Why Bail Reform Should Be an LGBT Movement Priority

Once in prison, our community members face horrific rates of abuse. From sexual assault to deliberate withholding of needed medical care to the brutality of long-term isolation, these abuses have too-long lurked in the shadows of our advocacy efforts.
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In the spring of 2011, I received a call from a colleague about 11 transgender women of color who were arrested while walking down Roosevelt Avenue in Jackson Heights, Queens. The women had spent the Saturday night out with friends dancing at the local gay clubs and were walking home in groups. Though many of us grow up being told to walk in groups to stay safe, for people of color, particularly transgender women of color, walking in groups often invites police attention.

On that particular night, NYPD officers in vans stopped and arrested the eleven women and charged them with "loitering for the purposes of engaging in prostitution" -- a New York Penal Law that tends to criminalize women of color for just walking down the street. All immigrant women of color, the very existence of those arrested was presumed to be deviant and criminal to the officers who were driving down Roosevelt Avenue to do prostitution sweeps. Though many other people were walking down the streets that night, it was the transgender women who caught the attention of law enforcement.

Once we heard about the arrests, my colleagues and I rushed to the Queens Criminal Court to provide support to those arrested and advocate for their release. A whole community of people showed up for those detained and explained to the public defenders on the various cases what had happened. Even with fierce advocates from the Legal Aid Society and community groups from almost every borough writing letters of support explaining how transgender women of color are unfairly profiled as sex workers and targeted for arrest; bail was set in almost all of the cases and in one or two of the cases, as high as $1,500.

On top of the many horrors of the bail system in this country -- a system where physical and financial tolls are levied upon mostly poor and mostly Black defendants and their families -- LGBT defendants face a particular set of burdens and injustices. In New York City, before a person's arraignment -- their first appearance before a judge -- pretrial services interviews them to assess whether or not they are likely to appear in court for subsequent court dates. This determination then affects whether or not bail is set in the case. The factors that make someone a low "flight risk" include whether they have steady employment, have family in the courtroom, attend school, are United States citizens. In my experience, because of systemic discrimination and violence against LGBT people, and particularly against trans people of color, LGBT criminal defendants have a harder time establishing that they have connections to the community and will appear in court.

In New York, as in 30 other states, there are no explicit employment protections for transgender people. Even where there are formal legal protections, trans people often face insurmountable barriers to equitable workplace participation including lack of access to identification, harassment and physical and sexual assault in the workplace. These conditions have led to unemployment rates among trans people of color that are four times the national rate.

The realities are equally stark in schools where transgender students report alarming rates of harassment, physical assault and sexual violence. For 15 percent of respondents in one study, the harassment and assault became so severe that they left school altogether.

At home, transgender individuals experience tragically high rates of family rejection. The same study found that 57 percent of transgender respondents had experienced rejection by family. This rejection leads to high rates of homelessness and suicide.

All of these conditions -- family rejection, employment discrimination, school harassment -- lead to disproportionately high rates of homelessness, HIV transmission and contact with law enforcement for LGBT people, particularly transgender people of color. Then the very same conditions increase the likelihood that bail will be set once a person is arrested because they cannot establish the type of ties to the community that the system deems necessary.

The 11 women arrested that night in 2011 had more ties to the community than most people could ever establish. They had chosen family and support networks filling the courtroom; organizations that they worked with writing about how they regularly came to meetings and did outreach and participated in community events; lawyers advocating on their behalf. They had evidence of full lives of mutual care and support, of shared housing and food networks, of fierce methods of protecting themselves and each other from violence. But those types of connections aren't legible to the state -- the very connections that have sustained our communities for decades are erased when interacting with the criminal legal system. From Sylvia Rivera and Marsha P. Johnson providing shelter and support to other trans and queer people on the streets of New York to Lorena Borjas providing food, organizing support and court advocacy to the TransLatina community in Queens today, our community's ties are woven with history and resilience that is not measured by pretrial services assessing flight risk.

This is a crisis and it is system-wide.

Today's bail system keeps people locked up for years awaiting trial, decimates communities, and all but ensures that criminal defendants take unfavorable pleas to get out of jail.

As our bail system is being scrutinized, the LGBT movement should be taking up the cause. LGBT people are dying behind bars because they cannot pay $500 bail, they are taking pleas to criminal charges that result in their deportation, and they are being trapped in endless cycles of arrest and incarceration.

Once in prison, our community members face horrific rates of abuse. From sexual assault to deliberate withholding of needed medical care to the brutality of long-term isolation, these abuses have too-long lurked in the shadows of our advocacy efforts.

Eliminating or paying bail increases the chances that a person's case will be dismissed or will result in a non-criminal disposition, increases the time the person spends out of jail with the health care and community connections that they need, and decreases the chances they will plead guilty to a charge with collateral consequences.

So as we look for ways to disrupt the cycles of violence, incarceration and abuse that those most vulnerable in our community continue to endure, reforming our bail system is a good place to start.

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