“One of the Most Dangerous” Legislative Seasons: The Criminalization of LGBTQ+ People in 2023

Nazish Dholakia Senior Writer
Jun 23, 2023

The criminal legal system has long been used as a weapon to surveil, police, criminalize, discriminate against, and harass LGBTQ+ people. In June of 1969, police raided the Stonewall Inn, and New York City’s LGBTQ+ community fought back against violence, harassment, and intimidation. This moment is now known as one of the starting points of the modern LGBTQ+ rights movement. The hundreds of anti-LGBTQ+ bills that have been introduced into state legislatures this year—77 of which have been signed into law so far—underscore the ongoing attack against the LGBTQ+ community.

LGBTQ+ people are six times more likely to be stopped by police. LGBTQ+ adults and youth are three and two times more likely to be incarcerated, respectively. And, while incarcerated, they are subjected to harsher treatment. In fact, abuse is the norm rather than the exception for LGBTQ+ people in detention, according to findings from Protected & Served?. The recent survey from Lambda Legal, Black & Pink National, and Strength in Numbers Consulting Group, with underwriting support from the Leonard-Litz LGBTQ+ Foundation, details the experiences of LGBTQ+ people and people living with HIV in the criminal legal system. An overwhelming 94 percent of detained participants reported abuse, including verbal assault, physical assault, sexual harassment, and sexual assault.

We spoke with Lambda Legal’s Richard Saenz, a senior attorney and criminal justice and police misconduct strategist, and Currey Cook, senior counsel and director of the Youth in Out-Of-Home Care Project, about how the criminal legal system impacts LGBTQ+ people, the recent onslaught of anti-LGBTQ+ legislation, and what it all means in the context of Pride Month, when we celebrate all that has been achieved while recognizing the work that remains to be done.

How are LGBTQ+ people impacted by the criminal legal system?

Saenz: We’re coming up on the 20th anniversary of Lawrence v. Texas. It is, in my opinion, probably the most important Supreme Court case dealing with LGBTQ+ rights, where the Supreme Court held that sodomy laws were unconstitutional. The case demonstrates how states have used—and continue to use—the criminal legal system to criminalize LGBTQ+ people. The modern LGBTQ+ movement has always been tied to the criminal legal system, because, until 20 years ago, we were still seen as criminals in a number of states that had sodomy laws. Part of what I try to do with my work is to talk about how these issues within the criminal legal system impact all of us. So, yes, we are incarcerated at higher rates than non-LGBTQ+ people, and when we are in jail or prison, the risk to our safety is much higher. But anyone in jail, anyone in prison, is at great risk.

There has been even more anti-LGBTQ+ legislation introduced in the last year, with at least 491 bills in 46 states. Can you describe the onslaught of anti-LGBTQ+ legislation?

Saenz: This has been one of the most dangerous anti-LGBTQ+ sessions across the country, as states continue to use the criminal legal system to stigmatize and target LGBTQ+ people. The most pressing issues are related to the legislative and political attacks against trans and nonbinary young people. That includes legislation that bans essential, life-saving medical care for transgender young people, legislation that prevents them from being able to use the correct bathrooms, and legislation that prevents them from participating in school sports. Essentially, these attacks prevent young people from living their lives.

Cook: Don’t Say Gay or Trans” laws like Florida’s—which Lambda has filed a lawsuit against—are only going to increase conflict and tension in schools. These barriers just serve to prevent young people from being who they are, and I think they’re going to be part of an unfortunate rise in the criminalization of young people, specifically LGBTQ+ people, and more contact with police, including police in schools.

Why are we seeing such a rise in anti-LGBTQ+ legislation now?

Saenz: There is a coordinated effort that has been happening for years that is now reaching a high point. We’re seeing legislation that has been duplicated in multiple states, sometimes word-for-word. There are millions, if not billions, of dollars being used to fund these legislative efforts in states across the country. It’s hurtful to say this—but I think it’s realistic to say this—that there are attempts to question the existence of trans and nonbinary youth.

What impact does this have on LBGTQ+ youth?

Cook: We have states that are making it much harder for young people to be affirmed and supported where they are, in their communities. These policies fuel more conflict, it’s all just a recipe for exacerbating existing disparities. We know that when young people don’t feel safe sharing and being open with other people about their identity—internalizing all of that and feeling like you have to hide really increases negative public health outcomes. It can lead to mental health challenges, and those can sometimes boil over into conflict with peers or engaging in risky behaviors, which can then lead to contact with law enforcement.

How are LGBTQ+ youth disproportionately impacted by the criminal legal system?

Cook: Any young person in foster care has a higher likelihood of having contact with the police and the criminal legal system than a young person who isn’t in foster care or hasn’t had any foster care experience. For LGBTQ+ youth in foster care, the likelihood is even higher. At least three different studies have indicated that LGBTQ+ young people in foster care have higher instances of contact with the juvenile legal system than non-LGBTQ+ young people in foster care. LGBTQ+ youth also experience homelessness at a way higher rate. And we know that experiencing homelessness or housing instability can also dramatically increase contact with law enforcement. Rejection by family or conflict related to identity can lead LGBTQ+ young people to feel like it’s better to take their chances on the street or crash with friends. And that housing instability can lead to contact with the police.

Lambda Legal, in partnership with Black & Pink National, published the findings from the community survey Protected & Served? in April. What did the survey find?

Saenz: We heard from over 2,500 LGBTQ+ people and people living with HIV on their experiences in the criminal legal system, including bias, discrimination, and abuse that participants faced, and how that impacts their trust in government institutions, including law enforcement. Over 30 percent of survey participants had been detained in prisons, jails, immigration detention, or juvenile detention within the past five years. We were able to hear from almost 800 people about their experiences. Jails and prisons are dangerous places for LGBTQ+ people and people living with HIV, and a number of people reported cases of assault and sexual violence, and trans and nonbinary people reported being housed in facilities with people who are not the same gender as them. Now, we need accountability. How do we hold these government actors and these institutions accountable? It’s also about enforcement, because I know that on paper there are some really good policies out there. That’s a big change from 2012, the last time we conducted this survey. Now, there are some good policies out there, many of which were developed as a result of lawsuits against police departments and prisons, and it’s about enforcing those policies.

What other shifts in terms of LGBTQ+ policy have you seen over the last decade?

Saenz: Over the past decade, there has been an increase in the public awareness and public discussion about government misconduct, including police violence. There has also been a push for greater oversight from independent agencies that can either hold government actors accountable or enforce policy changes. It’s important to note that as a community, LGBTQ+ people have always been at the forefront of these conversations.

Cook: While we have seen a horrible rise in the number of anti-LGBTQ+ bills, we are also seeing states that are stepping up as safe havens for youth and providing gender-affirming medical care. There is a major bifurcation between places that are affirming places to live for trans and nonbinary people, and states that aren’t. There has been progress in the last 10 years. There are, for instance, greater LGBTQ+ protections in juvenile legal systems. At least 21 states have some sort of statewide LGBTQ+ specific policy in place, thanks in part to a lot of advocacy by a lot of folks, including young people with lived experience. We need to see more efforts like the Biden administration’s recent announcement that it is offering up to $1.7 million in federal funding to programs that support family and community acceptance of LGBTQ+ youth.

Advocates are reeling from the recent deluge of discriminatory bills. But, Saenz said, it’s also a reminder—to keep learning, and to keep organizing.

Responses have been edited for length/clarity.