Document - USA: Stonewalled : Police abuse and misconduct against lesbian, gay, bisexual and transgender people in the U.S.

United States of America

Stonewalled : Police abuse and misconduct against lesbian, gay, bisexual and transgender people in the U.S.

Introduction

In August 2002, Kelly McAllister, a white transgender woman, was arrested in Sacramento, California. Sacramento County Sheriff’s deputies ordered McAllister from her truck and when she refused, she was pulled from the truck and thrown to the ground. Then, the deputies allegedly began beating her. McAllister reports that the deputies pepper-sprayed her, hog-tied her with handcuffs on her wrists and ankles, and dragged her across the hot pavement. Still hog-tied, McAllister was then placed in the back seat of the Sheriff’s patrol car. McAllister made multiple requests to use the restroom, which deputies refused, responding by stating, “That’s why we have the plastic seats in the back of the police car.” McAllister was left in the back seat until she defecated in her clothing. While being held in detention at the Sacramento County Main Jail, officers placed McAllister in a bare basement holding cell. When McAllister complained about the freezing conditions, guards reportedly threatened to strip her naked and strap her into the “restraint chair”^¹ as a punitive measure. Later, guards placed McAllister in a cell with a male inmate. McAllister reports that he repeatedly struck, choked and bit her, and proceeded to rape her. McAllister sought medical treatment for injuries received from the rape, including a bleeding anus. After a medical examination, she was transported back to the main jail where she was again reportedly subjected to threats of further attacks by male inmates and taunted by the Sheriff’s staff with accusations that she enjoyed being the victim of a sexual assault.^² Reportedly, McAllister attempted to commit suicide twice. The Sheriff's Department opened an investigation into the alleged rape, and the inmate accepted a plea for "unlawful intercourse in jail" and was sentenced to three months in jail. Despite having filed a full report with the Sheriff's Department, no Sheriff’s Deputy has been disciplined for the incidents surrounding McAllister’s incarceration.^³

On 28 June 1969, police raided the Stonewall Inn, a popular gay bar in the West Village in New York City. What happened next has been described and written about in countless articles and books.^⁴In the history of the modern lesbian, gay, bisexual and transgender (LGBT) rights movement in the United States, the Stonewall riots, an act of defiance against police abuse and repression, is often cited as its defining moment. Black and Puerto Rican transgender women, “butch” lesbians, and homeless street youth were among those who led the rioting, which lasted several days. The police action that precipitated the historical event was by no means unusual—police raids of gay bars were commonplace at thetime. What was remarkable was the sustained and intense organized response by the LGBT community to the police action that galvanized a movement and captured the imagination of generations of LGBT activists.

Since Stonewall, significant progress has been made by the LGBT movement in the U.S. in confronting human rights abuses perpetrated by law enforcement. As the LGBT movement has grown in strength across the country, the LGBT community has become more capable of holding local police departments accountable for their treatment of LGBT people. Passage of anti-discrimination legislation at the local level in some jurisdictions has greatly facilitated this progress. Increasingly, police forces across the country provide some level of sensitivity training towards working with the LGBT community. Despite this progress, the findings of this report clearly indicate that the problem of police misconduct persists. AI has documented serious patterns of police misconduct and brutality aimed at LGBT people, including abuses that amount to torture and ill treatment.

AI’s findings strongly indicate that police abuse and the forms this takes are often specific to the different aspects of the victim’s identity, such as sexual orientation,^⁵race, gender^⁶or gender identity,^⁷age or economic status. Identities are complex, multi-layered, and intersectional, such that a person may be targeted for human rights violations based on a composite of identities that that person seems to represent. For example, a lesbian woman who is black may not only be a target of police abuse because of her sexual orientation but also because she is a woman of color. The targeting of lesbian, gay, bisexual and transgender people for discriminatory enforcement of laws and their treatment in the hands of police needs to be understood within the larger context of identity-based discrimination, and the interplay between different forms of discrimination—such as racism, sexism, homophobia^⁸and transphobia^⁹—create the conditions in which human rights abuses are perpetuated.

Much of Amnesty’s research has clearly demonstrated that discrimination, the systematic denial of rights to certain people, is a grave human rights abuse and can often lead to further human rights abuses.^¹⁰Institutionalized discrimination dehumanizes its victim, who is deemed as someone who can be treated inhumanely. Institutionalized discrimination feeds impunity, denies justice and can incite violence against targeted people or groups. Discriminatory practices and policies have tremendous consequences for targeted groups not only in terms of the nature of their ill-treatment by government agents or society at large, but also in terms of their access to redress and equal protection under the law. Discrimination also often leads to a lack of official action, such as investigations into alleged abuses, which further reinforces impunity.

This report confirms that in the U.S., LGBT people continue to be targeted for human rights abuses by the police based on their real or perceived sexual orientation or gender identity. Furthermore, the report shows that within the LGBT community, transgender individuals, people of color, youth, immigrant and homeless individuals, and sex workers experience heightened risk of police abuse and misconduct. Reports to AI indicate that individuals from these populations within the LGBT community are targeted on the basis of identity and are more likely to experience negative interactions with police. Transgender people, particularly low-income transgender people of color, experience some of the most egregious cases of police brutality reported to AI. AI’s findings suggest that police tend to target individuals who do not conform to gender stereotypes that govern "appropriate" masculine and feminine behavior. Race plays an important factor in determining the likelihood of an LGBT person being targeted for police abuse, indicating that such abuses likely stem from racism as well as homophobia and transphobia. These findings are consistent with research by AI and other organizations indicating a correlation in general between race and the likelihood of a person experiencing human rights abuses at the hands of police in the U.S.^¹¹This report also finds that young LGBT people are more likely to experience human rights abuses by police than LGBT people in general. Transgender youth and youth of color are particularly likely to be targeted for abuse. A number of factors seem to contribute to this, including the high number of LGBT homeless youth. It is estimated that in some cities in the U.S. up to 40 percent of homeless youth are gay, lesbian, bisexual or transgender.^¹²

AI's research has revealed that law enforcement officers profile LGBT individuals, in particular gender variant individuals^¹³and LGBT individuals of color, as criminal in a number of different contexts, and selectively enforce laws relating to “morals regulations,”^¹⁴bars and social gatherings, demonstrations and “quality of life.”^¹⁵Transgender individuals in particular report being profiled as suspicious or as criminals while going about everyday business such as shopping for groceries, waiting for the bus, or walking their dog.

AI received reports of LGBT individuals being targeted for sexual, physical or verbal abuse in many different situations and contexts. Reports of sexual and physical abuse by law enforcement officers against LGBT individuals are often accompanied by homophobic and transphobic slurs, and in some instances verbal abuse escalates to physical or sexual abuse. Information received by AI suggests that verbal abuse against LGBT individuals is frequently sexualized, in particular against lesbians and transgender individuals. The failure of authorities to tackle issues such as homophobia and transphobia in police forces creates a climate in which such violations can proliferate.

AI has received reports of cruel, inhuman and degrading treatment of LGBT individuals during arrest, searches and detention in police precinct holding cells. AI heard reports of officers searching transgender and gender variant individuals in order to determine their “true” gender. AI also heard allegations of misconduct and abuse of LGBT individuals in holding cells and detention centers, including the inappropriate placement of LGBT individuals in situations which compromise their safety. In particular, transgender individuals are often placed in holding cells according to their genitally determined sex, rather than their gender identity or expression^¹⁶, placing them at greater risk of verbal, physical and sexual abuse at the hands of other detainees.

AI is concerned that U.S. authorities are failing to act with due diligence to prevent and investigate crimes against LGBT people. The U.S. continues to experience serious patterns of non-state actor violence against those who are perceived to be LGBT. Additionally, violence against LGBT people is often motivated by other forms of discrimination based on race, ethnicity and economic status – factors that also affect the victim’s access to justice. Most of the U.S. police departments surveyed do provide some form of LGBT training, something AI welcomes. However, many police departments do not have well-developed policies and do not train their officers adequately on how to respond appropriately to crimes committed against LGBT individuals. Reports to AI indicate a pattern of police failing to respond or responding inappropriately to “hate crimes,”^¹⁷domestic violence, and other crimes against LGBT individuals, particularly crimes against LGBT individuals of color, immigrants, and other marginalized individuals.^¹⁸Reportedly, "masculine appearing" women and gay men may be perceived by some law enforcement officers to not require or deserve protection from violence.^¹⁹LGBT victims of crimes told AI that police officers seem uncomfortable interacting with them, and perform only a cursory investigation in order to exit as quickly as possible.^²⁰AI also received a number of reports suggesting that officers responding to a crime against LGBT individuals often focus their attention on the victim’s sexual orientation, gender identity or expression, at times explicitly or implicitly blaming the victim for what happened to them.^²¹According to reports to AI, police frequently respond according to transphobic, homophobic, racist or class-based stereotypes and assumptions, rather than performing a proper assessment of the situation. This may mean, for example, that when officers respond to a call for assistance in an LGBT domestic violence incident, transgender survivors, immigrant survivors and survivors of color may be arrested.^²²

AI believes that training on LGBT issues is essential, and while the majority of police departments in AI’s study reported providing some form of training, 28 percent of police departments responding to AI’s survey reported that they do not provide any training on LGBT issues.^²³It is important to note that the police departments surveyed in this study are in the largest city in every state and are more likely than smaller departments to develop training. Thus the problem may be wider than indicated by AI’s survey.

AI has found that lack of effective systems of accountability for law enforcement officers committing abuses continues to be a persistent and widespread problem. Reports to AI suggest that many individuals do not come forward with complaints about police officer conduct, including LGBT individuals. AI received a number of complaints of hostility or attempts to dissuade people from making complaints at police stations. AI also heard several accounts of retaliation against LGBT individuals who reported police misconduct. Activists and individual police officers brought up the need for diligent supervision and commitment from leadership in order to achieve effective reform and any lasting change. Internal oversight bodies are frequently not trained in handling complaints pertaining to LGBT individuals, sex workers, youth and other marginalized communities. In many cases, complaints are ruled “unfounded” since no corroborating evidence is found. This is particularly problematic for marginalized communities who are less likely to be believed by investigators, and who may not have witnesses to support their account. In the event that an officer is found to be culpable for misconduct, disciplinary decisions are often inadequate and there is little consistency from case to case. Reports indicate that a low number of officers are suspended or fired, even for serious abuses. Among existing external or independent review boards, AI’s findings indicate a lack of training and expertise in LGBT issues, raising concerns about their ability to respond to and investigate complaints made by this population. External review boards are also frequently limited by inadequate funds, staff and access to information, and have been criticized for failing to perform sufficient outreach.

2. National and International Law and Standards^²⁴

It is important to understand the issue of police misconduct and brutality within the larger context of the need for the recognition of the human rights of LGBT people. The United States, like many other countries, has a long history of both criminalizing same-sex sexual conduct and failing to protect LGBT people against discrimination on the basis of their sexual orientation or gender identity.

Criminalization and failing to protect LGBT people from discrimination inherently deny LGBT people access to their full human rights and create a climate in which LGBT people are more likely to face human rights abuses whether in detention, on the street or in the home. Pervasive discrimination and lack of legal recognition means that LGBT people are consistently subjected to discrimination and frequently denied their economic, social and cultural rights; the right to access to the most basic areas of daily life, such as employment, housing and health services.

The emergence of a strong LGBT rights movement has been successful in pushing forward greater recognition of the rights of LGBT people in the last three decades. As of March 2005, 16 states and the District of Columbia protect workers against discrimination based on sexual orientation in both the public and private sectors, and an additional 11 states prohibit sexual orientation discrimination against state employees.^²⁵At least 285 cities, counties and government organizations in the US provide some level of protection against discrimination based on sexual orientation.^²⁶A number of jurisdictions, including six states,^²⁷the District of Columbia^²⁸and 67 cities and counties have laws prohibiting discrimination on the basis of gender identity.^²⁹It should be noted, however, that many of these non-discrimination laws do not apply to employment in the private sector.^³⁰An AI examination of municipal ordinances in the largest city in each of the 50 states revealed that, of the 41 of these cities that had enacted local human rights ordinances against discrimination in basic areas of life like employment, housing and public accommodations, 26 cities provided protection from discrimination on the basis of sexual orientation,^³¹and 14 included gender identity as a prohibited ground for discrimination.^³²

Progress on the federal level for non-discrimination based on sexual orientation or gender identity has been extremely slow. Neither the United States Constitution nor current federal legislation explicitly provides protection from discrimination against lesbian, gay, bisexual or transgender individuals. The United States Congress has yet to pass the Employment Non-Discrimination Act (ENDA), which was first introduced in 1994. The United States Supreme Court, on the other hand, has moved further away from its reasoning in previous decisions regarding “sodomy” statutes in the last decade. In 2003, the US Supreme Court found unconstitutional all remaining criminal “sodomy” statutes in the US.^³³Despite these gains, the US has fallen behind many other countries in the legal recognition of the basic human rights of LGBT people.^³⁴

International Law

The international community has adopted international human rights laws and standards that govern the conduct of states.^³⁵ For example, the International Covenant on Civil and Political Rights (ICCPR), to which the US is a party, is the principal international treaty setting out fundamental civil and political rights, including the right to freedom from arbitrary arrest and detention, and torture, cruel, inhuman or degrading treatment.^³⁶The US is also a party to the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment and to the International Convention on the Elimination of All Forms of Racial Discrimination. (Please refer to Appendix B for a full discussion on international law and standards.)

The LGBT community has struggled to realize the basic rights provided for in existing standards. Everyone, regardless of their sexual orientation or gender identity or expression, is guaranteed the fullest enjoyment of their civil, political, social, economic and cultural rights under international law.^³⁷ Lesbian, gay, bisexual and transgender individuals, like all other persons, are entitled to equality before the law. International law guarantees all persons the rights to life,^³⁸to privacy,^³⁹to health,^⁴⁰to liberty of movement,^⁴¹and to freedom of expression^⁴²and association,^⁴³as well as freedom from arbitrary arrest and detention,^⁴⁴and from torture, cruel, inhuman or degrading treatment and punishment.^⁴⁵ The UN Human Rights Committee has urged states not only to repeal laws criminalizing same-sex sexual conduct but also to enshrine the prohibition of discrimination based on sexual orientation into their constitutions or other fundamental laws.^⁴⁶It has further noted that reference to “sex” in the non-discrimination clauses of the ICCPR should be taken to include “sexual orientation,” thereby affirming that the rights set out in the ICCPR cannot be denied to any individual because of their sexual orientation.^⁴⁷

The ICCPR requires that anyone deprived of his or her liberty be treated with humanity and with respect for the inherent dignity of the human person.^⁴⁸Under the terms of UN Declarations on policing, law enforcement officials should treat victims with compassion and respect for their dignity,^⁴⁹and should not inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment.^⁵⁰Police should receive training to sensitize them to the needs of victims.^⁵¹States must act with due diligence to ensure that all parts of the population are protected equally^⁵²and, in protecting and serving the community, police should not unlawfully discriminate on the basis of race, gender, religion, language, color, political opinion, national origin, property, birth or other status.^⁵³ Effective mechanisms must be established to ensure the internal discipline and supervision of law enforcement officials^⁵⁴and investigations into violations should be prompt, competent, thorough and impartial.^⁵⁵When violations of human rights have occurred, all parts of the population should have equal access to remedies.^⁵⁶

3. Scope and Methodology

While this report provides a national overview of the continuing problems of police misconduct and brutality as it impacts LGBT communities in the US, the research for this report has primarily focused on four US cities – Chicago, Illinois, Los Angeles, California, New York, New York and San Antonio, Texas. It is important to underscore that these cities were not selected because they represent the worst examples of police misconduct and brutality against LGBT people or because they are the cities which have necessarily come the furthest in protecting LGBT people from such abuses. Instead, these cities were chosen to enable us to look at very different and geographically diverse sets of communities. Additionally, these cities were chosen because each also has a well-documented history of police brutality and misconduct in general as well as specifically targeted toward the LGBT community. Each of these cities has also taken at least some steps in attempting to address these human rights abuses. This allows us to examine the progress that has been made as well as the challenges that remain.

Furthermore, in each city there is at least some limited local capacity to document abuses by the police where LGBT people are specifically targeted. This report finds that the capacity to document abuses against LGBT people in the US remains extremely limited, which results in little or no ability to accurately assess this problem in most communities in the US. Even in these four cities, to greater and lesser degrees, the documentation capacity that currently exists is inadequate to accurately assess the full degree of the problem.

AI is greatly indebted to a myriad of local LGBT and police monitoring groups as well as many other organizations and individuals who have generously shared with us their own documentation and contacts. Without their support we could not have undertaken this project.

AI has obtained data for this report from a wide range of sources in order to collect information on a national as well as local level. These included surveys, interviews in the selected cities, and research of statutes, ordinances and media reports from across the US. AI was unable to independently verify all the details of some of the cases cited in this report; however, the abuses described are consistent with a pattern found across jurisdictions.

Surveys:

On 7 November 2003, AI sent out a detailed questionnaire to law enforcement agencies across the US about their interactions with LGBT individuals, training policies, responses to incidents involving LGBT individuals and detention procedures. Surveys were sent to the police department in the largest city in each of the 50 states, the District of Columbia and San Antonio (a city studied for the report but not the largest city in Texas). AI sent a follow-up letter to unresponsive police departments on December 4, 2003 and made follow-up telephone calls to departments that had still not responded during December 2003 and January 2004.

Of the 52 surveys sent to the Chief of Police of each selected police department, AI received 29 completed surveys. Each of the four target city police departments completed the survey, with the exception of the New York City Police Department (NYPD). However, since the NYPD afforded AI access to its administration and many of its officers, AI was able to obtain answers for many of the questions asked in the survey and this information is included in the survey results.

On 3 December 2003, AI sent out an additional survey to 52 internal affairs divisions of the above police departments on the process for filing a complaint with the departments’ internal oversight body; policies and statistics, if any, on complaints against police officers involving LGBT individuals; and the implementation of early warning systems to identify officers who are prone to commit abuse or misconduct. AI sent a follow-up letter to unresponsive internal affairs divisions on December 31, 2003 and made follow-up telephone calls to divisions that had still not responded during January 2004.

From the 52 surveys sent out to the heads of the internal affairs divisions, AI received 11 completed surveys. Out of the four target cities selected for the report, only the San Antonio Police Department’s Internal Affairs Bureau completed the survey. There was no response from Chicago, Los Angeles or New York City.

On 8 December 2003, AI sent out surveys on the oversight of complaints as well as data collection procedures and policies for complaints made by lesbian, gay, bisexual, or transgender individuals to each of the 24 Civilian Complaint Review Boards that exist in the largest city of each of the 50 states and the District of Columbia. AI sent a follow-up letter to unresponsive Civilian Complaint Review Boards on January 5, 2004 and made follow-up telephone calls to boards that had still not responded during January and February 2004.

From these 24 surveys sent to the director of each Review Board, AI received nine completed surveys. Two Review Boards indicated that they were unable to complete the survey: one because it only reviews closed cases where any identifying information is redacted, and the other because its commission does not actually serve as a public oversight committee and therefore does not gather the information sought by Amnesty International. Out of the four cities selected for the report whose city has a civilian oversight body, only New York City’s Civilian Complaint Review Board returned a completed survey. Chicago’s oversight body failed to send a response and San Antonio does not have an outside oversight body for its police department.^⁵⁷

Interviews:

AI conducted over 170 interviews in the four selected cities along with additional interviews in Philadelphia, Pennsylvania; Washington, D.C.; Houston, Texas; and San Francisco, California.^⁵⁸The target cities were chosen based on the population size, the presence of LGBT activists or advocacy groups within the city, previous work done in the city on police brutality issues, and the history of police brutality in the city, as well as trying to cover the four major areas of the country – Northeast, Midwest, South and West. The organization met with lesbian, gay, bisexual, or transgender activists and advocacy organizations as well as with police brutality activists, police watchdog organizations, youth outreach organizations, immigration advocacy groups, sex work activists and advocacy groups, civil rights organizations and local community activists.^⁵⁹ AI also collected over 200 testimonials through a confidential online survey requesting testimony from LGBT individuals about their interaction with police; AI conducted follow-up interviews by telephone or email in relation to testimonies received through this survey that are included in this report. AI also reviewed surveys conducted by local organizations on interactions with police occurring both in New York City and Chicago.

The organization also met with law enforcement officials in New York City, Chicago, San Antonio and Los Angeles in order to discuss their policies governing interactions with the LGBT community as well as to present issues uncovered from meetings with activist, advocate and community groups. (Please see Appendix C for a full list of all official meetings.)

A number of individuals spoke to AI on the condition of anonymity and some individuals requested that the location where the alleged incident took place not be disclosed; however, names and locations are on file with AIUSA.

