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POLICY PLATFORM: END THE WAR ON BLACK PEOPLE
END THE WAR ON BLACK TRANS, QUEER, GENDER NONCONFORMING AND INTERSEX PEOPLE
Discrimination, harassment, and violence against Black trans, intersex, queer, and gender nonconforming (LGBTQ+) people pervade virtually every institution and setting, including schools, workplaces, systems of policing, prisons, parole and probation, immigration, health care, and family and juvenile courts.
Discrimination, harassment, and violence against Black trans, intersex, queer, and gender nonconforming (LGBTQ+) people pervade virtually every institution and setting, including schools, workplaces, systems of policing, prisons, parole and probation, immigration, health care, and family and juvenile courts. As a result, Black LGBTQ+ people experience high levels of poverty, criminalization, health disparities, and exclusion in the U.S. Black trans women and gender nonconforming people in particular experience some of the highest levels of killings, violence, poverty, policing, criminalization, and incarceration of any group in the U.S.
- End profiling, criminalization, police, and prison violence against Black trans and gender nonconforming people.
- Ensure access to safe and equitable, affirming, accessible, quality housing, employment, healthcare, social services, and education for trans, queer, and gender nonconforming people. This includes reducing unemployment and workplace discrimination; providing real, meaningful, and equitable universal health care; and full and equitable access to services, including counseling, community centers, and shelters.
- Affirm gender self-determination in all aspects of life from birth, and ensure freedom from non-consensual medically unnecessary surgeries on intersex infants and children.
INCLUDING ADDITION TO ANTI-DISCRIMINATION CIVIL RIGHTS PROTECTIONS TO ENSURE FULL ACCESS TO EMPLOYMENT, HEALTH, HOUSING AND EDUCATION
KEY FEDERAL LEGISLATION
WHAT IS THE PROBLEM?
White supremacy, racial capitalism, cisheteropatriarchy, homophobia, transphobia, and ableism intersect in the lives of Black queer, trans, gender nonconforming and intersex people, fueling state violence, family, domestic, interpersonal and community violence.
Discrimination, harassment and violence against trans, queer, gender nonconforming and intersex people pervade virtually every institution and setting, including schools, workplaces, systems of policing, prisons, parole and probation, immigration, health care, and family and juvenile courts.
Black trans women and gender nonconforming people in particular experience some of the highest levels of killings, violence, poverty, policing, criminalization, incarceration, and structural exclusion of any group in the U.S.
The current political climate, in which federal, state and local governments have overtly allied with the Christian Right, is fueling a full-on assault on trans and queer people. In spite of recent legal victories affirming that queer and trans people are protected from employment discrimination under Title VII, queer and trans people continue to be denied basic legal protections against discrimination in employment, housing, and government benefits.
Additionally, the federal government has repealed basic protections for trans youth in schools, and trans people in health care, workplaces and in prisons, and continues to expand religious exemption laws to enable widespread discrimination against trans and queer people.
In addition to undermining what limited protections currently exist, the very existence of trans and gender nonconforming people is being described as a “burden” on institutions and employers. This mounting anti-trans rhetoric from government officials empowers state, community, and interpersonal violence, as well as violence in the form of state and local legislation denying queer and trans people protection from discrimination in public accommodations and private employment. It has also emboldened proactive targeting of trans youth and criminalization of all who provide them any form of care. Organized campaigns attacking Black trans women and girls and women and girls with intersex traits who excel in sports further stigmatize our communities. Each of these trends converge to sanction and further fuel violence against trans and gender nonconforming people in our homes and communities.
Almost 30 trans women of color were murdered in 2019, the majority of whom were Black trans women, and two of whom died in, or shortly after being released from, ICE custody. By mid-year, at least 14 transgender people have been killed in 2020. The National Coalition of Anti-Violence Projects reported 52 cases of fatal violence motivated by homophobia in 2017; 60% involved Black victims, primarily Black trans women.
Trans and intersex people are further pathologized through ableist and reductive labels like “gender dysphoria,” “gender identity disorder,” and “transvestic disorder,” while intersex variations are referred to as “disorders of sexual development.” As a result, trans and intersex people are excluded from and subject to abuse and neglect when seeking medical care, and criminalized when self-managing gender affirming care denied to them by state and private actors. Additionally, states still permit unnecessary and non-consensual genital surgery on intersex infants.
