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† Criminal InJustice is a weekly series devoted to taking action against inequities in the U.S. criminal justice system. Nancy A. Heitzeg, Professor of Sociology and Race/Ethnicity, is the Editor of CI. Kay Whitlock, co-author of Queer (In)Justice, is contributing editor of CI. Criminal Injustice is published every Wednesday at 6 pm.
Policing Gender/Style, Still
by nancy a heitzeg ( w/Kay Whitlock)
“There were always rumors of plainclothes women circulating among us, looking for gay girls with fewer than three pieces of female attire.” ~Audre Lorde, Zami: A New Spelling of My Name, A Biomythography
NYPD’s stop and frisk policy continues to be tried in Federal Court ( see Floyd, et al. v. City of New York, et al.), with much attention focused on the role of race in pretextual stops. And with good reason:
Floyd focuses not only on the lack of any reasonable suspicion to make these stops in violation of the Fourth Amendment, but also on the obvious racial disparities in who gets stopped and searched by the NYPD—90 percent of those stopped are Black and Latino, even though these two groups make up only 52 percent of the city’s population- which constitute a violation of the Equal Protection Clause of the Fourteenth Amendment.
But as the policy continues to be scrutinized in the bright light of day, new dimensions continue to emerge, including the persistent practice of policing gender/style.
The targets here are Queers, or people presumed to be queer. The policing often occurs at the intersections of race and class, that is, those targeted are likely to be both poor and people of color. While much of the news coverage — where it exists — focuses on male drag queens and transwomen, female “gender violators” are equally at risk for policing. Police often conflate “gender transgression” with “prostitution” or fraud – which is to say, “gender impersonation.”
Such is the case in NYC. Make the Road New York, a community-organizing group that works primarily with Latino immigrants, recently documented how NYC stop and frisk applies to gay, lesbian and transgender New Yorkers who are black and Latino:
Last fall, the group issued a report on policing in Jackson Heights, a neighborhood with a vibrant gay and transgender community and attendant club scene (and also a prostitution problem), and found in its survey of more than 300 residents that while 28 percent of straight respondents reported having been stopped by the police, 54 percent of gay, lesbian, bisexual and transgender respondents reported this kind of treatment.
Attire becomes the impetus for stops and frisks, that then often turn into arrests based on the combination of gender, attire, sometimes possession of condoms. First, Driving while Black/Brown (DWB), and now Standing with Condoms, (SWC). In combination. police are using race class gender attire and location — much as they do with enforcement of “gang” legislation – to construct suspicion of criminal activity.
What we have now, in some sense, is an actual fashion police — an attitude among some law enforcers that attaches criminality to sartorial choice. If you are a 35-year-old biological woman wearing the $715 metallic platform peep-toe pumps you just bought at Barneys to lunch at Café Boulud, you are well-dressed; if you were born Joaquin, have changed your name to Marisol and put yourself together with a similar verve, you are a prostitute.
Another component of this is the much-denounced use of condoms as evidence. “It can depend on which side of Sixth Avenue you’re standing on in the Village,” Andrea Ritchie, a lawyer with Streetwise and Safe, told me. “If you’re a student carrying condoms, you’re practicing good public health; if you’re a transgendered person of color, you’re a prostitute.”
Of course this practice is not new. In Queer (In)Justice: The Criminalization of LGBT People in the United States, authors Joey L. Mogul, Andrea J. Ritchie, and Kay Whitlock make note of a long history of policing gender/style conformity, pointing out that:
“Up until the 1980s, such policing took the form of enforcement of sumptuary laws, which required individuals to wear at least three articles of clothing conventionally associated with the gender they were assigned at birth, and subjected people to arrest for impersonating another gender.”
Sumptuary laws were always been selectively enforced, and often serve as a proxy for harassing anyone or any groups seen as “deviant” or engaged in some form of social agitation. In the 19th century, such agitation included abolition, woman suffrage, labor unrest, and the emergence of visible lesbian/gay communities in urban areas. Virtually without exception, the enforcement of sumptuary laws is simply one part of a multi-faceted effort to ensure social control and conformity to rigid sex and gender roles. Queer(In) Justice: The Criminalization of LGBT People in the United States reports that while sumptuary laws no longer exist, the tradition of policing gender/style continues unabated.
As we see. Same as it ever was.
Don’t be distracted by the seemingly straight-forward march towards LGBTQ equality in marriage and other matters. Or by the symbolic victory of a Black POTUS and a handful of women in the highest seats of power.
On the streets, it is another matter.
Black/brown, poor, LGTBTQ, women remain the focus of an unrelenting campaign of criminalization — targeted by both law and its’ differential enforcement..
Scratch the surface, look past the victories for those with the veneer of middle class “respectability”, and ask –
How far have we come from Stonewall, really??
Essential Reading:
Queer (In)Justice: The Criminalization of LGBT People in the United States, authors Joey L. Mogul, Andrea J. Ritchie, and Kay Whitlock
“The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex From Gender,” by Katherine M. Franke (pdf download)
Captive Genders: Trans Embodiment and the Prison Industrial Complex Eds. Nate Smith and Eric A. Stanley.
Normal Life: Administrative Violence, Critical Trans Politics and the Limits of Law by Dean Spade.
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