Other Sources:

Amnesty International tracked incidents that were documented in the media through routine state-by-state media searches. The researchers documented cases of hate crimes committed against LGBT individuals and incidents of police brutality committed against LGBT individuals, as well as following documented media accounts of police responses to same-sex domestic violence calls and hate crimes by members of the public targeting LGBT individuals along with cases and investigations of police misconduct.

The organization also documented and tracked current and pending legislation relating the inclusion of sexual orientation and gender identity and expression in state and federal anti-discrimination and/or hate crime laws; federal immigration legislation or policies that could have an adverse affect on LGBT individuals who are also immigrants; and the inclusion, in city and municipal ordinances, of sexual orientation and gender identity and expression in the local anti-discrimination or hate crime ordinances.^⁶⁰

For the purpose of this study, AI refers to young LGBT people as individuals under the age of 21. AI has used a wide range of terminology in this report (please refer to the glossary in Appendix A). It should be noted that in matters of gender and sexuality, the terms people use and identify with can vary widely from culture to culture. In this report the phrase “lesbian, gay, bisexual or transgender (LGBT)”is used because they are the English terms most commonly used in the international human rights discourse. However, this is in no way intended to ignore the diversity of other terms and identities, nor to deny the cultural connotations attached to these terms.

While AI conducted outreach within LGBT communities (as detailed above), relatively few cases of police misconduct and abuse against lesbians and transgender men were documented. AI believes that this is in part due to the challenges of documenting violence in such cases.

Violence against women is characteristically underreported because women are ashamed or fear skepticism and disbelief. Virtually every culture in the world contains forms of violence against women that are nearly invisible because this violence is seen as "normal." Even in countries where laws criminalize violence against women, tolerance of violence may be found at all levels of society. Moreover, women and men whose sexuality and gender expression and/or identities do not conform to social and cultural norms of “appropriate” femininity or masculinity are targeted for stigma, discrimination and violence. As the UN Special Rapporteur on Violence against Women has affirmed, women who choose options other than heterosexuality may be targeted for violence for doing so.^⁶¹Violence against lesbians is part of a spectrum of violence to which women can be subjected if they depart from accepted codes of sexual behavior. Often the gender discrimination that women face is combined with other forms of discrimination: the prevalence of sexism and homophobia in societies puts lesbians at grave risk of abuse in the home and in the community. These factors also pose challenges to women in reporting violence against them.

Lesbians, transgender men and women who are perceived as too masculine fear reporting abuse and violence as all too often they are seen as responsible for the violence committed against them and that the violence is seen as a “punishment” for their lack of conformity. Women whose sexuality or gender identity or expression already makes them “suspect”, experience threat in relation to reporting, including the threat of further abuse or violence, which causes them to “go underground”, not report or fail to give the “whole story”. Many women also fear breaches of confidentiality by police, judges, prosecutors and/or other service providers. This may be particularly threatening to women who have sex with other women or women whose gender expression is masculine, who fear that information about their experiences and identities will be leaked or otherwise not protected. As a result, they fear extortion, blackmail or public repudiation.

It should also be noted that relatively few cases of violence and abuse of bisexual women and men were reported. Bisexuals are often targeted because of same-sex sexual activity or when they are with someone of the same sex, and as such they are perceived as being lesbian or gay, whether they identify that way or not. Moreover, lack of acceptance of bisexuals from within LGBT communities may also cause bisexual women and men to fear a lack of support from within the LGBT community as well as disinterest from external communities.

The challenges of documenting violence against lesbians, transgender men and bisexuals which leads to the invisibility of these human rights violations warrants further study and are beyond the scope of this report.^⁶²

4. Profiling and Selective Enforcement

In various countries across the world, AI has found that homophobia and transphobia towards LGBT people often motivates other abuses. Politically motivated allegations of same-sex sexual conduct have been used to suppress criticism, shut down organizing and silence political opponents.^⁶³In the US, for example, “sodomy” is no longer a crime since the 2003 Supreme Court decision in Lawrence^⁶⁴,but many states do not currently afford LGBT individuals full protection from discrimination (see international and domestic law – Appendix B). Furthermore, AI has found that while certain laws may not be discriminatory on their face, they are open to discriminatory application. AI believes that some laws are particularly prone to discriminatory enforcement – for example vague statutes which do not clearly define prohibited behavior and allow for significant discretion on the part of law enforcement officers. As police officers make decisions about who to stop, question or detain, discrimination may come into play and may determine both the initiation and outcome of interactions.

Profiling or discriminatory enforcement of laws governing arrest and detention constitutes arbitrary arrest or detention in violation of the provisions of the Universal Declaration of Human Rights (UDHR) and the ICCPR regarding non-discrimination, deprivation of liberty and equality before the law. Profiling and selective enforcement can affect individuals in virtually every sphere of their daily lives and often has an impact that goes far beyond the initial incident. For example, in a study on racial profiling in the US released in 2004, AI found that the practice of racial profiling leaves its victims feeling humiliated, depressed, helpless and angry, and furthermore reinforces residential segregation, creates fear and mistrust, and engenders reluctance in reporting crimes and cooperating with police officers.^⁶⁵AI heard similar reports from LGBT communities and individuals who have experienced profiling or selective enforcement based on their sexual orientation or gender identity or expression, as well as race, age or other status leading to arbitrary detention.

AI’s research has revealed that law enforcement “profile” LGBT individuals, in particular transgender and gender variant individuals and LGBT individuals of color, as potential criminals in a number of different contexts, and selectively enforce “morals regulations,” statutes and regulations governing bars and social gatherings, demonstrations and quality of life statutes. Transgender women, in particular transgender women of color, for example, have been profiled as criminal suspects while going about everyday business. Such practices contravene a number of major international human rights treaties, covenants and declarations that the US has ratified: the United Nations Charter,^⁶⁶the UDHR,^⁶⁷the ICCPR^⁶⁸and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).^⁶⁹

The most common contexts and forms of profiling and selective enforcement targeting LGBT individuals found by AI are described below.

4.1 Policing Gender - Profiling of transgender individuals

On 15 January 2004, a Latina transgender woman went to the Silver Dollar Bar in San Antonio. Bar security officers came in and asked her to step outside, where police officers accused her of stealing some money from another patron at the bar. An officer reportedly said, “People like you are bad,” “People like you make the world a bad place,” and “Shut up, fag.” She denied the charges and offered that officers could search her purse. Three police officers and two detectives surrounded her. One of the officers started to search her while the others stood watching. “The officer rolled down my skirt so that my belly was exposed and my pubic hair. I said, ‘Look sir, my private part is out.’ He told me to shut the fuck up. He told me to turn around. He then did the same thing behind – rolled down my skirt and exposed my butt. The Silver Dollar Bar is right on the side of the road, so anyone driving past could see. He then lifted my blouse and exposed one of my breasts. He wanted to see if I had a bra on – I didn’t.” She told AI, “I didn’t ask to be searched by a female officer. I’ve tried that before – they don’t care. To them we’re all men, but we’re not.” She was then handcuffed. When she tried to tell the officer that the handcuffs were too tight, he reportedly said, “You should have thought of that before you committed a crime” and told her to “shut the fuck up.” She was then pushed into the back of the police car, scraping the skin on her foot; the foot was reportedly bleeding. Shortly after, she was told to get “the fuck out.” She said that she was not leaving until she got their badge numbers and was told, “Just shut the fuck up and get out of here.” One of the officers gave his number but said it so fast that she couldn’t get it. The others would not give her their badge numbers. She was not charged with any crime. She told AI, “I know to be respectful to police officers, but I’m tired of the way they are treating us.” ^⁷⁰

This section will examine police profiling or selective enforcement of laws and ordinances against LGBT individuals, particularly transgender individuals, on the basis of their perceived transgression of social “norms” regarding “gender appropriate” conduct and presentation.

AI received a number of reports that law enforcement officers treat individuals who deviate from stereotypical gender “norms” as grounds for suspicion. While lesbians, gay men and transgender and bisexual people may be profiled or targeted for selective enforcement of regulations for the same reason – because they are all considered “gender outlaws” – the context as well as the ways and means in which such a violation manifests itself can vary enormously. According to some advocates, the quality of police interactions can be affected by how visible an individual’s perceived gender variance is. Advocates also emphasize that stereotypes about gender may be compounded by presumptions of criminality based on race, age or socioeconomic status.^⁷¹ For transgender individuals, reports indicate that harassment is more severe the less a transgender woman or man “passes” as a woman or man, which in turn can be a function of her or his socioeconomic status and the extent to which she or he wants or can afford hormones and sex reassignment surgery.^⁷²

Reports indicate that failure to adhere to gender expectations contributes to arbitrary arrest and detention of transgender and gender variant people. AI has heard reports of widespread profiling of transgender women as sex workers, inappropriate and selective targeting of transgender and gender variant individuals to produce identification and “prove” their gender identity; and selective “policing” of the use of bathrooms designated as male or female. Other forms of misconduct and abuse reportedly include inappropriate and sometimes abusive behavior when identification is produced and does not match an individual’s gender expression; deliberate and humiliating improper pronoun use; inappropriate searches to determine an individual’s genitally determined sex (see Detention and Searches); as well as verbal, physical and sometimes sexual abuse.

4.1.1 Law Enforcement Training and Policies

A 61-year-old white transgender woman and her business partner, who is also a transgender woman, were detained for questioning by plainclothes officers in Burbank, California in 2000. When the officer asked whether they had drugs or weapons in the car, the woman reportedly told the officer “No, I am a pre-op transsexual and have prescription drugs in the car.” The officer’s response was reportedly, “What the hell does that mean … are you a he or a she?” She told AI, “I stopped volunteering information at that point as I felt I was in a no-win situation.” Following a search they were told they could leave. The women asked the officers to identify themselves but they reportedly refused to do so. She attempted to file a complaint and secure an apology on five occasions and was eventually told that the police department did not believe her version of events and they were supporting the officers. During one of her attempts to make a complaint at the station, she spoke with a sympathetic female lieutenant watch commander who reportedly said that the men in the department were uncomfortable with her transsexuality and that they had refused a transgender sensitivity training when the opportunity was presented to them.^⁷³ AI contacted Burbank Police Department and an official told AI that the department provides cultural awareness training, but that there was no specific component regarding transgender issues.^⁷⁴

AI is concerned by the lack of transgender-specific policies, procedures and training for law enforcement personnel, especially in light of the findings detailed below and throughout this report. Out of the 29 police departments responding to AI’s survey, 21 (72 percent) report having no policy regarding interactions with transgender people, only five (17 percent) reported having any policy and three (10 percent) failed to provide a response.

Chicago: The Chicago Police Department reports that it has no specific policy for interacting with transgender individuals.

Los Angeles: The Los Angeles Police Department (LAPD) reports that it does have a specific policy governing interactions with transgender individuals.

New York: It is unclear whether or not the NYPD has a specific policy that governs interactions with transgender individuals, but it appears to have guidelines for practice.^⁷⁵

San Antonio: San Antonio Police Department reported that it does not have specific policies or practices governing interactions with transgender individuals. Police officials in San Antonio also indicated to AI that there is “nothing specific” in the training program on transgender issues.^⁷⁶

AI urges authorities to develop transgender-specific policies and procedures and to ensure that issues relating to interactions with transgender individuals and communities are incorporated into police training as a matter of urgency.

4.1.2 Profiling transgender women as sex workers

“They used to arrest transgender women for wearing women’s clothing; now they arrest transgender women for loitering with intent to solicit. There is still so much work ahead of us, doing sensitivity trainings for law enforcement and the criminal justice system.”

Vivianna Hernandez, Los Angeles Gay and Lesbian Center^⁷⁷

“The police assume we are on the street to do sex work. Why else would a transgender be on the street? Lots of transgender people are academics and have college degrees, but they are totally ignorant of it.”

Transgender woman, speaking to Amnesty International at the Asian Pacific AIDS Intervention Team Community Forum Meeting, 29 January 2004

“No tenemos el derecho a vivir.” (We don't have the right to live.p)

Julia Garcia, La Opportunidad, Los Angeles^⁷⁸

AI has found a strong pattern of police unfairly profiling transgender women as sex workers^⁷⁹. AI received reports of such practices in Chicago, Los Angeles, New York and San Antonio, as well as in Washington, DC, Philadelphia, Pennsylvania, San Francisco, California and Houston, Texas.^⁸⁰ Transgender individuals are often the subject of intense police scrutiny and AI heard many reports of transgender women being stopped by police and questioned about their reason for being on the street and where they were going, often under the pretext of policing sex work, even when those stopped were engaging in routine daily activities such as walking a dog or going to a local shop.^⁸¹ AI attended a meeting in Los Angeles between Bienestar’s Transgeneros Unidos support group and officials of the Hollywood-Wilcox Division of the LAPD, where a number of the predominantly Latina participants recounted instances of profiling as sex workers by officers while they were engaged in activities such as hailing a cab or walking down the street.^⁸²

INSERT photo from Shirley's DVD of demonstration

In 2001, 50 transgender women affiliated with the Transgeneros Unidos (Transgender People United) program of Bienestar, a full-service community organization working with Los Angeles’ Latino/a LGBT communities, demonstrated against profiling as sex workers and ongoing harassment by officers in front of the Hollywood-Wilcox Precinct of the LAPD. Since that time, the Captain of the division has met regularly with Transgeneros Unidos to discuss ongoing concerns.

Police officials made comments to AI that appear to suggest that there is a commonly held assumption that transgender individuals are sex workers. For example, one LAPD Captain stated, “There’s a small percent of transgenders in prostitution” at a community meeting,^⁸³however, he later told AI that 80 percent of the transgender community is involved in sex work, because of “sexual addiction” or because they are engaging in “survival sex.”^⁸⁴An official at the 6^th Precinct in Manhattan, New York, told AI that there are no prostitutes arrested in the 6^th precinct who are not transgender.^⁸⁵

AI is concerned that subjective and prejudiced perceptions of transgender women as sex workers often play a significant role in officers’ decisions to stop and arrest transgender women. Community-based organizations and individuals reported that profiling of transgender women as sex workers by law enforcement officers frequently leads to arbitrary arrest and detention.^⁸⁶For example, an advocate in Chicago told AI that officers see transgender women as easy targets when they need to meet their allotted “arrest quota.”^⁸⁷Reports to AI from a number of advocates indicate a pattern of selective enforcement of solicitation ordinances against transgender people of color, immigrants and homeless youth.^⁸⁸One New York attorney reported that 80 percent of transgender women of color he works with have experienced police harassment or false arrest based on unfounded suspicions of engagement in sex work.^⁸⁹

Los Angeles: In 2003, a transgender woman reported that she was arrested for solicitation when she was walking her dog.^⁹⁰

New York: An African American transgender woman told AI that she was leaving a meeting at the Gay and Lesbian Center in the West Village when she was stopped by a white male officer for “prostitution” while walking down Christopher Street. The officer allegedly took her bag, emptied out the contents and threatened to hit her with his stick if he saw her again.^⁹¹

San Antonio: A white transgender woman reportedly worked for a motel, where her shift ended at 3 a.m. She was reportedly stopped by SAPD about four or five separate times on her way home after her night shift on the assumption that she was a sex worker. Eventually, her employers had to contact SAPD and explain that she needed to walk home in the early hours of the morning after her shift ended. She is not harassed anymore. ^⁹²

Such profiling and arrests appear to primarily take place under vague laws allowing for significant discretion on the part of individual police officers, such as those creating offenses of “loitering with intent to solicit,” “public lewdness” or “disorderly conduct.” Similarly, the NCAVP have found that that police frequently target transgender people under cover of vice law enforcement or so-called “quality of life” campaigns.^⁹³AI and other organizations are concerned that vaguely worded regulations lend themselves to discriminatory application since these laws and regulations leave almost entirely to an officer’s judgment not only the determination of suspicion, but also the definition of offending conduct.

In Chicago, Los Angeles and New York, organizations reported that possession of two or three condoms was used by police officers in a discriminatory manner as evidence justifying arrest of transgender women perceived to be engaged in sex work. AI has heard from outreach workers that many of their clients are therefore reluctant to take condoms or safe sex kits.^⁹⁴AI furthermore also heard of police harassment and arrest of transgender as well as LGBT outreach workers in Chicago, Los Angeles and New York.^⁹⁵

New York: A transgender youth of color was reportedly doing outreach in 2001. She had a bag of sex kits with flyers to hand out. The police approached her and reportedly arrested her for prostitution.^⁹⁶

AI is concerned by reports that many transgender individuals will not challenge charges because to plead “not guilty” may mean spending time in detention before trial.^⁹⁷ Many transgender people are fearful of spending time in detention because they are often at heightened risk of torture and ill-treatment at the hands of both guards and other inmates. (See detention section.) Furthermore, transgender individuals express fear of the criminal justice system due to pervasive discrimination against transgender people, even in securing legal counsel. For example, AI heard one report of a lawyer who was unwilling to represent a transgender woman until she “found God.”^⁹⁸

Although AI did not receive the same level of reports on this issue from gay or lesbian individuals, AI also heard reports that LGB individuals, particularly young gay men of color in Chicago’s Lakeview district and in Los Angeles, are profiled on the basis of their gender identity or expression and assumed to be sex workers.^⁹⁹

Chicago: In February 2004, a Latino and two African American young gay men met at a taco stand. They were stopped by two officers who told them, “You fucking faggots, put your hands on the car.” When one of the young men did not have his identification papers on him, one of the officers said, “You’re out here selling your ass, but no one is going to buy it.” Reportedly, the officer said, “I’ll find a reason to arrest you.”^¹⁰⁰

In response to AI’s concerns, police officials in New York, San Antonio and Los Angeles told AI that officers stop and question individuals under suspicion of soliciting only when their conduct somehow objectively indicates that they are engaging in such transactions. The NYPD told AI that officers’ determinations of whether an individual is engaged in sex work are based on observation and consideration of the time of day, location and conduct of individuals, such as waving down cars. According to NYPD officials, “We identify by watching to see if they approach numerous cars, are dressed provocatively, and so on.” Chief Ortiz indicated to AI, “We can stop and talk to anyone at any time. If we see someone waiting for a bus … and they are still there an hour later, then we are going to ask.”^¹⁰¹ Captain Downing of the Hollywood-Wilcox division of the LAPD emphasized that police stops based solely on an individual’s attire or location are unjustified, and that the law requires that individuals be engaged in conduct which objectively evidences an intent to solicit, such as flagging down cars and speaking with drivers. Nevertheless, he also stated that individuals’ “mannerisms” and possession of condoms are used as evidence of intent to solicit^¹⁰². Furthermore, one of the officers present at the meeting between LAPD and Transgeneros Unidos noted that in his experience, transgender women dress in a way designed to be “noticed,” thereby inevitably attracting police attention. AI remains concerned that subjective and prejudiced perceptions of transgender women as sex workers often play a significant role in officers’ decisions to stop and arrest transgender women.

Targeting of LGBT individuals because of their gender identity and/or race violates their right to freedom from discrimination under the ICCPR, the Convention against Torture and the International Convention on the Elimination of Racial Discrimination.

4.1.3 Identification

As part of expressing their chosen identity, transgender individuals frequently change their name to reflect their gender. The European Court of Human Rights has ruled that prohibiting a transsexual person from adopting a change of name or changing their civil status was contrary to Article 8 of the European Convention on Human Rights, which protects an individual’s right to privacy.^¹⁰³However, transgender individuals in the US often experience difficulties in changing or obtaining identification documents that match his or her gender identity. Individuals who are transitioning, undocumented immigrants, homeless people or those who do not meet the requirements for altering the gender on their identification because, for example, they cannot afford hormones or cannot afford or do not wish to undergo sex reassignment surgery, may not be able to obtain identification consistent with their gender expression.^¹⁰⁴Accordingly, a common fear expressed to AI by transgender individuals and communities is being stopped by a police officer and being asked for identification.^¹⁰⁵AI heard a number of reports of transgender individuals being stopped and asked for identification, in some cases apparently to establish simply whether an individual is male or female.^¹⁰⁶

AI’s findings indicate that where transgender or gender variant individuals produce identification to an officer that does not match their gender expression, individuals are regarded as fraudulent or deceitful, creating a heightened risk of abuse and harassment.^¹⁰⁷ Advocates contend that officers assume that the identification is fraudulent in such instances and in some cases, reportedly have confiscated transgender women’s identification, believing it to be "void."^¹⁰⁸

Los Angeles: A Latina transgender woman was reportedly arrested for providing false information to a police officer when she presented a driver’s license identifying her gender as female. While the charges were subsequently dropped, as a result of her arrest she was found to be in violation of a previously imposed probation order and was incarcerated for 30 days.^¹⁰⁹

Reports to AI indicate that when police officers interact with transgender individuals, they often use inappropriate pronouns or an individual’s prior male or female name. In some instances this may be reflective of a failure to understand adequately the need of transgender people to express their gender identity, and therefore a product of inadequate training. However, AI also heard reports of officers deliberately using a name or pronoun that does not match an individual’s gender expression in order to humiliate.^¹¹⁰

Los Angeles: Despite the existence of an LAPD policy requiring officers to address transgender individuals as they present themselves,^¹¹¹ officers reportedly frequently insist on using male pronouns when addressing transgender women, calling them "sir," and telling them, "I have to call you by your legal name."^¹¹²

Washington, DC: In December 2002 a transgender woman called the police after her boyfriend reportedly started choking her. When the police saw her ID they started using masculine pronouns and calling her “mister” and “he.”^¹¹³

One of many issues that a transgender policy should cover is how to address a transgender individual; some police departments already include this in their policies. For example, a representative from the San Francisco Police Department told AI that the San Francisco Police Department has developed a policy whereby officers are required to address transgender individuals by either the name on their identification or the name they regularly use if they have not had their identification corrected to reflect gender identity.^¹¹⁴ According to Los Angeles Police Department’s response to AI’s survey, its policy requires officers to address transgender persons as they present themselves. Police officials in New York also indicated to AI that an individual will be addressed according to how they present themselves, but that there is no written policy on the use of pronouns. Reportedly, officers are “trained to interact with how people want to be addressed.”^¹¹⁵

AI believes that officers should be required to address transgender individuals by either the name on their identification or the name they regularly use if they have not had their identification corrected to reflect gender identity. In investigative circumstances an officer may respectfully ask gender- and name-related questions. Once those questions have been answered an officer must refer to an individual by the name he or she regularly uses.

