II. The Limits of Prison Reform for Addressing Racialized Gender Violence

      Given the central role of racialized gender violence and the deadly administration of gendered racial norms in the programs and institutions of the United States, prison abolitionist scholars and activists have raised key questions about the role of reform projects in perpetuating and expanding these sites of violence. Robinson describes how an ACLU lawsuit led to the creation of K6G. The suit aimed to address the dangerous conditions facing people placed in the “homosexual inmate unit” at the jail, arguing that they were not adequately protected from “predators.” ACLU won a settlement in which the jail was required to establish procedures to protect these vulnerable prisoners. The result was the absurd screening process that Robinson describes, in which white, straight deputies assess whether or not particular prisoners belong in the K6G unit based on their responses to questions that gauge familiarity with white gay male culture.

      This story illustrates the concerns abolitionists have voiced about approaches aimed at refining, improving, or otherwise tinkering with how people are imprisoned. The ACLU's attempt to reform the jail to reduce violence against queer and trans prisoners resulted in a policy that subjects prisoners to a highly racialized screening that prevents queer and trans people of color from accessing purportedly protective segregation. Prison reforms, abolitionists argue, tend to refine and reify the racialized-gendered control of prisons. In general, reforms that try to address the violence caused by state enforcement of racialized gender norms and categories by slightly altering the categories being enforced or by adding additional categories consistently fail to meaningfully alleviate that violence. A typical response to the assertion that trans people face significant violence in prisons and jails is the proposal to build trans prisons. In response to the persistent problems trans people face with identity documents that have gender markers on them that are difficult or impossible to change, the proposal to create a third gender category for government forms and identification often emerges. These kinds of proposals, like the K6G unit, will inevitably fail to address the harms identified. Instead, they will become new sites for racialized gender norms to be enforced as state agents take up their posts enforcing identity categories in ways that will inevitably operate to the detriment of people of color, poor people, people with disabilities, and immigrants. The fundamental projects of security that animate criminal punishment and identity surveillance are established in and exist to secure and protect white supremacy and patriarchy. It is not a design flaw that these systems and institutions are sites of transphobic and homophobic violence. They are working perfectly.

      This analysis raises important questions about Robinson's invocation of privacy claims to address his concerns about the K6G unit. What does it mean to assert individual privacy rights in a system where strip-searches and other forms of forced nudity are daily realities, where consensual sex is criminalized and rape is routine, where filing a grievance or lodging any kind of protest means risking severe violence or death? How might individual rights arguments obscure the nature of imprisonment as racialized state violence? How can one imagine a privacy right in a context of extreme control and constant humiliation and abuse? Given the role of slavery in forming the legal and economic systems of the United States, appeals to the Constitution both obscure how its text, including the Thirteenth Amendment, establishes ever-expanding racialized imprisonment and overlook the daily reality that law enforcement is lawless. It is no secret that police, wardens, parole officers, corrections officers, and Immigration and Customs Enforcement do not follow the laws and policies that are supposed to prevent the outrageous violence and abuse they commit every day. Even when advocates win cases about the access to medical care or nutrition or protection from harm that law enforcement agents are supposed to provide, it is still inadequate, selective, or rarely provided, if at all. Selective enforcement, medical neglect, nutritional deprivation, harassment, and sexual violence are not anomalies in law enforcement systems: they are fundamental to them.

      Because of the nature of our criminal systems and prisons, there is not a fair or safe way for queer, trans, and gender non-conforming people, or anyone, to be imprisoned. Starting from that premise, we can take different approaches to questions of reform, focusing more on decarcerating and dismantling systems of criminalization, and being extremely wary of reforms that purport to offer recognition and inclusion but actually expand and legitimize violent institutions. The best ways to protect queer, trans, and gender non-conforming people from police and prison violence is to keep them out of contact with police and prisons and to support them while they are locked up. In some places, people are pursuing this by working to decriminalize sex work or stop the creation of “prostitution free zones” and other special programs that enhance policing of the sex trade. Some are working to oppose gang injunctions, “stop and frisk” practices, collaboration between immigration enforcement and criminal punishment systems, mandatory minimum sentences, prison building projects, and other expansions of criminalization. Some activists and advocates are focused on individual advocacy for current prisoners, knowing that broad-based policy reform often expands the system or provides an inappropriately “one size fits all” solution. Instead, they advocate on a case-by-case basis for the changes individual prisoners believe will make them safer in their current environment, recognizing that prisoners' situations and contexts differ and prisoners often have the best information about what might be safer in their particular circumstances. Others focus on establishing resources for people coming out of prison to prevent the poverty and housing insecurity that often results in further criminalization. Many are also working to establish community responses to violence that do not utilize police and courts, recognizing that calling the police often escalates violence for queer and trans people of color, immigrants, and people with disabilities. These organizations and projects understand the significant dangers queer, trans, and gender non-conforming people face at the hands of law enforcement and seek to offer material relief by helping people survive these systems, dismantling the pathways to criminalization that entangle vulnerable people, and creating alternative ways for people to get their needs met given that the criminal punishment system promises safety but never delivers. This approach to addressing homophobia and transphobia in criminal punishment systems rejects the quest for inclusion and recognition in violent legal and administrative apparatuses and the fantasy that any constitutional claim before a court will bring relief, and instead seeks the abolition of criminal punishment and immigration enforcement. It properly identifies the fruitlessness of seeking safety at the hands of the most significant perpetrators of racialized gendered violence. The K6G unit and its absurd and terrifying screening process provides an excellent illustration of the necessity of abolition-centered responses to homophobia and transphobia and of a critical understanding of the limits of legal recognition for social movements seeking relief from poverty and violence.

[]. Dean Spade is an Associate Professor at Seattle University School of Law. He is the author of NORMAL LIFE: ADMINISTRATIVE VIOLENCE, CRITICAL TRANS POLITICS AND THE LIMITS OF LAW (2011).