LGBQ People and Social Justice

15 LGBQ PEOPLE AND SOCIAL JUSTICE Nicole L. Asquith, Vanessa R. Panfil, and Angela Dwyer Introduction Justice—whether social or criminal—is predicated on the inviolability and universality of human rights. Since the 1960s, the UN has operationalized the concept of social justice as the basic human right to “the fair and compassionate distribution of the fruits of economic growth.”1 While maldistribution of resources may influence how LGBQ2 people experience social justice, as with any other of the rights afforded to all humans, social justice requires recognition.3 For many people of diverse sexualities, recognition has been eschewed for much of the UN’s history, and the recognition of LGBQ people in human rights discourses remains controversial and veiled in the language of “other status.”4 Even today, non-normative sexuality is barely mentioned in human rights instruments, is criminalized in some jurisdictions, and those who act on their attractions can be subject to extreme violence, including violence from criminal justice actors. Within these contexts, it is therefore timely to query and queer our understandings of social justice. Since its original articulation in the late 1960s, the concept of social justice has developed beyond the narrow economic redistribution that framed the UN’s initial definition. Charmaz suggests that inquiring into social justice requires us to “attend to inequities and equality, barriers and access, poverty and privilege, individual rights and the collective good, and their implication for suffering.”5 Here, social justice captures a wider range of attitudes, behaviors, and practices and extends the notion of social justice to include maldistribution of economic and noneconomic rewards, as well as the maldistribution of misrecognition and cultural silence. From its very formation, to the signing of the Universal Declaration of Human Rights, through decades of reconceptualizing the harms caused by humans against humans, nonhuman animals, and their environment, the UN has sought to address social injustice. With each new injustice recognized, the UN has created declarations, treaties, memoranda of understanding, policies, practices, programs, and projects. Despite being identified as victims of the Third Reich, in the more than 70 years since the Holocaust, the specific rights of people of diverse sexualities have been silenced, ignored, and their concerns mothballed for another generation to address. While some declarations were passed by the UN in 2011 and 2014, and a “special expert” was appointed in 2016 for LGBQ people,6 in all its major strategic plans linked to actioning social justice, LGBQ people are absent.7 They are either not named at all, and when discussed, it is only in terms of “sexual orientation,” and then most commonly in terms of refugee status, or violence and bullying. Further, as non-normative sexualities continue 141 Nicole L. Asquith et al. to be unacknowledged in UN human rights frameworks, the failure to recognize diverse sexualities trickles down to (a lack of) policies in criminal processing systems.8 To talk of “compassionate distribution” of wealth within this context appears to further silence and misrecognize the injustices experienced by sexual minorities, especially those living in the global South and in the intersectional margins of the global North, such as queer people of color, immigrants, and/or religious minorities. In this chapter, we query how justice is queered when we consider the experiences of lesbian, gay, bisexual, queer, or other sexually diverse people, and how the recognition of LGBQ people may in fact change what we mean by social justice. We focus on sexual minorities rather than gender minorities but acknowledge that gender-diverse people’s experiences are important to understand and often intersect with those experienced by people of diverse sexualities.9 We first outline what we mean by social justice, and then consider how the landscapes of social (in)justice change when we apply a southern gaze. Through the lenses of southern theory and queer criminology, we discuss the complex and at times contradictory intersections between social and criminal justice for LGBQ people by focusing on redistribution and recognition. We suggest that these two processes must work in tandem to achieve utopian ends, but often cannot due to structural and institutional constraints. From these critical positions, we then discuss how queer-blind social justice within criminal justice has negatively affected the lives of LGBQ people. We conclude by reflecting on dominant ethics and strategies for pursuing social justice. Social Justice in Criminal Justice Justice is a slippery concept that has occupied philosophers and social theorists since at least ancient Greece. However, what we know of justice, and how it has been operationalized in international declarations and treaties and in national laws and policies, is informed by Western individualism and chrononormativity.10 Assumptions about who deserves justice—including how justice is meant to unfold—preclude a range of alternative experiences of justice that present as pragmatic ad hoc decisions, and are lived collectively rather than individually. Before considering how justice changes when we view it from the perspective of the global South, we first want to consider how the discourse of progress and the primacy of economic redistribution in concepts of social justice combine to obscure LGBQ experiences of injustice. Justice remains a slippery concept to define because it is only through injustice that we can glimpse what human relations are when there is not a “fair and compassionate distribution of the fruits.”11 In criminal justice, the focus on the structural and economic coordinates of injustice is critical given the legitimated force over human life afforded to criminal justice actors. When the state kills on behalf of its citizenry—when it explicitly and deliberately chooses the targets of its “justice”—it shapes not only the distribution of justice in criminal processing systems but also the social justice meted out elsewhere. As the final arbiter of criminal justice, the state models to its citizenry how other social justice resources ought to be distributed. For example, in the U.S. states of Alabama, Arizona, Delaware, Florida, Iowa, Kentucky, Mississippi, Nebraska, Nevada, Tennessee, Virginia, and Wyoming, those prosecuted for certain criminal offenses have their right to political participation (voting) automatically revoked; in some cases, for life.12 Elsewhere in the U.S. and across the globe (including Lebanon, Kyrgyzstan, Australia, Luxembourg, the UK, Italy, China, and Taiwan), voting rights are revoked for the duration of imprisonment, parole, and/or probation.13 Irrespective of the fact that a person may have “paid” for the injustice they caused—by years of degradation and isolation in prison, not to mention literal financial penalties—the state deepens that injustice by limiting the social justice available outside of criminal processing systems. Similarly, as the state models a particular set of social (in)justice principles, these principles are often mirrored in wider social relationships of exclusion, discrimination, intolerance, and illegitimate force. 