Welcome Joey Mogul, Andrea Ritchie and Host bmaz (Emptywheel).

[As a courtesy to our guests, please keep comments to the book.  Please take other conversations to a previous thread.  - bev]

Queer (In)justice: The Criminalization of LGBT People in the United States

bmaz, Host:

The collective here at Firedoglake has carved out quite a niche on LGBT issues from the gavel to gavel liveblog coverage of the Perry v. Schwarzenegger (now Brown) Proposition 8 trial in the Northern District of California, to the Don’t Ask, Don’t Tell DADT) case brought by the Log Cabin Republicans in the Central District of California, to the recent change in policy by the Obama Administration regarding the Defense of Marriage Act (DOMA) to the broad based and excellent issue coverage of LGBT matters generally by Teddy Partridge. But that coverage has been centered on somewhat antiseptic and theoretical policy issues and statutory/Constitutional interpretation. There is another, darker, and more brooding area of LGBT law that is every bit as important, and quite arguably more directly important, to the relevant community.

This “other”, area is the critical subject of Queer (In)Justice by today’s guests, Joey L. Mogul and Andrea J. Ritchie. Mogul and Ritchie, along with co-author Kay Whitlock, have produced a treatise level work on the ugly underbelly that lies at the intersection of American law, bigotry and the castigation of “others”. It is a story all too familiar to those who are students and/or survivors of American history, as it played out with various peoples of color in the past, and yet, still, today. Today’s discussion is about crimes against LGBT individuals, and as what truly should be a suspect class under the Constitution:

In 2002, Jeremy Burke, a white transgender man was beaten, forcibly strip searched and arrested by several female officers in San Francisco. Burke was thrown in a holding cell naked and forced to wear a dress and expose his genitalia to the police officers. Freddie Mason, a 31 year old black gay nurse’s assistant with no prior criminal record, was arrested after a verbal altercation with his landlord and anally raped with a billy club covered in cleaning liquid by a Chicago police officer. And 18 year old Matthew Limon was sentenced to 17 years in prison for engaging in oral sex with a 14 year old boy. His sentence was 15 years longer than it would have been if he had engaged in the same conduct with a 14 year old girl.

See how quickly the comfort level veneer of the discussion is stripped away from the usual Prop 8, DADT and DOMA discussion? There is a large class of people in our society, our friends, neighbors, family members and loved ones that never have such a comfort level. Never. There is a frightening and pervasive bigotry and discrimination against LGBT people not just in society, but by police, prosecutors, courts and prisons. These are the stories, this is the law, of Queer (In)Justice.

But Queer (In)Justice is much more than a litany of horror stories, although there are certainly chilling horror stories in the offing, it is a discussion of the history of the gay/LGBT movement from roots in colonial times (literally starting out with Spanish Conquistador Balboa’s discovery of “different” beings among the indigenous people of Quaraca) through the infamous 1969 Stonewall incident and riots in New York City right up to the wrongs being occasioned today. It is a passionate and powerful weaving of the stories, the history and all its meaning.

Even though we have now driven down beyond the glossy DADT, Prop 8 and DOMA surface to the darker corners of LGBT law and discrimination, the bigotry and separation does not end there either. Every day, in smaller ways, it raises its hideous head. This is a class of people that have to engage tax professionals to complete two entirely different sets of tax returns, depending on how their state treats their joint income versus the federal government in a separate and unequal manner. Another area is employment: in approximately 37 states you can still be fired for being gay (not to mention the LBT). The non-passage of the Employment Non-discrimination Act (ENDA) affects far more people than DADT repeal will ever touch. This is Queer (In)Justice too.

There is, however, hope. There is always hope, and maybe even material change possible in the near future. The final chapter of the book is entitled “Over the Rainbow: Where Do We Go From Here”. I have a feeling that may be a healthy part of the discussion today, so I will add a thought of my own here and let the authors incorporate if appropriate into the discussion. Less than three weeks ago, the Obama Administration made a profound shift in their attitude toward the Constitutional status of gay citizens – the new policy is one of stated equality, and on Constitutional grounds. Although many have questioned the timing and breadth of this change, it is profound.

We saw what such a ruling can mean, and how it can virally drive the moment, from Justice Anthony Kennedy’s decision in Lawrence v. Texas (case decision and Wiki). Notably, the remaining and ongoing criminalization of LGBT people after the Supreme Court’s historic decision in Lawrence v. Texas is a substantial part of Queer (In)Justice and will undoubtedly be a large part of our discussion today.

So, that begets the question, if appellate courts, most importantly of course the Supreme Court, accept LGBT citizens as being a Constitutionally protected suspect class, how much will it help the situation? It certainly has not been a magic elixir for African Americans, who have have such Constitutional protection for some time now. It is a step that can, hopefully, over time help curb abuses of the kind described in Queer (In)Justice. How this change can affect the situation, and what other, perhaps even more important, changes are necessary to get from the past to a more perfect and tolerant future are topics open for discussion along with the rest of this fantastic book.

With that, please welcome our guests today, authors Joey Mogul and Andrea Ritchie. Joey L. Mogul is a partner at the People’s Law Office in Chicago and director of the Civil Rights Clinic at DePaul University’s College of Law. Andrea J. Ritchie is a police misconduct attorney and organizer in New York City. Kay Whitlock is a Montana-based organizer and writer whose work focuses on dismantling structural injustice in law enforcement and other public institutions. Their full biographies can be found here, and they are impressive backgrounds in the field.

108 Responses to “FDL Book Salon Welcomes Joey Mogul and Andrea Ritchie, Queer (In)justice: The Criminalization of LGBT People in the United States”

BevW March 13th, 2011 at 1:56 pm

Joey, Andrea, Welcome to the Lake.

bmaz, Thank you for Hosting this Book Salon.

bmaz March 13th, 2011 at 2:00 pm

Hello one and all, and welcome.

