Queer people of color & criminal (in)justice, Part 1: classification and incarceration

In this multi-part series, Michael Paramo explores some of the intersections between queer people of color and the criminal justice system. Part one focuses on the classification and incarceration of queer people of color.


We often hear of the gross injustices occurring against people of color within the criminal justice system, largely in the form of police brutality in relation to the murders of unarmed black men. Another hashtag to disseminate. Another face to remember. Another body handcuffed, contained, bruised, beaten, dragged, suffocated, bludgeoned, blasted with bullets. Another life damaged, broken, or lost to physical and/or psychological trauma, lengthy incarceration, or tragic death. Powerlessness in repetition. Human beings stripped of their humanity, dehumanized by a system that is not broken, but continues functioning on its racist foundation, as has always been intended.

Queer people of color are often placed in an increased position of vulnerability within the criminal justice system, enduring multiple forms of oppression simultaneously. This analysis will focus on the intersections between injustices within the criminal justice system and queer people of color, centering first on how the bodies of queer people of color are categorized and incarcerated, then on how this demographic is treated by law enforcement and subsequently devalued, and finally on the evident divisions of trust within the LGBTQ+ community regarding the criminal justice system itself, specifically citing Orlando as an example. The objective of this analysis is to provide an overview of the injustices that queer people of color face on a regular basis.

Part 1: Classification and Incarceration

The queer person of color is often made to feel invisible or inauthentic in society, and this reality is reflected in the criminal justice system prominently. This section provides an overview of the current status of queer people of color within the criminal court and incarceration systems, while the following section intends to focus on issues of criminal justice outside of these realms, namely in regards to law enforcement. In particular, this section will focus on cases involving queer people of color in relation to classifying their bodies while also discussing issues related to incarceration.

Human beings stripped of their humanity, dehumanized by a system that is not broken, but continues functioning on its racist foundation, as has always been intended.

In September 2016, Bayna-Lehkiem El-Amin, a black gay man in New York, was sentenced to nine years in prison for assaulting Jonathan Snipes, a white gay man, with a chair after being assaulted himself by Snipes. Snipes was not prosecuted. Initially being unaware that El-Amin was gay, prominent media outlets framed him as a violent homophobic black man that brutally attacked two gay white male innocents without provocation. They crafted this image of El-Amin as a “gay-basher,”, even though it was later discovered that he was gay himself, as well as a homophobic thug, when he himself was involved in “being a parent figure to younger queer and trans people of color in the ballroom scene” for decades. People were quick to believe this image precisely because El-Amin, in their minds, conformed to a particular racist stereotype. Therefore, when his queerness was made known, classifications were challenged.

Still, this did not prevent Shayna Jacobs at the New York Daily News from referring to El-Amin as a “towering terror,” a “remorseless brute,” and a “hulking brute,” in her coverage of his trial. I was not surprised by the implicitly racist language utilized to frame a black man as a violent sub-human, as there is an extensive history of this being done in order to dehumanize people of color throughout history. El-Amin was framed as being a frightening large violent black man who allegedly engaged in actions propelled by intense homophobia, yet the reality, as shown above, tells a much different story of a much different man. Queer people of color such as El-Amin challenge the very foundation of categorical classification simply by existing. Because their queerness often excludes them from their “racial community” and their race often excludes them from the LGBTQ+ community, queer people of color largely become perceived as nonexistent. Therefore, when they are seen, it is easier to shove them into a categorical stereotype, as was done to El-Amin, rather than understand their humanity.

The queer person of color is often made to feel invisible or unauthentic in society, and this reality is reflected in the criminal justice system prominently.

Another recent case similar to that of El-Amin was that of Michael Johnson, a black gay man who was sentenced to thirty years in prison after being accused of exposing several men to HIV in Missouri. All of the jurors hearing his case were white and the majority perceived “homosexuality” as a sin. Johnson’s fate as a gay black man was left in the hands of white straight people who held anti-queer sentiments. They proceeded to force upon him a thirty-year prison sentence, beginning in solitary confinement. He is currently being held in a cell that he cannot even fully stand in. This is where it would perhaps be important to note that murderers in Missouri received lesser sentences on average than the one Johnson was given.

Comparatively to El-Amin’s body being delineated as “hulking” and “brutish,” Johnson’s body also became a subject to be examined and dissected. There was a “lurid fascination with Johnson’s black body carried over into his trial.” Particularly, Johnson’s penis became of intense fascination and “was described in unusually graphic and at times almost absurd detail in police reports and later on the stand.” His penis was characterized as unnatural, infected with a “terminal disease,” and uncontrollable. Johnson became framed in this manner in order to dehumanize and categorize him as an uncontrollable sex-crazed man that needed to be contained in order to protect society from his black body.

Queer people of color such as El-Amin challenge the very foundation of categorical classification simply by existing.

In the cases of both men, race was outright denied as a factor in determining their lengthy sentences. In regards to the case of El-Amin, Arlene Goldberg, Manhattan Supreme Court Justice presiding over the case, denied that race played any factor in El-Amin receiving nine years behind bars and Snipes not even being prosecuted, stating that “I just do not see there was any evidence of that.” Johnson’s prosecutor stated that there was certainly no racial bias involved in his case, stating that 33% of HIV prosecutions in St. Charles County were African American, even though black people comprise less than 5% of the population in that county. Race was invisible, it was not a factor, according to these products of a system that tells us the same, yet shows us something very different.

