Queer injustice: the criminalization of LGBT people in the United States

Criminalization of Gays in the United States

Introduction- Clinically, homosexuality is the romantic and/or sexual attraction or behavior characteristics towards members of the same gender. It is far more complicated than just sexual preference, but more a pattern or disposition of attraction along with a social identity towards a particular group. The complexities may be explained more by viewing sexual orientation as a continuum; the famous Kinsey scale of 1 to 10, for instance. Rarely is someone either a 1 or a 10, and individuals may find themselves sliding on the scale at different times of their lives, different social or cultural situations, different stages of experimentation, and/or different stages of opportunity or arousal. In fact, there has been a tremendous growth and liberalization of the attitude of the American Psychological Association about sexuality in the last several decades, to where their official view on sexual orientation points to the fact that sexuality is neither a conscious choice nor one that can be voluntarily subdued without adverse consequences (Sexual Orientation and Homosexuality).

Sexuality and Gender Identity (psychology) -- Sexual orientation identity is perhaps at the crux of the debate on the nature vs. nurture argument regarding the continuum of homosexuality. In general, it describes how a person identifies their own sexuality -- how they may choose not to identify, or dis-identify with a particular orientation. For instance, this may or may not actually relate to their true orientation at the time. A 1990 study by the Social Organization of Sexuality found, for instance, that only 16% of women and 36% of men who reported even some level of same-sex attraction had a homosexual or bisexual self-identity (Lauman, Gango and Michael). In fact, most scholarship shows that sexual identity is far more closely related to sexual behavior than sexual orientation. Ninety-Six percent of women and 87% of men with a homosexual or bisexual identity had participated, at least once, in a sexual act with someone of the same gender; in contrast to 32% of women and 43% of men who had same-sex attractions. When these results were statistically analyzed, researchers noted, "Development of self-identification as homosexual or gay is a psychological and socially complex state, something which, in this society, is achieved over time, often with considerable personal struggle and self-doubt, not to mention social discomfort"(Lauman, et.al., 299).

Situational Sexual Behavior- When dealing with the issue of sexual behavior, it is important to note that homosexual experiences are, in a large part, also societally and situationally governed. Situational sexual behavior is different than what a person typically exhibits due to the social environment that permits, encourages, prohibits, or compels certain acts. Some examples of this are individuals who would never think of having sex with prostitutes, but when they visit countries in which the practice is both legal and encouraged, do so. People in prison, the military or single-gender boarding schools might engage in homosexual behaviors as a sexual outlet, but continue to identify as heterosexual. Studies have also shown that many people change or modify their sexual behavior depending on the situation and other life experiences. Bisexuality is rather common in the college and university setting; and adolescents often experiment, leading to the realization that may be classified as heteroflexible, or biflexible (Rosario, Schrimshaw and Hunter; Carroll).

Demographics and Prevalence- as simple as it sounds, it is actual quite difficult and controversial to scientifically measure sexual preference and/or orientation. Sexual research is sensitive, and even in the 21st century, many are reluctant to provide detailed and personal pieces of information on their own identification or sexual preference. Further, depending on how the question is written, or survey managed, often changes the interpretation of orientation and behavior. Another issue is the statistical issues of incidence and prevalence. Studies may agree on a definition of homosexual behavior, some may consider any homosexual experience valid, others only recent (given period of time). Further, just because someone may have had bisexual or homosexual thoughts does not mean they have acted on them, or even have the capacity or desire to actually perform in a physical relationship with the same gender (Worthen).

That being said, despite the famous Kinsey study of the 1940s and 1950s, updated in 1979, modern studies in the United States show that roughly 9-12% of the population (male and female) repot that they had had at least one same-sex experience, with a variance of 5-15% who identify as preference towards same gender relations. Because the scale so widely differs, based on type of survey, organization, etc., most scholarship believes that about 10% of any given population are likely to be homosexual, a far larger number (up to 30-40%) bisexual, and the remaining heterosexual. Additionally, while these are population-based figures, and vary widely from geographic area, most urban areas have about 5% of their population who identify as gay.

Historical Attitudes -- Social and cultural attitudes have varied over human history regarding homosexuality. One of the challenges is that it is incorrect to ascribe modern terminology (homosexual, bisexual, etc.) onto cultures that did not use, or ascribe to those terms. Instead, historical findings not that for most of recorded history, bisexuality was relatively prevalent, although there is historical evidence that homosexual couples existed as far back as Ancient Egypt and Mesopotamia; certain in Greece and Rome, and it appears throughout the Ancient World on all continents (Dowson).

Prior to the European colonization of the New World, same-sex behavior was rather common in certain Amerindian tribes; usually ascribed to the Shaman, or Priest figure, and note as the Two-Spirit Individual. Homosexual and transgendered individuals were also quite common in the Aztec, Mayan and Incan civilizations; only to be castigated and punished by the Spanish who found such behaviors so morally reprehensible they often burned, executed, or had these individuals torn to pieces by dogs (GLBTQ).