Andrea Ritchie March 13th, 2011 at 2:02 pm

Hello and thanks so much for having us on the FDL book salon!

dakine01 March 13th, 2011 at 2:02 pm

Good afternoon Joey and Andrea and welcome to FDL this afternoon.

And good afternoon to you as well bmaz.

Joey and Andrea, I have not had an opportunity to read your book but do have a question and please forgive me if you answer it in the book.

I was working in and around New York when the stories came out about Abner Louima and I know this was a national story. Yet this today is the first I’ve ever heard of Freddie Mason even though the stories appear almost identical. Why did Mr Mason’s story not get any national publicity?

bmaz March 13th, 2011 at 2:02 pm

When our Joey and Andrea get settled in, I will open things up with the question of what motivated them to write their book and what goals can come from having done so? Clearly both have a long history in this field, but what brought about the leap from advocates to authors for this book?

Joey Mogul March 13th, 2011 at 2:05 pm

Hello and thank you for having us on the FDL book salon, and to Bmaz for the introduction to the book discussion.

Andrea Ritchie March 13th, 2011 at 2:05 pm
In response to dakine01 @ 4

That’s a very good question – Mr. Mason’s story was picked up by Amnesty International and was the subject of a national action they did, but never got the same media traction. I think part of it had to do with the fact that he was openly gay, whereas Mr. Louima was not (even though there was some discussion of the fact that he was picked up by police near a gay club in Brooklyn and what role that played in the incident). I think it also had to do with the fact that the anti-police brutality movement in New York City, and particularly Reverend Sharpton, jumped on Mr. Louima’s story whereas the same did not happen to the same degre in Chicago. I am sure Joey has more thoughts on this too!

March 13th, 2011 at 2:09 pm

Good afternoon Joey and Andrea. Thanks for being here.

Thanks also to bmaz for hosting.

Andrea Ritchie March 13th, 2011 at 2:10 pm
In response to bmaz @ 5

Well, I think all three co-authors had been writing about issues relating to LGBTQ people in the criminal legal system for a while, and had been seeing each other in various advocacy circles together, and sharing many of the same frustrations about the invisibility of criminal justice issues on LGBT agendas and LGBT experiences on criminal justice agendas for a while, so when Beacon approached one of us to do the book, it seemed like a tremendous opportunity to bring a number of conversations together in one place and hopefully start and continue others.

Gitcheegumee March 13th, 2011 at 2:10 pm

In an attempt to learn more about Bradley Manning,and the treatment he is receving while in custody ,I came across articles referring to Mr. Manning’s sexuality,namely that he was gay.

Can you verify this (if possible);and if so, would you consider this perhaps a contributing factor to his being treated so harshly,as opposed to other prisoners?

CTuttle March 13th, 2011 at 2:13 pm

Aloha, Joey and Andrea, welcome to the Lake…!

Mahalo, bmaz for hosting…!

Having read that Maryland recently killed their Civil Unions bill, that was moving through their legislature, it heartens me that Hawai’i did finally pass our Civil Unions bill and Gov. Abercrombie already signed it into law…!

Joey Mogul March 13th, 2011 at 2:14 pm

I agree with Andrea’s analysis as to why Mr. Mason’s experience of police violence did not garner the same national media attention. I am not sure what more I can add. Mr. Mason’s case did get a great deal of attention here in Chicago. My one thought is that I have worked on the Chicago Police torture cases here in Chicago for over a deacde and I know that they too did not garner the same national media attention as Louima’s case. I wonder to what extent a criminal proseuction plays a role in garnering national media attention. There was a criminal proseuction and conviction of the Louima’s police torturers/abusers where there was no criminal prosecution of the alleged police torturers/abusers in Mr. Mason’s case.

Andrea Ritchie March 13th, 2011 at 2:16 pm
In response to CTuttle @ 11

Aloha…That is progress – what do you think changed from when marriage was struck down in the late 1990s?

bmaz March 13th, 2011 at 2:16 pm
In response to Andrea Ritchie @ 9

Well, that certainly makes sense.

Can you give the readers a feel for what differences you see between being an advocate in court – whether trial or pre-trial – on these cases, and with this type of defendant/client than you face with, for lack of a better term, “straight” defendant/client, and what affirmative steps you take as the advocate attorney to counteract that from the start of such a case?

Joey Mogul March 13th, 2011 at 2:18 pm

As to Bradley Manning, I too have read that he is gay and I am not sure that is a point in contention. I believe there has been uncorroborated speculation by individuals on the right wing who claim the military’s don’t ask, don’t tell policy was the alleged motivation for his his alleged crimes. I am not sure to what extent Mr. Manning’s sexual orientation plays a role in his current mistreatment. But, I do think it is worthy of concern.

Andrea Ritchie March 13th, 2011 at 2:20 pm
In response to bmaz @ 14

I think there is a lot of education that has to go on – for instance, Joey and I are co-counsel in impact litigation in New York City concerning the treatment of transgender people by police, and specifically the widespread practice of conducting unlawful and overly invasive searches for the unconsitutional purpose of assigning someone a gender when the officer is not sure. We needed to really sit down and work through our theory of the case and then come up with clear ways to convey it to the Court and opposing counsel. There is a lot of education of opposing counsel needed!

Teddy Partridge March 13th, 2011 at 2:21 pm

Thank you for writing this powerful book (and thanks for the compliment, bmaz!). I don’t think it’s possible to underestimate the difference-under-law felt by anyone who suddenly realized in their interaction with law enforcement: I am being treated differently for something innate in me which I cannot change.

This was profoundly extended into the constitutional realm, of course, on Election Day 2008 when recognized rights of Californians were stripped away at the ballot box. It’s very hard to explain the odd emptiness of that evening, as we realized we were still, even in the land of milk, honey, fruit, and nuts — OTHER. And OTHER wasn’t to be treated equally.

As a white man in his middle fifties, I can (almost) pass for straight, although more and more I’ve simply chosen not to. When assaulted in the street with the F-word epithet — only rarely, but this has happened — I’ve learned to respond, “Damn straight!” This is satisfying.

