mainstream LGBT community on the one hand expressly wants law and order to work on its behalf even as it sees the history of how that very system has consistently worked to deny it the most basic rights – until relatively recently in our history, Chicago police could arrest lesbians for wearing trousers that closed in the front back, not the back or sides as “ladies” might wear.

What explains such contradictions? The answer, as Queer (In)Justice reveals, lies partly in the mainstream LGBT community’s recent accession to a position of power and influence such that it genuinely believes that it is above such treatment. It also lies in the fact that LGBTs extrapolate very specific lessons from the histories that we understand and/or uncover. For instance, the commonly related narrative about sodomy laws is that they represented the worst of Puritanical impulses and that their repeal now means the end of the criminalization of LGBT people.

But those most affected unjustly by an already unjust criminal legal system are also marginalized on account of any and every combination of race, income level and sexual and gender identity (perceived or otherwise). Thus, “[a] narrow telling of the story of sodomy laws also creates mutually exclusive categories of ‘people who are discriminated against on the basis of race’ and ‘people who suffer oppression as queers.’” And so, Johnson, a Black, poor, transgender woman who could not access to drug addiction treatment programs because she refused to present as a man, was at once ignored by her supposed community of gays and targeted by a system that recognized her socio-economic vulnerability and punished her for talking back.

The book is critical of the mechanisms ostensibly designed to provide correctives to such cases. In a chapter-long critique of hate crimes legislation, they point out the fallacy of such. Originating in the 1950s as a way to ensure that African Americans would get fair treatment under the law, hate crimes legislation persuades us to ignore the fact that law enforcement itself specifically targets what might be deemed protected categories (lesbians, Black gay men, transgender women). In addition, they convince us that bias-based violence springs from individualized and ignorant impulses, allowing us to forget that “behavior that is racist, homophobic, transphobic…does not occur in a political vacuum.”

Queer (In)Justice, written in an accessible style for a general audience, is a much-needed corrective to the idea that “law and order” operate as just and abstract concepts in a system that will protect the innocent. It persuasively argues that innocence is a shifting category, contingent on visible markers of race and class privilege. A concluding chapter provides alternatives to the rush to involve conventional policing systems. For instance, in Tennessee, following the Johnson murder, the Tennessee Transgender Political Coalition began calling on transphobic businesses to provide more employment opportunities for transphobic businesses and for shelters to end their practice of turning away transgender people and forcing them live on the streets.

It’s here, though, that the book runs the risk of occluding the clarity it otherwise provides so well. In writing about the accomplishments of various alternative queer groups, for instance, it mentions, a few times, Chicago’s Queer to the Left (Q2L) for its campaigns against gentrification and the death penalty, describing it as a “multi-racial, grassroots group.” I was, along with Joey Mogul, a member of Q2L. Even until her acknowledgments at the end of the book, where she speaks of it in the past tense, it’s hard to discern that the group in fact no longer exists. In and for its time, Q2L did excellent work but by the time I left in about 2003, some months before its eventual demise, it was entirely white and mostly male (a colleague wryly noted that my departure meant a sudden depletion in at least three constituencies), and its internal and external politics displayed the kind of racism and homo/heteronormative agenda it had originally sprung up to combat; its last public action was pro-gay marriage.

I provide this in part to disclose my prior working relationship with one of the book’s authors (Mogul and I still operate in intersecting activist circles) but also to caution against a tendency of the left/progressive organizing world to erase, even if with the gentle nudge of omission of certain facts, the more troubling aspects of our individual and collective histories. The authors are not responsible for long histories of the many groups they mention, but they are responsible for at least accurate portrayals and for pointing out that some groups, while they did vital work, have also died out (similarly, Queer Watch, another network mentioned, no longer exists). In forgetting or erasing our pasts, we run the risk of believing that alternative visions can operate without trouble or rancor or that, indeed, that they somehow operate forever. Our fallibility as organizers does not make us any less radical or effective; our awareness of such can only make us stronger.

That aside, this book is a powerful and productively disorienting book, and essential reading for anyone interested in how queers intersect with the criminal legal system. Queer (In)Justice does not present an explicitly abolitionist agenda, but its politics are clear in one telling sentence: “The violence and punishment visited on LGBT prisoners ‘are not anomalies,’ and they cannot be eradicated through reform.” I suspect that the book’s shying away from a more explicitly abolitionist agenda has something to do with the fact that it emerges from an anti-oppression, not an anti-capitalist framework. Which is to say: the problems it illuminates are depicted as arising from the oppression of marginalized communities, but there is little gesturing towards, for instance, the economic machinations of the for-profit prison industrial complex.

That’s not a critique as much as much as it is a statement of fact, and the book’s main focus is on the larger legal system. Queer (In)Justice provides analyses and information that have rarely been put together in this form, and those looking for more anti-capitalist and abolitionist work can find it in the writings of, say, Angela Davis – who is frequently cited here. Besides, the sheer force of the evidence that the authors have marshaled will undoubtedly have an effect. A reader might well begin this book wondering, “How can we change this system for the better?” That same reader is likely to emerge with a completely different question by the end: “How can we end this structure for ever?”

Originally published in Windy City Times, February 2, 2011


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