Many forms of violence experienced by Black trans and gender nonconforming people are further exacerbated by the state’s refusal to provide identity documents reflecting the name and gender marker trans people use. Many states require evidence of medical transition, court orders, and processing fees in order to change identity documents, creating often insurmountable barriers to securing basic identification documents.
These realities contribute to exclusion, criminalization, and demonization of Black queer and trans people in every aspect of life. According to the Black Census, over half of Black LGB+ people report being treated with discourtesy multiple times a month. Sixty-two percent of Black gay and lesbian respondents report feeling threatened or harassed several times a year, compared to 52% of heterosexual respondents. One in five trans women report feeling threatened or harassed on an almost daily basis, and 45% of trans women and men report feeling threatened or harassed weekly, compared to 19% of cisgender respondents.
From all angles, Black trans, queer, and gender nonconforming people are being pushed out of public life and denied the right to simply exist safely.
POLICE AND PRISONS
Black queer, trans and gender nonconforming people experience pervasive profiling, harassment, and discriminatory enforcement — particularly through “public order” offenses, bathroom policing targeting trans, gender nonconforming and intersex people and people with disabilities for violence and arrest, drug and prostitution-related offenses, and in the context of responses to domestic violence and self-defense — as well as consistent lack of protection by police. According to the Black Census, “LGB+ respondents are even more likely than heterosexual respondents to have experienced a negative interaction with the police in the last 6 months,” with 45% of gender non conforming/nonbinary people reporting negative interactions.
According to the 2015 U.S. Trans Survey (USTS):
- Black trans people and homeless trans people were more likely to report an arrest in the past year.
- Black trans women were more likely to report that an officer who knew they were trans profiled them as being involved in the sex trades.
- One in 10 (9%) of Black transgender women were incarcerated in the previous year, approximately ten times the rate in the general population.
- 67% of Black respondents said they would be somewhat or very uncomfortable asking for help from the police if they needed it.
- A survey of trans people in Washington, D.C. found that a quarter of Black trans people reported assault by a police officer, more than any other group.
According to the 2011 National Transgender Discrimination Survey (NTDS):
- 38% of Black trans and gender nonconforming people who interacted with the police reported harassment; 14% reported physical assault, and 6% percent reported a sexual assault.
- Half (51%) of Black trans people reported discomfort with seeking police assistance.
Pervasive police profiling and targeting produce high rates of incarceration and detention among Black queer and trans people:
- Nearly 1 in 2 Black trans people report that they have been incarcerated at some point in their lives. Police bias was the cause of arrest or incarceration reported by 35% of respondents.
- LGB people are 3 times as likely to be incarcerated as the general population, and over 40% of people incarcerated in women’s prisons are lesbian or bisexual.
- Between 12% and 20% of youth in juvenile detention facilities identify as LGB, compared to 7% of the general youth population. One study found 85% of incarcerated LGB youth were people of color.
Once incarcerated, Black queer and trans people experience endemic homophobic, transphobic harassment, verbal, physical, and sexual abuse, and unsafe, dehumanizing, and degrading treatment in police custody, in prisons, and by probation and parole officers. Physical and sexual assault in jails, prisons, and detention centers is pervasive.
According to federal data, transgender people are nearly ten times more likely to be sexually assaulted than the general prison population, with an estimated 40% of transgender people in state and federal prisons reporting a sexual assault in the previous year. In the same federal survey, prisoners who identified as LGB were approximately three times as likely to report sexual abuse as other prisoners.
- Twenty-nine percent (29%) of Black respondents to the NTDS who had been to jail or prison reported being physically assaulted and 32% reported being sexually assaulted while in custody.
- Intersex people in jails and prisons across the United States are subject to medically invasive exams which can compound the trauma that intersex people have experienced in medical settings.
- Trans, queer, gender nonconforming, intersex imprisoned people and people living with HIV are frequently held in solitary confinement for their own “protection.”
Black queer and trans migrants share these experiences, as well as violation and exclusion in the context of immigration enforcement.