4.1.4 Policing Bathroom Use

Dean Spade, a transgender man, was arrested in 2002 by a Port Authority police officer while using the men’s room at Grand Central station, New York. “I entered a restroom, a cop followed me into the restroom and asked me to show ID. I explained that I was in the right restroom.” When two friends came to his assistance, the officer detained them and, finally, arrested all three of them. “The cop was really being aggressive,” Spade said. “We tried to leave and he pushed us against the wall ... We spent 23 hours in jail and ultimately the charges were dropped because there was no legal basis for our arrests.”

Interview with Dean Spade, 29 September 2004

Reports to AI of police misconduct directed towards transgender and gender variant communities also included the “policing” of bathroom use. The majority of public bathrooms are designated male or female, even though there may be no laws codifying these social conventions.^¹¹⁶ Therefore, access to them can result in transgender individuals being subjected to arrest, harassment or abuse by officers who use their own perceptions of gender identity or expression to determine who should or should not be allowed into a particular bathroom. Transgender individuals report fear of being stopped or questioned by other people who are using the bathroom, private security guards or police, who may be called to arrest a transgender person for using the “wrong” toilet.^¹¹⁷ AI has heard reports in Los Angeles, New York and San Antonio that police have demanded identification from transgender people when they have attempted to use public bathrooms.^¹¹⁸Bathroom access issues become more of an issue with intersecting identities – people of color, homeless and young people are already under higher scrutiny.

Organizations representing transgender people recommend gender-neutral bathrooms and point out that transgender and gender variant individuals must be afforded access to safe and dignified bathroom facilities.^¹¹⁹ Transgender individuals should not be arrested or detained solely for using a bathroom appropriate to their gender identity or expression.

4.1.5 Morals Enforcement – Policing Public Space

“When officers are working in areas where people have sex in their cars, if it’s a man and a woman or even two women, the officers usually check to make sure there is not a serious crime occurring (such as rape) and then send them on their way. The parties are told to take it to a hotel or take it home. However, if there are two men consensually involved in the car, officers arrest them more often than not. This is discriminatory enforcement.”

AI interview with LASD Sergeant Don Mueller, 27 January 2004

“When a police officer sees a [heterosexual] couple making love, they are left alone on most occasions, but if gays are involved, they [police] are on them.”

Andrew Thomas, Attorney in San Antonio^¹²⁰

R. Boevingloh, a 60-year-old white gay man, was in a park in St Louis, Missouri in June 2001 and reports that he was wearing dark sunglasses, walking with a cane in one hand and a soft drink in the other, when he greeted an undercover policeman as he walked by him. He was immediately handcuffed, put in a police car and subsequently charged with lewd conduct. At trial, the undercover policeman testified that Mr. Boevingloh had rubbed his crotch area and made prolonged eye contact with the officer. He was placed on two years probation. He told AI, “I did nothing wrong, did not ‘cruise’ anyone, did not expose myself, did not hurt anyone and was targeted simply for being a gay male in a city park … Nothing is more unfair than singling out a group and making them criminal when they are not.”

Email to Amnesty International from R. Boevingloh, 23 February 2004

A San Antonio Park Ranger testified in a trial against a gay man charged with a lewd conduct offense that he had arrested at least 500 gay men and no women. He also reportedly said he “wanted to rid the park of gays.”^¹²¹

In the context of this report AI uses the term “morals regulations” to refer to regulations used to prohibit public sexual expression or conduct, including offenses such as lewd conduct and public lewdness and other behavior seen as offending against public morals. AI acknowledges that individuals have a reasonable expectation to enjoy public spaces without individuals engaging in sexual relations in such spaces. Such regulations, however, are often vaguely worded so as to allow for significant discretion on the part of law enforcement officers, and AI has found that gay men are disproportionately affected by discriminatory enforcement of “moral regulations.”^¹²²

AI’s findings indicate that the vagueness of morals regulations lead to arbitrary arrest and detention of gay men because of the discretion granted to officers in determining what is considered “offensive,” rendering the enforcement of such regulations prone to homophobia, racism and sexism. The arbitrary arrests and detentions that may result from the use of such vague statutes or regulations are human rights abuses under both the UDHR and the ICCPR. Reports indicate a pattern of officers engaging in unlawful entrapment techniques, soliciting and inviting prohibited conduct, as part of undercover operations. AI has received reports of discriminatory application of morals regulations against gay men of color. AI has also received several reports of verbal and physical abuse by officers, in particular during undercover operations. AI believes that the discriminatory aspects of targeted lewd conduct operations create an atmosphere conducive to abuse, and foster a climate of impunity. Many individuals are unlikely to challenge false charges for fear of repercussions if their sexual orientation is revealed, contributing to the impunity with which misconduct and abuse may take place. Advocates in some cities have also raised concerns that police enforce morals statutes based on complaints from the public that are kept open indefinitely, i.e., enforcement may take place on the basis of complaints that were made months or even years ago.

AI received reports of targeted enforcement of “morals regulations” disproportionately against gay men in all four cities studied by AI, as well as in several other cities across the US including Detroit, Michigan, Columbus, Ohio, and Denver, Colorado.^¹²³In San Antonio it is reported that over 900 gay men were arrested in targeted sting operations from 1999 to 2001.^¹²⁴ Lambda Legal Defense and Education Fund (LAMBDA) allege that the LAPD targets gay men with discriminatory law enforcement tactics and selectively enforces lewd conduct laws; they report that the number of arrests of gay men for lewd conduct in Los Angeles was between 1,800 and 2,000 per year, during 1997 to 1999.^¹²⁵The California Supreme Court has noted that California Penal Code Section 647(a), which prohibits lewd conduct, has been selectively enforced against gay men. In the case of a gay man who reportedly “solicited an undercover police officer to perform an act of oral copulation” the California Supreme Court noted that the nature of conduct criminalized by California Penal Code Section 647(a) makes it susceptible to discriminatory enforcement.^¹²⁶ In LA, between August 2000 and July 2001, of 649 arrests under Section 647(a), 88 percent were of men; excluding arrests involving sex work, 99 percent were of men.^¹²⁷ In Modesto, California, the county court reportedly dismissed lewd conduct charges when a defendant's attorney found that there had been no lewd conduct charges filed against heterosexuals in Modesto over a three-year period.^¹²⁸ Statewide in California in 2003, 97.7 percent of those arrested for felony lewd conduct were men.^¹²⁹

4.1.5.1 Vague Laws and Targeted Undercover Enforcement of Morals Regulations

The Triangle Foundation received reports in Detroit, Michigan, that State Troopers assigned to undercover operations referred to the activity as “bag a fag”.^¹³⁰

A 38-year-old gay Latino man was in Griffith Park, Los Angeles when someone followed him. He reports that the individual made sexually suggestive motions to him three times. He then exposed his genitals to the individual, an undercover police officer. He reports that the officer’s face became “full of hate,” so he started running. He fell to the ground and the officer caught up with him, and reportedly punched him repeatedly while yelling, “Don’t you run away from me, you motherfucker. You fucking fag.” The man was arrested and taken to the medical ward of the jail, where he reportedly received treatment for his injuries from the fall and subsequent beating.^¹³¹

Brian Miller was approached by an undercover police officer in West Hollywood, Los Angeles, who was making sexual advances. Miller reportedly refused suggestions made by the officer to engage in sexual relations, but was arrested by three officers for lewd conduct. Miller spent eight hours in jail and lost his job. He was released without any charges being filed against him. Miller reportedly said, “I was arrested for being gay.”^¹³²

As noted, most moral regulation enforcement focuses on statutes such as “lewd conduct,” “public obscenity” or “public indecency.” Many, if not all, jurisdictions in the United States recognize public lewdness or indecency as a statutory offense. Some statutes prohibiting lewdness or indecency prohibit specific sexual acts or “lewd or indecent conduct” generally in “a public place,” “in public” or “in public view,” while under other statutes it is enough that the act is intentional and offensive to one or more persons present and as such it is not necessary that the act be committed in a public place.^¹³³ Again, this can lead to arbitrary arrests and detentions of individuals based on an officer’s “subjective” view of lewd conduct and, if applied selectively, would be in violation of both the UDHR and the ICCPR.

AI and other organizations including ACLU, LAMBDA and the Detroit Triangle Foundation are concerned that vaguely worded regulations lend themselves to discriminatory application since these laws and regulations leave almost entirely to an officer’s judgment the definition of offending conduct.^¹³⁴The statutes thereby create a discretionary decision-making power regarding what is considered “immoral” or “offensive” behavior, and may be prone to abuse on the basis of homophobia, racism or sexism. Reports to AI indicate that morals regulations are prejudicially applied to gay people while no such action is taken against heterosexual persons engaging in similar activity. For example, acts which heterosexual couples can openly engage in, such as kissing, may be regarded as “offensive” when engaged in by gay couples.

Detroit, Michigan: The city of Detroit settled a lawsuit filed by the ACLU of Michigan and several men who alleged police used vague city ordinances to unfairly entrap them at Rouge Park. Officers enticed and arrested about 500 men during the sting operation, then impounded their cars. Officers used the vaguely worded "annoying persons" ordinances to ticket the men, many of whom were simply talking with another man or flirting. The men's vehicles were also impounded, and they were forced to either pay $900 to reclaim the vehicles or contest the ticket in court.^¹³⁵

Massachusetts: Following a lawsuit filed by Gay and Lesbian Advocates and Defenders on behalf of a gay man harassed by Massachusetts State Troopers, the State Police issued new guidelines in March 2001 specifying that “socializing and expressions of affection” are not considered sexual conduct, and that public sexual conduct is not illegal unless there is a “substantial risk” that the conduct will be observed by a casual passerby.^¹³⁶

In a number of cities, law enforcement agencies utilize targeted undercover operations as a primary means of enforcing of morals regulations.^¹³⁷ Undercover officers patrol areas known to be frequented by gay men and invite sexual or lewd conduct by their words or behavior. These actions have been questioned by organizations such as LAMBDA Legal Education and Defense Fund, who point out that the requirement in many lewd conduct statutes that a third party be “offended” may not be met when no other person was present apart from the undercover officer who by his actions solicited or encouraged the conduct.^¹³⁸

Los Angeles: California Penal Code Section 647(a) prohibits “lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view.”^¹³⁹ Over the past decades, advocates and courts alike have criticized the LAPD’s enforcement of public morals regulations as discriminatory, arbitrary and abusive with respect to gay men. ^¹⁴⁰ Discriminatory enforcement of such regulations in Los Angeles still appears to persist;^¹⁴¹ for example, LAPD’s enforcement activities are reportedly concentrated in areas where gay men are thought to congregate. AI heard reports that LAPD enforcement efforts were stepped up during the weekend of West Hollywood's LGBT Pride festival in 2003, resulting in arrests of over 40 men over the weekend, despite the fact that West Hollywood is technically outside the jurisdiction of the LAPD.^¹⁴²

Reports involving park or transit police have also alleged such abuse, raising concerns of lack of training, supervision and accountability for officers charged with policing activities prone to misconduct, but without the experience or training of formal police departments.

New York: [NOTE THERE IS A PHOTO WITH THIS ARTICLE] On 18 November 2004, a federal jury awarded a gay man $1.1 million after finding that his rights had been violated during an arrest for public lewdness in a New York Port Authority bathroom, and that the Port Authority had a policy of making such arrests. According to Alejandro Martinez, he was on his way to work when he entered the men’s room and a man he later learned was an officer flirted with him. “He looked at me,” Martinez said. “He gave me a smile.” Martinez reportedly ignored him and went to the urinal. When Martinez went to wash his hands the man stood between him and the sinks, so he quickly left. The man reportedly followed him outside, called him back and said, “You know you are under arrest.” Another plainclothes officer said, “Wow, look how fast you got the first one,” and the first officer responded, “Yeah, I did a good trap,” according to Martinez. When he objected, Martinez said the first officer clenched his fist in front of his face and said, “You calling me a liar? You want me to break your teeth?” Later, as he was being processed, Martinez said he heard another officer refer to him and the six other men arrested on that morning as “faggots” and “queers.” When one of the men arrested complained, an officer reportedly said, “I can’t do anything about that. I’ve got a quota to fill.” Martinez also reported that he was held for 18 hours and endured homophobic abuse and threats of violence from the police. In September 2000, Martinez was acquitted of the public lewdness charge in a state trial.^¹⁴³

San Antonio: Reports to AI indicate a pattern of officers engaging in entrapment techniques, soliciting and inviting prohibited conduct. Several advocates expressed concern to AI about practices whereby officers entice gay men into sex acts, then arrest them on charges of indecent exposure. LGBT advocates have been raising their concerns about undercover activities for several years.^¹⁴⁴ Undercover operations were suspended while SAPD conducted a review, however, they were reinstated in March 2003. Following the review, the Chief of San Antonio Park Police, Steven W. Baum, was asked to implement recommendations arising from the findings. Recommendations included no longer using the same five officers for covert operations, but instead having 20 officers volunteer for the assignment. Reportedly, SAPD provided video and audio surveillance equipment and trained the Park Police on how to conduct the operations. According to the chief, the Park Police now conduct stings in areas frequented by lesbians as well as heterosexuals, and no longer focus only on gay men, as in past operations. Nevertheless, data provided by the Park Police appears to suggest that gay men continue to be targeted and arrested – 43 cases involving single men were recorded, compared with only eight heterosexual couples through the year up to November 2003.^¹⁴⁵ According to park rangers, most arrests occur after rangers run across a man displaying his genitals or masturbating.^¹⁴⁶ The Chief of San Antonio Park Police maintains that officers are not “enticing or provoking behavior – we are being accosted.”^¹⁴⁷ In documentation, analyzed by AI, of previous arrests made during sting operations, however, accounts were given of rangers using words and body language to give the impression that they wanted sex.^¹⁴⁸

In addition to the use of so-called “morals regulations,” AI is concerned that even though “sodomy” laws have been struck down following Lawrence, such statutes are reportedly still utilized against LGBT individuals in some areas. For example in Virginia, a judge recently sentenced a man to six months in prison reportedly for “solicitation of sodomy” after he was arrested for propositioning an undercover officer in a public restroom.^¹⁴⁹Furthermore, it has been reported in New York that 296 arrests between 1981 and 2001 were made under New York State’s law against consensual “sodomy,” although the law had been declared unconstitutional in 1980.^¹⁵⁰Arbitrary arrest and detention is prohibited under international law. ^¹⁵¹

AI is concerned about reports from advocates alleging that arrests are frequently based on misrepresentation of events by undercover police officers, who often are the only witnesses to the alleged offense. Allegations have been made that police officers in Los Angeles "embellish or fictionalize aspects of a police report to justify the arrest" in such cases.^¹⁵²Advocates also charge that the standard language used in police reports is rarely amended to reflect the individual circumstances of the incident, raising concerns about their veracity. In Detroit and Los Angeles, advocates with access to a representative number of arrest reports have noted that the reports bore a remarkable similarity. AI reviewed several reports in San Antonio and observed the same pattern.

AI is also concerned by reports in Chicago, Los Angeles, New York, Washington D.C. and Detroit which indicate that police target locations where Latino, African American and/or South Asian, as well as immigrant individuals, are reported to congregate for lewd conduct enforcement. ^¹⁵³In Los Angeles, 54 percent of arrests made between August 1999 and July 2001 were of men of color (41 percent Latino and 11 percent African American).^¹⁵⁴Targeting an individual on this basis of his or her race and/or sexual orientation violates the right to be free from discrimination under international law and standards.^¹⁵⁵

Los Angeles: "On the afternoon of Thursday, June 10, 1999, I accompanied [a defense attorney] on some discovery defense work with regard to a particular case… As we approached the site and parked, I noticed a middle-aged Latino man walking towards the bathroom. We …walked toward the bathrooms. The walk to the bathroom took less than one minute. Upon entering the bathroom, I observed a tall Caucasian man … the Latino who previously walked into the bathroom was in one of the bathroom stalls. I began assisting in taking measurements and notes, and observed the Latino man exit the bathroom stall and walk past us. The Caucasian man stopped the Latino man, identified himself as a police officer and told the Latino man that he was under arrest for lewd conduct … At no time did I see the Latino man engage in any wrongful or lewd conduct.”^¹⁵⁶

Discriminatory policing of morals regulations has a potentially severe impact on LGBT immigrants, who could face deportation as a consequence of a conviction, since a felony charge is a deportable offense, and charges considered moral turpitude negatively impact immigration proceedings.^¹⁵⁷Furthermore, policing of parks and other public areas particularly affects individuals with limited financial means and individuals who are not “out” to their families or neighbors, since these are often the only spaces where they are able to meet and socialize.^¹⁵⁸

AI believes that the discriminatory aspects of targeted lewd conduct operations create an atmosphere conducive to misconduct and abuse. AI is concerned by reports of ill-treatment in connection with undercover operations.^¹⁵⁹

San Antonio: Two men in San Antonio were reportedly beaten when they were arrested for lewd conduct. Allegedly one man was kicked, beaten and punched. The other man ran into the woods and waited for the police to leave; when he came back for his car, police patrolling the area saw him and he was reportedly also beaten.^¹⁶⁰

Police officials told AI that targeted enforcement of morals statutes is in response to community complaints.^¹⁶¹However, in Los Angeles both the Christopher Commission^¹⁶²and advocates have challenged the LAPD’s reliance on public complaints as justification for the enforcement of Section 647(a), noting that arrests are rarely based on current complaints by members of the public.^¹⁶³Comments to AI by LAPD officials suggest that complaints may be kept open indefinitely.^¹⁶⁴In San Antonio, officials told AI “most of this work is complaint driven” and if “complaints come in often enough, we have to deal with it.”^¹⁶⁵However, AI received reports from advocates that such complaints are often vague and homophobic in nature, and may not specifically relate to sexual activity but rather to the presence of gay men in parks.^¹⁶⁶The Supreme Court of California upheld an appeals court determination that lewd conduct charges in the town of Mountain View were the result of discriminatory enforcement against gay men. The trial court had examined police records for a two-year period and determined that “the officers’ method of operation was designed to ferret out homosexuals ... without any relationship to the alleged problems at that location for which the citizen complaint had been initially lodged.”^¹⁶⁷ Under the UN Code of Conduct for Law Enforcement Agencies, states must act to ensure that all parts of the population are protected equally.^¹⁶⁸ To ensure greater transparency around morals enforcement, AI calls upon authorities to release the number and nature of complaints.

“The biggest problem we are having from the standpoint of wrongfully charged defendants is that 95 percent of them are so embarrassed by the charge, either indecent exposure, lewd behavior or assault [sexual] on an officer, they are afraid to fight.”

Andrew Thomas, Civil Attorney, San Antonio, Texas ^¹⁶⁹

“I think the overall thing is that this was a policy that took advantage of the humiliation of being arrested for public lewdness … They counted on the fact that people were so humiliated that they would accept a guilty plea.”

Michael L. Spiegel, Attorney representing gay man charged with public lewdness in New York^¹⁷⁰

The discriminatory and selective enforcement aspects of targeted lewd conduct operations not only create an atmosphere conducive to abuse, but also foster a climate of impunity.Officers are often able to act, secure in the knowledge that their behavior will not be investigated thoroughly or indeed at all. AI is concerned that many individuals charged under morals regulations may not challenge an officer’s version of events, questionable entrapment techniques or abuse and are therefore silenced out of fear of their sexual orientation being revealed, public embarrassment, loss of employment or immigration repercussions.^¹⁷¹Furthermore, many of those arrested are unable to afford the costs of mounting a defense.^¹⁷²This exacerbates the climate of impunity. As a result, individuals may be wrongfully convicted of a criminal offense, carrying potentially significant consequences.^¹⁷³

Police reportedly fuel stigmatization of gay men in some locations by releasing information to the media, leading to televised arrests or local papers printing the names of those arrested under such statutes.^¹⁷⁴The stigmatization of gay men in San Antonio is further demonstrated by media coverage of the arrests of gay men in sting operations, allegedly often tipped off by law enforcement. A local TV station aired a news segment entitled “Perverts in the Park,” showing men being led out of the bathrooms after being arrested for indecent exposure, believed by advocates to have fueled undercover efforts and further complaints from citizens. Such disclosure may be in contravention of Article 4 of the Code of Conduct for Law Enforcement Officials, which stipulates that law enforcement must respect privacy and confidentiality.