142 Chapter 15 LGBQ People and Social Justice During the 1990s and well into the 21st century, social theory—and theories of social justice, in particular—became the site of one of the most productive theoretical disputes over structure and agency.14 Albeit overly structuralist in her initial account of social justice, Fraser’s dual typology of maldistribution and misrecognition provides us with a tool to identify the specific structural and symbolic injustices experienced by LGBQ people.15 It also provides us with a way to consider how injustice is woven into culture, and how maldistribution and misrecognition reinforce each other to create landscapes of destitution, exclusion, and prejudice. In Fraser’s typology, the injustices experienced by marginalized people can be understood in terms of the maldistribution of economic rewards and recognition.16 Responses to injustice should therefore target the specific character of the injustice experienced. In her dual taxonomy, at one end of the distribution/recognition continuum is the experience of class-based injustice. Injustice as a result of the mode of production—slave labor and wage labor alike—is best addressed by changes to the economic system, such as welfare provisions and progressive taxation. At the other end of the continuum are injustices in recognition. Here, controversially, Fraser posits the experiences of “homosexuals,”17 whose experiences of injustice are shaped by cultural and symbolic (mis)representation.18 Unlike their working-class peers—ignoring for the moment that many queers are indeed working-class—Fraser suggests that while changes to the economic arrangements may assist some LGBQ people, they will not resolve the injustices of recognition per se.19 These accounts of (in)justice, while productive in framing our arguments, are problematic on several accounts. Fraser (and at times, Butler) frame their concepts of justice through the trope of progress; Western notions of progress at that. Cover et al. suggest that justice is too often framed in terms of inevitable, consistent progress.20 Marked by this or that starting point,21 a linear comparison is made between the unjust yesterday and the slightly more just today. Whether liberal-humanist or (neo-)Marxist, individualist or communitarian, progress through scientific innovation or class conflict is assumed to be good, automatic, and, like any utopic vision, an unfolding emancipatory process without a clear end. But progress is rarely lived as such. For many LGBQ people, tiny incremental changes making their lives slightly less unjust is anything but utopian, especially when these glacial changes often do not address more immediate matters of life and death for LGBQ people already facing multiple forms of disadvantage. And, as Cover et al. caution, change does not necessarily favor the less powerful and loosen the grip of injustice they experience.22 History is littered with examples of retrogression, retreat, and stagnation, especially when it comes to the social justice meted out to LGBQ people. Criminal justice is but one variant or aspect of social justice. However, justice in crime processing is not an autonomous field. Justice elsewhere—in education, in citizenship, in the economy, in the family—shapes justice as it is experienced in and through criminal processing systems. In this respect, criminal justice represents a particular institutional form of social justice. However, when disconnected from institutions, it is clear that justice can only be achieved through both structural and cultural processes. Emphasizing one over the other, or considering each in isolation, ignores the intertwining of both structural and cultural processes in the creation of injustice. And conversely, when we label something as “merely cultural” or simply economic, we also limit our vision of what constitutes justice. Queering Southern Criminal Justice Just as we need to be cognizant of chrononormative, individualist, and structuralist biases of social justice research to date, we also need to be aware of the Western essence of these discussions about justice. Since her initial provocation in 2007, Connell has sparked a revolution in the social sciences and a regeneration of Southern theory.23 In Southern Theory, she asks us to reflect on the production of social science knowledge, and the ways in which even radical theorists reinstantiate power inequalities 143 Nicole L. Asquith et al. through the reproduction of Western knowledge. More recently, Carrington, Hogg, and Sozzo have argued for the consideration of these ideas in criminological thought and research, given criminology has been a discipline grounded squarely in the global North.24 When applied to criminal justice, Connell’s perspective enables us to look beyond the experiences of those in the global North and consider the various other ways in which criminal justice is perceived and enacted.25 Central to a critical analysis of crime is the understanding that crime is not absolute or universal; it varies across time and place. Connell’s critique applies equally when thinking about research on the nexus between sexuality and criminology. The coloniality of these forms of research is highlighted in sodomy laws imposed by colonial forces and even in the concept of “sexuality” as one that emerged from colonially imposed binaries and hierarchies.26 Scholars are beginning to examine the experiences of LGBQ people in criminal processing systems worldwide, with the goal being increased recognition and more socially just outcomes for these communities.27 In many cases, the damaging artifacts of colonization have included the imposition of retrograde Western norms about gender and sexuality, which created injustices still embedded in criminal processing systems today. We need only refer to global sodomy laws to illustrate the colonizing path of sexuality and gender across the global South. Equally, the northwestern edges of marriage equality maps—or, alternatively, the skew of sexuality criminalization maps to the east and south—may give Western queers the idea that they are part of a more just future. However, they are not vanguard, nor are Western queers necessarily secure in their newfound rights, as illustrated by the rapid rollback of many rights afforded to LGBQ people in the United States since the 2016 presidential election, and the hard path to marriage equality in Australia. Carrington and Hogg argue that “peacetime criminology” has long glossed over “the criminogenic impact of colonialism on the diverse societies of the global south,” and these colonialities have profoundly impacted global South nations the world over.28 Placing Southern experiences on the agenda deepens our understanding of how crime (and justice) is constructed—and thus can be reconstructed—and the ways in which heteronormativity and heteronormative violence are differently resisted by Southern LGBQ people.29 Marriage equality has become a significant social justice issue for LGBQ people in developed nations around the world.30 Yet, alongside this, LGBQ people in the global South continue to experience high levels of serious violence, including harassment, discrimination, “corrective” rape, and (extra-)judicial murder.31 While a gay male couple in Sydney, Australia, may be concerned that until recently they could not marry, gay men in Uganda are being outed by journalists who print their names in the newspapers; this outing is then the motivation for arrest