But there is nothing like the slow, or immediate, dawning realization that one is being treated very differently under color of authority: that those in whom society has vested life or death authority over us all have decided to treat ME differently. It’s happened a couple of times; it is very scary.

And it is institutionalized, let’s not kid ourselves. Until we reach the era where a gay or lesbian police officer, or chief, or commissioner, is simply Not News, we risk InJustice and different treatment.

What is very discouraging for me is this: that era is far off. And some of our best LGBT activists, those not lost to us during the Plague Years, will actually die of plain old age without having succeeded in achieving anything other than second-class citizenship. That is sad.

Thanks for this book. I hope it opens some eyes and ears and heads and hearts.

CTuttle March 13th, 2011 at 2:22 pm
In response to Andrea Ritchie @ 13

We ‘watered it down’ in a futile attempt to defuse the Xianists’ vehement objections, ironically, all to no avail, as numerous outside christian groups still massively funded a lot of TV/newspaper ads smearing the Legislature and the Gov…! Needless to say it backfired…! ;-)

Andrea Ritchie March 13th, 2011 at 2:23 pm
In response to Joey Mogul @ 15

The notion that LGBT people are inherent threats to national security is something we talk about in the book – the idea that we constantly lead double lives, and are bent on undermining the very fabric of society – and I wonder if that is playing into why there is speculation as to whether Manning is gay or not. We also talk about regardless of whether prisoners are LGBT, the violence to which they are subjected in prisons includes being “queered” – i.e. denied sexual agency and subjected to highly sexualized homophobic and transphobic violence.

bmaz March 13th, 2011 at 2:23 pm
In response to Joey Mogul @ 12

Joey, did your work on the “Chicago cases” involve this relevant community or was it more generalized in the Jon Burge vein?

Joey Mogul March 13th, 2011 at 2:25 pm

I think there are a whole host of issues raised from the onset of representing a person who is gay, lesbian, bisexual or transgender (LGBT) in a criminal case, particularly when the criminal charge involves a sex-related offense or a crime of violence. First, I think advocates must discuss with their clients to what extent they are out or want to be out in the criminal system. Many people still fear being out as gay or trans in courtrooms, particularly where, as we document in Queer (In)Justice, LGBT people continue to face pervasive discrimination and coutrooms continue to be places where LGBT encounter hostile and intimidating treatment, from coutroom personnel to Judges.

Gitcheegumee March 13th, 2011 at 2:26 pm
In response to Joey Mogul @ 15

Thank you so much for your reply. I was really quite taken aback when I first came across it very recently,as I had not seen much discussion of it..but the humiliation that is being visited upon him seems quite homophobic, and a particularly and deliberately cruel , unusual punishment to me-……punishment that would not be meted out to a heterosexual,(like a Raymond Davis)imho..

eCAHNomics March 13th, 2011 at 2:31 pm

As a straight senior woman, I have a long-term Q that I ask often when I get a new opportunity in the LGBT community, to get different perspectives. Why is this group so feared & vilified? If one had to pick a group, which as a group, had never done anything harmful to other humans, this might be the only one you could find. So why is the most harmless group treated with such fear & loathing?

Andrea Ritchie March 13th, 2011 at 2:31 pm

Thanks Teddy for your kind words about the book,and for all of your work over the years. What you discuss is something we come across all of the time when representing clients – there is something profound that happens when you are subjected to homophobic or transphobic violence or disbelief or failure to protect by the law enforcement agents who are at least theoretically charged with meting out equal protection under law. And recognition that it is systemic, inherent, and can’t be trained away is even more disturbing. I am also unfortunately aware of many cases in which LGB or T officers have participated in such treatment, which undermines any hope that sexual or gender diversity in law enforcement will produce justice any more than hiring more police officers of color has reduced race-based policing or police brutality against people of color.

Joey Mogul March 13th, 2011 at 2:33 pm

In discussing the Chicago Police torture cases, those are a series of cases that involved the torture of over 100 African American men and women at Chicago Police Headquarters from 1972 to 1991 under now convicted former Chicago Police Commander Jon Burge at Area 2 and 3 Police Headquarters. I am unaware of any of the Chicago Police torture survivors being openly gay or lesbian, although there was speculation as to some. Honestly, I cannot say that that any anti-gay or trans bias was the motivating factor that drove the torture in those cases. I think race was the motivating factor. But, I think the connection between the torture practiced in the the Chicago Police torture cases and the torture and other cruel, inhuman and degrading treatment we see visited upon LGBT people by the police and prisons (as discussed in the book) is that the torture and abuse almost always involves sexual and gender degradation and humuliation. I think denying a person’s gender identity and integrity is successful tool used to dehumanize a person.

Gitcheegumee March 13th, 2011 at 2:36 pm
In response to eCAHNomics @ 23

Religion?

Andrea Ritchie March 13th, 2011 at 2:38 pm
In response to eCAHNomics @ 23

I don’t know that LGBT people are necessarily the *most* vilified – there’s unfortunately too many groups to mention who have suffered incredible violence and vilification. I do think that policing of gender and sexual nonconformity has been instrumental to many forms of oppression – because the notion of a gender binary (there are only two genders and there should be no fluidity between the two) and heterosexuality as the natural order have been so deeply ingrained into our society, that it is easy to use any perceived or projected deviation from them as a justification for all manner of violence. I would be very interested in hearing what other responses you have received!

bmaz March 13th, 2011 at 2:39 pm
In response to Joey Mogul @ 21

Right; exactly. Let me take that a step further, one of the concerns I was picturing would be incarceration, whether pre-trial detention or post conviction jail or prison. I am thinking the incarceration conditions have to be a large factor. Are you able to get your clients segregated successfully and appropriately for safety pre and post trial, and what roadblocks do you encounter in this regard?

And if the answer is that you have no chance on that at all pre-trial (which is what I have seen here in Maricopa County), that must commonly alter how you proceed.

bmaz March 13th, 2011 at 2:41 pm
In response to Joey Mogul @ 25

Yes, and by the way, good, even if far too late, a riddance on Burge. Rather unsatisfying prosecution, but it was a prosecution and conviction. I will take it.

