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CRIMINAL JUSTICE | WINTER 2024
The modern movement for LGBTQ+ rights has
been characterized by resistance to the criminal-
ization of LGBTQ+ identities. Criminal laws have
been used against LGBTQ+ people in various areas of
their lives because such laws criminalized them for who
they are. For example, sodomy laws were used to justify
firing an LGBTQ+ person or to deny them custody of a
child. And the AIDS epidemic starting in the 1980s also
brought new laws that criminalized people living with
HIV and further stigmatizing LGBTQ+ people. In 2003,
as the result of decades of activism, Lawrence v. Texas,
539 U.S. 558 (2003), marked a turning point, as the US
Supreme Court held that the US Constitution protects
the liberty of LGBTQ+ people to forge intimate personal
relationships and engage in private, consensual sexual
conduct. Lawrence was a landmark advancement in the
community’s fight for legal equality and a foundation for
marriage equality. The community also gained and af-
firmed rights that protect against discrimination through
legislative advocacy and litigation.
Despite this progress, transgender people continue
to be disproportionately impacted by systemic violence
and discrimination. For example, the 2023 state legisla-
BY RICHARD SAENZ
RICHARD SAENZ is a senior attorney at Lambda Legal
and the project manager of Protected & Served? 2022, a
community survey on the experiences of LGBTQ+ people
and people living with HIV within the criminal legal system.
He was counsel in Hicklin v. Precythe, a successful challenge to
Missouri’s Department of Correction’s “freeze-frame” policy
denying appropriate health care to transgender people in its
custody, in one of the rst court decisions to rule specically
that “freeze-frame” policies are unconstitutional as they
violate the Eighth Amendment’s prohibition on cruel and
unusual punishment, and was counsel in Dorn v. Michigan
Department of Corrections, which resulted in substantive
changes to the department’s policy directive that unlawfully
discriminated against incarcerated people living with HIV.
tive sessions were the most dangerous targeted attacks
against transgender and nonbinary people, particularly
young people. Several state legislators used the criminal
legal system to pass extreme laws that would make pro-
viding health care a felony, increase policing of LGBTQ+
people, attempt to outlaw and force drag performers
out of the public’s view, and forbid the mere mention of
LGBTQ+ people. Cullen Peele, Roundup of Anti-LGBTQ+
Legislation Advancing in States Across the Country,
A Crisis Behind Bars
LEGAL ISSUES IMPACTING
TRANSGENDER PEOPLE
IN PRISONS
Published in Criminal Justice, Volume 38, Number 4, Winter 2023. © 2023 by
the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in
any form or by any means or stored in an electronic database orretrieval system
without the express written consent of the American Bar Association.