According to the Transgender Law Center, the upsurge of forced migration and xenophobia, fueled by the global impacts of United States imperialism, have disproportionately affected Black LGBTQ+ migrants internationally.
Black queer and trans migrants find themselves cornered by the risks of both migration and of remaining in their place of origin. As organizing for LGBTQ rights intensifies in Africa, the Caribbean, South & Central America, etc., so do the numbers of LGBTQ+ people forced to flee repression, only to be detained when seeking asylum at U.S. borders. In detention, LGBTQ+ migrants are 15 times more likely to be assaulted, and are typically the last to receive legal representation. While the number of Black migrants crossing at the border is the highest it’s ever been, Black LGBTQ+ migrants remain at the margins of the margins.
POVERTY AND UNEMPLOYEMENT
According to the Black Census report, “Black LGBTQ+ people face higher unemployment rates, are more likely to experience economic hardship, and are less likely to have health care coverage than the general population.” Rates of poverty are especially high among respondents who identified as nonbinary and trans men.
- 62% of Black trans and gender nonconforming people live in a household where someone was unable to pay a monthly bill in the last year (compared to 53% of cisgender respondents).
- 50% put off seeing a doctor for financial reasons (compared to 35% of cisgender respondents).
- 33% were not able to pay rent or a mortgage (compared to 22% of cisgender respondents)
- 91% of trans respondents, 69% of gay respondents, 68% of bisexual respondents, 63% of respondents who identify their sexual orientation as “other,” and 62% of lesbian respondents reported household incomes below $50,000 (compared to 58% of heterosexual respondents). 29% of Black trans women report incomes less than $15,000 annually, compared to 16% of all Black census respondents.
- Black people in same sex couples report lower median incomes than Black people in different-sex couples.
According to the 2015 US Trans Survey (USTS) and the 2011 National Transgender Discrimination Survey (NTDS):
- Black trans people are more than eight times as likely as the general U.S. population, and more than four times as likely as the general Black population, to live in extreme poverty.
- Black trans people face unemployment rates two times the overall rate for trans people, and up to four times higher than the general population. In 2015, Black trans people experienced unemployment rates two to three times higher than the general Black population. Many Black trans people have lost their jobs or have not been hired due to bias; and even when they get the job, Black trans people face harassment and, in some instances, physical assault.
- One in three Black trans people, and 47% of Black trans women, who held or applied for a job in the past year reported being fired, denied a promotion, or not hired in the past year because they were trans. Many report experiencing harassment and assault while working.
The U.S. Commission on Civil Rights found that 90% of trans workers faced discrimination and harassment at work, including being forced to wear clothing or use restrooms inconsistent with their gender identity.
As a result of pervasive poverty, unemployment, and structural exclusion, Black queer, trans and gender nonconforming people are further forced into dangerous spaces and criminalized economies.
- LGBTQ youth make up 40% of the homeless youth population, but only about 7% of the youth population. LGBTQ youth are 7 times more likely to trade sex to survive than their cisgender, heterosexual peers.
- Half of Black trans people reported that they had to sell drugs or trade sex for income at some point in their lives.
- Trans people who lost a job due to anti-trans discrimination were three times more likely to have traded sex to survive. Forty percent (40%) of Black trans people report having engaged in the sex trades.
The 2011 NTDS found that 21% of Black trans respondents had been refused medical care because of bias, and a Lambda Legal study found that 70% of trans and gender nonconforming respondents had experienced discrimination by medical providers.
This lack of access to basic medical care is particularly devastating given the great need for health services, including gender affirming and mental health services, among our Black trans family.
- In 2015, nearly one in five (19.0%) Black trans women were living with HIV, and one report indicates that an additional 10 percent do not know their status.
- Nearly half of all Black trans people have attempted suicide.
No data is collected on the health and well-being or health outcomes of Black intersex people, especially if they have experienced genital mutilation. However, according to “I Want to Be Like Nature Made Me, ” a report issued by Human Rights Watch in 2012, surgeons performed 2,991 intersex related surgeries on youth under the age of 18 and 1,759 surgeries on children under the age of 5. Except for Congenital Adrenal Hyperplasia (CAH), which can involve salt wasting from the kidneys, intersex variations are not life-threatening and pose very few health risks to the child, making such surgeries unnecessary.