by police and incarceration in prisons, and sometimes leads to their murder.32 The experiences of gay men in these examples diverge considerably and highlight the importance of examining issues as they are experienced by LGBQ people in the global South. Marriage equality is not high on the justice agenda of LGBQ people if their most basic human rights continue to be ignored. We must, however, avoid homogenizing the experiences of LGBQ people in the global South—or, in fact, the experiences of marginalized queer people of color, immigrants, and/or religious minorities in the global North—nor should we offer global South experiences as salutary lessons in the need for Northern and Western activism (read: charity).33 Before Western nations such as Australia even deigned to place the issue of marriage equality on the political agenda, nations in the global South had already granted LGBQ people the same rights as their heterosexual peers.34 Argentina (2010), Brazil (2013), Colombia (2016), South Africa (2006), Uruguay (2013), and Taiwan (2017) represent the forerunners of LGBQ marriage rights in the global South, with Vietnam and Thailand are expected to enact laws soon (UNDP USAID, 2014).35 Yulius, Tang, and Offord suggest that the impact of an increasingly global LGBQ identity is experienced variously in the global South, and that in some places, these discourses are strengthening those who seek to silence LGBQ people.36 Similarly, human rights activities from LGBQ people in the global North can perpetuate the stigma 144 Chapter 15 LGBQ People and Social Justice around sexuality diversity in the global South by spectacularizing examples of “African [Arabic, Muslim, Asian] homophobia,” for instance.37 As such, Mhaoileon argues that how we achieve justice for LGBQ people in the global South is something that must be done in consultation with local LGBQ communities. This then reorients us to the potential difficulties in their everyday existence without reinforcing the global North “as a space for safety and progress.”38 Justice as a concept also takes on a muddy character when thinking about the work of criminal processing systems with LGBQ people in the global South. Violent and discriminatory policing practices with LGBQ communities in the past39 has seen Australian police organizations, for example, working hard to rebuild relationships with LGBQ communities. Many police organizations have established LGBTI police liaison programs to evidence their commitment to improvement.40 As a result, policing encounters with LGBQ people in the global North generally do not end with death, and when police do use violence against LGBQ communities, community uproar is swift.41 These experiences directly contrast with the policing of LGBQ people in parts of the global South, where police are complicit in delivering violence upon LGBQ people and are often themselves directly involved in inflicting degradation, violence, and death upon LGBQ people.42 LGBQ people in the global South might not champion the introduction of initiatives like LGBTI police liaison programs when they are yet to even feel safe in the presence of police. Further, programs like these seeking to make police more accountable and socially just may be experienced as further injustice in parts of the global South as they amplify, rather than ameliorate, existing structural inequalities.43 As we discuss later, just adding LGBQ people to the mix of social justice in criminal justice often results in contradictory outcomes and further exclusion and violence. Queer(y)ing (querying and queering) justice is therefore an imperative for LGBQ people across the world. Queer(y)ing Social Justice in Criminal Justice We frame our querying of social justice with the assistance of the dual taxonomy advanced by Fraser: redistribution and recognition.44 Fraser is concerned by the move from a focus on egalitarian redistribution to recognition, particularly in the context of growing global economic inequality.45 She also argues that a focus on recognition, through identity politics, actually serves to reify particular cultural identities through an emphasis on “display[ing] an authentic, self-affirming and self-generated collective identity.”46 In her later reworking of the redistribution/recognition taxonomy, Fraser argues that a better way to achieve parity would be to advance “a politics aimed at overcoming subordination by establishing the misrecognized party as a full member of society, capable of participating on a par with the rest.”47 To this aim, we turn. Recognition Unlike redistribution that can be quantified, recognition is more abstract. Recognition refers more broadly to how people and groups create public identities in order to be recognized, and the process of recognition can result in formal modes of legal recognition, such as being counted in the census or being explicitly enumerated in laws as a protected group. The process of forming a collective group identity can include coming up with the group’s preferred names, labels, and terminology of their choosing, which they can use among themselves or insist others utilize as well. One example would be the move to refer to same-sex-attracted people as gays or lesbians, as opposed to homosexuals, as the term “homosexual” has carried a clinical and dysfunctional connotation since its “invention” in the late 19th century.48 Words to capture non-binary sexual identities, such as pansexual and queer, are also gaining traction. Recognition also includes valuing queer input into various matters of civic life and not just those related to sexuality, such as the push to have more candidates elected to public office who identify as LGBQ (as well as transgender, intersex, and gender nonconforming). This 145 Nicole L. Asquith et al. wider activism ensures LGBQ people can have political representation, but it also increases the diversity of voices creating policies that impact on justice for LGBQ people and other marginalized people. Attempting to avoid misrecognition is also important. People with non-normative sexualities have long been maligned in legal statutes and crime reporting as depraved, deceptive, and with ill intentions. LGBQ people have been painted as child molesters, sexual predators, and disease spreaders, which have been used to justify statutes that control their sexual activities and to rationalize increased social control enacted upon them.49 Instead of a positive portrayal of the victim, as many victims are represented, in news coverage of a gay murder victim, for example, the victim’s “lifestyle” and sexual activities may be the focus.50 And, we argue perhaps paradoxically that it is acceptable to portray LGBQ people as offenders, since that presupposes their capacity to participate in all forms of social life, even that which is negative.51 Formal recognition may entail a redistribution of resources. An ongoing issue related to the recognition of LGBQ people is the omission of sexuality and all gender categories in a country’s accounting of itself. In Australia and the U.S.