San Antonio: Benny Hogan was arrested as part of a sting operation by the San Antonio Police Department. Soon after, his name appeared in a local media account of the park arrests. Three days after the article appeared, Hogan went into his garage and hanged himself. His family filed a civil lawsuit against San Antonio Express-News. The Express-News has since ceased printing the names of those arrested for indecent exposure.^¹⁷⁵

The new Park Commissioner in San Antonio told AI that he has taken steps so that the media are not alerted to where arrests are being made, although he indicated that sometimes the media are waiting at the jail and are always focused on gay men.^¹⁷⁶

However, according to some advocates, these operations do little to curb sexual activity at the targeted locations regardless of whether the media is alerted to the arrests or not. Instead, several US organizations advocate the use of alternative methods such as posting warning signs, additional lighting, writing tickets, and patrols by uniformed police, arguing this will curtail sexual activity without resorting to humiliating and abusive practices.^¹⁷⁷In some cities, organizations have emphasized dialogue between the police and affected communities, focusing on providing training and education as well as a commitment from the police to investigate allegations of misconduct.^¹⁷⁸For instance, the City of West Hollywood does not allow enforcement of Section 647(a) within its jurisdiction, while the Los Angeles County Sheriff's Department in its entirety has reportedly entirely ceased undercover enforcement operations throughout the county due to a lack of resources.^¹⁷⁹

4.1.6 Police Raids of LGBT Gatherings

At the time of the Stonewall Riots in New York in 1969, police raids of bars and nightclubs frequented by LGBT individuals were a regular occurrence in cities across the United States. For example in the late 1960s, nightly raids on gay bars in Los Angeles – particularly in the Silver Lake district – were reported, leading to a number of arrests and allegations of police brutality.^¹⁸⁰ Although raids of gay bars are no longer as widespread,^¹⁸¹reports indicate continued police targeting of venues where LGBT people socialize. According to the NCAVP, between 1999 and 2003, police raids have been reported in New York, Massachusetts, Michigan, Minnesota, New York, San Francisco, Chicago, Detroit, Houston and St Louis.^¹⁸²

Reports to AI indicate that LGBT bars and establishments in traditionally “gay neighborhoods” in some cities are largely allowed to operate without interference by police. AI has heard, however, reports of police targeting LGBT bars catering to transgender individuals and communities of color, in particular in areas outside traditionally gay neighborhoods.^¹⁸³Reportedly, police raids in several locations have been attributed to enforcement of administrative codes, such as health department violations; however, advocates charge that such enforcement would not ordinarily be undertaken primarily by police, and that these violations are merely a pretext for harassment and intimidation of bar owners and patrons.^¹⁸⁴

AI is concerned about reports of verbal and physical abuse as well as inhumane and degrading treatment of LGBT individuals during raids. Some raids have reportedly involved high numbers of officers and excessive force against individuals. For example,

Fresno, California: A gay nightclub filed a lawsuit in January 2003, alleging that Fresno police continually harassed the establishment’s members and employees. Police officers allegedly made homophobic comments, including comments “about homosexuals being wrong under God’s law,” during raids of the club.^¹⁸⁵

Highland Park, Michigan: In the early hours of 2 March 2003, police reportedly raided The Power Plant, a popular gay after-hours club, arresting the club owner and several hundred patrons. The club operator was arrested on several charges, including operating an illegal establishment and selling alcohol without a liquor license. 350 misdemeanor citations for illegal trespass were issued to the club’s patrons, and more than 150 cars were impounded and towed from the scene. Reportedly, 50 to 100 officers stormed the premises dressed in black clothing and using laser sights, causing panic among patrons. Patrons were bound with their hands behind their back and forced to lay face-down on the concrete floor, in some cases for more than eight hours. Reports indicate that those arrested were not permitted to use the bathroom and several were forced to relieve themselves where they lay. Some reported being kicked in the head and back, slammed into walls and verbally abused. Reportedly, officers were heard saying, “Those fags in there make me sick.” The Wayne County Sheriff’s Department claimed they were acting on complaints from neighbors and were acting in response to concerns of public safety.^¹⁸⁶

New York: On 16 November 2003, a Pinoy^¹⁸⁷ transgender man reported attending a fundraising event in Brooklyn, New York. The fundraising event was attended by many LGBT people of color. Police officers reportedly saw four individuals standing outside the event drinking alcoholic beverages in public, a misdemeanor offense. The transgender activist reportedly took photographs of two undercover officers. Two officers allegedly grabbed him, pushed him down on the trunk of the car, kicked his legs apart and repeatedly hit his head against the trunk, then handcuffed him. According to witnesses, the police began indiscriminately spraying people with mace (a type of pepper spray), punching people, beating them with billy-clubs and dragging them along the sidewalk. The transgender man reported witnessing a “queer”^¹⁸⁸ Latino man in a fetal position on the ground being kicked by four officers. He also reported seeing police pull a black woman by her hair to the ground and beat her with their batons. According to the organization holding the event, at least 20 people suffered injuries in the course of the incident, including blunt trauma, lacerations, contusions and lower back spasms. One person reportedly required medical treatment for a hematoma on his right frontal skull caused by a severe blow to the head. Eight people were reportedly arrested but all charges against them were later dismissed at trial. AI understands that a civil lawsuit against NYPD is now pending.

AI believes the type of treatment alleged constitutes torture or cruel, inhuman or degrading treatment in contravention of international standards,^¹⁸⁹and further violates standards requiring that law enforcement officials respect and protect human dignity and maintain and uphold the human rights of all persons.^¹⁹⁰ Law enforcement officials also must use force only when strictly necessary and only after non-violent means are attempted first, with any use of force proportional to the lawful objectives and with restraint.^¹⁹¹Furthermore, selective targeting of individuals based on their sexual orientation, gender identity or expression, or race violates international standards under ICERD and the ICCPR that prohibit discrimination.

4.1.7 Demonstrations – Targeting of LGBT Demonstrators and Activists

AI has heard reports indicating that law enforcement officers have targeted for abuse and arrest protestors at demonstrations on LGBT issues, as well as LGBT contingents or participants in more general protests. One advocate in New York told AI, “There is a tendency to separate queer activists from the others.”^¹⁹²

Increasingly, across the United States, law enforcement agencies are employing a range of tactics aimed at controlling crowds at large gatherings and demonstrations.AI has previously raised concerns that such tactics have resulted in serious human rights abuses.^¹⁹³ Furthermore, the security measures instituted after the September 11 attacks, including the 2001 USA Patriot Act, have reportedly further had a chilling effect on the right to protest.^¹⁹⁴In New York City, advocates claimed that the creation of an NYPD Counter Terrorism Bureau had increased police powers to investigate political activity, and resulted in greater law enforcement presence and severely aggressive policing tactics at demonstrations. AI has received reports that law enforcement personnel have selectively targeted LGBT contingents and activists at demonstrations; employed excessive force at LGBT demonstrations and rallies; used homophobic and transphobic slurs; and arbitrarily detained and searched individuals.

New York: In March 2003, NYPD officers reportedly verbally and physically abused members of “Irish Queers” who had erected a platform on which to protest the exclusion of LGBT individuals in the annual parade to mark St Patrick’s Day. J.F. Mulligan was reportedly slapped across the face by an officer who shoved Mulligan’s face against the metal grating of a partition inside the police van. Mulligan claims that at the precinct, he heard another officer say, “Little faggots all over the place today.” Another member, Emmaia Gelman, reported that she was grabbed by officers who pulled her onto the roof of a police truck where they were stationed, and one officer laid her down so that her head hung over the side, while clamping down on her neck with his boot. She alleges that she was then handcuffed and dragged headfirst off the police vehicle.^¹⁹⁵

Advocates reported to AI that transgender and gender variant demonstrators tend to be selectively targeted by police.

San Antonio: After refusing to show her ID at a political demonstration on 30 October 2003, a lesbian woman was arrested. Officers allegedly pulled her to the ground and kneed her in the back. She reported bruises across the front of her chest from the pavement, and scratches and bruising on her back. At the police station, she reports that officers pulled up profiles on their computer and repeatedly asked her, “Are you this man? No, you can’t be, you’re too ugly.” Eventually, when the officers saw her ID, they housed her with the women.^¹⁹⁶

San Francisco: At a demonstration that took place in 2003, most of the transgender activists who were detained were reportedly subjected to strip and cavity searches while reportedly very few of the other detainees were searched.^¹⁹⁷

San Francisco: In another incident, an activist reported to AI that she witnessed the harassment of a transgender man during an anti-war demonstration in March 2003. She reported that she was detained with the transgender protestor and a large group of other demonstrators in a covered parking lot for about 10 hours before being transferred to the county jail, where they were again detained outside in the cold because the facility was full. She told AI that police officers wanted to subject the transgender activist to a “medical test” to prove that he was biologically female for placement purposes. She alleges that she overheard one female officer interrogate the transgender activist in front of a crowd of people and say to him, “Just answer me: Do you have a penis or a vagina?” She described the whole event as “truly horrible” and dehumanizing.^¹⁹⁸

AI is concerned at reports that LGBT demonstrators were detained and denied medication despite carrying necessary prescriptions and identification. AI heard reports of transgender individuals and LGBT people of color being detained for longer than other protestors before being released following an arrest at a demonstration.

New York: Activists in New York reported that when Operation Homeland Resistance conducted civil disobedience in New York City in May 2003, a number of LGBT activists were arrested. According to organizers, “a higher percentage of women, the majority people of color, and the majority of queer people were detained overnight while others were released only after six hours.” The last person reportedly released from police detention several days later was a black lesbian.^¹⁹⁹

Miami, Florida: A white transgender woman was arrested at a protest in 2003 and detained in the general men’s population. She was reportedly in possession of hormones and other medications, which were accompanied by a prescription, but according to her attorney, she was denied access to her medications for the three days she was detained. She related to her attorney that she was strip-searched “extra times” because she was transgender and was verbally harassed by law enforcement personnel. Her attorney also raised concerns that she was housed with the male population. She has reportedly been charged with a felony violation for possession of a controlled substance – allegedly for being in possession of prescription medication without a prescription.^²⁰⁰

The right of peaceful assembly is a basic human right.^²⁰¹ The Basic Principles on the Use of Force and Firearms by Law Enforcement Officials stipulate that, when dispersing assemblies, force must be avoided, or, where that is not possible, it is minimally used.^²⁰² Furthermore, international standards prohibit arbitrary arrest and detention and require that law enforcement officials protect the health of persons in their custody.^²⁰³

4.2 “Quality of Life” Enforcement and Gentrification

“[How] do we ensure that age or skin color or national origin or harmless mannerisms will not also become the basis for distinguishing the undesirable from the desirable? We can offer no wholly satisfactory answer to this important question. We are not confident that there is a satisfactory answer except to hope that by their selection, training and supervision, the police will be inculcated with a clear sense of the outer limit of their discretionary authority.”

James Q. Wilson and George L. Kelling, “Broken Windows”^²⁰⁴

“Quality of life ordinances make it much easier for the local police force to criminalize, harass and arrest LGBT and people of color.”

Testimony of Trishala Deb, program coordinator of the Audre Lorde Project ^²⁰⁵

“Being black and being trans gives the police the right to do what they want. I was sitting on a stoop trying to find something in my bag. An officer from the 10^th Precinct asked me for my ID and then gave me a ticket for disorderly conduct. The officer told me that if he saw me in the area again, he would arrest me. I told him that he’d better get used to seeing me because I worked in offices nearby. When it went to court the summons was dismissed – thankfully, I have a good lawyer.”

AI telephone interview with transgender woman 26 February 2004

“Zero tolerance” and “quality of life” policing is a law-enforcement strategy that seeks to create public order by aggressively enforcing laws against minor offenses; for example, public drunkenness, loitering, vandalism, littering or public urination.^²⁰⁶This method of policing is premised on a theory, which asserts that minor social disorder, if left unattended, causes serious crime. Leading the way for other police departments both nationally and internationally, New York City began implementing a “quality of life” initiative in 1993. While the approach has been credited with a reduction in the city’s crime rate,^²⁰⁷the increased arrest rates for minor offences, largely involving people of color, have also reportedly led to an increase in complaints of police abuse and misconduct, giving rise to several high profile police brutality cases.^²⁰⁸cases.NYPD officials told AI that “quality of life” enforcement remains an important aspect of police activity, and is a priority in precincts such as the 6^th precinct.^²⁰⁹ Furthermore, a number of “quality of life” provisions have been successfully challenged in domestic courts on the grounds that they are overly vague and afford too much discretion to the police or on the basis of selective enforcement.^²¹⁰

Reports to Amnesty International in all four cities studied indicate a pattern of discriminatory enforcement of “zero tolerance” and “quality of life” regulations against members of LGBT communities, in particular transgender individuals, LGBT people of color, LGBT youth, homeless and poor individuals, and those engaged or perceived to be engaged in sex work. LGBT individuals may initially be targeted under “quality of life” regulations on the basis of their race, ethnicity, age or socio-economic status, and in many cases it is difficult to gauge whether they were also targeted on the basis of their sexual orientation or gender identity. While a person may initially be targeted based on their race, for example, the risk of police abuse may increase when the person’s sexual orientation or gender identity becomes apparent.^²¹¹

4.2.1 Discriminatory enforcement of “quality of life” ordinances

“If there is a group of queer youth of color hanging out in front of the subway station on Christopher Street the police will tell them they are loitering, but if it's a group of white tourists blocking the subway entrance they don't say anything.”

Gabriel Martinez, FIERCE!, New York^²¹²

“They see homeless people on the street as committing a crime – but if they cannot get a shelter, what are you going to do?”

Outreach Worker, Gay and Lesbian Adolescent Social Services, Los Angeles^²¹³

AI is concerned that some “quality of life” ordinances give rise to discriminatory application and misconduct by police. “Quality of life” regulations such as loitering, disorderly conduct and noise violations are frequently vague, thereby affording individual police officers considerable discretion when enforcing such regulations. Such statutes are prone to abuse by individual officers who may be motivated by their own prejudice or acting on complaints from members of the public motivated by homophobia, transphobia and racism.“Quality of life” regulations that are not vague, such as those criminalizing the consumption of alcohol, storage of belongings, and urination in public spaces also tend to be discriminatorily applied towards certain communities. One advocate noted, “The police cannot possibly prosecute all minor offenders with equal force … Instead of genuine zero tolerance, the police must inevitably exercise discretion about where to focus their limited resources.”^²¹⁴Reports to AI suggest that policing of such ordinances have mostly impacted those who stand at the intersection of identities, and that there are significant racial, age-related and socioeconomic disparities in the manner in which these regulations are policed.

AI found a pattern in each of the cities studied that LGBT individuals of color are disproportionately targeted for enforcement of “quality of life” ordinances. For example, AI heard reports that LGBT people of color in some instances are perceived to be "out of place" in areas identified as predominantly white LGBT communities, based on stereotypes about the racial makeup of the LGBT community.^²¹⁵

AI also notes that young LGBT people have very few spaces to socialize and congregate, as many may not be able to be “out” at home and they do not have access to age-restricted, fee-paying venues. LGBT youth will therefore often tend to congregate in LGBT-friendly areas where they feel safe. AI has received a number of reports indicating that young LGBT people are subjected to police misconduct, harassment and abuse in the context of policing “quality of life” regulations curbing activities such as “loitering” or “unreasonable” noise. Reports indicate that transgender youth and LGBT youth of color in particular have been targeted through selective enforcement of “quality of life” provisions, in some cases while conducting outreach for non-governmental organizations.^²¹⁶AI has heard reports suggesting that law enforcement personnel have profiled young LGBT individuals of color as gang members.^²¹⁷In Los Angeles, for example, Latina lesbians are reportedly profiled by police as gang members based on gender variant appearance, behavior and attire, such as wearing baggy pants.^²¹⁸

Chicago: A young African American gay outreach worker was waiting at a bus stop in December 2003 when Chicago police officers allegedly arrested him for loitering with the intent to solicit, despite providing identification and corroborating information from the organization he represents. He was reportedly detained in a downtown precinct for two days.^²¹⁹

San Antonio: Monique, a 17-year-old Hispanic lesbian, told AI that she was with three “straight” friends when park police in Breckenridge Park stopped her in 2003. Officers asked her for her ID and threatened to arrest her. One officer reportedly said, “I could put you in jail for not having your ID.” Monique told AI, “I dress kind of weird. More tomboyish so the police look at me more. They keep asking me questions like ‘Where do you live?’ ‘What are you doing out so late?’ My ‘straight’ friends don’t get asked even if they are the one driving. They ask me all the questions. SAPD are not as bad as the park police.”^²²⁰

Discriminatory policing of “quality of life” regulations appears to be strong in gentrifying areas,^²²¹which have traditionally provided safe space for LGBT individuals. Reportedly, gentrification is frequently accompanied by increased policing of “quality of life” ordinances, as law enforcement agencies are charged with protecting the revitalized space.^²²²AI heard that residents’ groups in Chicago and New York reportedly have placed strong demands on law enforcement and municipal authorities to increase enforcement of “quality of life” ordinances, in some cases attempting to drive out perceived “undesirable elements” themselves.^²²³AI is concerned that such pressure may foster a climate which is likely to lead to discriminatory application of the law, abuse and misconduct by the police, as they respond to demands to “clean up” the area. The Audre Lorde Project has commented that in relation to gentrification, “it becomes painfully obvious that people who do not fit into these categories (such as LGBTST^²²⁴people and people of color) are virtually powerless and are seen as having little or no value or legitimacy in the larger community.”^²²⁵AI has heard reports indicating that young LGBT people in West Hollywood, California; Chelsea and the West Village, Hudson River Piers and Times Square in New York; Lakeview in Chicago; and the Castro in San Francisco are routinely harassed, ticketed, told to move on or arrested.^²²⁶

New York: FIERCE!, a community organizing project for LGBT youth in New York City, conducted a survey of young LGBT people in the West Village and Chelsea in 2003.^²²⁷ The organization found that 59 out of 60 respondents had experienced police harassment, violence or misconduct. The majority of complaints alleged verbal abuse, harassment and threats of arrest. Of these, 15 respondents felt they were targeted on the basis of their sexual orientation, 13 on the basis of their race.

Amnesty International is concerned at reports in each of the cities studied that “quality of life” ordinances are selectively enforced against homeless individuals.^²²⁸Those within the homeless communities who are particularly marginalized, including LGBT people, youth and individuals of color, are reportedly more likely to be targeted for selective enforcement and other police misconduct. Reports indicate that a significant number of homeless individuals are LGBT. As discussed in later in chapter 9, “Identity-Based Discrimination and Police Abuse,” many members of the LGBT communities face severe economic hardship on the basis of discrimination, particularly transgender individuals, and may face additional discrimination on the basis of race, immigration status, age and gender. It is estimated that in some cities in the U.S. up to 40 percent of homeless youth are lesbian, gay, bisexual or transgender.^²²⁹In some cities, this number may be even higher.^²³⁰Reports also indicate that a significant proportion of the transgender community is homeless, particularly transgender persons of color and immigrants.^²³¹ AI notes that shelters and other resources for homeless individuals do not adequately accommodate LGBT individuals, particularly transgender individuals.^²³²

Los Angeles: At PATH, Los Angeles’ largest homeless shelter, transgender women are reportedly housed in men’s dormitories, placing them at risk of abuse by other residents, and of being challenged by security officers who demand to see their genitals when they use women’s bathrooms. As a result, transgender women avoid the shelter.^²³³

Both homeless and young LGBT individuals, particularly individuals of color, have reported frequent identification checks by law enforcement, sometimes resulting in searches, interrogations and the issuance of tickets, as well as arrest, detention and in some instances the destruction or confiscation of identification papers.^²³⁴In Chicago, homeless and transgender youth reported police demanding identification papers, sometimes on a daily basis, and in some instances police allegedly confiscated identification or threw it away.^²³⁵AI is concerned at the impact that such practices could have on the homeless LGBT community and LGBT youth, particularly gender variant and transgender individuals who may not be in possession of identification matching their gender identity or expression. The selective targeting of homeless and young LGBT individuals for identification checks based on their sexual orientation, gender identity or expression, or race violates standards under ICERD, ICESCR and the ICCPR that prohibit discrimination.

