Mark Lee is a senior graduating from the University of Southern California in May 2016 with a B.S. in Business Administration and a B.A. in Psychology. While at SC, Mark developed a keen passion for social impact as a board member of the Los Angeles Community Impact group, a pro-bono consulting student organization that helps nonprofits and small businesses. Mark volunteers regularly at the Midnight Mission and is pursuing a career helping businesses help people. He loves performing stand-up comedy and walking through Downtown LA.
In the Los Angeles County Jail, inmates are thoroughly interrogated every morning as part of protocol. However, the deputies questioning the suspects in the K6G unit are more interested in which gay clubs they frequently attend than the alleged crimes they committed. The K6G unit of the Los Angeles County Men’s Central Jail is just one of many units within jails and prisons in the United States that segregates and separates LGBT individuals from the general population of other inmates. Inmates are faced with difficult decisions to reveal personal privacy for the sake of perceived safety as well as decisions to seek basic physical protection at the cost of potential discrimination: including loss of equal opportunities, and punitive treatment. Segregation by sexual orientation ultimately fails to truly protect those in need of protective custody and may even exacerbate hypermasculine attitudes towards prison rape and homosexuality.
Defining gender and sexual orientation in the jail and prison system is complex and counterintuitive. Inmates tend to define sexual roles on a conventionally binary male-female view. In a heteronormative world, men typically prove their masculinity to other men through power and ownership (i.e. girlfriends, cars, business, etc.). However, masculinity only makes sense if there are complementary constructs of femininity. Without females, inmates find other ways of displaying their masculinity and power: through rape. By raping another inmate, the aggressor asserts dominance and views himself as a masculine heterosexual, while the victim is redefined as a woman (Man & Cronan 167). Inmate aggressors maintain a conservative male-female view on sex by simply substituting other males as females, even explicitly calling their victims “women.” This creates a self-perpetuating hypermasculine cycle to act aggressively in order to display masculinity and physical strength. Inmates must prove they are more and more masculine in order to avoid being raped, and one of the clearest ways to maintain a “tough” image is through raping another man (Dolovich 17). Individuals who might not otherwise rape a man may ironically do so to avoid being raped themselves, and the redefinition of victims as females allows rapists to maintain their “heterosexuality.” The common definition of a “homosexual” is a man who is sexually attracted to men, but many inmates who rape other men still view themselves as heterosexual. Thus definitions of “heterosexuality” are not straightforward.
This construct makes gay men and transgender women particularly vulnerable to rape as they do not conform to heteronormative gender and sexual orientation. Nonconformity makes it easy for inmates to define LGBT individuals as females. Gay men who seek protective custody may be seen as cowardly and weak “snitches:” informants who report criminal behavior like sexual assault to authorities (Kunzel 15). Feminine gay men seen as “sissies” are easily forced into female roles, taking traditionally female roles in sex and even cleaning or doing chores (Dolovich 19). Gay men and transgender women are thus significantly more likely to be sexually assaulted. Gay men are three times more likely to be sexually abused than inmates in the general population while transgender women are up to thirteen times as likely (Marksamer & Tobin 3).
These troubling definitions of homosexuality create a dangerous hypermasculine setting for prison rape which has existed since LGBT inmates have been segregated. Historically, LGBT individuals have been kept separate from heterosexual inmates for homophobic punitive reasons. Historically, Prison officials and the public ignorantly viewed gay men as rapists and sexual offenders (Howarth 1226). Over time, it became apparent that homosexuals were far more likely to be the victims of sexual assault rather than perpetrators, so LGBT inmates were still segregated (and still are) but for protective purposes instead (Alarid 15). Regardless of the motive behind segregation, inherent problems with prison rape led Congress to pass the Prison Rape Elimination Act (PREA) in 2003. Despite federal mandates on reforming jails and prisons, laws regarding criminal detention vary by state, which has made it difficult to implement encompassing reforms for LGBT inmates. Two central questions regarding segregation by sexual orientation remain to this day: Firstly, whether “protective custody” is truly protective or if it denies opportunities for inmates. Secondly, whether the perceived benefit of security in a segregated setting outweighs violations of personal privacy by revealing sexual identity.