—two countries often presented as vanguards of LGBQ rights and recognition—sexuality has yet to be considered important enough to ask in the Census. It was proposed that these questions would be asked in the upcoming 2020 U.S. Census, but they have since been removed from the Census instruments.52 The Australian Census and U.S. Census have never tried to count the number of LGBQ-identified people. Practically, many allocations for resources and strategies for implementing existing statutes are dependent on census data results, and thus LGBQ people will be denied services and protection. Symbolically, the unwillingness to count people represents an attempt to minimize, invalidate, or erase their existence, or at a minimum, exclude them from being considered valued citizens participating in civic life. In this case, the path to redistribution necessitates formal recognition. In his critique of coming out—and of emancipatory discourses about coming out—Sanchez highlights not only the whiteness of this process, but also the Western tendency to privilege individual identity through state action (such as recognition in law).53 Speaking from the perspective of a Latino gay man, he states, “when so much of queer visibility is grounded in white history, white bodies and white gatekeepers, we have to question who benefits from coming out.” Drawing on Villicana, Delucio, and Biernat’s research, Sanchez considers how coming out damages cultural and familial relationships in ways not represented by Western discourses of disclosure.54 Villicana et al. found that as self-identification increased, White gay men are more likely than Latino men to verbally disclose their sexuality.55 Latino men, in contrast, deployed a range of nonverbal cues to demonstrate their sexuality. In Western queer discourse, this veiled action and lack of a verbal declaration is read as “shame, selfhatred and repression” that can only be overcome by a courageous move out of the closet.56 In the ideal world of Western, White neoliberal individualism, recognition is simply a speech act; frightening at first, and at times when the social context is unclear or dangerous, but nonetheless just a few easy words—“I’m gay,” “I’m queer,” “I’m bisexual,” “I’m lesbian,” and so on. However, even in the safest, queerest of Western cities, these are words that parents continue to use to abuse their children, that communities use to shun individuals, that employers use to sack people (even when the law prohibits them from doing so), and that people use before they kill. Recognition, in Fraser’s conceptualization, is therefore not just a matter of addressing the “institutionalized patterns of interpretation and evaluation that constitute one as comparatively unworthy of respect or esteem.”57 When the capacity to speak is forestalled, and when the speech act is turned from emancipation to punishment, how are we to change the patterns of interpretation and evaluation? Coming out is costly. From the view of a culture where individualism and individual identity is shunned, and communitarian and familial ties are thought to be strengthened through sameness not difference, the act of coming out may be perceived negatively. Westernized, verbal acts of coming out may also be perceived negatively because they breach cultural norms—in Sanchez’s case, the moral codes attached to falta de respect.58 For Sanchez and the Latino gay men he knows, coming out in the Western sense 146 Chapter 15 LGBQ People and Social Justice of the term means losing the cultural artifacts that sustain life beyond libidinal desires. Sanchez does not want to lose the love of his father (and wider community) by declaring his sexual identity, but equally he does not want to lose the cultural meaning ascribed to his relationship with his partner. Insisting on breaking down the closet when the costs are borne too often by marginalized people—and when there is little to be embraced when coming out of that closet as a queer person of color59—is dangerous. Redistribution While Fraser was concerned about how the mode of production created maldistribution, we believe that this is a partial reading of how the (re)distributive forces of a society shape the experiences of LGBQ people.60 Even within the productive sphere, LGBQ people experience high rates of unemployment and employment discrimination.61 The International Gay and Lesbian Association found that at least 20% of European lesbians and gay men had experienced discrimination, and that 31–49% were closeted at work due to fear of discrimination.62 Employment insecurity such as this can lead some people of diverse sexualities into the underground economies of illicit drug selling and streetbased sex work, which in many jurisdictions remains criminalized.63 These economies attract high police surveillance and intervention.64 Further elaboration of the maldistributive effects as they pertain to criminal justice is necessary. For most criminal justice agents—whether victim, offender, or practitioner—their access to social justice is conventionally framed by redistributive claims. Redistribution of resources could in fact refer to fairly direct redistribution of wealth, as advocated by socialist movements and even alluded to by the UN. However, redistribution takes on somewhat more intangible meaning in the crimino-legal world, especially for LGBQ people. Redistribution could refer to their unequal rights under the law (such as criminalizing same-sex activity and marriage equality), unequal access to safety (both in the general community and in criminal processing systems), unequal access to appropriate support services, and, if detained, unequal access to safe housing. Unequal rights under the law is rightly the dominant issue faced by LGBQ people.65 LGBQ people face laws that not only criminalize their behavior, but also withhold civil and human rights. In the last decade, much of the focus has been on the right to marriage equality, which has become a bellwether issue worldwide. Likewise, laws prohibiting same-sex sexual activity mark LGBQ people apart from the rest of the community, who are not punished for their sexuality. Given the considerable attention already afforded to these two issues, here we wish to focus on other forms of maldistribution impacting LGBQ people inequitably. In addition to their increased likelihood of encountering criminal processing systems by way of family exile and homelessness, LGBQ people are also subject to underand over-policing.66 Of the former, LGBQ people’s experiences of hate crime and targeted violence has been ignored, minimized, or when acknowledged, criminal justice services are underresourced to adequately respond to the issues. In contrast, LGBQ people’s use of public space—particularly, their queering of public space—is subjected to over-policing and the criminalization of simply being queer.67 Criminal justice is also unequally distributed in terms of LGBQ people’s rights to safety while in the care of criminal processing systems and access to support services for offenders seeking to desist from crime or victims seeking to resolve trauma. The “wealth” available to be distributed within criminal processing systems is minimal. Culturally appropriate resources available to LGBQ offenders and victims are in most jurisdictions nonexistent. Even in relatively resource-rich jurisdictions such as those in the U.S. and Australia, critical victim services such as shelters, counseling, or support services for (gay) male victims of sexual and/or family violence do not exist, and only recently have phone counseling services been established in some places.68 And even though ad hoc, short-term projects and trained mainstream services have existed for lesbians facing family violence, the same is not true for other sexually diverse victims. 