5. Sexual, Physical and Verbal Abuse

On 19 July 2000, Frederick Mason, a 31-year-old African American nurse's assistant with no criminal record, was arrested following a verbal altercation with his landlord. Mason claims that at the police station, two unidentified officers took him to an interrogation room, where he was handcuffed by the elbows and pinned to a wall. The arresting officer is alleged to have pulled down Mason's pants and sprayed blue cleaning liquid on a billy club before ramming the baton into Mason's rectum. As he raped Mason, the officer is alleged to have made remarks such as “I’m tired of you, faggot ... you sick motherfucker.” A second unidentified officer is alleged to have witnessed Mason’s pants being pulled down, but walked away during the assault. Witnesses have attested that Mason entered police custody in good health and when released had blood streaming from his rectum. Mason's family doctor confirmed that he had been injured in the anal area. Mason contends that he was subjected to abuse -- including racist and homophobic names such as “faggot ass nigger” and “nigger fag” -- from the moment he was arrested.^²³⁶ In 2002, Mason received an out-of-court settlement of $20,000.^²³⁷

The alleged targeting of LGBT individuals for sexual, physical or verbal abuse occurs in many different situations and contexts, as will be presented in detail below and throughout this report. Sexual, physical and verbal abuse frequently occurs together. Reports of sexual and physical abuse by law enforcement against LGBT individuals are often accompanied by homophobic and transphobic slurs, in some instances when verbal abuse escalates to physical or sexual abuse. Information received by AI suggests that verbal abuse against LGBT individuals is frequently sexualized, in particular against lesbians and transgender individuals. The failure of authorities to tackle issues such as homophobia and transphobia in police forces creates a climate in which such violations can proliferate.

AI heard reports of sexual harassment and abuse of LGBT individuals in all cities studied as well as in other locations in the U.S. including Philadelphia; Washington, D.C.; Athens, Georgia; Montgomery, Alabama; and San Francisco, California. Sexual abuse and misconduct by police officers may cover a range of conduct, including rape, sexual assault, threatened sexual assault, sexual contact, as well as sexually explicit language and gestures. AI’s findings also include reports that LGBT individuals have been subjected to sexual abuse or harassment while in detention, at the hands of other detainees and, in some cases, by officers.

AI received reports in Chicago; Los Angeles; New York; San Antonio; San Francisco, Sacramento and San Diego, California; Lehigh Valley, Pennsylvania; Austin, Texas; Lincoln, Rhode Island; and Connecticut of LGBT individuals being subjected to physical abuse including being kicked, slammed against walls and beaten with a baton.

AI heard numerous reports of officers being verbally abusive towards LGBT individuals with officers frequently focusing on perceived sexual orientation or gender identity or expression of individuals in a derogatory and demeaning manner. AI has heard reports from Chicago; Los Angeles; New York; San Antonio; Springfield, Illinois;Philadelphia and Lehigh Valley, Pennsylvania; San Francisco, California; and Washington, D.C. of officers using slurs including “faggot,” “dyke,” “freak” and “he/she.” AI is concerned at such reports, noting that verbal abuse serves to dehumanize LGBT people, creating a climate of prejudice and impunity in which misconduct as well as egregious physical or sexual abuse is more likely to take place.

Reports indicate that, in particular, LGBT individuals who do not conform to traditional gender “norms,” especially in their appearance or presentation, are more likely to be singled out for verbal, physical and sexual abuse, and that transgender individuals are disproportionately targeted by law enforcement. Furthermore, incidents reported to AI indicate that homophobia, transphobia and racism often occur together in incidents of police misconduct and abuse against LGBT people of color. AI’s findings further suggest that a significant proportion of reports of sexual, physical and verbal misconduct against LGBT individuals concerned people of color, mirroring general trends of police brutality in the U.S. Advocates had also raised concerns about increased profiling of immigrants of color as a result of police policies and practices adopted in the wake of 11 September 2001.^²³⁸

Age and socioeconomic and immigration status also compound the risk of sexual, physical and verbal abuse by law enforcement. AI also received a number of reports of sexual misconduct by police against individuals perceived to be engaging in sex work, including extortion of sexual favors in exchange for leniency or protection. A Chicago advocate told AI that young LGBT individuals who engage in sex work report that officers -- sometimes on duty and other times not -- ask for sexual favors.^²³⁹Officers in New York and Chicago reportedly subject LGBT youth to verbal and physical abuse.^²⁴⁰Physical abuse against LGBT sex workers, particularly transgender individuals, was reported to AI in Chicago, Los Angeles, New York, San Antonio, Philadelphia and D.C.^²⁴¹ AI heard reports in Chicago, Los Angeles, New York and San Antonio that officers engage in homophobic, transphobic, racist and sexist verbal abuse when communicating with particular communities, including LGBT people of color, homeless, youth, sex workers and immigrants.^²⁴²

5.1 Sexual abuse

“You’d be surprised how many policemen I had sex with. They’d say, “You do it with me, or I’m going to arrest you for prostitution.” Then they’d tell me to go home and I better not tell anybody.”

Toni Collins, Co-Founder of D.C.’s Transgender Health Empowerment^²⁴³

“The police are not here to serve; they are here to get served …. Every night I'm taken into an alley and given the choice between having sex or going to jail.”^²⁴⁴

AI interview with Native American transgender woman in Los Angeles

AI heard reports of sexual harassment and abuse of LGBT individuals in Chicago, Los Angeles, New York and San Antonio as well as in other locations including Montgomery, Alabama; Washington, D.C.; Athens, Georgia; Philadelphia, Pennsylvania; and San Francisco, California. Reports included allegations of rape and other sexual abuse by police officers, including sexual assault, threatened sexual assault, sexual contact, as well as sexually explicit language and gestures.

AI received reports of police sexually abusing and harassing transgender individuals in Chicago, Los Angeles, New York, San Antonio, Washington, D.C., Philadelphia and San Francisco.^²⁴⁵

Los Angeles: A Native American transgender woman reported that in October 2003, at around 4 a.m., she was walking down Highland near the intersection with LaBrea when two LAPD officers pulled over and told her they were going to take her to jail for “prostitution.” She told the officers that she was just walking, and wasn't engaged in sex work. The officers reportedly handcuffed her, put her in the patrol car and drove her to an alley off Hollywood Boulevard. According to the woman, one of the officers pulled her out of the car, still handcuffed. The officer reportedly began hitting her across the face, saying "you fucking whore, you fucking faggot," and then grabbed her by the mouth, covering it while he continued hitting her. The officer allegedly threw her down on the back of the patrol car, ripped off her miniskirt and her underwear and raped her, holding her down and grabbing her hair. The second officer is also alleged to have raped her. According to the woman, they threw her on the ground and said, "That's what you deserve," and left her there.^²⁴⁶ She reports that she contacted 911 but that the responding paramedics did not believe her. As the LAPD allows anonymous and third party complaints, AI contacted the LAPD to provide details on the nature of this allegation (without revealing the confidential identity of the individual concerned). LAPD indicated a willingness to investigate this allegation further; however, were unable to do so without speaking to the complainant.^²⁴⁷

New York: Two young, Latina transgender women report being approached and questioned by police officers in a patrol car in 2001. The officers allegedly threatened them with arrest unless they had sex with them. The women reportedly performed oral sex on the officers before being let free. They did not report the incident because of their undocumented immigration status and due to threats of retaliation.^²⁴⁸

Orange County, California: A transgender advocate told AI: “About two years ago two MTF [transgender female] youth were at a club in Orange County. They were driving home when they were pulled over by the cops. The cops looked at their ID and saw M [male] on the license. They were told that they had to follow the cops and they were taken to a secluded place and asked to give the officers blow jobs.”^²⁴⁹

While this section concentrates on alleged misconduct by police officers, AI has also heard several reports of sexual abuse of transgender individuals held in detention. Reports indicate that transgender people are at risk of sexual violence while in detention and may be subjected to sexual harassment, sexual assault and in some instances rape. [See Detention section for additional information.]

Montgomery, Alabama: Marissa, a white transgender lesbian woman, reports that in 2001 she was abused in jail. She told AI, “Two jailers and a state trooper made me strip in front of them while they looked on … I was made to dance around in front of them, shouting ‘I’ve got a penis, I’ve got a penis!’ Then they made me hold my penis in front of them and show them I could masturbate. I was then cavity searched; the anal search was excruciatingly painful, much more than any physician-directed rectal exam I ever had. I was then told to shower while one guy watched. By this time I was very, very weak, and collapsed, injuring my arm, shoulder and back …. I pleaded to see a doctor but was ignored and forced to walk to a cell carrying a mattress. The police officers and jailers constantly referred to me as ‘that dick’ …. Apart from the fact that I was repeatedly forced to admit I was a man, I was called ‘faggot,’ ‘sir’ and ‘fucking pansy.’”^²⁵⁰

AI also received reports of lesbians experiencing sexual assault and harassment at the hands of police officers.^²⁵¹

Athens, Georgia: In 2004, a lesbian from Athens filed a civil lawsuit alleging that a former Gwinnett County Georgia deputy raped her because she is a lesbian. The officer is accused of forcing her into her apartment at gunpoint and raping her. The woman said the officer vowed to "teach her a lesson" and said "the world needed at least one less dyke and he was going to make sure that happened."^²⁵² He was charged with rape, false imprisonment, aggravated assault with a deadly weapon, aggravated assault with intent to rape, and violating his oath of office. According to the Athens-Clarke County District Attorney’s office, while acquitted on a number of charges, the officer was found guilty of violating his oath of office. The officer agreed to a deal whereby he received two years probation where he was to have no contact with the victim, he was banned from Athens-Clarke County, and promised not to appeal the decision.^²⁵³

Los Angeles: A young Latina lesbian was arrested with a friend for shoplifting in October 2003. As they were being transported to the station, the two women began talking about how their girlfriends were going to be angry with them for getting into trouble. The arresting officer began asking them questions such as "You guys are gay? You have a girlfriend? Where is your girlfriend at? What do you and your girlfriend do?" The officer then asked the two women to kiss, telling them he would let them go if they did so.^²⁵⁴

Reports include gay men who have been raped, including with objects, and sexually abused. (See, for example, the case of Frederick Mason, above.)

Los Angeles: In February 2003, police came to a 36-year-old gay Latino man’s house to get him to testify against a friend who had robbed his house. When he refused to go with them, one officer reportedly shouted, “You homo faggots, wasted our time with shit like this!” The officer pushed the Latino man against the couch and “poked him with a club from behind,” simulating raping him with it and saying, “You must be used to that.”^²⁵⁵

AI also heard reports of sexual abuse of young gay men in Chicago, Illinois.^²⁵⁶

Chicago: AI heard from young gay men and advocates in Chicago that a particular officer had taken young men to a clock tower and that, in the words of one alleged victim, he will “remove his badge, gun and belt and then beat you unless you give him a blow job, after which he’ll just leave you there.” ^²⁵⁷

Chicago: In 2001, a 16-year-old gay, white, homeless boy reported that he was subjected to verbal harassment by two officers who would pull over whenever they saw him. They reportedly assumed he was a sex worker, and allegedly subjected him to homophobic comments and slurs, often with sexual undertones, such as: “You’re having anal sex with everyone else, why not with us?” and “You may as well come over and do me.”^²⁵⁸

Under international law, the rape of a prisoner by a state official is considered to be an act of torture. Other forms of sexual abuse may be torture and are clearly violations of the internationally recognized prohibition of cruel, inhuman and degrading treatment or punishment, which governments are called upon to interpret “so as to extend the widest possible protection against abuses, whether physical or mental.”^²⁵⁹Sexual abuse also violates the right to be treated with respect for human dignity, and the right to privacy under international law, both enshrined in the ICCPR. Targeting of individuals because of their sexual or gender identity or expression violates not only their right against sexual abuse but also their right to be free from discrimination, which is enshrined in the ICCPR and Convention Against Torture.

5.2 Physical Abuse

On 13 August 2001, Jeremy Burke, a white transgender man, was visiting his partner. According to Burke, the Housing Authority security guard refused to let Burke in, citing a policy that residents must come down to the lobby to admit a visitor. Burke attempted to explain that his partner was ill and needed the medication he brought for her. According to Burke, the security guard shoved him into the elevator.^²⁶⁰ Approximately 15 minutes after he arrived at his partner’s apartment, three police officers came to the door, entered the apartment and pulled Burke out of a chair, carried him into the hallway and started punching him in the face, chest and eyes. Reportedly, Burke’s head was slammed into the floor and wall.^²⁶¹ The police report, which consistently uses the wrong pronouns and refers to Burke as a woman, alleges that Burke attempted to strike and later to bite one of the officers, but was subdued. Burke was arrested on charges of assault, battery, resisting arrest and trespassing and taken to the police station, where he alleges he was subjected to humiliating and transphobic verbal abuse and medical neglect.^²⁶² Burke was vomiting bile and blood for several days after the beating and finally, after the third day, he was taken to San Francisco General Hospital where it was discovered that his kidneys were injured from the beating and bleeding internally. Reportedly, his black eye and bruises were visible and documented.^²⁶³ All charges were eventually dropped except the trespassing count. On 24 July 2003, Burke filed a civil suit against the City and County of San Francisco.^²⁶⁴ According to his attorney, the case will be heard in November 2005.^²⁶⁵

“Bias against lesbians and gays also contributes to excessive use of force. As one LAPD officer put it, ‘It’s easier to thump a faggot than an average joe. Who cares?’ Another officer said that gay people tend to get beaten more frequently than straight people because ‘they love it. They want to get hit.’”

LAPD officers, cited in the Christopher Commission Report^²⁶⁶

“Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.”
Article 3, UN Code of Conduct for Law Enforcement Officials^²⁶⁷

Police brutality and use of excessive force has been one of the central themes of Amnesty International’s work against human rights violations in the U.S. and the organization has worked on police brutality for a number of years. For example, AI has previously documented patterns of ill-treatment across the U.S., including police beatings, unjustified shootings and the use of dangerous restraint techniques to subdue suspects.^²⁶⁸The Human Rights Committee, charged with monitoring the implementation of the terms of the ICCPR, has expressed concern regarding police abuse in the U.S., stating: “The Committee is concerned at the reportedly large number of persons killed, wounded or subjected to ill-treatment by members of the police force in the purported discharge of their duties.”^²⁶⁹

AI received a number of reports of LGBT people being targeted for physical abuse by law enforcement officers based on their sexual orientation or gender identity or expression. In some reports, physical abuse by law enforcement was the result of excessive force employed during arrest. In others, LGBT individuals who were victims of a crime were subjected to physical abuse by responding officers. Other organizations have also reported on incidences of police violence against LGBT individuals. The National Coalition of Anti-Violence Programs documented 31 reports of physical violence against LGBT individuals by law enforcement officers in 2003.^²⁷⁰

As noted above, AI found that a significant proportion of reports of physical misconduct against LGBT individuals concerned people of color, mirroring general trends of police brutality and misconduct in the U.S.^²⁷¹Few studies are available specifically regarding the incidence of physical abuse against LGBT individuals of color. However, reports to AI indicate that policing of LGBT individuals varies along gender and racial lines.

[INSERT PHOTO OF RACHEL THOMPSON]

In an email to Amnesty International, a transgender woman from Pennsylvania described the following incident:

“When I came out as a transsexual, I went from a $100,000 a year job to homeless and on welfare in less than two years. In the Summer of 2000, after a disagreement over one of my welfare payments, the police arrived at the welfare office, and the next thing I knew a cop was breathing down my neck, pushing me toward the door while I tried to explain that I had an appointment. There were four officers outside. One officer got in my face with the most vile insults I could imagine; his buddy stood nearby, nightstick in hand, ready to strike. The other two watched uncomfortably nearby. I got the impression they were trying to goad me to fight or react so they could run me in. The one officer, the leader, was so vicious and abusive even his one ally seemed distressed at the mindless aggression and hate he spewed forth. The anger and hate directed at me was more intense than I could describe. I thought I was going to be killed right in front of welfare. With every push -- or stab -- of his billy club, I thought I would die. Finally, I collapsed. Between the pain of the blows and the mental distress, I broke down. I curled up in a fetal position on the sidewalk, crying and babbling about how I was suffering from depression and I had tried suicide and this was not a good thing to do to someone in my state of mind. I begged them to call crisis intervention. For my plea I received kicks and screams and spit. Finally, ‘Go home!’ he screamed at me. ‘Go home and kill yourself, go home to your faggot boyfriend.’ ‘She is not a boy,’ I retorted between desperate sobs, ‘she is a woman like me.’ This really pissed him off. I prepared for the next kick. But by this time, the other three cops were imploring him to stop and let me up. I guess there was one sensible cop that could smell a lawsuit in the making. ‘You don’t treat people like this in a public place, too many witnesses,’ I heard somebody say. So they let me up -- or more accurately they grabbed me and placed me on my shaky feet. Officer Testosterone was still screaming but now it was to go. He screamed at me to ‘walk, just walk, faggot.’ I sent letters explaining the incident to the State Attorney General, the welfare board, the Mayor and the Chief of Police, to no avail. I learned, however, that it is perfectly legal to discriminate against transsexuals in countless ways. Go figure. That is when I decided to become an activist. Abuse can be very inspiring …. I will never forget to fear the police. I will always mistrust the system. I will never expect justice or freedom again. I learned that transsexuals, no matter how excellent … in the past, are the most undervalued and discriminated people on earth. I learned that transsexuals have no credibility and few rights.”

Rachel Thompson, email to Amnesty International, 23 February 2004

Allegations of police officers physically abusing transgender individuals were reported in Los Angeles, Chicago, San Antonio and New York as well as in Pennsylvania, San Francisco and Washington, D.C.^²⁷²AI heard that transgender women of color and transgender individuals “who may not pass” are targeted for police misconduct, including physical abuse.^²⁷³The Ella Baker Center and TransAction in San Francisco notes that some of the worst incidents of police misconduct are targeted at immigrant transgender women.”^²⁷⁴

LA: A white transgender woman was arrested during a September 2002 sex work sting operation conducted in hotels on Sunset Boulevard in Los Angeles. Officers allegedly questioned her as to whether she had undergone sex reassignment surgery and strip-searched her in front of three officers, apparently in order to determine her genitally determined sex. She described the situation as “humiliating.” During the search, one of the officers reportedly grabbed her head and slammed it into a wall with such force that the bone holding her front teeth was broken, requiring medical treatment.^²⁷⁵

New York: Two NYPD officers, summoned in response to a 911 request for medical assistance in the Bronx, are alleged to have attacked JaLea Lamot, a transgender woman, in November 1998. According to witnesses, police officers verbally abused her and pushed her against a wall after discovering she was a transgender woman. A large number of officers reportedly entered the apartment and family members and a visiting neighbor were beaten, maced and arrested. The family filed a civil lawsuit alleging police misconduct and received a financial settlement from the city in 2002.^²⁷⁶

New York: Sammy Velez, a transgender woman, reportedly snatched a purse and two officers chased her. Velez fell to the floor and was beaten and kicked by the officers. As a result her left eyeball was reportedly ruptured, and her collarbone and facial bones were fractured. The City of New York paid Velez $75,000 to settle a claim that the police used excessive force in blinding her left eye. Reportedly, the officers involved were not disciplined.^²⁷⁷

Chicago: An African American transgender woman reports that in December 2004, a police officer responding to a domestic dispute broke her wrist by throwing her against a wall and to the floor. In spite of her indicating that her wrist had been hurt, the officer twisted her wrists and handcuffed them behind her. As a result of a resisting arrest charge, she was taken into custody and held for two and a half days. During that time, she reports consistently asking for and being denied medical assistance. Her broken wrist was reportedly treated only after her release.^²⁷⁸

Other organizations have also found that transgender individuals are targeted for physical abuse. A 2001 Los Angeles report found that 14 percent of the 244 participants in a survey of transgender women reported that they had suffered physical abuse by a police officer at least once.^²⁷⁹Based on data from 1995 to 1999, the National Coalition of Anti-Violence Programs reported that although anti-transgender violence accounted for only about two to four percent of all reported incidents, those incidents accounted for approximately 40 percent of the total incidents of police-initiated violence.^²⁸⁰

Lesbians are also subjected to violence by law enforcement officers because of their sexuality, particularly in terms of their physical appearance.^²⁸¹Rebecca Young from the National Drug Research Institute told AI that women perceived as "masculine" are assumed to be non-compliant and to resist arrest. During a three-year study undertaken by her organization, she reports hearing that when arrested, "masculine appearing" women are generally treated with greater physical harshness and that their handcuffs are placed too tight.^²⁸²

