Three policies Obama can adopt to support LGBTQ criminal justice reform

President Obama’s nod to criminal justice issues facing our nation during the State of the Union address convey his commitment to much needed reform. His remarks follow the lead of millions of activists across the country who have taken to the streets to amplify their calls for justice in the tragic deaths of Michael Brown in Ferguson, Missouri and Eric Garner in Staten Island, NY. For decades, the National LGBTQ Task Force—the nation’s oldest national LGBTQ advocacy organization—has been working hard to ensure that lesbian, gay, bisexual, transgender, and queer (LGBTQ) people and all marginalized populations are treated fairly by the criminal justice system that is designed to protect us, rather than target LGBTQ people. 

But we know that all-too-often LGBTQ folks—especially Black and Latino LGBTQ people—are targeted by police for selective enforcement of laws, are disproportionately victims of crime, and experience the collateral effects of being in the criminal justice system like lack of access to housing and jobs. 

{mosads}Eliminating all barriers to equality for LGBTQ people requires many legislative solutions. Yet there are three policies President Obama and his administration can implement now to help curb the epidemic of LGBTQ people being targeted for and caught up in the criminal justice system. 

1. Fully implement the new profiling guidance—including requiring all state and local governments that receive federal funds to comply with the new profiling rules, and eliminate carve outs that allow Border Patrol and TSA to engage in profiling based on race or religion. Attorney General Eric Holder announced in December new profiling guidance for federal government agencies that explicitly prohibits, among other things, profiling on the basis of sexual orientation and gender identity. This is a historic step in the right direction, but it only works if it is fully implemented. The prohibitions should apply to all local law enforcement agencies that receive any federal funding. In addition, it is unacceptable that the guidance allows Border Patrol and TSA to racially profile – racial profiling is despicable and does not achieve the intended objectives, and to allow any agency to be exempt from profiling rules implies that profiling is an acceptable policy. Under no circumstances should anyone be stopped, scrutinized, or subject to discrimination solely on the basis of their race, national origin, sex, sexual orientation, gender identity, or any other protected class. The President’s Administration should also call on Congress to pass the End Racial Profiling Act, which the National LGBTQ Task Force Action Fund has endorsed. 

2. Ban Using Condoms as Evidence of Crime. In a world in which public health officials actively encourage safer sex practices, including government agencies often giving free condoms to the public, LGBTQ people are often stopped by police for suspicion of engaging in sex work. In many cases, the mere possession of one or more condoms is used as evidence that the person intends to engage in sex work. While these cases are not often prosecuted, LGBTQ people (and especially transgender women of color) are being locked up in jail cells overnight just for carrying condoms. More importantly, a growing number of LGBTQ people have stopped carrying condoms because they fear prosecution. 

3. End the Criminalization of HIV. In 33 states people can be prosecuted and sent to prison for allegedly attempting to infect others with HIV. In many of these cases, people are being sent to prison for actions that carry little to no risk of transmission of HIV or any other infection. The criminalization of HIV is based on the fundamental misunderstanding and stigma toward people living with HIV. People living with HIV and AIDS should not be prosecuted for living their life. The Administration should also call on Congress to pass the Repeal Existing Policies that Encourage and Allow Legal HIV Discrimination Act, which the National LGBTQ Task Force Action Fund has endorsed. 

   Carey is National LGBTQ Task Force executive director.