Joey Mogul March 13th, 2011 at 2:42 pm

Getting back to Bmaz’s question about how to advocate on behalf of LGBT people in the criminal cases, I think our job is to try to humanize our clients to the Judge, coutroom and jury as quickly as possible. And, to try to dispel the myths and archetypes that frame us, as we discuss in the book, as deceptive gender benders (that somehow LGBT cannot be trusted because we are fraudluent in our appearance or identity. We appear one way but in essenece are another.) For example, I think when a transgender person is arrested and facing criminal charges we need to start filing motions with the court that ask the Judge and the courtroom personnel to address our client by the name they chose and to use the gender pronoun they use. I think this way we can begin to have a discussion with the Court about a person’s gender identity and what it means to chose a name and pronoun that reflects the person’s gender identity as opposed to the gender and name they were given at birth. It is important to distingusih from the get go that a transgender or gender nonconforming person using a different name is not an alias and it is not act fraudulently or evade the law.

Andrea Ritchie March 13th, 2011 at 2:43 pm
In response to Joey Mogul @ 25

I agree with Joey that the sexual degradation aspect of many kinds of police brutality and torture – from cops using the “f” word to refer to men of color on the street to the anal rape with a cattle prod of one of the Chicago police torture survivors – is a manifestation of what we describe as the use of homophobia and transphobia as tools to enforce racial power relations in society.

eCAHNomics March 13th, 2011 at 2:43 pm
In response to Gitcheegumee @ 26

Are you asking me my religion or are you suggesting religion as a cause of the vilification? If the latter, why would religion be so important? OT, for example, says many ugly things (like it’s OK to have slaves) that were long ago abandoned but not homophobia.

eCAHNomics March 13th, 2011 at 2:45 pm
In response to Andrea Ritchie @ 27

I would be very interested in hearing what other responses you have received!

Not very good ones to date. Mostly in the realm of “because they can,” i.e. as a nonthreatening group, they make the perfect “other.”

Gitcheegumee March 13th, 2011 at 2:46 pm
In response to eCAHNomics @ 32

I am suggesting religion as a reason for vilification.

Ever heard fire and brimstone from Southern Baptists ?The exhortations of right wing religious groups on a Jihad against LGBT community?

It goes to conditioning and propagandizing a hatred toward others who are different-using reigion as the clincher,so to speak.

Andrea Ritchie March 13th, 2011 at 2:47 pm
In response to bmaz @ 28

Incarceration conditions – from police custody immediately after arrest to post-arraignment are a HUGE concern for many LGBT folks, and, in fact, motivate many to plead to offenses they didn’t commit in an effort to avoid continued detention – which is one reason why much of the profiling and discriminatory enforcement and prosecution of offenses like “lewd conduct,” “loitering for the purposes of prostitution,” and so on against LGBT people is not as visible as it could be.

bmaz March 13th, 2011 at 2:49 pm

Do you folks commonly use experts in your representation, and under the assumption you do at lest some of the time, can you give the readers of what kind of experts and how they are used?

And for me, an inkling of how successful the use is?

Joey Mogul March 13th, 2011 at 2:50 pm

Bmaz, in response to your question about the conditions of incarceration pre-trial and post-conviction, I think the circumstances vary nationwide. Here in Cook County Jail, I have not confronted the problem of having a gay men or transgender woman denied access to protective custody when it is requested. Unfortunately, protective custody arrangements are far from a perfect solution. In many places, protective custody is akin to punitive segregation where people are denied all communal activities, whether it be eating with others, going to religious services with others and being denied the ability to engage in work or educational program with others. We also learned in the course of researching for the Queer (In)Justice that protective custody arrangements in some locales can make LGBT people more vulnerable to assaults and violence by staff and employees because there are less people who are able to witness the events. Bmaz, what is your experience in Maricopa county?

bmaz March 13th, 2011 at 2:51 pm
In response to Andrea Ritchie @ 35

Yes, that is, sadly, what I thought. It must be near impossible to get any useful segregation pre-trial.

eCAHNomics March 13th, 2011 at 2:51 pm
In response to Gitcheegumee @ 34

I recognize that the behavior is often centered in some religious groups. But I’m asking why those people singled out LGBTs as the enemy? There are plenty of other choices they could have made.

Andrea Ritchie March 13th, 2011 at 2:51 pm
In response to bmaz @ 28

In New York City we are currently working to change the NYPD Patrol Guide to specifically address pre-arraignment detention of transgender and gender nonconforming people (which could include lesbians and gay men who feel they are at risk of violence in police custody), using model policies from San Francisco, DC, Portland, Seattle and Toronto. Unfortunately, we still run into the perception that LGBT people are the ones who are a danger to others rather than people who are often targets of violence by others.

Joey Mogul March 13th, 2011 at 2:54 pm

As to the use of experts, Bmaz I think it is an excellent question and suggestion. I often use medical and police practice expers in my police misconduct civil rights litigation. But, I think criminal defense attorneys need to begin to think about how to use expert testimony when defending LGBT folks in criminal cases.

Andrea Ritchie March 13th, 2011 at 2:55 pm
In response to eCAHNomics @ 33

I think actually it’s because LGBT people are perceived as threatening – to the established social order. In the book we talk about the notion that in order to colonize the Americas, the notion of hierarchy had to be imposed on the Indigenous populations. And one of the ways that was done was by enforcing the notion of two rigidly defined genders, one of which was superior to the other, thereby also justifying notions that one race was superior to others. To the extent that LGBT people disrupt notions of immutable laws of nature around gender and sexuality, they are perceived as threats to social order.

bmaz March 13th, 2011 at 2:56 pm
In response to Joey Mogul @ 37

Heh, well, I have not had too many clients with the issue, but my experience here is fairly long and pretty well informed in general, and there just is not squat in that regard pre-trial. We have the infamous Sheriff Joe Arpaio, and he is far more concerned with putting detainees into tents, chain gangs and pink underwear than he is in properly segregating and insuring safety and dignity. Same for post trial if it is jail as a term and condition of probation. There is some relief in the state prison system though if you can steer your client to the right facility and prove up the need on intake.

mzchief March 13th, 2011 at 2:56 pm
In response to Joey Mogul @ 30

{ Welcome Joey, Andrea and Host bmaz for Emptywheel. Salon attendees, thank you for coming. }

It is important to distingusih from the get go that a transgender or gender nonconforming person using a different name is not an alias and it is not act fraudulently or evade the law.