Homosexuality remained underground "officially" throughout the Colonia Period, and it was not until the post-Civil War period that the U.S. Government, now using public administration to track and analyze households, began to notice that, at times, people organized their homes away from traditional marriages. Often for reasons of convenience and protection, homosexuals tended to congregate in major cities, but increasingly came under the target of medical, psychiatric, and legal intervention. Too, the changing dynamics of the 20th century (Depression, War, urbanization, industrialization) often threw same gendered individuals together so that those with such inclinations were better able to act upon their desires (Eaklor). The large homosexual populations in some of the coastal cities, though, was influenced by a little known U.S. military policy. After WWII, thousands of homosexuals, or those who were caught engaging in homosexual behavior, were dishonorably discharged from the military, many of whom were simply dumped in port cities. At times, several hundred ex-service people were dropped into San Francisco -- they could not go home, so many simply stayed (SafeZone).

After the Kinsey report, and moving into the Cold War Era, homosexuality was at times villainized, as it was in the Eisenhower administration, where it became an executive order than any homosexual activity would result in dismissal, the McCarthy era, in which it was linked to Communism; to a more guarded openness in the 1960s within the new culture of "sex, drugs, and rock and roll." It was not until 1969, though, when a few patrons of a then obscure bar the Stonewall Inn, finally took objection to being hassled by the NYPD and fought back during a raid. This began three days of rioting that transformed a rather quiet sub-culture movement into national prominence and a militant celebration of being gay -- now brought into the living room all around the country (Thorstad).

By the 1970s, homosexuality was no longer closeted in the major urban areas. San Francisco had an openly gay elected official, Harvey Milk. Yet, homosexuality was also abhorrent enough to some that people like Anita Bryant began a vituperative anti-gay campaign. Harvey Milk was assassinated, along with San Francisco Mayor George Mascone, and an all heterosexual jury gave the killer, Dan White, the lightest possible sentence of manslaughter. Shortly thereafter, scientists at the Centers for Disease Control began to notice a number of immune deficience related diseases that seemed to focus on the gay population of major cities; causing a panic and social backlash that would come to be identified as the AIDS scare. In 1986 the Supreme Court found that states may criminalize private sexual behavior, thus opening the way for sodomy to be prosecuted under Bowers v Hardwick (Safezone).

The Gay Disease- Possibly nothing in the modern sociological or cultural framework has changed the way homosexuality is viewed than the HIV virus. HIV is a retrovirus that causes acquired immunodeficiency syndrome (AIDS) and is transferred in the human population through blood, semen, pre-ejaculate, and sometimes breast milk. Within these bodily fluids, HIV exists as both a free virus particle and as an active virus within infected cellular structures. The four typical transmission routes are unsafe sexual activities, sharing of contaminated needs, breast milk, and the transmission from an infected mother to baby during birth. It is considered to be a pandemic by the World Health Organization, and has, since 1981, killed more than 25 million people worldwide (United Nations).

In most of the world, HIV infection is more prevelant in the heterosexual population, especially Sub-Saharan Africa. In the United States, however, it became known as the "Gay Plague" due to its initial discovery in the homosexual population, the lack of condom use at the time, and the predominance of anal sexual activity. Unforrtunatly, HIV / AIDS also carries with it ostracism, rejection, and discriminiation. This stigma-related violence or the fear of violence prevents a number of individuals from seeking HIV testing, receiving their results, securing treatment, or even turning what would normally be a managable chronic illness into something that is dire and a death sentence -- as well as perpetuating the disease -- all because of misguided bias (Ogden and Nyblade)

Cultural Issues -- Just as the Civil Rights movement has changed the manner in which cultural diversity has changed the fabric of American society, there are openly gay politicians at almost every level of society. In fact, one of the strongest and most respected voices in Washington is Massachusetts Representative Barney Frank. Serving since 1981, he continues to be re-elected by wide margins and, while being openly gay, is a moderate on economic and crime issues, receiving respect from both sides of the podium for his balanced and considered viewpoints. It is just this balance, though, that seems to endear Frank, and others like him, to the contemporary American political culture. As Frank often notes; sure, he's gay, but he is also an American, a politician, and his sexual preference is only part of him; he's part Jewish, too (Weisberg). Now, contrast that with a few of the cultural issues facing gay people today. We can break these down into fiscal, equal rights, discrimination, Marriage/Partnership.

Fiscal -- When someone becomes a citizen of the United States, they are immediately granted certain rights as a U.S. Citizen. For instance, if a partnered gay couple who have an income change were allowed to federally file as a married couple they would save almost $7,000; or, in other words, to be gay in America today costs almost $7,000; to have less rights, to not be able to adopt in all 50 states, to not be able to pass on property without taxation interference in all 50 states, and not to have social security benefits and rights (Hahn).