California: A self-described “multiracial” lesbian told AI she was physically abused by police officers on 5 May 2003 after police arrived at their home in response to an altercation involving her white partner and a contractor on their property. She told AI that although the situation was calm, the moment she told an officer that she needed to go and help her “lover” who was sick, the officer suddenly grabbed her arm forcefully from behind, forcing her arm straight back and twisting it up at the wrist, wrenching her arm “as if it was going to pull out of the socket.” When the woman attempted to break free, she was thrown to the ground and reportedly held in a chokehold.^.²⁸³ She told AI that one of the officers forced down her pants and exposed her buttocks. Reportedly, one of the officers also kicked her in the back, and two others hit her on the side of the face so that her head hit the pavement. She told AI that she couldn’t breathe, began to black out and that she went into convulsions.^²⁸⁴

Washington, DC: An African American lesbian reported that in 2002, police officers “grabbed me by the neck and smashed my face into the door and my tooth chipped.” She also reported that a male officer then proceeded to unbutton her trousers during a search on the street. Officers reportedly asked, “Why are you wearing boys’ underwear? Are you a dyke? Do you eat pussy?”^²⁸⁵

AI also heard a number of reports of physical abuse of gay men by police officers in San Antonio, New York, Los Angeles and Chicago.^²⁸⁶Reports of physical abuse by law enforcement were also received from other locations, including San Francisco, California; Oakland, California; Lincoln, Rhode Island; and Connecticut,^²⁸⁷including the following:

Chicago: In November 2000, Jeffrey Lyons, a 39-year-old heterosexual white man, was allegedly beaten by off-duty officers when he embraced a male friend. Officers reportedly shouted anti-gay epithets, one officer yelling, “Get this through your head: You faggots will never win.” Lyons suffered a fractured cheekbone, broken nose and neurological damage.^²⁸⁸

Chicago: In July 2000, Kentin Waits was reportedly beaten by officers while in police custody at the 19^th District station, and called “fucking faggot” and “gay motherfucker.”^²⁸⁹

Los Angeles: In 2002, two white officers arrested an Asian gay man. During the course of the arrest the officers reportedly shoved the man’s face up against a wall and beat him while shouting homophobic slurs, including “butt plug” and “girlie man.”^²⁹⁰

San Antonio: On 31 July 2001, two heterosexual, Canadian male tourists allege that they were verbally and physically abused by the San Antonio Park Police because they were perceived to be gay. They were reportedly handcuffed, beaten, bruised and dragged face-first on the concrete by Park Rangers while being called “Canadian faggots” and subjected to other homophobic slurs.^²⁹¹ After this incident it was discovered that the officer involved was previously an officer in another district in Texas, and that while on duty there he was investigated several times for alleged excessive force until he was ultimately forced to resign from the department.^²⁹²

Lincoln, Rhode Island: On 29 August 2000, Jesse Ousley, a 17-year-old boy, was walking with his boyfriend and stepped into the street in front of an off-duty police officer’s unmarked car. After the near-collision, Ousley reportedly “slapped” the hood of the officer’s car. The officer reportedly got out of his car and started hitting Ousley. Ousley reportedly suffered two black eyes, a bloody nose, bruises and cuts, including marks on his neck where the officer allegedly tried to choke him. Ousley’s boyfriend pulled the officer off and tried to walk away with Ousley. But when the officer overheard Ousley tell his boyfriend that he loved him, he reportedly attacked Ousley again, shouting, “You [expletive] faggot.” Ousley was taken to a hospital for his injuries. After the family requested an investigation, the police filed charges against Ousley, charging him with assault, disorderly conduct and malicious damage 18 days after the incident. Ousley was found guilty of malicious damage for kicking the officer’s car, but the two other charges were dropped. The Ousley family filed a $1 million lawsuit against the town and police department.^²⁹³ The lawsuit has reportedly been settled for an undisclosed amount and it appears that the officer involved still remains on the police force.^²⁹⁴

Oakland, California: A gay Latino man was arrested while driving in Oakland in 2001. As officers put him into the patrol car, one of the officers reportedly commented on his pink socks, calling them "faggot socks," and slammed the door on his ankle – he had to have his ankle in a brace.^²⁹⁵

AI is also concerned at incidents reported to AI where officers have responded to victims of crime, including hate crimes, with verbal and physical violence.^²⁹⁶

Chicago: A gay white man called the police in Chicago because he had been attacked. Reportedly, responding police officers made homophobic comments and taunts and pushed him, shoved him and beat his head into the pavement. He did not defend himself against the blows, but was reportedly threatened with a criminal charge.^²⁹⁷

The illegal and discriminatory use of force against LGBT individuals as documented in this report violates an individual’s right not to be subjected to torture or to cruel, inhuman and degrading treatment, which is specified in the ICCPR and the Convention Against Torture, treaties to which the U.S. is a party.^²⁹⁸

5.3 Verbal abuse of LGBT Individuals

“I’ve had cops say, “Are you just like a faggot? Do you have a dick?”

Transgender woman participant, meeting between Transgeneros Unidos and representatives of LAPD, Los Angeles 23 October 2003.^²⁹⁹

Both LGBT victims of police abuse and activists that AI interviewed for this report stated that homophobic and transphobic verbal abuse by police was a serious problem. That LGBT people who came into contact with the police were frequently subjected to verbal abuse of a homophobic or transphobic nature. Despite the serious nature of this problem, one of the challenges in assessing the full degree of the problem is that there currently exists very limited capacity to document verbal abuse by law enforcement officers against LGBT individuals. Furthermore, there may be underreporting of these abuses.^³⁰⁰However, scandals involving homophobic and transphobic slurs by law enforcement have been reported in the media. For example, in the District of Columbia in 2001, police officers were found to have been sending racist, homophobic and sexist e-mails through their patrol car computer systems. Metropolitan Police Department Executive Assistant Chief Terrance Gainer reportedly observed, “There appear to be significant numbers of people who are either ignorant or racist or homophobic or a terrible combination of all three.”^³⁰¹

In the following, reports to AI of verbal abuse against transgender individuals, lesbians and gay men will be presented in more detail.

AI heard reports of police officers verbally abusing transgender individuals in Los Angeles, Chicago, San Antonio and New York, as well as in Philadelphia and Lehigh Valley, Pennsylvania; San Francisco, California; and Washington, D.C. Reports indicate that the use of transphobic and homophobic verbal abuse and slurs, including the use of the word “faggot” and “freak,” is widespread when transgender individuals interact with law enforcement officers in the United States.^³⁰²A 2001 survey of 244 transgender women in Los Angeles found that 37 percent of respondents reported verbal abuse by a police officer on at least one occasion.^³⁰³

AI heard a number of reports of dehumanizing and degrading verbal abuse against transgender women.^³⁰⁴Advocates report that many officers have “no respect” for transgender women, make fun of them and call them “freaks.”^³⁰⁵In New York, AI heard of officers yelling abusive comments at transgender women including, “you’re disgusting” and “get out of here.” In one incident, an NYPD officer observing an African American transgender woman on the street reportedly said, “What the fuck is that?”^³⁰⁶In another case, officers called a black transgender woman and her Latina friend “monsters.”^³⁰⁷Verbal harassment and abuse reported to AI also includes deliberately humiliating transgender people by using inappropriate pronouns or an individual’s prior female or male name, and questioning what a person’s “real” gender is.^³⁰⁸

Reportedly, officers in Los Angeles regularly drive by transgender women who have congregated and look at, ridicule and humiliate them, asking them why they are wearing women's clothes, saying “aren't you a man?”^³⁰⁹Comments reported to AI in Chicago include “you’re a man.” ^³¹⁰AI heard reports of officers in New York, Los Angeles, Chicago and D.C. referring to transgender people as “he/she/it,” or “he/she.”^³¹¹

Philadelphia, Pennsylvania: Finesse Kelly, an African American transgender woman, and a friend were attempting to hail a cab in the early morning hours of 4 February 2002 in Philadelphia. A police officer reportedly hurled slurs at Finesse, including “retard” and “animal,” and then arrested her.^³¹²

Lehigh Valley, Pennsylvania: “When I told them my real name, Rachel, they refused to recognize that and continued to call me by my male name … The State Troopers tried to keep their smirks and comments at a distance, but I still heard words like ‘fag’ and ‘freak’ a number of times.”^³¹³

As noted above, reports to AI indicate that degrading comments are frequently sexualized. For example, a Native American transgender woman told AI that officers in the Hollywood area regularly call out “suck me, bitch.”^³¹⁴Verbal abuse targeting transgender individuals often insinuates that transgender women are sex workers. For example, in Los Angeles, individuals and community advocates report that officers frequently call transgender women "whore," "slut" and "prostitute."^³¹⁵

AI has also heard of instances where officers have verbally abused transgender men.^³¹⁶ Verbal abuse of transgender men often targets their perceived transgression of gender “norms”; in several cases officers made derogatory comments about the men’s genitalia.^³¹⁷Reports to AI indicate that transgender men are less likely to be targeted for abuse on the street, but are harassed based on their gender identity if their gender identity is discovered. “A lot of officers don't think of the possibility of trans men; they feel lied to, fooled.”^³¹⁸

New York: A Filipino transgender man was arrested in New York in 2003. When he gave the police his ID and papers, an officer said, “I know what you are. I know your kind. I just want you to know you’re never going to have a family like me, kids like me, a dog like me. And know that whatever you strap on between your legs will never be as real or as big as mine. You’re going to end up like the rest of your kind: without a job, homeless and shooting up drugs.” The police put him in a cell with female arrestees. Officers walked past him repeatedly, mocking his name and asking, “What is this thing?”^³¹⁹

Reports from advocates indicate that the less a transgender individual “passes,”^³²⁰the more harassment and attention the individual receives. This means that transphobic attitudes and verbal abuse particularly affect homeless and low-income transgender women who can't afford surgery or hormones.^³²¹Furthermore, race or ethnicity and socioeconomic status reportedly also play an important role in the degree of police harassment suffered by transgender women.^³²²

AI received several reports of verbal abuse of lesbians, including women who were called "dyke" as an insult during interactions with law enforcement.^³²³Verbal abuse of lesbians often focuses on perceived gender transgressions. In all four cities studied by AI, reports indicate that police single out lesbians who look “masculine” for verbal harassment and abuse; as one advocate noted, “Anyone who is gender variant, such as butch lesbians, is more likely to be mistreated or seen as suspect.”^³²⁴A Latina lesbian in San Antonio told AI, “Lesbians get treated real bad … especially butch women. Some cops accuse you of taking girls away from them.”^³²⁵In a study of lesbian and bisexual drug users, Rebecca Young found a pattern of officers threatening them with physical abuse, saying, “You want to be a man, I’ll treat you like one,” and heard of officers calling “butch” lesbians “wanna-be man.” Reports further indicate that in particular, police target “butch-identified” women of color.^³²⁶

Reports to AI indicate that verbal harassment of lesbian women and girls is frequently of a sexual nature. Lesbians in New York reported that police officers make comments suggesting that their sexual orientation needs to be "corrected," such as, “You need a real man” or “Try me and you won't be a lesbian.”^³²⁷AI heard of officers making such comments to women they perceive to be the more “feminine” in a couple when responding to domestic violence incidents in the San Francisco Bay Area..^³²⁸

Los Angeles: A 28-year-old Latina lesbian reported that in 2001 she was pulled over by a police officer, who asked her if the rainbow sticker on her car meant that she was gay. When she responded in the affirmative, the officer began to ask her questions about her personal life, including how old she was when she first kissed a girl, whether she had ever been with a man, and whether she used sex toys. The officer then proceeded to advise the woman that her "lifestyle" wasn't a good one, but that it was a "choice" and she "could change." The woman reported that, while his conduct made her uncomfortable, she felt compelled to answer the officer's questions.^³²⁹

AI has heard a number of reports of police officers calling gay men “faggots”. The use of the term “faggot” is reportedly also used as a general derogatory term regardless of whether an officer perceives an individual to be gay.^³³⁰Men who do not conform to traditional gender “norms” are targeted for verbal abuse. AI heard reports from gay men and men perceived to be displaying “feminine” characteristics that officers have subjected them to comments such as “sissy” and “princess.”^³³¹AI also heard reports in Los Angeles and New York from police officers that if a fellow officer acted in any way “effeminate” he would be called “faggot.”^³³²

Chicago: A 22-year-old African American gay man was walking through a park in 2003 when he was stopped by two Chicago Police Department officers. They reportedly called him a “fag,” handcuffed him and threw him in their car. He was kept in jail, without charges, overnight.^³³³

Chicago: When a man, who does not identify as gay, reportedly did not respond immediately to a police officer's request to remove a barricade that he had placed in a parking space in front of his place of work in order to unload musical equipment, the officer allegedly became angry and slammed him against the wall and called him a “fag.” The officer charged him with disorderly conduct; however, the charges were later dismissed and the man sued and won a settlement.^³³⁴

LA: A gay Latino man told the Anti-Violence Project of the Los Angeles Gay and Lesbian Center that on one occasion, an officer "put his knee up his butt" while handcuffing him, saying "you guys should be used to that."^³³⁵

New York: A black gay man, Mr. G., was leaving a park in 2000 when a uniformed officer pointed a gun at him, saying, “If you move, I’ll shoot you.” After complying with the officer’s request to show identification, Mr. G. was taken to a police van waiting nearby. He reports, “The police started making gay jokes, saying, ‘fags’ and talking negatively about black people.”^³³⁶

New York: A gay white man wore a t-shirt that said, “Fight AIDS not Iraq” to an anti-war demonstration in 2003. He passed a police officer standing in front of a fire station. The officer reportedly yelled at him, “If you didn't fuck each other in the ass you wouldn't get AIDS.” ^³³⁷

AI is concerned by the remarks made by the officer in the above case that would appear to conflate AIDS with sexual orientation. Gay men of color have reportedly been subjected to verbal abuse which is both racist and homophobic in nature by law enforcement officers, including in the following incidents:

Chicago: A young African American gay man was standing outside a games arcade with some friends in Chicago. Police officers reportedly passed in a squad car and yelled at them to “move their ass out of the way.” The officers reportedly searched the young people, and are alleged to have verbally abused the young African American, calling him “nigger faggot” and saying that “his ass is not big enough to fuck.” He was charged with disorderly conduct after talking back to the officers and was taken to the station. This caused a lot of problems with his parents, as he is not out to his family, and they wanted to know what he was doing in Lakeview. The charges were dropped after an appearance in court.^³³⁸

AI is concerned at incidents reported to AI where officers have responded to victims of crime, including hate crimes, with verbal and physical violence.^³³⁹

Verbal abuse against LGBT individuals as documented in this report violates the prohibition under Article 7 of the ICCPR against cruel, inhuman and degrading treatment. Cruel, inhuman and degrading treatment relates “... not only to acts that cause physical pain but also to acts that cause mental suffering to the victim.”^³⁴⁰This is important where people may suffer psychologically or emotionally because of the homophobic, transphobic, racist verbal abuse and degrading treatment they experience at the hands of the police. Furthermore, verbal abuse violates an individual’s right to be treated with dignity, as stipulated in Article 2 of the U.N. Code of Conduct for Law Enforcement Officials, which provides that law enforcement officials shall respect and protect human dignity in the performance of their duty.^³⁴¹

6. Searches and Detention

AI has received reports of cruel, inhuman and degrading treatment of LGBT individuals during arrest, searches and detention in police precinct holding cells. AI heard reports of officers searching transgender and gender variant individuals in order to determine their “true” gender. AI also heard allegations of misconduct and abuse of LGBT individuals in holding cells and detention centers, including the inappropriate placement of LGBT individuals in situations which compromise their safety. In particular, transgender individuals are often placed in holding cells according to their genitally determined sex rather than their gender identity or expression, placing them at greater risk of verbal, physical and sexual abuse at the hands of other detainees.

While outside the scope of this report, AI researchers also heard reports indicating systemic issues of mistreatment and abuse of LGBT individuals in long-term detention facilities, including immigration detention centers.^³⁴²Further research is necessary into the treatment of such individuals in longer-term detention settings.

6.1 Searches and “Gender Checks”

“Pat-down searches rarely seem to be about weapons or safety and more often seem to be about ‘gender checks.’ They usually involve the officer groping a person’s groin and/or breasts in an effort to ‘figure things out.’ Some male cops are curious or fascinated about transgender women.”

Chris Daley, Transgender Law Center, San Francisco, 27 October 2003

An African American transgender woman was arrested by LAPD and taken to the county jail. She told AI, “The officers wanted to see my chest. They wanted to see if I had tits or not.” They reportedly came into her cell and instructed her to remove her shirt. After she complied, they left.^³⁴³

A transgender man was arrested during a political protest in San Francisco. He showed the officer a drivers’ license that identified him as legally male and he was placed in a holding pen with the other male detainees. One officer got curious about the activist’s gender status and came into the cell, then reportedly pushed him around, dragged him out and belligerently accused him of having a fraudulent identification card. A second officer asked him if he had a “dick” and groped his crotch and chest to “verify his gender.”^³⁴⁴

AI heard a number of reports of illegal and inappropriate searches of transgender and gender variant individuals in Chicago, Los Angeles, New York and San Antonio, as well as Alabama and Florida.^³⁴⁵Searches may take a number of different forms, from a pat “frisk” search^³⁴⁶to a strip search or body cavity search. Reports to AI indicate a pattern of officers undertaking searches which involve inappropriate touching of an individual’s genitalia in order to establish an transgender individual’s “true” sex, i.e., genitally determined sex. Such “gender checks” may take place, for example, if an individual’s identification does not match their gender presentation, or when the individual is taken to a police station and a decision has to be made about whether a gender variant or transgender person should be placed in a male or female holding cell.^³⁴⁷

6.1.1 Police Policy and Training Procedures

“It would depend on what the officer believed at the time” and an individual “may be dressing like a female, but if I know you’re male I’m going to search you.”

Deputy Chief Jeffrey Page, Resource Management Division of the San Antonio Police Department^³⁴⁸

The United Nations Human Rights Committee has stated that to ensure protection of the dignity of a person who is being searched by a state official, a body search should only be conducted by someone of the same sex. ^³⁴⁹The existing standards clearly seek to establish guidelines whereby the safety and dignity of individuals in detention are safeguarded, principles that should be understood to include transgender individuals.

Under U.S. law, an officer can only perform a pat search on the street if the officer has a reasonable, articulable suspicion, based on his or her observation of the individual’s behavior, that the individual is armed and could be dangerous to the officer and/or the public.^³⁵⁰In the United States, courts have taken different views about the legitimacy of cross-gender "pat" searches, as thorough pat searches require some contact with the genital area, even though the individual is still clothed.^³⁵¹

In AI’s survey, police departments were asked whether they had any policies regarding strip searches of transgender persons. Out of the 29 police departments responding to AI’s survey only seven (24 percent) reported having a policy.^³⁵² Four police departments reported that they do not perform strip searches and the following departments reported that they do not have a policy or a practice governing strip searches of transgender persons: Bridgeport, Connecticut; Wilmington, Delaware; Atlanta, Georgia; Honolulu, Hawaii; Baltimore, Maryland; Boston, Massachusetts; Jackson, Mississippi; Omaha, Nebraska; Manchester, New Hampshire; Albuquerque, New Mexico; Memphis, Tennessee; San Antonio, Texas; Virginia Beach, Virginia; Seattle, Washington; and Cheyenne, Wyoming.

In Los Angeles, Chicago, New York and San Antonio, AI found that generally speaking, the policy of law enforcement agencies is to have officers with the same genitally determined sex conduct searches of transgender persons. In other words, a transgender woman who has not undergone sex reassignment surgery will be searched by a male officer, and a transgender man who has not undergone sex reassignment surgery will be searched by a female officer.

Chicago: Chicago Police Department told AI that they have the “same policy to perform a strip-search on any other arrestee.” Reportedly searches are conducted by officers of the same sex, and it appears that unless a transgender woman has undergone sex reassignment surgery she will be searched by a male officer and unless a transgender man has undergone sex reassignment surgery he will be searched by a female officer. Officials told AI, “Transgender is only clothing. You would have to ask them what sex they are, in private,” and said that they inquire into whether an individual has undergone surgery.^³⁵³ This was confirmed by reports from Chicago-area advocates.^³⁵⁴

LA: Los Angeles Police Department responded to AI’s survey and stated that they do have a policy on the searching of transgender persons: “Officers search same-sex detainees.”

New York: Although the NYPD did not respond to AI’s survey, it did allow AI representatives to interview officials at the police headquarters and also at four precincts. NYPD officials told AI that they do not have a specific policy regarding searches of transgender individuals.^³⁵⁵ However, officials at one precinct told AI that existing procedures do allow for frisk searches to determine genitally determined sex.^³⁵⁶ One NYPD official told AI, “Searches are based on biology regardless of what they think they are,”^³⁵⁷ and officials also told AI that if a person has had sex reassignment surgery, officers of the same sex would search them.^³⁵⁸ In another meeting with NYPD officials, however, AI was told, “If you tell the officer you want a woman to search the top and male to search the bottom, we’ll accommodate you as best possible.”^³⁵⁹

San Antonio: In response to AI’s survey, SAPD indicated that they do not have any policies or procedures regarding strip-searching transgender people. Chief Ortiz also told AI that the department had no specific policy on searching transgender individuals but “if they are dressed as a female we are calling a female officer.” However, as noted above, Deputy Chief Jeffrey Page indicated that “it would depend on what the officer believed at the time” and an individual “may be dressing like a female, but if I know you’re male I’m going to search you.”^³⁶⁰ It’s clear that there is no firm policy, and comments made by Page appear to suggest that a male officer would search a transgender woman. San Antonio’s Sheriff’s Department told AI that a transgender woman is searched as a man during the intake procedure.