I want to emphasize this important point. However, you are also revealing the hidden consensus reality of a network of persons-of-trust who also self-police themselves. The latter are some serious systemic flaws. I will add that this appears as a negative feedback loop (self-reinforcing bias) for such a relatively closed system.

Joey Mogul March 13th, 2011 at 2:56 pm

For example, I had the honor to represent Bernina Mata, a Latina lesbian, in her post-conviction proceeding after she was found guilty of capital murder and sentenced to die. In her case, the State’s theory as to why she allegely killed the victim, a white heterosexual man, was that he made an unwanted sexual pass at her when he touched her shoulder and thigh when conversing with her at a bar the same night as his murder. In that case, the State literally argued that she was a “hard core” lesbian and that this unwanted sexual pass made her so enraged that she had to kill him. Literally, the proseuctor argued that “a normal heterosexual woman would not have been offended by such conduct as to murder.”

bmaz March 13th, 2011 at 2:56 pm
In response to Andrea Ritchie @ 40

Excellent effort!

Gitcheegumee March 13th, 2011 at 2:57 pm
In response to eCAHNomics @ 39

Well,eCAHN, some folk believe that homosexuality is a sin..and their religious belief teaches them that.

Personally, I feel every society wants (or needs) a whipping boy,a sin eater, that they can look down upon and bully to feel better about their OWN lack of self worth.

And ofcourse bullies always pick their prey carefully.

We cannot legislate compassion,unfortunately.

Andrea Ritchie March 13th, 2011 at 2:59 pm
In response to Joey Mogul @ 41

We used an expert in the impact litigation case I mentioned earlier – Dean Spade, founder of the Sylvia Rivera Law Project – http://www.srlp.org – now a law professor at Seattle University – to talk about how various administrative systems categorize people based on gender, often in wildly varying ways, thereby producing violations of their rights due to inconsistent categorization systems. His opinion was that, by not providing NYPD officers any guidance on how to assign individuals gender for the purposes of arrest processing, search, and detention, the Department was creating conditions ripe for constitutional violations such as the pattern of searches we are challenging. Opposing counsel tried unsuccessfully to challenge his expertise in the field of “the experiences of transgender people in administrative regulatory systems.”

bmaz March 13th, 2011 at 3:00 pm
In response to Joey Mogul @ 41

Yes, clearly you would go to experts in a 1983 type of situation, I was kind of asking about more in the traditional criminal setting. To be honest, I had not thought of it until we were chatting here, but it struck me as something that, properly gamed out, might be very useful. Could sure as heck educate some judges for sentencing if nothing else; but I think there may be numerous creative ways to get them in and use them.

eCAHNomics March 13th, 2011 at 3:00 pm
In response to Andrea Ritchie @ 42

Thanks. I think you’re onto something with “threatening” est order. Ties in to other examples like more recent vilification of climate scientists who also threaten est order even though objectively, they are trying to help humans & other living creatures.

Andrea Ritchie March 13th, 2011 at 3:01 pm
In response to bmaz @ 43

Does Arpaio put *everyone* in pink underwear, or just the inmates he perceives to be gay? I know that gay inmates in Shelby County, Tennessee were required to wear pink clothing when no one else was, and I’ve been trying to figure out whether the situation in Maricopa is similar or more generalized…

eCAHNomics March 13th, 2011 at 3:01 pm
In response to Gitcheegumee @ 47

I agree.

Joey Mogul March 13th, 2011 at 3:04 pm

In Mata’s case, the State was relying on what we describe in Queer (In)Justice as the lethal lesbian archetype and more specifically that lesbians are man-hating and prone to commit violence against men. Unfortunately, the State was successful in promulgating this theory and then introducing a barrage of irrelevant evidence about Ms. Mata’s lesbianism before the jury to prejudice the jury to convict and kill her. In that case, the defense moved in limine to prevent the admission of Ms. Mata’s lesbianism correctly arguing it was not probative of her motive to allegdly commit the murder. But, in hinsight, I think if the defense asked to have a hearing and call expert witnesses to discuss lesbians and lesbian lives, I think the experts could serve to dispel the notion that lesbians are somehow prone commit violene against men.

Gitcheegumee March 13th, 2011 at 3:07 pm
In response to eCAHNomics @ 50

Also, it was about establishing property rights and ownership…who could own what and who could own who.

bmaz March 13th, 2011 at 3:08 pm
In response to Andrea Ritchie @ 51

No, pretty much across the board. He thinks it is cute, puts them in their place and, besides, he advertises and sells “Official Sheriff Joe Pink Underwear”. Seriously.

Andrea Ritchie March 13th, 2011 at 3:09 pm
In response to mzchief @ 44

Can you say more about this?

you are also revealing the hidden consensus reality of a network of persons-of-trust who also self-police themselves. The latter are some serious systemic flaws. I will add that this appears as a negative feedback loop (self-reinforcing bias) for such a relatively closed system.

bmaz March 13th, 2011 at 3:12 pm

One of the big topics I did not hit in the introductory post was the role of “hate crimes” legislation. What do Joey and Andrea think of the status of hate crimes law, how do they impact the staus of the relevant community and what would they like to see changed or enlarged in this regard?

Andrea Ritchie March 13th, 2011 at 3:13 pm
In response to bmaz @ 55

Oh. My. God.