The Los Angeles County Jail provides a striking example of many inherent problems in how the justice system manages homosexuals. The intake process, from start to finish, poses various high-risk, high-impact problems for LGBT inmates. Deputies first book inmates at the Inmate Reception Center (IRC) after arrest to record basic information, including sexual orientation. Inmates are asked, “Are you homosexual?” in a public space. Deputies must quickly book inmates due to overcrowding, so there are typically inmates within hearing waiting to be booked (Robinson 1387). The inmate must make his first crucial decision: identify as homosexual and be segregated or identify as heterosexual and remain within the general population. Revealing that he is gay separates him from the general population but requires him to divulge private information about sexual orientation and potentially makes him a target for sexual abuse. This tradeoff between security and privacy is just the first of many such considerations.
Unfortunately, some homosexual inmates choose to remain within the general population. Some gay inmates may choose not to disclose sexual orientation to avoid discrimination and harassment. Although explicit discrimination does not usually occur in the Los Angeles County Jail system, other segregation units in jails and prisons across the United States are not as well established as the Los Angeles system. LGBT inmates in other parts of the country face verbal and physical abuse from other inmates and staff, even when placed in segregated areas (Robinson 1389). When inmates reveal their homosexual orientation to officers at IRC, they are separated very publicly, making homosexual inmates visibly apparent to the general population inmates and staff. LGBT inmates wear baby blue uniforms in contrast to the general population’s dark royal blue uniforms. The lighter uniforms create highly discernible targets for potential abuse while reinforcing the stereotype that gay inmates are weaker and less masculine (Robinson 1374).
Other LGBT inmates choose to remain in the general population because they fear the conditions in segregated jails and prisons. In many detention centers, especially local penitentiaries with fewer resources, segregation resembles punishment more than protection. Various jails and prisons segregate LGBT individuals in the same manner that the most dangerous and trouble making criminals are segregated. Many jail systems place gay inmates in solitary confinement without access to the same programs that are accessible to those in the general population (Kunzel 15). LGBT inmates may be denied opportunities to participate in rehabilitative, educational, and vocational services, as well as programs that would reduce their sentences (Branson-Potts). Segregation heightens various health risks as well; solitary confinement may lead to depression and other mental health problems, while grouping gay men together heightens the risk for HIV transmission (Robinson 1366). Gay inmates are therefore unfairly punished in the name of protection, in addition to having to divulge personal privacy to gain access to what they perceived as a more secure environment.
Although revealing their homosexual orientation to deputies makes inmates vulnerable, LGBT individuals may benefit depending on the local prison culture and laws. The K6G unit in the Los Angeles County Jail is an anomaly in comparison to other segregated units in the United States. It is actually perceived to be much safer and simply better overall than the general population (Dolovich 50). Among repeat offenders, the unit is known for having easier access to psychological drugs and condoms (Robinson 1366).
However, the main benefit of segregation is the physical separation from the gang politics in the general population typically found in penitentiaries across the United States. Upon entry into the general population, inmates are almost immediately separated into gangs based on racial lines (Dolovich 49). Gang culture thrives in the general population because hypermasculinity causes inmates to seek protection from sexual assaults. More vulnerable inmates can find a relative degree of security by affiliating with a gang, but gang politics are tense, fickle, and explosive, as riots and interracial violence are common. Within K6G, these racial lines simply do not exist, and inmates have no pressure to prove their masculinity. In this environment, K6G inmates are safer because the majority of inmates enforce a less racist and less homophobic culture. Inmates who try to start gang politics in K6G are quickly rebutted in their efforts (Dolovich 53). However, not all jails and prisons are as safe as the K6G unit in Los Angeles. Different implementations of PREA standards (or lack of) create different cultures for LGBT inmates depending on the local system in which they are incarcerated. Other segregated jails may still have gang politics and hypermasculine cultures.
The lack of consistency in jail conditions complicates an inmate’s initial decision to identify as homosexual. Inmates are not told of the conditions of within the general population and the segregated unit. In fact, inmates are not even told of the existence of a separate protective unit for LGBT inmates. Even when a segregated unit (like K6G) might be generally safer, gay inmates may still end up in the general population because the officers at IRC do not tell inmates why they inquire about inmate sexual orientation. This disadvantages first time offenders in particular who tend to be younger and do not know about the conditions of their local criminal justice system. Thus, homosexual inmates may remain in the general population because they fear discrimination, try to avoid poor segregation conditions, or simply do not know that protective custody exists.