Black queer, trans and gender nonconforming people experience widespread homelessness and housing insecurity due to pervasive discrimination and structural exclusion in public and private housing and shelters across the country.
- Black trans respondents to the 2015 USTS were more likely to report housing discrimination, particularly if they were undocumented or involved in the sex trades or survival economies.
- More than half of Black trans women, and 22% of Black trans and gender nonconforming people report having been homeless at some point in their lives, yet many shelters and drop-in centers discriminate against trans people and deny them access. Black trans people were more likely to avoid shelters to avoid discrimination.
Black queer, trans and gender nonconforming people are disproportionately pushed out of school and educational settings, further driving economic disparities.
- According to the 2015 USTS, nearly three quarters of Black trans respondents reported experiencing harassment at school if they expressed a trans or gender nonconforming identity.
- Half reported verbal harassment, 28% reported physical assault and 21% reported sexual assault.
- End profiling, criminalization, police, and prison violence against Black trans and gender nonconforming people.
- Ensure access to safe and equitable, affirming, accessible, non discriminatory quality housing, employment, healthcare, social services, and education for trans, queer, and gender nonconforming people. This includes reducing unemployment and workplace discrimination; providing real, meaningful, and equitable universal health care, including reproductive care; and full and equitable access to services, including counseling, community centers, and shelters.
- Affirm gender self-determination in all aspects of life from birth. All trans and intersex people’s medical needs should be included in health coverage at no cost, including full free access to all forms of gender affirming and reproductive care.
- Ensure freedom from non-consensual medically unnecessary surgeries on intersex infants and children.
- Ensure family protection for non-biological parents and affirmative structures to ensure respect for familial relations outside of partnership or adoption.
HOW DOES THIS SOLUTION ADDRESS THE SPECIFIC NEEDS OF SOME OF THE MOST MARGINALIZED BLACK PEOPLE?
Black queer, trans, intersex and gender nonconforming people face devastating levels of discrimination in many areas of their lives, and particularly at the hands of police and the prison industrial complex and medical industrial complex, as well as widespread poverty and structural exclusion. This solution seeks to stop those discriminatory practices and protect queer, trans, intersex and gender nonconforming people’s civil rights, including access to education, healthcare, housing, and employment.
- Pass the Equality Act or a similar nondiscrimination law that protects against discrimination based on sexual orientation, gender identity, and intersex traits in public and private employment, housing, public spaces and services, federally funded programs, credit, education, and jury service. The legislation should also prohibit discrimination and bullying in schools based on sexual orientation and gender identity and mandate non-criminal responses to school-based discrimination and bullying.
- Pass the End Racial and Religious Profiling Act, which prohibits racial profiling based on race, national origin, ethnicity, gender, gender identity, and sexual orientation.
- Repeal FOSTA/SESTA. Pass the SAFE SEX Workers Study Act and legislation requiring a study of the legislation’s impacts on the health and safety of sex workers.
- Repeal the REAL ID Act, and eliminate the requirement for listing gender on drivers’ licenses and state ID cards.
- Pass the “Therapeutic Fraud Prevention Act of 2019,” which bans LGBTQ conversion therapy.
- Pass legislation appropriating funds to make free and affordable and safe housing available to all trans people, especially trans youth of color.
- Pass legislation to expand public health care to people living in the U.S. and prohibit line item exclusions of procedures trans and intersex people need. All trans and intersex people’s medical needs should be included in health coverage at no cost, including full free access to all forms of gender affirming and reproductive care.
- Ensure family protection for non-biological parents and affirmative structures to ensure respect for familial relations outside of partnership or adoption.
- Enforce existing Department of Housing and Urban Development (HUD), Department of Justice (DOJ) regulations prohibiting discrimination against trans people for funded housing properties, including HBCUs, federally funded housing loans, direct service providers, drop-in centers, and shelters, including youth shelters and USDA rural housing, and offer complete autonomy in gender-segregated facilities. Provide broad training on trans cultural competency for direct service providers, drop-in centers, and shelters. Reject proposals to restrict or undermine existing protections, including proposals to allow individual shelter providers to create their own regulations for sex-segregated facilities based on sex assigned at birth or religious exemptions.
