Stop policing gender outlaws

Last year, while I was in police custody from an unlawful arrest after a rally in Times Square in New York City, the arresting officer kept asking me if I was married, because he learned my last name was different from my husband’s. “In America, wives take the last name of their husbands,” he said.

Had I time-traveled to a bygone era? Or was I seeing up close one of the myriad ways that law enforcement agencies and our criminal legal system maintain social compliance when it comes to gender and gender identity?

We see this enforcement in the proliferating police brutality cases involving women (especially those of color), transgender people and those who don’t conform to traditional gender roles. The nature of this violence is often not discussed, but it can take the form of sexual assault, gendered verbal abuse and the physical assault of transgender people to confirm their gender status.

In higher-profile examples, we were shocked by pictures of a white officer in McKinney, Texas, sitting on a black teenage girl, Dajerria Becton, after violently arresting her at a party at a public pool in June. Occupy Wall Street protester Cressa Perloff recently received a $95,000 settlement from the city after a New York Police Department sergeant grabbed her breast during her arrest — an experience that caused severe post-traumatic distress. In June a Texas woman, Chanesia Corley, was subjected to an invasive cavity search in public view by a police officer. (That the officer was female did not make Corley feel any less violated or sexually assaulted.)

Transgender people face a particularly brutal response from police. According to a National Coalition of Anti-Violence Programs study released in June, transgender women are 5.8 times more likely to experience police violence than the broader population. In 2010 a transgender Latina psuedonomously known as Natasha was unlawfully arrested after leaving a club in the borough of Queens in New York City, was mistaken for a sex worker and was placed in a cell with men, where she endured harassment. Her case — included in the 2012 Make the Road New York report “Transgressive Policing” (PDF), which focused on police abuse of LGBTQ communities of color in Queens — is one of many that show how transgender women of color are routinely profiled as sex workers.

Part of the problem is that much of the current discussion about police violence starts with the false assumption that the police were organized to protect everyone. But according to Sam Mitrani, a history professor at the College of DuPage and the author of “The Rise of the Chicago Police Department,” police departments in the 19th and early 20th centuries were created by municipalities as male-centric institutions intended to regulate the poor and working class during an era of increased immigration and rapid industrialization. It was during this period that we saw the creation of quality-of-life offenses to address drinking and to regulate the morality of female sex workers.

While there are recorded arrests of men dressing in female clothes in the 1950s, aggressive policing of trans people and the LGBTQ community began during the civil rights period, in response to the emerging gay rights movement. Policing was used to control behavior and impose order. The 1969 Stonewall riots should thus be viewed as “a rebellion against policing,” said Ejeris Dixon, a 15-year veteran organizer around policing and anti-violence.

The police’s function changed in the 1980s and 1990s alongside the defunding of social services, with the criminal justice system increasingly used to regulate poor people. But as Mitrani explained, “The problem is that policing is not a proper solution to social problems, because its only tool is force and violence.”

The past few decades have also seen policing decisions made in a broader legal landscape influenced by a Supreme Court that has diluted many of our constitutional rights, including Fourth Amendment protections against unreasonable searches and seizures. This has given police officers an enormous amount of discretion to make decisions in arrests, which in practice can be license to legally justify their biases.

Thus, even if there are well-meaning officers, our criminal legal system has devolved into a potent mix of diminished rights and increased use of policing for social control, in which decisions are made by individual officers with impunity. Unless we understand the origins of policing and acknowledge a pattern of enforcement that maintains gender norms, any proposed solutions will not sufficiently address this type of violence.

Police reform proposals tend to assume that victims are male or nongendered, which means that they rarely examine how neutral laws affect women, trans people and gender-nonconforming people. According to Andrea Ritchie — a community organizer, a police misconduct attorney focusing on the experiences of women of color in the criminal legal system and a co-author of the recent report “Say Her Name: Resisting Police Brutality Against Black Women” — police reform proposals must include the “elimination of vague offenses such as ‘disorderly conduct,’ which punish women for failing to comply with racialized gender norms.”

Also necessary, according to Ritchie, are police profiling bans that include prohibitions on discrimination on the basis of gender and gender identity (alongside race and other factors), as New York City’s Community Safety Act and the expanded version of the End Racial Profiling Act, introduced in the U.S. Senate this year, would do.

Further, we need more specialized trainings on sexual assault and violence that underscore the specific ways that women, trans people and gender-nonconforming people experience overpolicing. Moreover, women affected by policing need particularized services because they often exhibit symptoms common among victims of sexual assault.

Innovative solutions outside the criminal legal system can also help. For example, the Audre Lorde Project’s Safe Outside Collective uses community-based strategies by training businesses and neighbors to recognize and prevent violence instead of reflexively calling the police.

Advocacy strategies that include gender and gender identity often do not get highlighted in national conversations about policing, but they need to be. “Say Her Name” seeks to ensure that black women’s experiences — from Sandra Bland to Rekia Boyd — are included in overarching demands for police reform. Giving voice to women who are policed as gender outlaws because they do not conform to social norms is a good first step. The violence has to stop now.