Both men’s bodies were framed in ways that categorized them into stereotypes of what black men are perceived to be within the confines of hegemonic society. El-Amin became the large intimidating violent black man and Johnson became the sexually uncontrollable one. Their bodies were used as weapons against them to justify their own extensive incarceration. Their sexual orientation was essentially denied and perceived as spurious, in the case of El-Amin, and recognized as dangerous and deviant, in the case of Johnson.

Johnson became framed in this manner in order to dehumanize and categorize him as an uncontrollable sex-crazed man that needed to be contained in order to protect society from his black body.

Similarly, the bodies of gender non-conforming people of color are often seen as inauthentic in the criminal justice system. Perhaps the earliest record of a gender non-conforming person of color in the United States was in 1836, when Peter Sewally, who identified as male, was arrested under the charge of grand larceny dressed as a woman known as Mary Jones. The article linked above refers to Sewally as someone who would cross-dress regularly. Mary Jones became a “spectacle of a cross-dressed black man” in her court appearance, being openly mocked, which involved a spectator removing her wig to the roaring laughter of the court. Interestingly, Sewally revealed that he would openly dress this way while “attending parties among the people of my Colour” without ridicule.

Although this case occurred 180 years ago, gender non-conforming people of color are still subject to intense derision within the criminal justice system today, specifically in regards to issues relating to their incarceration. Merci Chrisette and Chrishaun “CeCe” McDonald, two black trans women in separate cases were sent to men’s prisons after being sentenced in blatant disregard for their gender identity. In the case of McDonald, she was “taking hormone treatment as part of the transition to becoming a woman, but officials decided to classify her as a man.” Minnesota classified McDonald, as well as ten other inmates in a similar position, as possessing a “a gender identity disorder.”

Their bodies were used as weapons against them to justify their own extensive incarceration.

Incarceration is an issue that relates directly to the lives of queer people of color. 47% of trans people of color have reported being incarcerated in their life, which shows its heightened prevalence in the lives of queer communities of color. As the above instances of both Chrisette and McDonald definitively show, gender identity is often blatantly ignored by the criminal justice system. Since queer people of color are often at an increased risk of being incarcerated at some point in their lives, this issue impacts their lives at a higher rate in comparison to the white LGBTQ+ community. It is also important to note the clear differences in treatment for white queer people while incarcerated in comparison to queer people of color on average. Of course, this is not to say that any malpractice against any queer person should be tolerated, it is only to focus on the relevance of this issue to queer people of color. For example, 12% of all incarcerated trans individuals indicated a denial of routine non-transition related healthcare. However, American Indian and black transgender individuals were denied at 36% and 30% rates of denial respectively.

Solitary confinement is often utilized as the primary means of housing queer inmates, which presents its own unique risks in addition to mental and physical anguish. While in solitary confinement, 37% of trans inmates have reported being assaulted and harassed by prison staff. This percentage only increases when specifically considering queer people of color, with 56% of Latinx, 50% of black, and 44% of multiracial individuals indicating assault and harassment. As LGBTQ+ activist Andrea Ritchie states, combined with an increased risk of assault and harassment, trans people of color are often “stripped of their gender identity; guards shave their heads, force them to wear the undergarments of the opposite gender, and call them by their legal names of the opposite gender.” Additionally, trans people of color are often sexually assaulted and raped in prison, with guards intentionally placing them in situations were this may occur. When they complain, “guards often say queer people can’t be raped.”

Since queer people of color are often at an increased risk of being incarcerated at some point in their lives, this issue impacts their lives at a higher rate in comparison to the white LGBTQ+ community.

All of this intense harassment and abhorrent treatment culminates in increased rates of suicide among trans prisoners. Outside of incarceration, 41% of transgender people have attempted suicide, with this rate of attempt increasing to 56% for American Indians and 54% of multiracial people. As a result of the treatment of trans prisoners as described above, the suicide attempt rate increases to 52% for those who were incarcerated for a period of less than 3 years, then to 60% for those who were incarcerated 3-5 years, and finally to a staggering 70% for those incarcerated 5 years or more.This is an epidemic, and this system is disgustingly failing trans people of color by allowing this to continue.

Organizations such as Black and Pink, Streetwise and Safe, FIERCE,  and TGI Justice Project are working to address these issues, however, with much progress still to be made, and with exceptionally rare steps forward (Note: The “Gay Wing” of L.A. Men’s Central Jail), one cannot help but feel powerless in the presence of these intense conditions the criminal justice system subjects queer people of color to endure. As this analysis has shown, classification and incarceration works to make the body of the queer person of color into spectacle while simultaneously erasing their identity, to subject them to harassment, assault, rape, and increased rates of suicide. This is injustice, not justice, to remove someone’s humanity and posit them in a seemingly perpetual state of powerlessness.

(Image: Formerly incarcerated bi-trans woman and LGBTQ+ activist CeCe McDonald)

Follow Michael on Twitter (@Michael_Paramo)

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