- Restore regulations prohibiting discrimination based on gender identity, sexual orientation, and religion under the Affordable Care Act and in all HHS grant programs. These include programs to address the HIV, opioid, and youth homelessness epidemics, as well as hundreds of billions of dollars in other health and human service programs. HHS should aggressively enforce these regulations, and explicitly prohibit hospitals from discriminating against LGBTQ patients as a requirement of Medicare and Medicaid funds.
- Restore policies affirming that women and girls, including LGBTQIA+, disabled, and nonbinary youth have a right to protections from discrimination and harassment under Title IX of the Education Amendments Act of 1972.
- Enact and enforce policies ensuring that trans people will be assigned to federal facilities based on individualized assessments of their own safety. In all cases, an incarcerated individual must also be allowed to specify their housing preference and have that preference respected, whether it is consistent with or differs from their gender identity.
- Ensure that incarcerated LGBTQ+ people and people living with HIV receive the highest standards of medical care, including gender affirming health care, they request from specialists, including medical providers who are not on jail or prison staff, without requiring that they have been receiving any kind of gender affirming health care before entering the facility. Eliminate any gender-based restrictions on property, clothing, or hair style and length. Do not permit punishment of incarcerated people for consensual physical intimacy or for not matching gender norms.
- Pass legislation prohibiting discrimination in employment, housing, credit, and education based on sexual orientation, gender identity and expression, HIV status, and criminal history.
- Pass safe schools laws that explicitly prohibit bullying and harassment based on sexual orientation and gender identity, and require schools to adopt preventative and transformative justice-based approaches to school-based violence and bullying rather than criminal legal responses.
- Pass state anti-profiling legislation that includes a comprehensive ban on profiling based on actual or perceived sexual orientation, gender, gender identity and expression, alongside race, religion, age, disability, housing and immigration status, prohibiting both discriminatory intent and impact.
- Pass legislation decriminalizing minor offenses disproportionately enforced against trans and gender nonconforming people, including HIV-specific criminal laws and penalty enhancements, “broken windows” offenses, drug offenses, loitering for the purposes of prostitution, and prostitution and public order offenses. Create criminal record relief for people already convicted of these crimes. Invest in resources to assist trans, queer, and gender nonconforming people seeking to correct criminal record errors or seal or expunge convictions.
- Pass legislation expanding public health care to all residents and prohibiting trans related exclusions in insurance and Medicaid. The bill should contain explicit nondiscrimination protections, including sexual orientation and gender identity, for Medicaid programs.
- Pass legislation recognizing the harm of “cosmetic” and “genital normalizing” surgeries on intersex infants and children, requiring evidence that any surgery attempted would be to save the life of the child, and requiring a thorough informed consent process that gives agency to the patient to decide what surgeries they want or need.
- Remove barriers to changing name or gender marker information on identification documents, include a gender neutral option on identity documents, and simplify and streamline the process to change identity documents for trans people, including incarcerated trans people.
- Ensure that trans people incarcerated in state prisons, jails, police facilities, drug treatment facilities, immigration detention, state hospitals, and civil commitment facilities are placed based on individualized assessments of their own safety. In all cases, individual prisoners must also be allowed to specify their housing preference and have that preference respected, whether it is consistent with or differs from their gender identity.
- Ensure that incarcerated LGBTQ+ people and people living with HIV receive the highest standards of gender affirming health care they request from specialists, including medical providers who are not on jail or prison staff, without requiring that they have been receiving any kind of gender affirming health care before entering the facility. Eliminate any gender-based restrictions on property, clothing, or hair style and length. Do not permit punishment of incarcerated people for consensual physical intimacy or for not matching gender norms.
- End solitary confinement.
- Pass legislation appropriating funding and support to local LGBTQ community centers, drop-in centers, and shelters that are already providing direct service to the trans community. The bill should also appropriate funds to expand housing options for trans homeless individuals, especially trans youth and elders. States should also fund Black trans, intersex, and queer artists.
- Pass local legislation banning profiling based on sexual orientation, gender, and gender identity, alongside race, religion, age, disability, housing and immigration status.