Once an inmate is sorted into the general population, it may be difficult for him to later request reassignment into K6G. Officers may wonder why he lied during booking by telling deputies that he was not homosexual. Jail staff (especially at the Los Angeles County Jail) are wary of heterosexual inmates who actually try to seek protective custody in the K6G unit despite their true heterosexual orientation (Robinson 1322). In order for the K6G unit to provide the protection it claims, jail officials must properly distinguish between actual homosexuals and heterosexuals trying to lie their way into the system. To make this determination, the LA County Jail has developed a screening test for all individuals who make it past IRC to the K6G unit to decide if they are actually gay. Inmates who pass this test remain in the K6G unit while those who fail are returned to the general population.
The existence of the test itself is ironic; whereas homosexuals may hide their sexual orientation in a mostly heteronormative society, heterosexuals hide their sexual orientation in this homonormative subset of a hypermasculine incarceration system. The purpose of the test is to literally guess an inmate’s sexual orientation, so this standardized “gaydar” can only attempt to discern the impossible. Sexual orientation is not an outwardly apparent characteristic. Although certain factors like dress, body movements, and even actions like sexual relations with another man may make an inmate more likely to be truly gay, these factors are not definitive. Just as how inmates may see themselves as heterosexual despite raping a man, gay men may have sex with women (and even marry or have children with women) but still be considered homosexual. Because sexual orientation is so hard to define, especially in a prison setting, the screening test almost must be stereotypical by definition in response.
These stereotypes are readily apparent in the types of questions asked during the K6G screening process. Because officers cannot determine an inmate’s true sexual desires, officials must test inmates on the next best method: a “homosexual lifestyle” (Robinson 1325). Inmates are asked about three topics of conversation: gay terminology, gay culture, and personal experiences (Robinson 1325). Officers may ask inmates to define “common” terminology relating to sexual positions, body type, and expletive terms. Inmates are also asked about gay culture and places like gay bars, gay clubs, bathhouses, West Hollywood, and pride parades. Depending on the conversation, officers may even ask about specific details of certain locations like where a bar is located or what recent renovations a club made (Robinson 1326). Finally, deputies may ask inmates about personal experiences such as when they revealed their homosexual orientation and gay sex. Sometimes officers even ask inmates to provide contact information of people such as parents and friends who can verify the inmate’s homosexuality. Although the officers are cautious to not “out” inmates to these contacts, the overall experience is still extremely personal and arguably invasive to personal privacy, as questions often touch on very sensitive, emotionally taxing subjects.
The inherent problem in using the “homosexual lifestyle” to determine homosexuality is that true homosexuality is (widely considered to be) not a lifestyle choice, whereas participating in LGBT culture is. Gay men do not choose their sexual orientation, but they can choose whether to read gay magazines, go to a gay club, or reveal their homosexual orientation to friends and family. Homosexuals who refrain from these lifestyle activities are thus disadvantaged during the screening process. The screening process assumes that all LGBT individuals belong to the same gay community. However, “mainstream” gay culture and terms are dominated by mostly white, richer, and more feminine males (Robinson 1375). Even questions regarding personal experiences tend to favor white males, as minority groups, especially blacks, tend to be more homophobic and fear the stigma of being a double minority in terms of both race and sexual orientation (Robinson 1376). Blacks and Latinos are less likely join LGBT organizations, read gay media, learn gay slang, and live in gay areas like West Hollywood (Robinson 1376). The test thus favors white inmates in all aspects of the test’s questioning.
The screening process thus discriminates against demographics that do not have stereotypically white gay experiences. Inmates who appear more masculine are more likely to be seen as heterosexual. Poorer inmates and minority inmates tend not to participate in white gay lifestyles because they require too much money or do not fit with their own racial identity. Inmates who still have not revealed their homosexual orientation are too young, or are too old are less likely to have as much exposure to gay slang and culture. During questioning, those who have not revealed their homosexual orientation cannot even point to any experiences which they revealed it. This test is particularly troublesome for the young, gay first-time offender. The test discriminates against him for lack of knowledge of gay lifestyles, but he is the most vulnerable in the general population due to his youth and lack of knowledge of penitentiary politics.
Thus the K6G screening process inadvertently excludes some LGBT inmates, but it also purposefully excludes bisexual inmates as well. Within the jail and prison context, heterosexuals are seen as aggressors and rapists while homosexuals are figuratively and literally grouped together as victims. Bisexuals are typically stereotyped to be more heterosexual than homosexual (Alarid 86). Officers fear that self-proclaimed bisexual inmates may actually be heterosexual inmates looking to take advantage of the system and rape gay men (Robinson 1329). Bisexual inmates who have female partners or have recently had sex with a woman face the harshest scrutiny and are characterized as duplicitous. This stigma is even further supported by the gay community itself, which discriminates against bisexuals for being fence-sitters and opportunists switching between gay and straight when convenient (Robinson 1330). Thus bisexuals face a harder screening process, which ultimately leads to their exclusion from K6G.
