LGBTQ+ Individuals, Mental Health, and Criminal Justice

By Cassandra Moore

June was Pride Month, a time when LGBTQ+ people and their allies pour into the streets to celebrate their identities and experiences, and an opportunity to raise awareness around the challenges that those in this community face. This article looks at those specific challenges, especially what LGBTQ+ people contend with when caught at the intersection of the mental health and criminal justice system and highlights a few hopeful approaches that encourage the equal treatment and wellbeing of LGBTQ+ people who are struggling with substance use and seeking recovery or who are justice-involved.

Because LGBTQ+ people often face discrimination, bias, harassment, violence, and challenges that heterosexual people do not face, they are at an increased risk for various mental and substance use disorders. LGBTQ+ people are 12 times more likely to use amphetamines and more than 9 times more likely to use heroin than heterosexual individuals.^[1] LGBTQ+ populations also have higher rates of tobacco and alcohol use. ^[2]

Those stark differences are not random. Craig Sloane is a psychotherapist and licensed clinical social worker in New York City who self-identifies as a queer person with personal experience with substance use and recovery. “The trauma associated with the social stigma of being LGBTQ, of living in a culture that, for the most part, is homophobic and heterosexist, is traumatic,” Sloane explained in a 2019 Healthline article. He names bullying, and the experience of being rejected by friends and family as part of the trauma experienced by LGBTQ+ people. “And in many parts of the country,” he said, “the safe spaces for queer people to go are bars, so social isolation certainly is one of the factors behind substance use disorders [SUDs] for LGBTQ people.”

LGBTQ+ people are also more likely to become involved in the justice system: they are incarcerated at a rate three times higher than the general U.S. incarceration rate.[3] While just 3.8 percent of all adults identify as LGBTQ+, 7.9 percent of adults in prison and jail identify as LGBTQ+,[4] according to the Center for American Progress. More light is shed on the compounding challenges faced by LGBTQ+ people when you drill down into the many factors that contribute to these disparate incarceration rates. For instance, people living in poverty are statistically more likely to end up behind bars, and LGBTQ+ people experience poverty at higher rates.[5] Furthermore, rates of incarceration are disproportionate for transgender people, Black transgender women are nearly 10 times more likely to experience incarceration compared to the general population.[6] For many in the LGBTQ+ population, a history of inequity starts early in their lives, and these early inequities connect directly to later experiences that can further deepen the disadvantages they face across life. Homelessness during youth is the greatest predictor of involvement with the juvenile justice system, and since LGBTQ+ youth make up 40 percent of the youth population experiencing homelessness, they are at an increased risk of incarceration and all of the associated negative outcomes.[7]

Bias, lack of police officer awareness around queer issues, and historical marginalization play a part in the high rate of queer representation in the criminal justice system. Only 9 of 25 police departments reviewed by the National Center for Transgender Equality in May 2019 had included gender identity and/or expression language in their non-discrimination policy—which the center says is the best way to determine whether transgender people are protected, or not. Police department policies that fail to protect and understand queer and transgender people may contribute to bias resulting in increased risk of justice-involvement for LGBTQ+ individuals.[8]

According to the National Transgender Discrimination Survey, 16 percent of transgender adults report having been in a prison or jail for any reason. This compares with 2.7 percent of all adults who have ever been in prison and 10.2 percent of all adults who have ever been under any kind of criminal justice supervision, including probation. Transgender people, especially transgender people of color, report facing disrespect, harassment, discriminatory arrests, and physical and sexual assault by police at very high rates.[9]

When justice system involvement leads to incarceration, transgender people face further disparate harms. Transgender people are almost 10 times more likely to be sexually assaulted in prison than the general population. An estimated 40 percent of transgender people in state and federal prisons reported a sexual assault in 2017, according to the National Center for Transgender Equality.[10]

While practices are changing, many criminal justice facilities house people strictly according to genital anatomy—disregarding gender nonconforming people, intersex, and transgender people’s gender expression. This can lead to bullying and abuse by biased or prejudiced peers. Transgender people also report being denied access to gender-appropriate clothing or hygiene items and being punished for gender nonconforming gender expression.[11]

Transgender women placed with male peers face exceptional risk of physical abuse, sexual assault, rape, and death. Angela Okamura writes about how the hierarchy of prison culture links femininity with weakness. This hierarchy places transgender women in a position of subjugation, including extreme abuse and even prostitution, either by choice or force.[12]

Facilities have tried to fix the situation of violence against transgender individuals by isolating them. This brings an entirely new and different set of problems associated with social deprivation and isolation, which can lead to severe mental health challenges.

It has been demonstrated that facilities that house transgender individuals according to their affirmed gender, rather than birth sex, ameliorate violence and harm, but this is just one component of meeting the needs of transgender people who are incarcerated. LGBTQ+ advocates have voiced the need for transgender prisoners’ access to hormone therapy and sex reassignment surgery, in addition to reformed housing policies. For example, in 2002, San Francisco County in California rolled out a protocol that required jail officials to consider a transgender prisoner’s vulnerability to abuse. If determined vulnerable, that individual had to be placed in a “vulnerable female unit” with others also deemed vulnerable, away from potential predators. In the wake of the protocol’s implementation, San Francisco County saw a significant decrease in sexual assaults.[13]

An additional difficult reality faced by LGBTQ+ Americans is mistreatment by health care providers, which stands as a barrier to treatment for SUDs and other mental disorders. In a 2020 survey by the Center for American Progress, nearly half of transgender people of color reported feeling healthcare providers were visibly uncomfortable while treating them, and many reported being misgendered.[14] Culturally specific treatment is paramount when serving any marginalized group. LGBTQ+ people seeking SUD treatment and support who go to centers where their identity is questioned, disregarded, or misunderstood, or where they are segregated against their wishes will stop seeking support due to bad and ineffective past experiences.[15] Treatment programs that focus on the LGBTQ+ community specifically can affirm the experiences of the individuals in their care by understanding the specific barriers and challenges they may have faced, including discrimination, rejection, and other related hardships. Without addressing the trauma and social stigmatization as an underlying reason that many LGBTQ+ people turn to substance use, relapse is more likely.[16] For transgender, intersex, and gender non-conforming individuals, working with staff who are fluent in inclusive, appropriate language and do not misgender them is essential to their feeling seen, accepted, and safe, but in the current environment, this kind of care is frequently difficult to find. Staff who identify as and work with LGBTQ+ people can offer individuals empathy and safety, allowing them to more effectively address the underlying causes trauma and substance use.

In the spirit of Pride Month, spreading awareness around the inequities and particular challenges faced by the LGBTQ+ population can help begin to inspire change. It is not random that marginalized groups are more prone to SUDs, incarceration, and mistreatment, or that they have particular difficulty accessing effective treatment services. LGBTQ+ advocates are doing hard work to demand that recovery programs be more culturally specific, that police get bias training, and that jails and prisons modify their policies, recognizing the increased risk of abuse that LGBTQ+ people face when justice involved. It’s incumbent on all systems that work with LGBTQ+ people to respond to these demands, integrating a better understanding of the people in their communities into their policies and practices, and providing a safer, more respectful, and healthier environment for all.