Equal Rights -- the very essence of the Civil Rights fight over decades and decades was that every citizen, regardless of age or ethnicity, be accorded basic Civil Rights protection. However, in the 21st century, the question remains -- should civil rights laws protecting employees from discrimination also outlaw discrimination on the basis of sexual orientation? Indeed, in over 30 U.S. states, it is still perfectly legal for homosexual employees to be fired because the employeer discovers and disapproves of their sexual orientation -- regardless of whether being openly gay affects job performance at all. However, 85% of Americans oppose job discrimination on the basis of sexual orientation, but the Employment Non-Discrimination Act (ENDA) continues to fail in Congress despite a broad range of support. Some corporations have, however, put their own policies in place -- evading the law, and actually liberalizing the workplace on their own. The very fact, though, that in 2011, we are still discussing the issue of a basic civil right -- employment based on skill, being denied an entire group shows that we have not come as far as hoped in global civil rights (Civil Liberties - About.com).

Discrimination -- in most states, homosexuals are not allowed to make medical decisions for partners in an emergency; nor are they always even allowed to visit. Instead, permission for life-threatening or serious issues often fall to an estranged family, those who remain angry about the same-sex relationship in the first place. Additionally, if a same-sex partner is arrested, under the Constitution, one partner can be compelled to testify against or provide evidence against them, when legally married heterosexual couples are not. There is typically a section of a number of school curriculums that deals with discrimination and equal rights -- how can this be a part of schools when there is still discrimination in society? Indeed, many of the leading Civil Rights leaders from the African-American population are some of the strongest voices lobbying against gay discrimination and believe that for society to be truly equal, the same protections for minorities and ethnic groups must be afforded homosexuals (Mathis).

Marriage/Partnership -- if homosexuals had equal rights, then two people who are committed to one another should be allowed to marry. However, over 60% of Americans oppose gay marriage; and most of it is stereotypical and media-hype, much as it was in the 1950s when dealing with African-Americans and Latinos. The arguments against gay marriage really fall into arguments that are templates of discrimination. 1) Religion says marriage is between a man and a woman; yet this denies people their right to equality in relationships; 2) Marriage is for procreation. If this were true, how many heterosexuals would be denied rights? 3) Same sex couples are not optimum for child-raising. So, a convicted felon, known child molester, or anyone else can raise children? Is it not about the love and consistency, not the privacy of one's sexual identity? 4) Marriage ensures the continuation of the species. Is this really a valid argument when the global population is so egregiously high? Isn't marriage about love and commitment and support for that commitment; not about sexual procreation? (Bidstrup).

Modern Problems -- Certainly, the lack of basic civil rights are a serious issue within any population. However, one of the most serious problems regarding gay individuals is that of gay bashing and gay bullying. His is essentially the use of verbal or physical actions directed specifically at someone because of either the sexual orientation or the suspicion of their sexual preference. Bashing may be a single or multiple occurrence; while gay bullying involves intentional and unprovoked actions that are about power, demeaning the victim, and may be physical or psychological. Because of modern technology, these acts may range from in person events to Internet and long-distance bullying. Gay bashing occurs at all life stages, while gay bullying is primarily a school-age epidemic (T. Rogers; Curry and Allison).

As noted, gay bashing is nothing new; it was particularly serious in the 1940s and 1950s, fanning the flames of the Red Scare. But even in modern days, according to Mental Health America, gay harrassement occurs about once every 14 minutes (Mental Health America). One of the most famous cases of gay bashing, and one that brought the subject to prominent national attention, was that of Matthew Shepard who, in October 1998 as a student at the University of Wyoming, was tortuned and murdered near Laramie, Wyoming. During the trial, a number of witnesses testified that Shepard was targeted by Aaron McKinney and Russell Henderson specifically because he was gay. The two robbed, pistol-shipped, then tortured Shepard, finally tying himn to a fence in a remote area, leaving him to die. Shepard was not discovered until 18 hours later by a passing cyclist, who thought he was a scarecrow. During the trial, the girldfirneds of Henderson and McKinney commented that the two knew Shepard was from a wealthy family and planned to decieve a gay person so they could rob him; and also that the two were under the influence of drugs at the time (Swigonski).

From a cultural and sociological viewpoint, though, it is interesting to note that the public reaction after the details of the murder were made public was nothing short of miraculous. A number of famous musicians wrote songs in tribute of Shephard; the issue of hate crimes began to appear on legislative dockets nationally, three narrative films were released, a foundation specifically focused on gay rights established in his name, and the Laramie Project received international attention designed to focus on the outrage a community felt against such senseless violence (Documentary).

Homosexuality and Younger People - Research over the past few decades has shown that in a typical undergraduate setting, most students are uncomfortable, misinformed, and apprehensive on certain aspects of sexuality -- primarily homosexuality. In general, male students are more homophobic than female students, but much of this depends on demographic and psychographic background. Researchers have postulated for over three decades, though, that the use of assignments within college level courses on human sexuality, often given as basic science credits, may act as a way to reduce homophobia and liberalize attitudes about sexuality in general. A recent student sought to update this information with a study using 128 undergraduate students at a small, private university in the NE United States (Rogers). Research shows, though, that the more exposure young adults have to homosexuals in non-sexual environments, the more accepting and understanding they can be.