147 Nicole L. Asquith et al. For LGBQ offenders, the options are even more limited. LGBQ specific support or treatment programs may be necessary for just outcomes. However, for most LGBQ people internationally, these are luxuries afforded to those communities able to make claims from their state and criminal processing systems. Recognition is thus central to making claims and advocating for appropriate offender and victim services. However, in the space of imprisonment, between the time of being out and recognized as LGBQ, and making claims for appropriate support services and strategies (including safe housing), offenders may face increased violence from offenders and staff alike.69 Even when offenders can safely identify as LGBQ in prison environments, they can face additional barriers to their survival and rehabilitation. For example, in juvenile facilities, Irvine found that young LGBQ offenders were required to participate in heteronormative sex education classes, and Curtin found that LGBQfriendly publications (including nonfiction) were rarely made available.70 Further, desistance programs based on family reunification and the social capital of loving, supporting families fail to acknowledge that family exile—leading to homelessness and survival crimes—is a key reason facilitating a young LGBQ person’s incarceration.71 The issues of carceral arrangements and support services for queer offenders in the global North may appear frivolous when considered in light of global South experiences. For example, in their special focus on the UN’s 2030 Agenda for Sustainable Development, Prison Reform International (PRI) highlights that the right to safety and well-being while in the care of criminal processing agencies is widely divergent, with queer experiences of injustice in countries in the global South often exacerbated by wider issues related to the democratization of criminal justice.72 PRI identified corruption at the heart of problems encountered by prisoners in Nigeria, Bulgaria, Mali, and Cambodia, where they are required to pay for even the basic necessities of life such as food or water.73 Within the contexts of corruption and impoverishment, rights to sexual autonomy and self-identity are supplanted by the more immediate needs of survival. When Criminal Justice Undermines Social Justice From the perspective of these various journeys to social justice, it is clear that pragmatism—rather than utopian goals—drives much of the “progress” to date. Here, social justice in criminal justice is a competition of winners and losers, where rewards can be economic (redistributive) and seem to improve LGBQ people’s lives, yet have no real impact on larger structural forces such as capitalism and systems of social control, or where rewards can be more sociocultural (recognition), yet still fundamentally tokenistic. Continuing with themes of recognition and redistribution, and informed by a queered Southern theory, we evaluate two in-depth examples that, respectively, provide insight into the ways that stagnation or “advancement” in criminal justice can similarly stymie social justice. Criminalized and Victimized Activists A key path to gaining recognition is to increase visibility. However, as discussed above, this poses a challenge for LGBQ people in the global South. This is affected significantly by the fact that many remaining (enforceable) sodomy laws are in countries in the global South. Not surprisingly, people fighting for the rights and dignity of LGBQ people are often perceived to be LGBQ or self-identify as LGBQ, meaning that their very existence or everyday activities put them at odds with the law. This also puts them at direct risk for prosecution, discriminatory treatment, and violence/victimization by community or state agents. And, in these particular contexts, those who commit violence against them may be regarded as justified and therefore no prosecution may occur. Victims may be seen as having brought upon their own victimization because they live outside the law, or if their complaints are taken seriously, victims may be maligned in court to hamper attempts to bring the offender to justice. 148 Chapter 15 LGBQ People and Social Justice Several examples of the activities, deaths, and offender prosecution outcomes of several gay activists are illustrative. We present these details not to shock, but to illustrate the very real, sometimes life-anddeath challenges related to recognition and redistribution. Eric Ohena Lembembe, a journalist and activist who contributed to Human Rights Watch’s report on people prosecuted for homosexuality in Cameroon, was found dead in his home with broken feet and burns to his face, hands, and feet in 2013.74 Part of his reporting included critiques of government officials who had ignored the torture or murder of other LGBQ people; indeed, over a year later, no meaningful action had been taken to find the perpetrators, and it appears that at the time of this writing, that remains the case.75 Brian Williamson was a prominent LGBT activist in Jamaica.76 He was the co-founder of JFLAG (Jamaica Forum for Lesbians, All-Sexuals, and Gays), had run a gay club called Entourage, and wrote editorials using his own name to the national newspaper explicitly condemning murders of gays and lesbians there.77 In 2004, in his own home, he was fatally stabbed multiple times in his head and neck, and his safe was stolen. An Amnesty International representative, who about a week earlier had warned the prime minister about anti-gay attacks, was slated to meet with Williamson the day of his death; upon arriving to his home, she found a crowd dancing, laughing, singing homophobic slurs, shouting his death was what he deserved for his sin, and otherwise celebrating the murder.78 Although police arrested a man Williamson had employed and he was later convicted, the crime was investigated as a robbery with very little attention to heterosexist violence, perhaps because, as some news sources reported, the perpetrator was an allegedly closeted gay man.79 Xulhaz Mannan, an organizer of an annual “rainbow rally” and the co-founder of Roopbaan, Bangladesh’s only magazine to promote acceptance of LGBT communities, was stabbed to death by a group of men posing as couriers so they could gain access to his apartment in 2016.80 An LGBT activist blogging for Amnesty International under a pseudonym describes the chilling effect that violence against politically active people such as Mannan81 has caused for other activists: they changed their phone numbers, moved numerous times, lived in safe houses, removed all traces of activism on the internet and social media, avoided organizing again, and even left the country. Their fear was magnified by the realities that police have made no sincere attempt to investigate the murder and instead harass LGBT people, and government officials speak about LGBT victims as though they brought it upon themselves.82 These are only three of the brutal murders of LGBQ people globally.83 Regarding Lembembe’s murder, a commentator from Human Rights Watch stated, “It’s extremely ironic and really sad that Eric seems to have been killed by the same violence he was speaking out against.”84 However, under a criminalized state, we do not think it is ironic at all. People working for social justice