Again, seems an extreme example of how policing punishment is associated with being “queered.” In the book we talk about prisons as “queer spaces” – not because they are teeming with LGBT people waiting to attack any poor straight person who enters them (although that is how they are portrayed) but because they are places where gender and sexuality are both super enforced and undermined at the same time.

Andrea Ritchie March 13th, 2011 at 3:15 pm
In response to bmaz @ 57

Well, basically, once we outline the many ways in which the policing and punishment of sexual and gender nonconformity are inherent to law enforcement, the criminal legal sytem, and systems of protection and punishment from the first encounter with a police officer to the prison cell, we then turn to the question of how we can expect protection from a system that is structured in this way.

Joey Mogul March 13th, 2011 at 3:16 pm
In response to bmaz @ 49

Yes, I agree that we need to think more about how to use experts in criminal cases. For example, in death penalty cases, we have seen far too often how a person’s sexual orientation or gender nonconformity have been used as aggravating evidence to convict or mete out a death sentence. I think it would be useful to have mitigation experts who could discuss how LGBT people are oppressed, ostracized and face insurmountable obstacles in ther lives that diminish their ability to make choices or seek refuge and can set off a chain of circumstances that can lead one to commit a violent crime. I think then we may see that a person’s LGBT identity and lived reality may be a source of sympathy worhty of mitigation as opposed to aggravation warranting one’s death. Just an idea.

Andrea Ritchie March 13th, 2011 at 3:19 pm
In response to bmaz @ 57

The National Coalition of Anti-Violence Projects http://www.ncavp.org reports that rates of violence against LGBT people continue to increase despite the passage of hate crimes laws across the country. Even more disturbingly, their findings continue to suggest that law enforcement are among the top categories of perpetrators of homophobic and transphobic violence – including in the context of responses to violence against us. So we question whether reliance on the criminal legal system can truly produce safety, and look to initiatives such as those of San Francisco’s Community United Against Violence – http://www.cuav.org and New York’s Audre Lorde Project http://www.alp.org which seek to increase safety for LGBT people without relying on law enforcement.

Gitcheegumee March 13th, 2011 at 3:21 pm
In response to Joey Mogul @ 60

“we have seen far too often how a person’s sexual orientation or gender nonconformity have been used……(to) mete out a death sentence”

That passage made me think of Matthew Shepard .I So very sad.

Is his death ever referred to in your defense cases,may I ask?

Andrea Ritchie March 13th, 2011 at 3:23 pm
In response to Gitcheegumee @ 62

So true – yet it seems that when it happens in the context of the criminal legal system, it unfortunately fails to produce the same degree of outrage.

Joey Mogul March 13th, 2011 at 3:23 pm
In response to bmaz @ 43

Has anyone been able to bring any civil rights section 1983 cases challenging the failure to provide detainees protection while housed in Maricopa Coounty?

I do think it is important to dispel the notion that all gender nonconforming want to be in protective custody or that protective custody is the best solution. I know many transgender and gender nonconforming people who would prefer to be housed in the general population with other inmates because they can protect one another and they prefer not to exist in isolation. It varies from jurisdiction to jurisdiction.

Unfortunately though, LGBT people are the number one targets for sexual violence in penal faciliities and they are preyed upon by both staff and inmates.

bmaz March 13th, 2011 at 3:26 pm
In response to Andrea Ritchie @ 61

Interesting. I have always been inclined to think that so called “hate crimes” laws serve to create separate classes of citizens in some regards as much as they protect people and that, for this reason, were constitutionally questionable. It is not that we do not have laws on the books against the offending crimes behind the hate crimes, we have a refusal of law enforcement and/or prosecutors and courts to apply them equally and toughly. I completely understand the sentiment behind them and agree with the goal. What are the relative views on this in the community?

mzchief March 13th, 2011 at 3:27 pm
In response to Andrea Ritchie @ 56

I am reflecting upon something in your statement that I perceive and wanted to draw out. That’s my best enunciation to date. I think Jeff Kaye could really weigh in on this even better given his formal area of expertise and experience. Unfortunately I do have observation of this in the legal system as well as in the activities of other groups of people professional or otherwise. It’s a human thing but, I believe, can be countermanded.

Joey Mogul March 13th, 2011 at 3:27 pm
In response to Gitcheegumee @ 62

We do discuss Matthew Shepard’s tragic death in the book. May I ask what you mean by the discussion of his death in my defense cases?

Gitcheegumee March 13th, 2011 at 3:28 pm
In response to Andrea Ritchie @ 63

This may sound like a stretch, but with war hardened soldiers returning from foreign wars,and many entering the penal systems as guards,etc,do you suppose some of this military background is a factor in the increase of violence from those in authority towards LGBT?

March 13th, 2011 at 3:29 pm
In response to bmaz @ 65

Having been bashed, several times, I naturally say we need hate crimes laws on the books.

bmaz March 13th, 2011 at 3:30 pm
In response to Joey Mogul @ 64

Eh, if the criteria is successfully, no. A long litany of attorneys, including me for a small part at one time, has had the county jail system under and monitored by a federal injunction and monitoring program for 30 years. Never makes much difference, they just violate it.

Andrea Ritchie March 13th, 2011 at 3:30 pm

Well, on the constitutional front, I think hate crimes laws survive scrutiny in the same way affirmative action laws do…but you are also right that there are already laws on the books against underlying offenses – assault, battery, torture, kidnapping, etc., and the question is more one of enforcement – even where hate crimes laws are on the books, the NCAVP reports a fairly systematic failure to use or enforce them. And they are certainly never used against law enforcement agents who commit homophobic or transphobic violence.

Joey Mogul March 13th, 2011 at 3:33 pm
In response to Kelly Canfield @ 69

Kelly, I am sorry to hear that you have been bashed several times. That is awful and I wish such violence would stop. Were there hate crimes on the books at the time you were bashed?

I think as we discuss in the book is that we have found no proven deterrant effect with hate crime laws, and despite their existence, in some states for several years they have no produced more safety for LGBT people.

