Overlooked Yet Overrepresented: The Need for LGBTQ+ Inclusion in Pretrial Justice

For decades, conservatives have pushed the idea that there is something inherently immoral or dangerous about being LGBTQ+. In the last two years, nearly one thousand anti-LGBTQ+ bills have been filed nationally. Despite the alarming amount of anti-LGBTQ+ legislation, little is known about the experiences of LGBTQ+ people in the pretrial system.

Throughout the country, there is an overrepresentation of LGBTQ+ people in county jails. LGBTQ+ individuals are three times more likely to be incarcerated than other community members. Discrimination has led to underreporting in official data collection efforts, further exacerbating the harms experienced by imprisoned LGBTQ+ people. This is due to how jails might choose to identify someone or someone not openly sharing their identity due to fear of specific forms of violence and retaliation. Jails routinely fail to abide by their own gender identity policies, including threatening to switch units for trans people. These cause many queer, trans and gender-nonconforming people to not be included in official reports. Without comprehensive data collection, it is challenging to address the unique injustices faced by this community. 

Data collection failures paired with ongoing stigma come with real life-threatening dangers to LGBTQ+ people. One of the biggest challenges for incarcerated LGBTQ+ people is access to medical care. In 2019, Layleen Polanco, a transgender woman from New York, was incarcerated while awaiting trial because she couldn’t afford to pay a money bail. Layleen got into a physical altercation in the transgender division resulting in her being placed in solitary confinement – a common practice to reportedly keep LGBTQ+ individuals safe. While incarcerated at Rikers Island in solitary confinement, she died from a fatal epileptic seizure. Earlier this year in Broward County Florida, Janard Geffrard, 29, was beaten to death by his cellmate for being gay. For a full 21 minutes, video footage shows guards failing to intervene. Both Geffrard and his cellmate were reported to be mentally ill and “incompetent” to face judges in both of their individual trials that led to their incarceration. The pretrial jailing system not only failed them for lack of mental healthcare, but also cost Janard his life simply for being gay. Both Layleen and Janard deserve to be with their families and communities. 

While it is essential that we improve conditions for LGBTQ+ people inside jails and prisons, it is most important to work to dismantle mass incarceration and ensure that LGBTQ+ people are not criminalized. Impacted LGBTQ+ people should be a part of developing and implementing reforms to the pretrial system. Reforms like the Pretrial Fairness Act and now, the Pretrial Success Act will ensure that fewer LGBTQ+ people are incarcerated awaiting trial and able to access resources. We must continue to push for further efforts from legislative reforms to cultural shifts and prioritize the needs of LGBTQ+ people in reforming the pretrial system.