and recognition can indeed become recognized, but within their country’s own criminal justice contexts, they are seen as symbols that represent that country’s disorder. They thus become scapegoats and targets. Our chapter’s organizing conceptual framework tells us that this will be more likely to happen to people working for justice on behalf of LGBQ groups. This points to the fact that progress toward social justice, in forms such as overturning sodomy laws and gaining protections, may have to come from communities and allies rather than LGBQ-identified activists. People who are denied social, cultural, and/or economic capital cannot do the difficult work of redistribution on their own. Hate Crimes Laws Versus Penal Abolition To further complicate this issue, we present two pressing criminal justice and social justice issues— hate crimes statutes and penal abolition—that complicate our ideas about how LGBQ people can expect to achieve social justice through criminal justice. When we speak of protections, one perceived protection of LGBQ people is the existence of hate crimes laws. These laws specify separate crimes that people can be charged with, or enhanced penalties if a crime is motivated by animus based on 149 Nicole L. Asquith et al. certain protected statuses. In the United States, the Civil Rights Act of 1968 was the first piece of hate crimes legislation, but it did not contain provisions related to sexuality or gender. The Hate Crime Statistics Act of 1990 required the attorney general to collect data on crimes against someone because of their “sexual orientation.” This statute allowed for hate crimes data to be collected through the Uniform Crime Reports (a major source of aggregate crime data), and also was the first federal statute to explicitly recognize LGB people.85 This could be read as a step towards recognition, but in doing so, it expanded criminal justice–related administrative projects.86 Also in the U.S., the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009 was lauded as a major accomplishment in rights for LGBQ people. It dropped the prerequisite that the victim be engaged in a federally protected activity and added motivation based on a victim’s actual or perceived gender, sexuality, or disability, which were not yet included at the federal level or in many states. The act was enacted over a decade after the murders of Shepard and Byrd, after 14 separate floor votes, and was only then signed by President Obama.87 Thus, the act did not have consistent support across political coalitions or citizens. In fact, it was passed as part of a massive defense spending authorization bill, which also allocated money for a troop surge in Afghanistan.88 Some queer critics of the legislation pointed out that it allowed Democrats—who had not backed past LGBQ equality measures or who actively blocked them (such as voting in favor of the anti-gay Defense of Marriage Act)—to appear both tough on crime and friendly to gay causes by voting for the bill.89 Interestingly and perhaps paradoxically, not all queer (or anti-violence) organizations favor hate crimes statutes because they increase the reach of the crimino-legal system.90 Laws, police, and prisons have historically brutalized and punished LGBQ people, and the prison industrial complex continues to do so through unsafe prisons that funnel money from community services that could include LGBQ-specific health and empowerment programs, all the while having a questionable deterrent effect.91 In Australia, where hate crime is approached differently in each of the eight jurisdictions, it is conventionally framed as an aggravating factor in sentencing, which is often bargained away in early phases of adjudication. In both the U.S. and Australia, hate crime provisions have done little to change either maldistributive or misrecognition artifacts of heterosexist violence. This has led abolitionists to question why LGBQ people would believe that criminal processing systems would now protect them. Legal scholar, abolitionist, and Sylvia Rivera Law Project co-founder Dean Spade asserts definitively: “Their laws will never make us safer.”92 More generally, the push against criminal justice expansion is part of a larger social movement of penal abolition, which is critically concerned with issues such as: • the devastating effects of mass incarceration, particularly on poor and minority communities; • criminal processing system overreach (e.g., extended monitoring) that manifests myriad negative economic and social impacts; • privatization and commodification of prisons and correctional labor; and • physical and psychological harms committed against those incarcerated. Specific to hate crimes laws, abolitionist and peacemaking groups point to how these statutes target individuals without addressing larger systems of heterosexism, do not help to heal victims nor perpetrators, and do not give more power to marginalized communities. Instead, these statutes allow the state to continue arresting and incarcerating people at disproportionate rates under the guise of protection.93 Thus, is it really “progress” for LGBQ people to exact more retribution and punishment against people acting in heterosexist ways? Why not—as penal abolitionists suggest and consistent with redistribution as discussed earlier—divest from prisons and instead reinvest in societal change that will target the heterosexism causing hate crime? Instead of retributive statutes, why not focus on justice reinvestment?94 Why not illuminate how the state and its institutions fail to protect LGBQ people and 150 Chapter 15 LGBQ People and Social Justice then shift focus to building safer communities from the ground up? Indeed, these are key questions related to how we think about recognition and each can orient us towards a more just redistribution of social justice in criminal justice. Conclusion Misrecognition and cultural silencing of LGBQ people continue to be a problem with UN human rights frameworks, and these inform policies that shape how social justice is enacted at the local level. Too often, this silence means that justice—social or criminal—is not possible. Yet, recognition can be an incongruous and dangerous pursuit for LGBQ people. Moran and Skeggs point out that “recognition politics . . . assumes that groups can be made visible, want to be made visible, and that visibility can enable a claim to be made on the state.”95 Many LGBQ people are reticent about pursuing recognition precisely because increasing their visibility can lead to harassment and fatal violence from their communities, police, and the state, and public admonishment and outcry from conservative political groups. This raises the question of how we concurrently seek increased recognition and redistribution, when the latter requires the former, and when the former can be so dangerous to LGBQ bodies. Social and criminal justice systems intersect for LGBQ people. Marginalization, economic deprivation, and discrimination in social systems lead LGBQ people to have contact with law enforcement officials and criminal processing systems. The more we continue to ignore social injustice, the more likely we are to see LGBQ people cycle in and out of criminal processing systems worldwide. Even if they do successfully transition out of criminal processing systems, we must address the deepening forms of marginalization, economic