- Pass legislation decriminalizing minor offenses disproportionately enforced against trans and gender nonconforming people, including “broken windows” offenses, loitering for the purposes of prostitution, and “public order” offenses, and eliminating criminal and civil penalties for use of public accommodations, including public restrooms, according to gender identity.
- Invest in resources to create and strengthen cooperatives and cooperatively run organizations and networks that provide housing, healthcare, employment, and other needs identified by trans and gender nonconforming people, including trans and gender nonconforming cooperative programs, and ensure that programs do not further surveillance, criminalization, or pathology.
- Immediately remove police, ICE, probation, and armed security guards from schools, and develop comprehensive, tailored anti-bullying programs at all levels that advance transformative justice rather than criminal legal responses to school-based violence and bullying. Ensure trans and queer students are not discriminatorily disciplined or punished for acting in self-defense, or for being absent from school due to discrimination they experience in school, and are offered the opportunity to transfer schools in order to avoid bullying. Schools should create all-gender restrooms, and establish clear policies and practices affirming trans students’ right to use the restroom and locker rooms of their choice. Trans students should be protected from involuntary disclosure of their trans experience, and be able to access trans affirming mental health services, counseling, and guidance. Trans and intersex girls and women should never be prevented from participating in girls’ and women’s sports. Trans and intersex boys and men should never be prevented from participating in boys’ and men’s sports. Non-binary people should have options for participating in sports with dignity.
- The Equality Act (H.R.3185) establishes explicit, permanent protections against discrimination based on an individual’s sexual orientation or gender identity in employment, housing, public spaces and services, federally funded programs, credit, education, and jury service.
- The Student Non-Discrimination Act prohibits discrimination in public schools against individuals based on gender identity or sexual orientation (should be amended to eliminate requirement of proof of intent).
- Argentina passed a law that allows people to change their gender on official documents without judge or doctor approval.
- SB-201 Medical procedures: treatment or intervention: sex characteristics of a minor (California).
- SB-239 repealing HIV-specific criminal laws.
- Municipalities should develop public/private partnerships to increase employment opportunities for trans people, such as San Francisco’s Trans Employment Program and SNaPCo’s SNaP4Freedom School and Leadership Development Program.
- Trans Agenda for Liberation
- Addressing Anti-Transgender Violence
- Black Trans Lives Matter, Too
- U.S. Transgender Survey (USTS) (2015)
- National Trans Discrimination Survey (2011)
- National Black Justice Coalition: Injustice At Every Turn
- National Center for Transgender Equality:Blueprint for Equality
- National Center for Transgender Equality: LGBTQ People Behind Bars
- It’s War In Here: Transgender and Intersex People In New York’s State Prisons
- Federal Policy Recommendations for Addressing Criminalization of LGBT People and People Living with HIV
- National LGBTQ/HIV Criminal Justice Working Group,The Impact of the Trump Administration’s Federal Criminal Justice Initiatives on LGBTQ People & Communities and Opportunities for Local Resistance
- Identity Crisis: Changing Legal Documents is No Easy Task for Trans Individuals
- Coming out of Concrete Closets: A Report on Black and Pink National LGBTQ Prison Survey
- Protected and Served
- We Deserve Better: A report on Policing in New Orleans by and for LGBTQ Youth
- Queer (In)Justice: The Criminalization of LGBT People in the United States
- Invisible No More: Police Violence Against Black Women and Women of Color
- Black on Both Sides: A Racial History of Trans Identity
- Trap Door: Trans Cultural Production and the Politics of Visibility
- Captive Genders: Trans Embodiment and the Prison Industrial Complex
- Queering Sexual Violence
- This is a Prison, Glitter is Not Allowed
- A Fabulous Attitude
- Beyond Kings and Queens
- Trans Agenda for Liberation
- Trans Policy Agenda
- State of AIDS in Black America Report
- Unjust: How the Broken Criminal Justice System Fails LGBT People of Color
- The Discrimination Administration: Trump’s Record against Transgender People
- The Grapevine: A Southern Trans Report Prioritizing Issues Impacting Transgender, Gender Nonbinary, and Gender Nonconforming Southerners
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