6.1.2 Inappropriate Searches of Transgender Individuals

Amnesty International received several reports that officers use pat searches or strip searches to determine an individual's sex. Transgender individuals and advocates report that, during street encounters and traffic stops, police officers regularly demand that persons they perceive to be transgender reveal their "real" gender, at times asking inappropriate and abusive questions such as "Do you have a dick?" In several cases, AI has heard of police officers performing full or partial searches of transgender or gender variant individuals in public, either on the street or in police facilities in full view of other detainees and law enforcement officers. Searches of transgender women are reportedly frequently marked by the officer’s insistence that transgender women are men. Repeated and unnecessary searches of transgender individuals in police custody, by both police officers and medical professionals, have also been reported.

Chicago: An African American transgender woman reports that after being arrested in December 2004, she was repeatedly subjected to police officers gathering and staring at her, making comments such as “Do you know what that is?” She reported being searched three times, including at the processing center, where one of the arresting officers searched her vaginally, but not anally. She told AI that she suspected that the search was to find out about her sex and for the benefit of curious officers, rather than for a legitimate purpose.^³⁶¹

Los Angeles: A Native American transgender woman reports that she was standing near a tree at 2:30 a.m., smoking a cigarette, when an officer pulled up, got out of the patrol car, hit her and shoved her up against a tree, pulling her hair back roughly. He reportedly told her, "I'm going to have to ask you to remove your underwear," claiming that she had concealed something on her person, and pulled down her miniskirt and underwear, spreading her legs. The officer demanded to know “where the drugs were,” and when she responded that she didn't have any, took off her shirt and made her take off her bra, leaving her standing naked in the middle of the street. She told AI, “People were driving by. I was so embarrassed.”^³⁶²

New York: A Latina transgender woman was approached by two white police officers in a car on her way home from a nightclub in 2000. One officer leaned out the window and began to ask her personal questions about her anatomy: “Are your breasts implants or hormones?” and “What’s up with your genitalia?” The officer then asked her to show him her breasts. Michelle told AI, “I didn’t know what to do, I couldn’t think and was worried that if I didn’t do what he said I’d provoke him and he’d maybe get out of the car, maybe arrest me for something I didn’t do.” She complied with his request and the officer then let her go.^³⁶³

San Antonio: An African American transgender woman told AI that while on her way to work as a dancer in October 2001, she was reportedly stopped by a police officer while crossing the street. When the officer went to search her she reportedly told him, “I’m a transsexual” and “My breasts are real.” She asked him to call a female officer to search her. The officer reportedly became offended and said, “Let me see if you are” and then grabbed her right breast. The officer said, “I’m not going to call anybody.” She was then arrested for jaywalking and soliciting. During her time in detention she was searched twice: once at the processing center and once at the Bexar County Jail. Both of the times she was searched in full view of male detainees and was searched by male officers, even though she reportedly objected both times. ^³⁶⁴

Germantown, Pennsylvania: After police had been called to a domestic incident in 2002, it was reported to AI that, “the cops had to frisk “EF” [a transgender woman]. I witnessed the cop cupping both of her breasts as he searched her person for weapons. While the other cop looked on, the one doing the search looked at him and made a mocking face …. They did not try very hard to hide their disrespect or disdain in front of “EF”, but after she had gone they literally laughed out loud in front of Lisa and I, making many derogatory remarks such as ‘Did you see the size of the tits on that freak?’ until we informed them that we too were transsexuals. At that they held their tongues.”^³⁶⁵

San Francisco: A transgender woman was arrested by the San Francisco Police Department on a misdemeanor charge. After reportedly being told she was "under arrest for bad fashion," she was strip-searched. One officer commented that she had "a pretty big dick for a woman."^³⁶⁶

AI is concerned by reports that transgender people are victims of sexual abuse during searches. Such abuse includes the use of sexually offensive language; male staff touching transgender women's breasts and genitals when conducting searches; female staff touching transgender men’s genitalia; and male or female staff and other detainees watching transgender detainees while they are naked. In San Antonio, Sheriff Lopez told AI that following a complaint by an inmate, three officers had recently been suspended for fondling a transgender woman’s breasts.^³⁶⁷

AI recommends that if a frisk or search is necessary under governing legal standards, transgender persons should be searched by two officers of the gender(s) requested by the transgender individual, consistent with maintenance of physical integrity and human dignity of the person. If a transgender individual does not specify a preference, then the search should be conducted by officers of the same gender presentation (e.g. a transgender female expressing no preference should be searched by a female officer). Advocates also argue that thorough training is critical, as practices used to alter body shape to conform with gender identity, such as "binding" of breasts or wearing a prosthetic penis, may, during a pat-down by an untrained officer, be perceived as concealed weapons or means of concealing them.^³⁶⁸

AI believes that searches and frisks to determine an individual’s genitally determined sex are never justified and constitute cruel, inhuman and degrading treatment, in contravention of international law.^³⁶⁹ It is essential that all police departments develop policies and conduct training on issues relating to searches of transgender individuals, and searches should not be conducted for the purpose of determining gender. The implementation of such policies should be carefully monitored and officers should be held accountable for failing to adhere to the requirements.

6.2 Treatment in Detention/Holding Cells

6.2.1 Failure to Protect LGBT Individuals From Other Detainees

6.2.1.1 Housing of LGBT Detainees: Detention Policies and Procedures

The placement of LGBT individuals in relation to other detainees has an important impact on their dignity and safety, in particular for transgender individuals. While the primary focus of this section is the treatment of transgender individuals in detention, it is important to note that gay, lesbian and bisexual individuals may also be targeted for abuse while in detention. Further research needs to be done to address this issue in greater depth.

Out of the 29 police departments responding to AI’s survey, 17 (59 percent) report having no policy on detention of transgender people,^³⁷⁰only nine (31 percent) reported having any policy, two (seven percent) failed to provide a response and one department indicated that it does not, itself, detain individuals.^³⁷¹Police authorities in the U.S. generally place transgender individuals into male or female holding cells based on their genitalia and in some cases transgender individuals may be held in separate holding cells.^³⁷²

Chicago: Reportedly the Chicago Police Department and Cook County detention facility do not have an official detention policy regarding the housing of transgender individuals.^³⁷³ Chicago Police Department officials told AI that placement determination is made based on whether a transgender individual is pre- or post-surgery, but that “it is common sense” to hold him or her in a separate cell, which they do “as much as possible.”^³⁷⁴ In response to AI’s survey, CPD reported that they have a “practice” whereby the watch commander can make a determination to house an arrestee separately, if necessary.

Los Angeles: In response to AI’s survey, the LAPD indicated that detention of transgender individuals is “based on their genitalia.” According to the ACLU of Southern California there is a significant LGBT population detained in the Los Angeles County jail at any given time.^³⁷⁵ Following a lawsuit initiated by the ACLU in the early 1980s, a special unit, known as K-11, was created for LGBT and HIV-positive individuals at the jail.^³⁷⁶ It appears, based on the LAPD’s response to AI’s survey, that as a matter of policy, however, transgender individuals are not placed in K-11, but rather in the men’s or women’s section of the detention facility, depending on their “genitalia.”

New York: While the NYPD’s stated policy is that they will detain transgender individuals in gender-segregated facilities based on their genitally determined sex, NYPD officials told AI that they try to isolate transgender individuals where possible for protection, and noted that there is rarely more than one person in a cell at any given time, since precincts usually have between 10 and 12 holding cells.^³⁷⁷

San Antonio: SAPD indicated in response to AI’s survey that they do not have any policies or procedures regarding the detention of transgender people. San Antonio’s Bexar County Sheriff’s Department, which runs the county jail system, told AI that a “female impersonator” who had not had surgery must be classified as male. Accordingly, a pre-operative transgender woman will be housed with men.^³⁷⁸

Placement of LGBT Individuals: Placing Individuals at Risk

An African American transgender woman told AI she was dressed in “drag” when they detained her in “the tank”^³⁷⁹ with males at the Bexar County Jail, San Antonio. When she asked why they were putting her in with the men, an officer told her, “Oh, bitch, you’re going to like it,” she reported. While in the tank she said that she started screaming, “They’re going to attack me.” Finally, a female officer came and the transgender woman reports saying to her, “Miss, I’m a transsexual” – the officer told her to “get the fuck out.” After nearly eight hours in the tank, without food, she was taken to her own cell. She also reports that officers refused her access to the medicine she takes for HIV.^³⁸⁰

AI has previously found that certain groups of detainees, including LGBT people, may be especially at risk of violence from other detainees. AI heard several reports of LGBT individuals being placed in cells with other detainees and, based on their sexual orientation or gender identity, being subjected to verbal, physical or sexual abuse by other detainees. In some cases of abuse against LGBT detainees by other inmates, it appears that officers have not taken appropriate measures to ensure their safety, or have failed to intervene in dangerous situations. In some instances reported to AI, officers have contributed to an atmosphere conducive to attacks against LGBT individuals by “outing” LGBT people to other detainees,^³⁸¹conducting degrading searches in plain view of others, or by engaging in homophobic or transphobic verbal abuse. AI is concerned that “outing” of LGBT individuals could lead to abuse and misconduct by other detainees. When police and prison authorities, as agents of the state, fail to protect inmates from violence at the hands of other detainees and prisoners, they can be held accountable for torture or ill-treatment. Institutional and societal homophobia and transphobia means that police and prison officials are often able to act, secure in the knowledge that their behavior will not be investigated thoroughly, or indeed at all. One of the consequences of this climate of impunity is that people whose rights have been violated are silenced.

As described above, AI has found that the majority of police departments surveyed do not have any policy on the housing of transgender detainees. According to an advocate in Chicago, “what often happens is that they don’t know what to do with them.”^³⁸²

New York: In November 2003, a transgender man was reportedly handcuffed to a pole because police officers did not know where to house him.^³⁸³

Policies where a transgender person's genitally determined sex determines the location in which they will be detained in gender-segregated facilities, regardless of their gender identity or expression or their legal gender, have serious implications and increase the risk of transgender individuals being subjected to serious human rights abuses, including cruel, inhuman and degrading treatment and torture. AI’s findings indicate that transgender detainees are at high risk of violence from other prisoners; transgender women in particular may be at heightened risk of torture or ill-treatment if they are placed in male jails or holding cells, as such placement may put an individual at risk of physical or sexual assault.

Washington, D.C.: [INSERT PHOTO OF PATTI SHAW FROM WASHINGTON BLADE ARTICLE] Patti Shaw, a transgender woman arrested in a domestic dispute, was placed in a male cellblock at the D.C. Superior Court after authorities determined they had no procedure for changing her gender from male to female in the court’s criminal record system (even though she had identification that had been legally corrected to reflect her gender; this identification had been issued after she had undergone sex-reassignment surgery). In the courthouse cellblock, male prisoners called her names, were lifting up her skirt, exposing their penises and masturbating in front of her, and reportedly sexually assaulted her.^³⁸⁴ The guards allegedly did nothing to intervene and protect her.^³⁸⁵

New York: A white transgender woman called the police for assistance following a dispute with a neighbor in New York who made transphobic remarks, including “fucking freak,” and threatened her with a knife in June 2001. On arrival the police arrested the transgender woman as well as the neighbor. The police officer reportedly said to his partner, “Put the freak in the car too; they are all prostitutes and crackheads anyway.” When the woman told the officer that she was self-employed he reportedly responded, “Oh, really? What corner of 9^th Avenue is yours?”^³⁸⁶ Even though she requested to be segregated and her identification said she was female, she was put into the male cell. She reports being strip-searched in front of 20 to 30 people. During the search, officers allegedly remarked, “Hey, if you get cold maybe the faggot will take it up the ass and keep you warm.” They kept bringing other officers past the cell and saying, “This is the new exhibit from the Bronx Zoo: faggot or freak in a cage.” One of her cellmates exposed himself and reportedly urinated on her. She said that she started to have an asthma attack and alleged that officers told her that if she went to the hospital she would have to go to Rikers (jail), where she would be lost in the system for seven days for making them fill out six pages of paperwork. They reportedly made her sign a form waiving medical care.^³⁸⁷

In New York, advocates reported to AI that detention and holding cell conditions, and the associated risks, are significant contributing factors to transgender individuals pleading guilty, sometimes to false charges. They charge that conditions are often so dangerous, and NYPD officers’ failure to act to prevent abuse so pervasive—the officers often partake in the abuse or instigate it themselves—that transgender individuals may be willing to have a criminal record rather than run the risk of being detained in these facilities.^³⁸⁸

Advocates stress the need for housing decisions to be made on a “case-by-case basis” and urge against creating “blanket housing policies for this vulnerable population.”^³⁸⁹Bearing in mind the need for personal safety, some advocates recommend that transgender individuals be permitted to make a determination, based on their own assessment and experience, as to where it would be safest for them to be detained in gender-segregated facilities and that, should conditions lead an individual to change their assessment in this regard, requests for relocation should be immediately accommodated.^³⁹⁰AI notes that the National Lawyers Guild and the San Francisco Human Rights Commission has developed a “model protocol” on the treatment of transgender persons.^³⁹¹

U.S. authorities must ensure that safe housing appropriate to a transgender individual’s gender is provided for while in detention. AI recommends that authorities should immediately begin consultations with transgender organizations to identify best practices in making housing decisions in a detention facility. AI recommends that when deciding where to house a transgender detainee, authorities should take into consideration the transgender individual’s opinion as to where it would be safest for them to be detained in gender-segregated facilities. The individual’s assessment should be central, if not necessarily determinative, as to where he or she should be housed.

As noted above, LGB individuals are also at risk of physical and sexual abuse at the hands of other detainees in holding cells, jails and prisons.^³⁹² For example, in Los Angeles, it was reported that a 40-year-old white gay male was detained in Men's Central Jail in Los Angeles in March 2003, where he was subjected to homophobic slurs. Inmates reportedly hit him with broomsticks and officers reportedly “allowed it to happen.” He also reports being denied the medical attention he needed.^³⁹³

AI has not been able to find national documentation on how widespread is the concept of segregated cells for LGBT individuals in the U.S., nor the extent of policies regarding placement in protective detention. As noted above, however, in Los Angeles a special unit, known as K-11, was created for LGBT and HIV-positive individuals. While the conflation of LGBT people and HIV is problematic,^³⁹⁴the K-11 unit represents an improvement over previous conditions for LGBT detainees in Los Angeles. AI is concerned, however, at reports which indicate that problems remain related to the housing of LGBT individuals. Officers charged with screening detainees for placement in K-11 are alleged to rely on stereotypical notions of who is LGBT.^³⁹⁵Authorities in Los Angeles told AI that individuals who are not gay or transgender attempt to gain placement in the K-11 cell because it is perceived to be safer, and that they therefore carefully screen applicants. The vigorous screening process has reportedly resulted in humiliating, degrading and potentially dangerous situations. For example, an advocate reported an incident in late 2003 in which officers denied a request by an African American gay man to be placed in the K11 cell because he did not conform to the stereotype of a gay man.^³⁹⁶Such stereotypical assumptions of sexual orientation and gender identity or expression as well as race negatively affect the treatment of those who do not neatly fit into categories.

Segregation

The solution that many authorities reportedly use to prevent abuse by other detainees is to separate detainees who may be at risk of abuse from the rest of the detainee population. AI recognizes that this may be done for an individual’s safety; however, it has resulted in abuses in some instances. Any such segregation, regardless of its rationale, must avoid further marginalization or stigmatization of lesbian, gay, bisexual and transgender people or rendering them at further risk of torture, ill-treatment or discriminatory treatment. The line between prisoner protection and transphobic or homophobic discrimination is easily blurred by authorities, and prison officials can sometimes conceal discriminatory behavior and remain unaccountable for their actions by claiming they are acting to protect LGBT prisoners. AI is concerned that housing LGBT individuals in administrative segregation may mean that they are housed in punitive conditions purely on the basis of their sexual orientation, gender identity or gender expression. AI believes that placement in solitary confinement is not a satisfactory placement option, since isolation poses significant risks to an individual’s well-being.

San Antonio: A 17-year-old gay white boy was arrested and taken to the county jail. In a public area, officers asked, “Is anyone homosexual?” The boy told AI, “I didn’t want to say it in front of everybody.” He later pulled an officer to one side and told him, but told AI that he wished he had not done so. “They were ‘mean’ and called me ‘princess.’” They placed him in a cell at the back of the station. He was worried that they had forgotten about him, until the next day when someone came by and asked, “Who is this boy? Why is he in here?” He was released and charges were later dropped.^³⁹⁷

The Convention on the Rights of the Child provides that a child should be detained only ''in conformity with the law [...] as a measure of last resort and for the shortest appropriate period of time.”^³⁹⁸

6.2.2 Verbal, Physical and Sexual Abuse by Guards

Terry Phalen, a 41-year-old gay man, was awaiting a bond hearing on auto theft charges in the Cook County Criminal Courts Building, Chicago, in October 1999 when, he alleged, deputies used homophobic epithets and punched him, threw him to the floor and stomped on him while he was in custody of the Cook County Sheriff.^³⁹⁹ In 2002 it was reported that Phalen was to receive $65,000 from the county under a proposed settlement.^⁴⁰⁰

As noted in the verbal, physical and sexual abuse section [INSERT SECTION], AI has heard several accounts of officers engaging in verbal, physical and sexual abuse against LGBT detainees in police stations or jails following arrest. For example, in Los Angeles, AI heard of verbal abuse during booking after arrest, including “Oh look, I've got another faggot here” or “Come look at this,” or “These are the people who get AIDS.”^⁴⁰¹ AI also heard reports of verbal abuse of gay men in detention, including one officer who reportedly said, "I'll take the fag up to housing."^⁴⁰²Reports to AI further indicate that verbal abuse of LGBT individuals in detention may be common, in particular against transgender detainees, and frequently target their gender identity or expression.

Los Angeles: A 38-year-old African American transgender woman arrested for petty theft in March 2000 was reportedly taken to the county facility, where one officer said, "you're no female" and laughed. He allegedly later called her "he/she."^⁴⁰³ Some transgender women have reported that when officers move them through this facility, they yell, “Man coming through.”^⁴⁰⁴ According to one African American transgender woman, when she was brought in to the county jail, the two arresting officers asked, “Where do we put this one?” to which a deputy responded, “It has tits and ass, so let's put it in the queer tank.”^⁴⁰⁵

Reports of physical abuse of LGBT individuals in detention include the following:

Boston: A lesbian of color was arrested and detained in a police holding cell. When she asked one of the police officers to loosen her handcuffs, she was told to "shut up, bitch." The woman objected to the officer’s remark and the officer responded "You want to act like a man, I'll treat you like a man!" Reportedly, the woman began yelling, and the officer entered her cell and began to physically assault her. She bent down and reportedly bit the officer, whereupon three other officers then entered the cell and allegedly beat her. She was subsequently shackled and charged with assault on a police officer.^⁴⁰⁶

In some instances reported to AI, the abuse of LGBT detainees in police holding cells and jails in the U.S. has taken a sexual form. For example, in Chicago, a transgender woman told AI that until around 2000, sexual misconduct was common in holding cells and she was frequently pressured into performing sexual favors in exchange for letting her go, or for food.^⁴⁰⁷

Chicago: An African American transgender woman told AI that while at a processing center in December 2004, one officer approached her in the waiting room and asked, “What kind of sex do you like to have?” He indicated his interest in having sex with her once she was released and detailed the specific sexual activities he wanted to engage in with her.^⁴⁰⁸

San Francisco: In 2002, a transgender woman filed a suit against the City of San Francisco for repeated sexual assaults by a male Sheriff’s Deputy while she was held in San Francisco County Jail. According to her attorneys, the deputy isolated her and ordered her to “strip naked, masturbate and show him her body, and dance for his arousal.”^⁴⁰⁹

Other concerns about conditions in detention

Holding cells often have fewer amenities and services than long-term detention centers due to their transitory nature.^⁴¹⁰ While AI is not aware of any national study on holding cells, local investigations have revealed serious lapses in ensuring the rights of detainees, for instance by failing to provide hygienic and safe conditions, access to bathrooms, running water and medical attention.^⁴¹¹This would violate international standards under the UN Standard Minimum Rules for the Treatment of Prisoners. AI has also heard allegations that LGBT individuals have been denied access to restrooms, telephones, medication, food and water while in NYPD custody.^⁴¹²

New York: A transgender man, detained subsequent to a raid on a fundraising event in November 2003, reported that during the approximately 12 hours he and others were detained at the 77^th precinct, they were given neither food nor water, despite repeated requests.^⁴¹³

AI heard accounts from LGBT detainees and other detainees who had experienced problems in accessing medication while in police holding cells in Chicago,^⁴¹⁴Los Angeles,^⁴¹⁵New York^⁴¹⁶and San Antonio^⁴¹⁷. Such issues are of particular importance for detainees suffering from illnesses that require a regimented intake of medication in order to be managed, such as diabetes or HIV. Access to hormones is only available if a physician will confirm they have been prescribed in a particular case. As a result, low-income transgender individuals who are unable to afford medical care and secure hormones through formal markets are unable to receive them while in detention.