Despite exclusion of certain groups, it is still possible for heterosexuals to pass the test. Heterosexual inmates may be able to pass the screening by learning about terminology and culture from other inmates in the K6G holding cells. Heterosexual inmates may even adopt feminine gestures and stereotypically gay mannerisms such as talking with a lisp. Segregation by sexual orientation thus both over-includes heterosexuals and under-includes vulnerable homosexuals. Heterosexuals who pass place additional burdens on K6G resources and have easier access to gay inmates for sex. Homosexuals and bisexuals who fail the screening process and return to the general population are labeled as ex-K6G and are further targeted for sexual abuse.
Even heterosexuals who rightfully fail the test may be subject to abuse. Separating LGBT inmates may physically protect them, but the hypermasculine culture remains within the general population. With fewer feminine “women” targets, rapists look to other victims like weaker, more vulnerable men (who may still be heterosexual). Thus segregation by sexual orientation merely shifts victimization; heterosexual and bisexual inmates take the place of homosexuals as victims (Robinson 1314). The increasingly masculine victims necessitate even more masculine dominance, entrenching hypermasculinity. Thus, LGBT segregation highlights just how problematic the general population culture is.
Segregation by sexual orientation is inherently flawed as it fails to capture many other vulnerable demographics into protective custody. In order to prevent the underlying problem of prison rape, prison officials should reevaluate how protective custody as a whole is structured. To break the cycle of hypermasculinity, prison systems should try to protect all vulnerable individuals (including heterosexuals) rather than a blanket policy to segregate LGBT individuals. The current segregation system uses homosexuality as a proxy for vulnerability: its most fatal implementation flaw. The screening process excludes other vulnerable individuals and fails to exclude aggressive homosexuals. The original purpose of segregation was to protect the most vulnerable individuals, which consisted overwhelmingly of LGBT inmates in the past but now also includes those outlined in PREA standards. Restructuring segregated units into clearly defined protective units for all vulnerability factors can capture those with “disability, young age, slight build, first incarceration…, nonviolent history, prior convictions for sex offenses…, gender nonconformance…, prior sexual victimization, and the inmate’s own perception of vulnerability” (“PREA”). This protective custody structure based on vulnerability maintains K6G’s rejection of gang politics and avoids the many problems with defining homosexuality and discrimination in the intake process. Segregation by vulnerability eliminates the need for a LGBT screening process and thus the discrimination associated with it. For example, a young gay offender would be able to enter protective custody based on his youth and thus avoid discriminatory inquiries into his private sex life.
Despite this improvement, segregation by vulnerability still does not directly address the driving cause of these prison rape problems: hypermasculinity in the general population. LGBT segregation is merely an attempt to address the symptoms of underlying causes. Hypermasculinity leads to misconstrued definitions of homosexuality and the need for protection through gang politics. Segregation attempts to protect individuals, and in some cases provides relative safety. However, segregation by sexual orientation ultimately creates additional conflicts for inmates and officials, and it may not even reduce prison rape in general. In order to truly curb prison rape, the criminal justice system must make the general population safer as a whole so there is no incentive to seek protective custody in the first place. The only way for prisons to truly reduce sexual assaults in the long run is to address hypermasculinity among inmates.
Thus flaws in LGBT segregation policies in the criminal justice system reveal how gay and transgender inmates are systematically discriminated against in the intake process. Inconsistencies in policy implementation, stereotyping LGBT inmates as victims, and discriminatory screening tests have led to a variety of inherent harms for segregated inmates. Gay inmates face risks to mental and physical health, unfair punishment (potential Eighth Amendment violations), and privacy violations (potential Fourteenth Amendment violations). Such disastrous consequences point not only to the failures of LGBT segregation but more importantly the harsh truth of the United States criminal justice system; the general population is simply too dangerous. Making the general population safer is a task easier said than done. However, addressing hypermasculinity as the root cause and segregating by vulnerability rather than sexual orientation are crucial first steps in putting an end to prison rape and restoring justice to the justice system.
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