Federal Action Needed on HIV Criminalization, Says New Report

Lesbian, gay, bisexual, and transgender, or LGBT, people and people living with HIV, or PLWH, face sweeping discrimination at all stages of the criminal legal system -- including policing, adjudication, and incarceration -- according to a new report published by the Center for Gender & Sexuality Law at Columbia Law School and co-authored by the Center for American Progress, The Center for HIV Law and Policy, and Streetwise & Safe, or SAS.

The report, "A Roadmap for Change: Federal Policy Recommendations for Addressing the Criminalization of LGBT People and People with HIV," is one of the first reports of its kind to offer comprehensive federal policy recommendations to address the cycles of criminalization and discriminatory treatment faced by LGBT people and PLWH.

Co-authored by Catherine Hanssens, Aisha C. Moodie-Mills, Andrea J. Ritchie, Dean Spade and Urvashi Vaid with input from more than 50 legal, advocacy, and grassroots organizations working on LGBT and criminal justice policy, the report provides an extensive outline of policy measures that federal agencies can adopt to address discriminatory and abusive policing practices, improve conditions for LGBT prisoners and immigrants in detention, decriminalize HIV, and prevent LGBT youth and adults from coming in contact with the system in the first place.

"The principles that define our nation's character do not tolerate racial bias, nor do they tolerate bias against members of any community," said Ben Jealous, former president of the NAACP and CAP Senior Fellow, who contributed the preface for the report. "Existing research indicates that LGBTQ people and PLWH are overrepresented in all aspects of the penal system. This roadmap contains recommendations for federal policy change that would represent important steps toward preventing and addressing the impacts of the crisis of mass incarceration on LGBTQ people-a crisis that is too often ignored, even by people of good conscience."

"Justice continues to be elusive and conditional for LGBT people and PLWH due to a range of laws and policies that are used to dehumanize, victimize, and criminalize them because of their sexual orientation, gender identity, or HIV status," said Aisha C. Moodie-Mills, co-author of the report and Senior Fellow at the Center for American Progress. "Even though LGBT equality has gained momentum, it remains unevenly distributed and incomplete, so it is critical that policy makers continue the work to ensure that LGBT people and PLWH are treated fairly."

CeCe McDonald-a transgender woman who was released from prison earlier this year after serving 19 months in a men's prison for defending herself against a racist and transphobic attack-contributed the foreword to the report. She wrote, "Police officers use many stereotypes of black trans people to dehumanize me, such as assuming that I am a sex worker." She goes on to say, "People of color and trans people are seen as 'unfit for society,' and are therefore targeted by our justice system."

"Legal equality has not translated into lived equality for LGBT people, especially poor people and people of color," adds Dean Spade, co-author and visiting professor at Columbia Law School's Center for Gender & Sexuality Law. "There is still little justice for LGBT people such as CeCe McDonald and countless others who are driven into the criminal legal system by pervasive poverty and systemic discrimination in the distribution of life chances."

A startling 73 percent of all LGBT people and PLWH recently surveyed have had face-to-face contact with police during the past five years, according to a recent study by Lambda Legal. For LGBT people of color, more than one-third of these interactions featured some form of harassment or abuse. Five percent of the respondents also report having spent time in jail or prison, a rate that is markedly higher than the nearly 3 percent of the total U.S. adult population who are under some form of correctional supervision-jail, prison, probation, or parole-at any point in time.

"The policing of gender and sexuality pervades law enforcement and the operation of courts and the penal system, often in tandem and in service of racial profiling, targeting of homeless and low-income communities, and mass incarceration of people of color," says Andrea Ritchie, coordinator of Streetwise & Safe and co-author of the report. "Addressing discriminatory policing and punishment of LGBT people, and particularly LGBT people of color, should be at the center of the administration's LGBT and criminal justice policy agendas. These are LGBT issues because they affect LGBT lives."

"The United States arrests and prosecutes more people on the basis of their HIV status than the rest of the world combined," noted Catherine Hanssens, founder and executive director of The Center for HIV Law and Policy and also a co-author of the report. "The policies that drive these arrests spring from profoundly phobic misconceptions about the actual routes, risks, and consequences of HIV transmission and federal health officials' refusal to promote frank, accurate information about sex, sexual orientation, and gender identity."

A unique aspect of this report was its collaborative development. The Center for Gender & Sexuality Law and the report's co-authors convened 50 activists, policy advocates, lawyers, and grassroots organizations in May 2013 and consulted widely with many others to develop this report, including currently and previously incarcerated individuals.

"This report represents an innovative and unprecedented collaboration among groups that normally do not work together and serves as a reminder that while tactics may occasionally differ, our end goal is ultimately the same: to end the needless criminalization of LGBT people and PLWH," said Urvashi Vaid, co-author and publisher of the report at Columbia Law School's Center for Gender & Sexuality Law.