New Democracy Maps

Broken Criminal Justice System Disproportionately Targets and Harms LGBT People

As support for criminal justice reform builds, major new analysis examines how the system fails LGBT population

Washington, D.C., February 23, 2016 — There is a rare and growing consensus across the political spectrum that, with the highest incarceration rate in the world, the United States’ criminal justice system is in need of reform. However, one population has been largely absent from the discussion: lesbian, gay, bisexual, and transgender (LGBT) people.

A major report released today offers the most comprehensive analysis to date of how LGBT people, and particularly LGBT people of color, face higher rates of incarceration and unfair treatment and abuse in the criminal justice system. Unjust: How the Broken Criminal Justice System Fails LGBT People documents how pervasive stigma and discrimination, biased enforcement of laws, and discriminatory policing strategies mean that LGBT people are disproportionately likely to interact with law enforcement and to have their lives criminalized. LGBT people are also treated unfairly once they enter the system; the report shows how they are disproportionately incarcerated and face abuse while incarcerated. Finally, the report sheds light on the fact that LGBT people face unique and considerable challenges in the struggle to rebuild their lives after experiences with law enforcement—and particularly after time spent in a correctional facility.

To illustrate the real impact of these failures in the criminal justice system, the report highlights personal stories of LGBT people impacted by the criminal justice system and spotlights innovative programs, initiatives, and organizations from around the country. Unjust: How the Broken Criminal Justice System Fails LGBT People was co-authored by the Movement Advancement Project (MAP) and the Center for American Progress (CAP), in partnership with Forward Together, JustLeadershipUSA, and Advancement Project. It is available online at

“It used to be a crime to be LGBT in the United States, and while police are no longer raiding gay bars, LGBT people, especially LGBT people of color, are still disproportionately pushed into the criminal justice system. They are treated unfairly within the system and in correctional settings, and face extraordinary challenges in rebuilding their lives,” said Ineke Mushovic, Executive Director of MAP.

The report synthesizes the latest research and analysis to make the case that LGBT people, especially LGBT people of color and low-income LGBT people, pay an extraordinarily high price for the failures of the U.S. criminal justice system:

  • According to the National Inmate Survey, from 2011 to 2012, 7.9% of individuals in state and federal prisons identified as lesbian, gay, or bisexual, as did 7.1% of individuals in city and county jails. This is approximately double the percentage of all American adults who identify as LGBT, according to Gallup (3.8%).
  • Sixteen percent of transgender and gender non-conforming respondents to the National Transgender Discrimination Survey indicated they had been held in jail or prison, with higher rates for transgender women (21%) and lower rates for transgender men (10%). Comparatively, about 5% of all American adults will spend time in jail or prison during their lives.
  • In a 2015 survey of young people at seven juvenile detention facilities sites across the country, an estimated 20% identified as LGBT or gender non-conforming, including 40% of girls and 14% of boys. This is about triple the percentage of all youth who identify as LGBT or gender non-conforming (an estimated 5-7%).

The report paints a harrowing picture of the three ways in which the broken system fails LGBT people:

Three factors increase the chances that an LGBT person will be stopped or arrested by police and pushed into the system:

  • Discrimination and stigma in society, housing, workplaces, families and communities leave LGBT people at increased risk for poverty or homelessness, which in turn leads to increased risk of having encounters with law enforcement and, ultimately, criminalization.
  • Discriminatory enforcement of criminal laws targets LGBT people, including HIV criminalization laws, drug laws, and laws criminalizing consensual sex.
  • Harmful policing strategies and tactics push LGBT people, especially LGBT people of color and low-income LGBT people, into the criminal justice system.

Within the criminal justice system, LGBT people face two main challenges:

  • Discrimination in legal proceedings leaves LGBT people more likely to spend time in juvenile justice facilities, adult correctional facilities, and immigration detention facilities.
  • Unfair and inhumane treatment in jails, prisons, and other confinement facilities puts LGBT people at risk of violence, physical and sexual assault, and harassment by staff and fellow inmates. Incarcerated transgender people often lack access to competent, medically-necessary healthcare and when they are placed in facilities according to their birth sex, transgender people are at increased risk for harassment and sexual assault.

There are two primary post-conviction challenges for LGBT people:

  • Discrimination and a lack of cultural competency in probation, parole, and re-entry programs mean LGBT people may not receive the assistance they need. For example, hostile parole officers or unsafe group housing conditions may lead to LGBT people violating the terms of release or community supervision in order to feel safe, putting them at risk of being reincarcerated.
  • The impact of having a criminal record is substantial and touches every aspect of a person’s life. For people who already struggle with pervasive discrimination, such as LGBT people and people of color, the added challenges of having a criminal record create substantial barriers to rebuilding one’s life and avoiding future interactions with the criminal justice system. For LGBT immigrants, regardless of immigration status, having a criminal record can easily lead to deportation.

“As the nation continues to debate how to fix the criminal justice system, it is critical to explore solutions that will improve conditions and ensure fairness for everyone,” said Laura E. Durso, Senior Director of the LGBT Research and Communications Project at the Center for American Progress. “That includes America’s nine million LGBT people who are at increased risk of having their lives and life chances destroyed by the current criminal justice system.”

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MAP's mission is to provide independent and rigorous research, insight and communications that help speed equality and opportunity for all. MAP works to ensure that all people have a fair chance to pursue health and happiness, earn a living, take care of the ones they love, be safe in their communities, and participate in civic life.

The Center for American Progress is a nonpartisan research and educational institute dedicated to promoting a strong, just and free America that ensures opportunity for all. We believe that Americans are bound together by a common commitment to these values and we aspire to ensure that our national policies reflect these values. We work to find progressive and pragmatic solutions to significant domestic and international problems and develop policy proposals that foster a government that is “of the people, by the people, and for the people.”


Advancement Project is a next generation, multi-racial civil rights organization. Rooted in the great human rights struggles for equality and justice, we exist to fulfill America’s promise of a caring, inclusive and just democracy. We use innovative tools and strategies to strengthen social movements and achieve high impact policy change.

Forward Together is a multi-racial, multi-issue organization that is changing how we think, feel, act, and make policy about families. Whether chosen or biological, we work to ensure that all families have the power and resources they need to thrive. We work at the intersections of race, gender, and sexuality— and find ways to shift our culture and policy in the areas of reproductive justice, economic justice, and ending mass incarceration.

JustLeadershipUSA is dedicated to cutting the US correctional population in half by 2030, while reducing crime. JLUSA empowers people most affected by incarceration to drive policy reform.

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Sexual Orientation Policy Tally

The term “sexual orientation” is loosely defined as a person’s pattern of romantic or sexual attraction to people of the opposite sex or gender, the same sex or gender, or more than one sex or gender. Laws that explicitly mention sexual orientation primarily protect or harm lesbian, gay, and bisexual people. That said, transgender people who are lesbian, gay or bisexual can be affected by laws that explicitly mention sexual orientation.

Gender Identity Policy Tally

“Gender identity” is a person’s deeply-felt inner sense of being male, female, or something else or in-between. “Gender expression” refers to a person’s characteristics and behaviors such as appearance, dress, mannerisms and speech patterns that can be described as masculine, feminine, or something else. Gender identity and expression are independent of sexual orientation, and transgender people may identify as heterosexual, lesbian, gay or bisexual. Laws that explicitly mention “gender identity” or “gender identity and expression” primarily protect or harm transgender people. These laws also can apply to people who are not transgender, but whose sense of gender or manner of dress does not adhere to gender stereotypes.

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