Open Society

The data is clear: lesbian, gay, bisexual, transgender, and queer (LGBTQ Footnote 1 1) people are overrepresented at every stage of criminal justice system, starting with juvenile justice system involvement. They are arrested, incarcerated, and subjected to community supervision at significantly higher rates than straight and cisgender people. This is especially true for trans people and queer women. And while incarcerated, LGBTQ individuals are subject to particularly inhumane conditions and treatment.

For LGBTQ people, criminal justice involvement often starts at a young age. LGBTQ youth are extremely overrepresented in the juvenile justice system. Researchers estimate that 20% of youth in the juvenile justice system are lesbian, gay, bisexual, questioning, gender nonconforming, or transgender compared with 4-6% of youth in the general population. The same research shows that 40% of girls (who were assigned female at birth) in the juvenile justice system identify as LBQ and/or gender nonconforming. Footnote 2 2 This overrepresentation is largely due to the obstacles that LGBTQ youth face after fleeing abuse and lack of acceptance at home because of their sexual orientation or gender identity. In order to survive, LGBTQ youth are pushed towards criminalized behaviors such as drug sales, theft, or survival sex, which increase their risk of arrest and confinement.

High rates of criminal justice system contact continue into adulthood. Our analysis of data from the National Survey on Drug Use and Health (NSDUH) reveals that in 2019, gay, lesbian, and bisexual individuals (with an arrest rate of 3,620 per 100,000) were 2.25 times as likely to be arrested in the past twelve months than straight individuals (with an arrest rate of 1,610 per 100,000). This disparity is driven by lesbian and bisexual women, who are 4 times as likely to be arrested than straight women (with an arrest rate of 3,860 per 100,000 compared to 860 per 100,000). Meanwhile, gay and bisexual men are 1.35 times as likely to be arrested than straight men (with a rate of 3,210 arrested per 100,000 compared to 2,380 per 100,000):

The high rates of gay, lesbian, and bisexual people behind bars can in part be attributed to the longer sentences courts impose on them. The same study of the National Inmate Survey data found that in both prisons and jails, lesbian or bisexual women were sentenced to longer periods of incarceration than straight women. And gay and bisexual men were more likely than straight men to have sentences longer than 10 years in prison. While locked up, gay, lesbian, and bisexual people are subjected to especially inhumane treatment. The National Inmate Survey study showed these “sexual minorities” were more likely to be put in solitary confinement than straight men and women in prisons and jails. In Black and Pink’s survey of 1,118 LGBTQ incarcerated people, a staggering 85% of respondents reported that they had been held in solitary confinement at some point during their sentence. And BIPOC LGBTQ incarcerated people were twice as likely to put in solitary compared to white LGBTQ incarcerated people. This is often done in the name of “protecting” queer individuals behind bars, despite the well documented, long-lasting harms of solitary confinement. And according to the Bureau of Justice Statistics, LGB men and women, as well as men who have sex with men (MSM) and women who have sex with women (WSW), are also 10 times as likely to be sexually victimized by another incarcerated person and 2.6 times as likely to be victimized by staff as heterosexual incarcerated people:

The data consistently shows that LGBTQ people are overrepresented throughout the criminal justice system and that they are subjected to especially harmful conditions behind bars. The Movement Advancement Project and Center for American Progress have explained how discrimination and stigma – like family rejection, poverty, unsafe schools, and employment discrimination – leads to criminalization.