LGBT Identity and Crime

LGBT Identity and Crime

Recent studies report that LGBT adults and youth disproportionately face hardships that are risk factors for criminal offending and victimization. Some of these factors include higher rates of poverty, overrepresentation in the youth homeless population, and overrepresentation in the foster care system. Despite these risk factors, there is a lack of study and available data on LGBT people who come into contact with the criminal justice system as offenders or as victims.

Through an original intellectual history of the treatment of LGBT identity and crime, this Article provides insight into how this problem in LGBT criminal justice developed and examines directions to move beyond it. The history shows that until the mid-1970s, the criminalization of homosexuality left little room to think of LGBT people in the criminal justice system as anything other than deviant sexual offenders. The trend to decriminalize sodomy in the mid-1970s opened a narrow space for scholars, advocates, and policymakers to use antidiscrimination principles to redefine LGBT people in the criminal justice system as innocent and nondeviant hate crime victims, as opposed to deviant sexual offenders.

Although this paradigm shift has contributed to some important gains for LGBT people, this Article argues that it cannot be celebrated as an unequivocal triumph. This shift has left us with flat understandings of LGBT offenders as sexual offenders and flat understandings of LGBT victims as hate crime victims. These one dimensional narratives miss many criminal justice problems that especially fall on LGBT people who bear the brunt of inequality in the criminal justice system—including LGBT people of color, transgender people, undocumented LGBT people, LGBT people living with HIV, and low-income and homeless LGBT people. This Article concludes by showing how ideas and methods in criminology offer promise to enhance accounts of LGBT offending and LGBT victimization. In turn, these enhanced accounts can inform law, policy, and the design of criminal justice institutions to better respond to the needs and experiences of LGBT offenders and LGBT victims.


More in this Issue

Odd Man Out: A Comparative Critique of the Federal Arbitration Act’s Article III Shortcomings

Arbitration is an issue of considerable national concern. Yet as the Supreme Court continues to broaden the Federal Arbitration Act’s (FAA) “liberal federal policy favoring arbitration agreements,” few viable challenges to the FAA’s expansion remain. One would be hard-pressed to find a doctrinal framework so permissive of delegating judicial power to non-Article III tribunals. Meanwhile, […]

“The Mellow Pot-Smoker”: White Individualism in Marijuana Legalization Campaigns

Recreational marijuana is now legal in several states as a result of ballot initiative campaigns. A number of campaigns have framed marijuana legalization using what this Note calls “white individualism.” They have put forth messages and images to implicitly suggest that white, hardworking, middle-class marijuana consumers are deserving beneficiaries of legalized marijuana. This Note examines […]

Gendering Disability to Enable Disability Rights Law

This Essay enriches the social model of disability by analyzing the interaction between disability and gender. The modern disability rights movement is built upon the social model, which understands disability not as an inherent personal deficiency but as the result of the environment with which an impairment interacts. The social model is reflected in the […]

Leadership Crimes

The law of mass atrocity readily recognizes that responsibility and punishment for the world’s worst horrors—campaigns of displacement, rape, torture, and killing—ought to fall primarily on the political, military, or community leaders who bring about these systematic crimes. But the international criminal courts that try and punish these individuals tell a narrow story about the […]

Limitless Worker Surveillance

From the Pinkerton private detectives of the 1850s, to the closed-circuit cameras and email monitoring of the 1990s, to new apps that quantify the productivity of workers, and to the collection of health data as part of workplace wellness programs, American employers have increasingly sought to track the activities of their employees. Starting with Taylorism […]


Hashtags are trending, and not just on social media. By 2016, producers had federally registered hundreds of hashtags as trademarks and asserted exclusive rights in thousands of others. But by failing to pay close attention to context and consumer perception, the USPTO may have overlooked issues that render many hashtag trademarks (“tagmarks”) unregistrable. This article […]