We also discuss how in many cases where LGBT people have been subjected to hate crimes and they call the police in response they have been further victimized by the police who are openly racist, homophobic or transpghobic, and blame the vicitm for the crime. This was the case of April Mora from Colorado.

Gitcheegumee March 13th, 2011 at 3:33 pm
In response to Joey Mogul @ 67

Well, ofcourse I do not know what arguments you present,but depending uupon the case,I was thinking along the lines of the fears that LGBT folk may feel,what they are exposed to,and how the spectre of what happened to Shephard may be a constant fear that colors their actions .

As someone said upthread, to explain the factors and dynamics of how someone may wind up before a trial judge and in need of your services .

I am not gay, but these issues are of interest to me in the realm of human rights.

Andrea Ritchie March 13th, 2011 at 3:34 pm
In response to Gitcheegumee @ 68

Not at all a stretch, in my opinion. There is unfortunately a lot of evidence of folks bringing back techniques learned in the military to domestic policing and prisons. Jon Burge, who we were discussing earlier, for instance, brought his torture techniques – and tools – back with him from the Vietnam war. And the homophobic sexual abuse suffered by folks at Abu Ghraib is unfortunately replicated in all too many prisons in the U.S. There is definitely a similarity of targets, tactics, and personnel that warrants more attention.

Gitcheegumee March 13th, 2011 at 3:35 pm
In response to Joey Mogul @ 72

Blaming the victim for the crime happens a lot when you’re female.

bmaz March 13th, 2011 at 3:36 pm

Another point I kind of saved for the discussion was the relative forum distinction between state and federal governments. Do you see better treatment for clients in one versus the other, and if so how?

March 13th, 2011 at 3:36 pm
In response to Joey Mogul @ 72

No statutes on the books, or the jurisdictions at those times.

Frankly, those were single events, and while nasty, you can get over them. What’s worse in my opinion is the daily grinding institutionalized stuff that makes for second class citizenship.

mzchief March 13th, 2011 at 3:37 pm
In response to mzchief @ 66

Sorry, I got interrupted while writing a response to your question. For further clarification, “your statement” is intended to mean “the authors together in this forum.”

Joey Mogul March 13th, 2011 at 3:39 pm
In response to bmaz @ 70

Bmaz, I think you raise a very serious concern. I know for example in Texas, Roderick Johnson, a Black gay man was repeatedly sexually assaulted in a maximum security prison and he brought civil rights litigation that challenged the prison officials failure to provide him protection despite what I believed to be a wealth of documentation that he was not only being raped but that prison officials were well aware of the fact. In fact, there was evidence that prison officials in his case essentially were telling him he had to learn how to fight or fuck and refused to put him protective custody despite 11 grievances.

It is quite sad and depressing and it makes me think that we need to think about alternatives to incarceration for those who transgress the law. I think as a society we need to ask ourselves why we continue to lock people up in inhumane conditions. Unfortunately, I do not think civil rights litigation is the solution to this problem (but it can be a helpful tool in some cases).

bmaz March 13th, 2011 at 3:40 pm
In response to Andrea Ritchie @ 71

Right. And frankly, it may be pragmatically hypocritical of me, but it would be a hell of a lot easier to support them if they seemed to make much of a difference. I have seen them used for precious little except a s a lazy crutch by prosecutors wanting to extort a quicker plea (often times out of defendants that did not really per se commit hate crimes, at least not egregiously so).

Joey Mogul March 13th, 2011 at 3:40 pm
In response to Gitcheegumee @ 75

I agree.

Andrea Ritchie March 13th, 2011 at 3:41 pm
In response to Kelly Canfield @ 77

Absolutely – and it is that daily, grinding, “low grade” homophobia and transphobia that flares up in bashings and in more intense forms of violence both inside and outside of criminal legal systems that really underlies so much of the violence LGBT people experience. And which is unfortunately much harder to tackle and more intractable than passing any particular law or doing any particular training can be expected to eliminate…

Joey Mogul March 13th, 2011 at 3:43 pm
In response to bmaz @ 76

Honestly, I am not sure I can say for certain whether I think state courts are better than federal courts or visa versa. I know I prefer to practice in federal court than state court, and I find federal court to be a much more civilized place. I have not had the opportunity to represent an LGBT person in a criminal case in federal court, but in state court. I have represented LGBT people in federal court in civil rights cases and have not run into an open or blatant prejudice. I am not sure if this is a result of the criminal charge vs. civil rights difference. Do you see a distinction?

Gitcheegumee March 13th, 2011 at 3:45 pm
In response to Andrea Ritchie @ 82

A subliminal, organic homophobia.

bmaz March 13th, 2011 at 3:45 pm
In response to bmaz @ 76

And to follow up on my question about the relative forums state v. federal, how is 18 USC 245 now, or could it better be in the future used to help rectify some of these problems?

Just a little over a week ago, we saw the federal government apply, in what I would term a very bastardized way, the statute to Jared Loughner in the Giffords Tucson shootings. Personally I thought that was a stretch and detracts from its intent to address civil rights wrongs such as are at issue here.

LibWingofLibWing March 13th, 2011 at 3:46 pm

I guess my greatest fear as a pre-op Transsexual woman is that if I was arrested or convicted that I’d be put in with men instead of women in jail/prison and not be supplied my hormones.

Andrea Ritchie March 13th, 2011 at 3:46 pm
In response to bmaz @ 80

And, unfortunately, as we discuss in the book, they are all too often turned *against* LGBT people and people of color when they are inteded to protect them. For instance, we cite one study in the book finding that a disproportionate number of people charged with “lynching” in South Carolina are African American. I have even seen cases where gay people who are accused of committing violent crimes against heterosexual people are charged with “hate crimes.”

bmaz March 13th, 2011 at 3:46 pm
In response to Joey Mogul @ 83

Have not had the opportunity to make such an observation; although I would expect an easier ride in federal court as well.

bmaz March 13th, 2011 at 3:47 pm
In response to Andrea Ritchie @ 87

Exactly.