deprivation, and discrimination (particularly around employment) they will undoubtedly face upon reintegration with broader communities. We must also question the ethics of deploying instruments of state violence we know all too well against those who would see us dead. Retribution and just deserts are incongruent to the experiences and lives of LGBQ people who have themselves been punished by way of retribution and just deserts. In achieving a modicum of power to shape the criminal and social justice meted out by the state to LGBQ people, are we then to use that same power over others, knowing full well the consequences of that surveillance and criminalization? And as in the case of U.S. hate crime provisions, was the bargain for our recognition worth the massive increase in military spending for a seemingly never-ending, colonizing war/occupation? As we have highlighted throughout this chapter, awareness of, and seeking to address, issues for LGBQ people in the global South is of paramount importance. Developing the capacity for selfdetermination in the global South, and learning to consider the impact of how our global North claims to recognition and redistribution shape our peers in the South, are also critical. Of central concern must be those who lack the civic capacity to engage in ways that can produce justice outcomes on their terms. We also need to resist narratives that measure development around sexuality diversity against the “progress” and bellwether issues of the global North.96 Drawing on the work of Binnie, Mhaoileon suggests that without this critical gaze, Western queer scholars will queer racism rather than query racism.97 As queer theorists writing from the luxury of our academic positions in the global North (albeit, two of us in the geographical South), we wanted to remain cognizant of how our contributions to this handbook could/have reinstantiated Western and global North perspectives. We raised, but did not foreground, the social injustice of marriage inequality; instead, we diverted your gaze to the everyday harassment, discrimination, and targeted violence experienced by LGBQ people worldwide. While we used the term occasionally and within context, we chose to frame the experiences documented in this chapter as those experienced by LGBQ people, not “queers”; to do otherwise would be to elide the harms caused by this nomenclature in the global South. While we talked of the contradictory nature of hate crime provisions—a luxury most commonly reserved for queers in the global 151 Nicole L. Asquith et al. North—and penal abolitionism, we also discussed the individual and social costs in advocating for the human rights of LGBQ people in the global South. Social justice, unlike criminal justice, is not tied to institution, place, or people. Social justice can be achieved in micro-encounters just as successfully as it can be achieved in macro-developments such as law making. Social justice is as much a product of our intersubjective moments of being human, and reaching out to others who share our humanity, as it is a product of policies, practices, projects, and programs. In this respect, social justice is not tethered in the way criminal justice is to jurisdictional laws, rules, regulations, and standard operating procedures. The rules of the game are not concretized in law, and, as such, in advocating for social justice we are offered more opportunities to change the experiences of LGBQ people, including their experiences of criminal injustice. Amending laws and getting safer prison cells—often in bargains we know are unjust—have yet to change the terms of our misrecognition and maldistribution. To this end, we suggest that in coalition with others who experience injustice, LGBQ people may better achieve criminal justice by addressing the social injustice too many encounter. Acknowledgements The authors thank Lori Sexton, Jennifer Sumner, Jace Valcore, Allyson Walker, and Aimee Wodda for their helpful comments on an earlier draft of this chapter. Discussion Questions 1. What insights and interventions can Southern criminology provide for the ways we have typically conceptualized criminal justice and social justice? 2. How can we increase the recognition of LGBQ people without decreasing their safety once they are recognizable? 3. What resources are required to increase the social justice experienced by LGBQ people within the criminal processing system? 4. In what ways is the justice required by LGBQ people different from others’ justice? What core social justice needs are shared by all people (including LGBQ people) who encounter the criminal processing system? 5. How do sexuality, class, race, and gender intersect in criminal justice encounters? What injustice do we prioritize? Notes 1. United Nations. (1969). Declaration on social progress and development. (RES 2541 XXIV), 11 December 1969. Geneva: UN. 2. Lesbian, gay, bisexual, and queer/questioning. We use this acronym as a way to abbreviate our sentence structure rather than as boundary maintenance or a delimiter to our discussions. We acknowledge that nonnormative human sexuality is varied and not reducible to these four categories. At times, in referring to other research, other forms of the rainbow acronym are used in this chapter when it is not possible to extrapolate only LGBQ results. Even the full acronym, LGBTIQA+ (lesbian, gay, bisexual, transgender, intersex, queer/ questioning, asexual, and others) excludes some sexuality diverse and many gender variant people, including those who are gender nonconforming (GNC) and genderqueer (GQ). As this chapter only discusses sexuality and not gender (which is addressed by Walker et al. in this volume), we use the acronym LGBQ. The order in which each of the letters appears (and the absence or inclusion of some of these letters) says much about the development of the “queer community.” In the early days of activism, it was all about the “gay and lesbian movement,” which by the 1990s was expanded to include bisexual and transgender people. “Q” developed on the margins of the “community” around the same time that queer theory was percolating on college and university campuses after the publication of Butler’s (1991) Gender Trouble. It wasn’t until the 152 Chapter 15 LGBQ People and Social Justice 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21st century that the “I” and “A” were to appear, sometimes, and with much political debate that continues to this day. To avoid the acronym becoming even longer, the UN has adopted sexual orientation and gender identity (SOGI), but social activists and scholars have adopted a range of other terms that do not limit sexuality to an orientation or gender to an identity. For example, sexuality and gender diversity (SGD or GSD) are used in Australia to mirror the policy language of cultural and linguistic diversity (CALD).. Fraser, N. (1998). Heterosexism, misrecognition and capitalism: A response to Judith Butler. New Left Review I, 228(March/April), 140–149. Article 2 of the Universal Declaration of Human Rights outlines the characteristics that should not be used as a distinction between peoples. It states, in part, “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” (UN, 1948; emphasis added). United Nations. (1948). Universal declaration of human rights. (RES 217 A), 10 December. Geneva: UN. Charmaz, K. (2011). Grounded theory methods