Excerpted From: Michael D. Braunstein, The Five Stages of LGBTQ Discrimination and its Effects on Mass Incarceration, 7 University of Miami Race & Social Justice Law Review. 1 (Summer, 2017) (185 Footnotes) (Full Document)


MichaelBraunsteinDecades after the start of the movement against lesbian, gay, transgendered, bisexual, and queer (“LGBTQ”) discrimination, LGBTQ citizens have finally earned a long-sought victory. In its recent decision on June 26, 2015, the Supreme Court ruled in a 5-to-4 decision that the Constitution guarantees a right to same-sex marriage. Although this was undoubtedly a huge win for the LGBTQ community, the question still remains: “how, if at all, will this decision affect the larger problems with LGTBQ discrimination?” As further explained below, the answer to this question may not be as apparent as the Obergefell decision suggests.

Although seldom reported in the news, LGBTQ discrimination by police officers has been a significant problem for members of the LGBTQ community. This discrimination has been present for quite some time, perhaps most obviously when looking at the enactment and selective enforcement of certain laws, such as anti-sodomy laws and “crime against nature” statutes. For example, even though the Supreme Court ruled that anti-sodomy laws were invalid in Lawrence v. Texas, in reality, this decision has not had as far-reaching effects as would be expected. Further, the obscure wording of some statutes allows for selective enforcement. Some vaguely worded crimes can lead to unexpected arrests.

The discrimination against LGBTQ persons does not stop with police officers, but also continues within the courts and in the prisons. Some of the most egregious examples of LGBT discrimination within the courts can come not only from the judge and jury, but from a person's own attorney. Surveys have shown that, even in our progressive, modern era, some people will not trust others simply because of their sexuality. In the prison system, looking beyond the obvious problems associated with rape, prisoners who are perceived to be gay or gender non-conforming are punished for consensual sex with another inmate and even some nonsexual behavior. Being a transgendered inmate also poses the problems of a heightened risk of sexual assault and limited access to gender-affirming medical care.

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Research indicates that the LGBTQ community faces discrimination, harassment, and improper profiling through all stages of our criminal justice system. While there have been strides towards equality over the last several decades, there are still many discriminatory laws in place as well as discriminatory practices occurring nationwide. The recommendations outlined above would help to solidify LGBTQ rights and prevent this inequitable administration of justice from continuing in the way it has. By removing--or even limiting-- discriminatory practices based on sexual orientation or gender identity, LGBTQ persons would be better shielded from harassment. Such a shield could be a proverbial stepping stone that helps pave the way toward true equality.

J.D. 2017, University of Miami School of Law; Senior Articles Editor for the Race and Social Justice Law Review.