Joey Mogul March 13th, 2011 at 3:49 pm
In response to Gitcheegumee @ 73

Thanks for the clarification. Yes, I think you raise a good point. In the book we discuss the case of Monica James, a Black transgender woman, who got into an altercation with a white gay off duty police officer. In the end, she was charged with attempted murder and aggravated on a police officer because the police officer alleged she tried to fire his weapon and he alleged she bit him. Meanwhile, she claimed that he attacked her and knocked her unconscious, and she in fact was found unconscious at the scene and had to be transported to a hospital via an ambulance.

According to Monica, she was acting in self defense and she has a history of encountering abusive and assulative police officers as a Black readily identifiable transgnder woman.

I do think LGBT people’s negative experiences with police, particulary LGBT people of color, influences their reactions and may serve as a source for a defense in a criminal cases where they may be defending themselves from police (or civilian abuse).

Andrea Ritchie March 13th, 2011 at 3:49 pm

Unfortunately, that is what is most likely to happen in most jurisdictions – denial of medically necessary treatment for maintenance of gender identity continues to be the norm in penal facilities across the country. To my knowledge, it’s one of the only conditions where you will be denied medical treatment while incarcerated if you were not receiving it before you were incarcerated, with often devastating consequences for long term health of transgender people in prison.

Joey Mogul March 13th, 2011 at 3:50 pm
In response to bmaz @ 85

Honestly, I am not up to speed on that. I would love to hear what you have to say.

Joey Mogul March 13th, 2011 at 3:53 pm

Unfortunately, this is a real fear. Most people are placed in sex segregated institutions on the basis of their genitalia and as we document in the book are too often denied access to hormone treatment, even though WPATH and the AMA and others find it can be medically necessary treatment.

bmaz March 13th, 2011 at 3:53 pm

We are getting close to the end of the regularly allotted time today. What words and thoughts would each of the authors, Joey and Andrea, like to impart to the audience to carry forward out of the book and this discussion?

BevW March 13th, 2011 at 3:55 pm

As we come to the end of this great Book Salon,

Joey, Andrea, Thank you both for stopping by the Lake and spending the afternoon with us discussing your new book.

bmaz, Thank you again for Hosting this great Book Salon.

Everyone, if you would like more information:
Website/Book and Book Tour events

Joey’s blog
Andrea’s blog

bmaz is at Emptywheel

Thanks all,
Have a great week!

bmaz March 13th, 2011 at 3:55 pm
In response to Joey Mogul @ 92

In a frame more central to the Loughner case, I wrote this. I do think there should be much more use by the feds of this little known provision to address true civil rights issues though.

Joey Mogul March 13th, 2011 at 3:56 pm
In response to Joey Mogul @ 93

I am hoepful that we may see some changes in penal settings and people who have previously been diagnosed with “GID” and proscribed hormones can get access to hormones. But, unfortujnately, I think there is so much more work that needs to be done to change the way we place people in sex-segregated institutions. It should be based on where an individual will be the safest and it should not be based on a person’s genitalia.

Andrea Ritchie March 13th, 2011 at 3:58 pm

Well this has been a most thought provoking and illuminating conversation, and I very much appreciated your framing of the discussion bmaz, and everyone’s questions. I think some of the questions we wanted to leave readers with are those we talked about today – given how the criminal legal system has contributed to stereotypes and violence against LGBT people, can we really depend on it to produce safety for us? And if not, what strategies can we use to reduce or challenge harms to LGBT people in the criminal legal system while seeking alternatives outside of it to ensure our safety and ways to challenge the everyday homophobia and transphobia that continues to pervade our society?

bmaz March 13th, 2011 at 3:58 pm
In response to BevW @ 95

And to follow up on Bev’s comment, I would like to say that this truly is an outstanding book. Even if you think you are not interested in the subject, I guarantee you will be roped in and fascinated by the way these authors have woven the history, law, society, culture and current and future implications of LGBT law together. Seriously, buy it and read it; you will be glad you did.

mzchief March 13th, 2011 at 3:58 pm
In response to Andrea Ritchie @ 74

Um, a psychological professional that I know well was recently serving on one of the southwest American Indian reservations. It was conveyed to me that that community now has the occurrence of incest (fathers to daughters) when that was never observed to have happened before. Note that a high proportion of men from these communities serve in the US military (citation: video report by Winona LaDuke for HonorEarth.Org which I can not locate at the moment).

Andrea Ritchie March 13th, 2011 at 3:59 pm
In response to BevW @ 95

Thank you so much for having us – we have really enjoyed the opportunity to chat with folks in the salon!

Joey Mogul March 13th, 2011 at 3:59 pm

Thank you for this opportunity to speak with you about the book and for sharing your experiences with us. The issues, cases and experiences we share in this book are not discussed with any frequency in LBGT mainstream communities or in communities dealing with the criminal legal system. For me, I think there needs to be so much more discussion and an exchange of experiences, knowledge and ideas in order for us to figure out humane solutions to the violence visited upon LGBT and others ensnared in the criminal legal system. Thank you, this was a pleasure (and I am sorry for my slow and bad typing).

Joey Mogul March 13th, 2011 at 4:00 pm

Thanks again to Bmaz for the introduction and astute questions. I hope we can work together in the future.

Andrea Ritchie March 13th, 2011 at 4:00 pm
In response to bmaz @ 99

Thanks for your kind words and thought provoking post! Looking forward to ongoing conversations!

mzchief March 13th, 2011 at 4:01 pm

Awesome salon and thread. Thank you to everyone and especially to FDL for providing the forum!

bmaz March 13th, 2011 at 4:12 pm

And the same to both of you as well; next time I am in Chicago or one or both of you wander out here, would love to get together and talk.

Gitcheegumee March 13th, 2011 at 4:16 pm

Thanks to all for an insightful afternoon…and the yeoman’s work being done by today’s guests.

Phoenix Woman March 13th, 2011 at 4:41 pm

Seconding everyone’s thanks!

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