in social justice research. In N. K. Denzin & Y. S. Lincoln (Eds.), The Sage handbook of qualitative research (pp. 359–380). London, Thousand Oaks, & New Delhi: Sage, p. 359. United Nations (Human Rights Council). (2014). Human rights, sexual orientation and gender identity. (A/HRC/ RES/27/32). Geneva: UN; United Nations (Human Rights Council). (2011). Human rights, sexual orientation and gender identity. (A/HRC/RES/17/19). Geneva: UN; Muntarbhorn, V. (2016, November 30). Press release: Opportunities for the human rights of all persons in a world of gender diversity. Retrieved from bangkok.ohchr.org/ news/press/VititFullStatement.aspx; United Nations (Human Rights Council). (2016). Protection against violence and discrimination based on sexual orientation and gender identity. (A/HRC/RES/32/2). Geneva: UN. See, for example, United Nations. (2016). Leaving no one behind: The imperative of inclusive development. (ST/ ESA/362). Geneva: UN; United Nations. (2015). Transforming our work: The 2030 agenda for sustainable development. (A/RES/70/1). Geneva: UN; United Nations. (2009). Creating an inclusive society: Practical strategies to promote social integration. Geneva: UN; United Nations. (1995). Copenhagen declaration on social development (and program of action of the world summit for social development). (A/CONF.166/9). Geneva: UN. We use this term—criminal processing system—for two reasons: so as not to confuse the institution with the concept (criminal justice [system]), but also to reflect our more critical stance on justice in the field of crime and criminal offending and victimization. Some have argued that as there is no justice in the criminal justice system, we should stop calling it a criminal justice system (see, for example, Belknap [1996] and Scheingold’s [1984] early discussion of the term). Instead, and to reflect the increasing bureaucratization of criminal justice, we use “criminal processing system” in this chapter. Belknap, J. (1996). The invisible woman: Gender, crime, and justice. Belmont, CA: Wadsworth; Scheingold, S. A. (1984). The politics of law and order. New York: Longman; Richards, K., & Dwyer, A. (2014). Unspeakably present: The (un)acknowledgement of diverse sexuality and gender human rights in Australian youth justice systems. Australian Journal of Human Rights, 20(2), 63–79. See, for example, Walker et al., this volume. Chrononormative, first discussed in relation to queer temporalities by Elizabeth Freeman (2010), refers to normative developmental pathways expected of children and young people. Children and young people are measured against these largely heteronormative and gendered milestones, and despite having a queer temporality that differs significantly from the normative cisgender and heterosexual pathway, LGBTIQ young people are tested and found wanting, deficient, and requiring intervention. Freeman, E. (2010). Time binds: Queer temporalities, queer histories. Durham: Duke University Press. UN, 1969. The Sentencing Project. (2017). Annual report 2016. Washington, DC: The Sentencing Project. Penal Reform International. (2016). The rights of prisoners to vote: A global overview. London: PRI. See Swanson (2005) for discussion of this debate. Swanson, J. (2005). Recognition and redistribution: Rethinking culture and the economic. Theory, Culture & Society, 22(4), 87–118. Fraser, 1998; Fraser, N. (1995). From redistribution to recognition? Dilemmas of justice in a “post-socialist” age. New Left Review, 312(July/August), 68–93. Fraser, 1995, 1998. Fraser’s awkward use of the term “homosexual” (in contrast to Butler’s “queer”) and the reduction of her arguments in most cases to the experiences of gay men, infers through action (if rejected in theory) an uneasiness with the language of LGBQ. Fraser, 1995, 1998. Fraser, 1995, 1998. Cover, R., Rasmussen, M. L., Aggleton, P., & Marshall, D. (2017). Progress in question: The temporalities of politics, support and belonging in gender- and sexually-diverse pedagogies. Continuum, 31(6), 767–779. 153 Nicole L. Asquith et al. 21. Progress is most commonly marked in terms of Western economic or political development, and thus linked to 16th-century mercantilism, the Glorious Revolution of 17th century, or the Industrial, French, or American revolutions of the 18th century. 22. Cover et al., 2017. 23. Connell, R. (2007). Southern theory: The global dynamics of knowledge in social science. Crows Nest, NSW: Allen and Unwin. 24. Carrington, K., Hogg, R., & Sozzo, M. (2016). 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London: Palgrave MacMillan. Seymour, K. (2017). (In)Visibility and recognition: Australia policy responses to “domestic violence”. Sexualities. Article first published online, doi: 10.1177/1363460716681465 (February 17). Scott, 2013; Dolovich, S. (2011). Strategic segregation in the modern prison. American Criminal Law Review, 48(1), 1–110. Irvine, A. (2010). “We’ve had three of them”: Addressing the invisibility of lesbian, gay, bisexual, and gender nonconforming youths in the juvenile justice system. Columbia Journal of Gender and Law, 19(3), 675–701; Curtin, M. (2002). Lesbian and bisexual girls in the juvenile justice system. Child and Adolescent Social Work Journal, 19(4), 285–301. Rogers, Asquith, & Dwyer, 2017. Penal Reform International, 2016. Ibid. Hirsch, A. (2013, July 18). Cameroon gay rights activist found tortured and killed. The Guardian. Retrieved from www.theguardian.com/world/2013/jul/18/cameroon-gay-rights-activist-killed 155 Nicole L. Asquith et al. 75. International Federation for Human Rights. (2014, July 11). Cameroon: Assassination of Eric Ohena Lembembe, the investigation remains at a standstill. Retrieved from www.fidh.org/en/region/Africa/ cameroon/15738-cameroon-assassination-of-eric-ohena-lembembe-the-investigation-remains-at 76. At the time of writing, news of the death of Dexter Pottinger on September 2, 2017, had just been made public. Pottinger was also an important community organizer for the LGBT community in Jamaica. 77. Younge, G. (2006, April 26). Troubled island. The Guardian. Retrieved from www.theguardian.com/ world/2006/apr/27/gayrights.comment 78. Ibid. 79. Stratton, J. (2004, June 24). Gay in Jamaica. New Times. Retrieved from www.browardpalmbeach.com/ news/gay-in-jamaica-6318215 80. Hammadi, S., & Gani, A. (2016, April 25). Founder of Bangladesh’s first and only LGBT magazine killed. The Guardian. Retrieved from www.theguardian.com/world/2016/apr/25/editor-bangladesh-firstlgbt-magazine-killed-reports-say-roopbaan 81. Mahbub Rabbi Tonoy was also killed in this attack. 82. Ta [pseudonym]. (2017, April 25). One year after the murders of Xulhaz Mannan and Mahbub Rabbi Tonoy. Amnesty International. Retrieved from www.amnesty.org/en/latest/news/2017/04/one-year-afterthe-murders-of-xulhaz-mannan-and-mahbub-rabbi-tonoy/ 83. This is not to say that murders of high-profile activists only happen in the global South—the assassination of openly gay elected official Harvey Milk and an ally in 1978 is a prominent example—but nearly 40 years have elapsed since this and some of our examples. 84. Hirsch, 2013. 85. Nolan, J. J., III, Akiyama, Y., & Berhanu, S. (2002). The Hate Crime Statistics Act of 1990: Developing a method for measuring the occurrence of hate violence. American Behavioral Scientist, 46(1), 136–153. 86. Whitlock, K. (2001). 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