AI is concerned by reports that transgender individuals may be denied access to personal items related to an individual’s gender identity or expression, i.e., personal items appropriate to gender presentation such as wigs and bras. A recent pilot study of the provisions for transsexual and transgender people in the criminal justice system in the United Kingdom recommended as a best practice that authorities should ensure the right to continue reasonable expression of the personal sense of gendered self and appropriate related appearance while in detention.^⁴¹⁸AI has also received reports from transgender women that they have been laughed at by officers while in detention, had their wigs, bras, make-up, purses and prosthetic devices snatched, stomped on and confiscated, are forced to wear clothing inconsistent with their gender identity, are denied the opportunity to wear a bra even when medically indicated, and are detained with males.^⁴¹⁹

Such treatment is in contravention of the ICCPR, which mandates that "[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person."^⁴²⁰

AI urges authorities to review their detention policies and practices for LGBT individuals and bring them in line with obligations required by international standards, including the requirement to ensure the safety and dignity of individuals in detention. AI believes that all those in the custody of authorities must be protected from gender-based violence and other forms of torture or ill-treatment, whether at the hands of staff or other detainees.

7. Police Response to Crimes Against LGBT Individuals: Fear of Reporting; Police Failure to Respond and Inappropriate Police Response

Systemic discrimination fosters violence against LGBT people around the world, including in the United States. What all forms of homophobic and transphobic violence have in common is ignorance and prejudice within society that gives rise to such violence, official discrimination that allows it and the impunity that sustains it. States have an obligation not only to address the violence itself but also the discrimination that gives rise to the violence.^⁴²¹

The fact that such acts are perpetrated by private individuals rather than agents of the state does not absolve the authorities of their responsibility: the state may be held accountable under international human rights standards when these abuses persist owing to the complicity, acquiescence or lack of due diligence of the authorities. The concept of due diligence describes the threshold of effort which a state must undertake to fulfill its responsibility to protect individuals from abuses of their rights. The Special Rapporteur on violence against women has held that "...a State can be held complicit where it fails systematically to provide protection from private actors who deprive any person of his/her human rights."^⁴²²Due diligence includes taking effective steps to prevent abuses, to investigate them when they occur, to prosecute the alleged perpetrator and bring them to justice in fair proceedings, and to ensure adequate reparation, including compensation and redress. It also means ensuring that justice is dispensed without discrimination of any kind. State inaction can be seen in a range of different areas. These include inadequate preventive measures; police indifference to abuses; homophobia in the court system; and failure to define abuses as criminal offences. Most LGBT victims of violence find access to legal redress and reparations difficult, if not impossible. Impunity and indifference habitually surround many acts of violence against LGBT people.

AI considers that acts of violence against lesbians, gay men, and bisexual and transgender people in the home or community constitute torture and ill-treatment for which the state is accountable when they are of the nature and severity envisaged by the concept of torture and ill-treatment in international standards, and the state has failed to fulfill its obligation to act with due diligence.

AI is concerned that U.S. authorities are failing to act with due diligence to prevent and investigate crimes against LGBT people. AI’s findings indicate that many police departments do not have well-developed policies and do not train their officers adequately on how to respond appropriately to crimes committed against LGBT individuals. Reports to AI indicate a pattern of police failing to respond or responding inappropriately to “hate crimes,”^⁴²³domestic violence and other crimes against LGBT individuals, particularly crimes against LGBT individuals of color, immigrants and other marginalized individuals.^⁴²⁴Reportedly, “masculine appearing” women and gay men may be perceived by some law enforcement officers to not require or deserve protection from violence.^⁴²⁵LGBT victims of crimes told AI that police officers seem uncomfortable interacting with them, and perform only a cursory investigation in order to exit as quickly as possible.^⁴²⁶AI also received a number of reports suggesting that officers responding to a crime against LGBT individuals often focus their attention on the victim’s sexual orientation, gender identity or expression, at times explicitly or implicitly blaming the victim for what happened to him or her.^⁴²⁷

According to reports to AI, police frequently respond according to transphobic, homophobic, racist or class-based stereotypes and assumptions rather than performing a proper assessment of the situation. This may mean, for example, that when officers respond to a call for assistance in an LGBT domestic violence incident, transgender and gender variant survivors, immigrant survivors and survivors of color may be arbitrarily arrested.^⁴²⁸

As many LGBT individuals and advocates expressed a fear of reporting crimes against them, this section will initially examine these concerns. The section will then outline patterns in police response to crimes against LGBT individuals, with a particular focus on how police respond to hate crimes and domestic violence. When LGBT individuals report these crimes they have to reveal their sexual orientation or gender identity and as such the likelihood of misconduct and discriminatory treatment is heightened.

7.1 Fear of Reporting Crimes

Reports to AI indicate that LGBT people often do not report crimes against them, in particular hate crimes and domestic violence, because they are reluctant to reveal their sexual orientation or gender identity to responding officers, and because they fear homophobic or transphobic treatment at the hands of police officers.^⁴²⁹Reportedly, reluctance to contact the police is particularly pronounced among transgender women.^⁴³⁰Deterrents to reporting include that in contacting the police a person’s sexual orientation or gender identity may be revealed to family members, friends, landlord or employers.^⁴³¹LGBT individuals who are survivors of domestic violence reportedly hesitate to contact law enforcement for fear of being arrested, or because they worry about how their partner would be treated in police custody because of his or her LGBT identity.^⁴³²

A number of other factors further contribute to underreporting, including fear of treatment based on race or ethnicity, age, immigration status,^⁴³³socioeconomic status, language and cultural barriers, and fear of being arrested for participation in criminalized activity, including sex work.^⁴³⁴

New York: An undocumented lesbian from Trinidad, who was living in secret with her U.S. citizen partner, was reportedly dragged out of the apartment where she was living and locked in the basement of the family home by her brother after he discovered she was a lesbian, in 2001. She was reportedly too afraid to contact the police because she had no immigration documents. AI is concerned that she may have been returned to Trinidad where her parents were reportedly arranging for her to be placed in a psychiatric hospital.^⁴³⁵

AI is concerned that these factors compound and foster a climate of impunity for perpetrators of hate crimes, as well as other crimes. AI believes that police departments need to conduct effective outreach to members of LGBT communities to develop strategies to deal with crimes against LGBT individuals, and to encourage individuals to come forward to report crimes against them. Such outreach must extend to marginalized LGBT communities such as homeless LGBT youth and sex workers.^⁴³⁶(See further discussion in Accountability section.) Furthermore, it is crucial that police officers are trained adequately on how to respond appropriately to crimes against LGBT people.

7.2 Hate Crimes

Several youth drove by a Latina transgender woman in their car, stopped, and attacked her, stabbing her and beating her with a baseball bat. When LAPD officers responded, they reportedly focused on determining the woman's "real" gender, demanding her driver's license, which identified her as female, and refusing to accept this documentation. Officers allegedly demanded that responding paramedics verify the woman's genitally determined sex to confirm that she was male. The paramedics refused to do so. Police also reportedly harassed witnesses to the crime, many of whom were also transgender women, inquiring about their immigration status.^⁴³⁷

In 2002, a 21-year-old white transgender individual^⁴³⁸ was reportedly subjected to transphobic verbal and physical harassment by a group of young girls. When he attempted to report the incidents to the police, he alleges they told him they could not intervene, since the conduct was not criminal. After several weeks of ongoing attacks, he told the girls that he’d hurt them if they did not stop. Reportedly, the girls’ parents complained to the police, who arrested him for “assault.” Advocates told AI they attempted to explain the context of the situation to the police, but were advised by an officer that the situation was a result of the young person’s “chosen lifestyle.” Reportedly, he was placed in an interrogation room and questioned about his transgender identity, and he was kept in custody overnight, where officers refused advocates’ requests to segregate him from other detainees. He was released the following day and charges against him were dropped.^⁴³⁹

Crimes committed against individuals based on prejudice against or hatred of their identity—be it race, nationality, gender, sexual orientation or gender identity or expression—take place worldwide, including in the U.S. What distinguishes a hate crime from other crimes is not the act itself—for example, assault—but the gender, sexual orientation, gender identity, racial, religious or ethnic bias that motivates the commission of the crime.

Over past decades, the problem of violence motivated by prejudice in the U.S. has resulted in the introduction of hate crimes legislation. This legislation may make a criminal act motivated by discrimination a distinct crime in the criminal code, or it enhances penalties for a crime when it is motivated by discrimination. While international law calls for violence motivated by discrimination to be punished, a question remains under international law of whether such violence must be penalized by special legislation, or whether it can simply be punished through existing criminal laws.^⁴⁴⁰

Before looking closer at police responses to hate crimes, the following section will look at general issues pertaining to hate crimes involving LGBT individuals in the US.

7.2.1 Hate Crimes: Background

Documentation and Statistics

California: Gwen Araujo, a young transgender Latina woman, was murdered on 3 October 2002 after acquaintances at a party learned that she was transgender. She was kicked and beaten with a soup can and iron skillet, smashed with a shovel and strangled with a rope. According to court testimony, at one point, Gwen was punched so hard in the face that a wall behind her head "indented and cracked." Her body was then driven into the Sierra Nevada Mountains and buried in a shallow grave. Three men who reportedly said she had deceived them into believing she was biologically female are facing murder and hate-crime charges. ^⁴⁴¹ [INSERT PHOTO OF GWEN]

The federal government has collected data on the number and type of hate crimes occurring in the U.S. since 1990 and the FBI collects information on crimes motivated by homophobia. In 2003, the FBI reported that hate crimes committed on the basis of sexual orientation accounted for 1,430 (19 percent) out of the 7,489 reported incidents.^⁴⁴²These statistics depend on reports from local law enforcement agencies and do not reflect the extent of all hate crimes in the U.S.^⁴⁴³ In 2003, NCAVP received 2,051 reports of anti-LGBT incidents from just 28 locations.^⁴⁴⁴Out of the 29 police departments responding to AI’s survey, 21 (72 percent) report that they do track statistics of hate crimes based on an individual’s sexual orientation.^⁴⁴⁵ However, police departments in Atlanta, Georgia; Honolulu, Hawaii; Jackson, Mississippi; Kansas City, Missouri; Manchester, New Hampshire; and San Antonio, Texas reported that they do not track statistics of hate crimes based on sexual orientation.^⁴⁴⁶

While documentation of hate crimes based on gender identity or expression is inadequate, and therefore the scale of the problem is grossly underestimated, indications from non-governmental organizations suggest that crimes based on gender identity or expression against transgender individuals are committed at an alarming rate.^⁴⁴⁷The advocacy organization Remembering our Dead has documented 92 bias-motivated murders of transgender people in the U.S. since 1998, notwithstanding the lack of any formal documentation of hate crimes based on gender identity.^⁴⁴⁸A survey by the advocacy and lobbying group Gender Public Advocacy Coalition (GenderPAC) found that almost 60 percent of transgender-identified people surveyed had experienced some form of harassment or abuse, directed at them because of their non-normative expression of gender.^⁴⁴⁹Out of the 29 police departments responding to AI’s survey, 17 (59 percent) report that they do track statistics of hate crimes based on an individual’s gender identity. Police departments in Atlanta, Georgia; Honolulu, Hawaii; Boston, Massachusetts; Jackson, Mississippi; Kansas City, Missouri; Las Vegas, Nevada; Manchester, New Hampshire; San Antonio, Texas; Salt Lake City, Utah; and Virginia Beach, Virginia, i.e., 10 out of 29 (34 percent), reported that they do not track statistics of hate crimes based on an individual’s gender identity.^⁴⁵⁰AI is further concerned to note that the FBI does not monitor hate crimes on the basis of gender identity and expression.

Advocates point out that a lack of documentation and coordination between federal, state and local agencies and community groups impedes efforts to examine, respond to and prevent violence.^⁴⁵¹ For the four cities studied, AI found disparities between the hate crimes reported by authorities and hate crimes documented by advocacy organizations:

Chicago: In 2003 the Chicago Police Department documented 31 reports (24 percent) of hate crimes based on sexual orientation, making this the second largest group of hate crimes (following racially motivated hate crime, numbering 56 reports). ^⁴⁵² 28 of these crimes were against gay men. In 2003, AVP Chicago received reports of 56 LGBT hate crimes.

Los Angeles: According to the Los Angeles County Commission on Human Relations, 192 hate crimes based on sexual orientation were documented in 2002 by law enforcement agencies within the county. Hate crimes based on sexual orientation were the second most prevalent (after crimes based on race). Eight hate crimes based on gender identity were reported. ^⁴⁵³ In 2003, the Anti-Violence Project of the Los Angeles Gay and Lesbian Center received 433 reports of hate crimes based on sexual orientation or gender identity.

New York: An NYPD spokesman reported a significant increase in the number of anti-LGBT hate crimes.^⁴⁵⁴ The Gay and Lesbian Anti-Violence Project report said homophobic incidents throughout the city increased 43 percent and the number of victims went up 53 percent during the second half of 2003 over the same period in 2002. Overall, the NYAVP ended the year with an almost unprecedented 26 percent increase in reports of anti-LGBT violence, from 513 in 2002 to 648 in 2003.^⁴⁵⁵ According to the NYAVP, insufficient funds are available to ensure that every jurisdiction within New York State tracks hate crimes according to their mandate, and such efforts are not consistent.^⁴⁵⁶

San Antonio: In response to Amnesty International’s survey, the San Antonio Police Department indicated they do not keep any data on the victims of hate crimes based on sexual orientation or gender identity. According to the Texas Department of Public Safety, the number of hate crimes reported based on sexual orientation in 2003 was 57, making up 18.4 percent of the total of hate crimes for all categories in 2003.^⁴⁵⁷

The likelihood of LGBT individuals being targeted for violence also depends on such factors as gender, race, age, ethnicity, and immigrant and economic status.LGBT people of color may be at a higher risk of experiencing hate crimes, as statistics show most hate crimes are motivated by race.^⁴⁵⁸51 percent of LGBT individuals reporting hate crimes to the NCAVP in 2003 were people of color.^⁴⁵⁹LGBT immigrants may also be targeted because of xenophobia, particularly in the aftermath of 11 September 2001.^⁴⁶⁰In Los Angeles in 2002, the majority of hate crimes reported against transgender individuals was committed against low-income transgender women of color in areas known to be frequented by street-based sex workers.^⁴⁶¹Nevertheless, AI has found that hate crimes motivated by more than one prejudice mostly go unrecorded or are incompletely recorded. In fact, the FBI only recorded three multiple bias crimes in 2002.^⁴⁶²

Some civil rights organizations have noted that hate crime statistics and prosecutions rarely, if ever, include crimes perpetrated by law enforcement or other government agents.^⁴⁶³As described in this report, AI has heard a number of reports of officers engaging in verbal, physical and sexual abuse against LGBT people, motivated by homophobia and transphobia. AI believes that statistical data on hate crimes committed by officials should be recorded.

Houston, Texas: A “cross-dresser,”^⁴⁶⁴ was stopped for a traffic violation in Houston in November 2003. The policeman yelled and verbally abused her, saying, “What do you think you are anyway? … Are you supposed to be a man or a woman?” The officers reportedly poked her and shoved her face on the trunk of the car before taking her to the station, claiming that they needed to “check out her story.” They were reportedly demeaning regarding her appearance and repeatedly insisted that she was a man. She was searched by a male officer. They also made comments about her wife, threatening to tell her.^⁴⁶⁵

Hate Crime Laws

The main federal hate crime statute, 18 U.S.C. §245, was enacted as part of the Civil Rights Act of 1968. It prohibits the use of force, or threat of force, to injure, intimidate or interfere with a person based on race, color, religion or national origin only and does not include hate crimes committed based on sexual orientation or gender identity.^⁴⁶⁶ The statute is also confined to several enumerated circumstances where federal authority would be triggered, for instance, participating in voting and polling, participating in court proceedings or enrolling in or participating in public school or college. Individual states and cities are left to enact their own hate crime legislation and as a result, there is substantial variation from state to state and city to city in terms of the degree and nature of protection from hate crimes available. Many jurisdictions have enacted sentence enhancement statutes increasing penalties for crime motivated by a statutorily impermissible discrimination. State statutes may include a range of provisions requiring the collection of statistics on hate crimes, creating civil causes of action for hate crime victims, or requiring training for law enforcement personnel to properly identify and investigate hate crimes.^⁴⁶⁷

Although some states and local authorities in the U.S. have taken legislative steps to address crimes motivated by discrimination, many state hate crime laws do not cover gender identity or sexual orientation. 33 states including the District of Columbia have enacted state hate crime statutes that include sexual orientation,^⁴⁶⁸while only 10 states include gender identity/expression.^⁴⁶⁹

For the four cities studied in more detail, AI found the following:

Chicago

	Illinois State	Chicago City
Hate crime law includes sexual orientation	YES^⁴⁷⁰	YES^⁴⁷¹
Hate crime law includes gender identity	NO	NO
Is training statutorily required for law enforcement on hate crimes?	YES^⁴⁷²	YES^⁴⁷³
Is documentation of hate crimes required by statute?	YES^⁴⁷⁴	YES^⁴⁷⁵

Los Angeles

	California State	Los Angeles
Hate crime law includes sexual orientation	YES^⁴⁷⁶	No Hate Crime Law^⁴⁷⁷
Hate crime law includes gender identity	YES^⁴⁷⁸	N/A
Is training statutorily required for law enforcement on hate crimes?	YES^⁴⁷⁹	N/A
Is documentation of hate crimes required by statute?	YES^⁴⁸⁰	N/A

New York

	New York State	New York City
Hate crime law includes sexual orientation	YES^⁴⁸¹	YES^⁴⁸²
Hate crime law includes gender identity	NO	YES^⁴⁸³
Is training statutorily required for law enforcement on hate crimes?	NO	NO
Is documentation of hate crimes required by statute?	NO	NO

New York City has enacted its own hate crime ordinance prohibiting “discriminatory harassment” on the basis of a person's actual or perceived race, creed, color, national origin, gender, sexual orientation, age, marital status, disability, alienage or citizenship status.^⁴⁸⁴

San Antonio:

	Texas State	San Antonio
Hate crime law includes sexual orientation	NO^⁴⁸⁵	NO HATE CRIME LAW
Hate crime law includes gender identity	NO	N/A
Is training statutorily required for law enforcement on hate crimes?	NO	N/A
Is documentation of hate crimes required by statute?	NO^⁴⁸⁶	N/A

AI received reports that police officers may profile people of color as perpetrators of LGBT hate crimes.^⁴⁸⁷AI is concerned by statements to AI by officials in Los Angeles suggesting that people of color may be profiled as perpetrators of hate crimes committed against the LGBT community. Although officials in West Hollywood maintained that they do not engage in racial profiling, they claimed that “90 percent of hate incidents come in the summertime from young Latino and black males that are coming from other parts of L.A. and then just cruising around.”^⁴⁸⁸

While AI believes authorities must act to protect, investigate and bring to justice the perpetrators of crimes against LGBT individuals, hate crimes statutes frequently call for enhanced penalties and it should be noted that AI strongly opposes any penalty that results in the application of the death penalty. Authorities should also ensure that hate crime penalty enhancements are not applied in a discriminatory manner. The International Convention on the Elimination of All Forms of Racial Discrimination obliges states to eradicate racial discrimination.^⁴⁸⁹

Training

Out of the 29 police departments responding to AI’s survey, eight (28 percent) report that they do not train officers on issues relating to hate crimes against LGBT individuals. The eight police departments that do not offer training on LGBT hate crimes are: Birmingham, Alabama; Wilmington, Delaware; Baltimore, Maryland; Boston, Massachusetts; Jackson, Mississippi; Omaha, Nebraska; Philadelphia, Pennsylvania; and Memphis, Tennessee.

7.2.2 Police Response to Hate Crimes

In 2003, an immigrant transgender woman working as a street vendor was attacked by three women who did not want her in the neighborhood. The women allegedly surrounded her and began verbally abusing and threatening her, using strong and derogatory language regarding transgender women. When the police were called by bystanders, officers reportedly responded, “If they kill her, call us.”^⁴⁹⁰

Failure to Respond

In some cases, police officers reportedly refuse to take a complaint of a potential hate crime. Officers reportedly have trivialized incidents or stonewalled attempts to file complaints.^⁴⁹¹According to the NCAVP, police refused complaints by victims in 14 percent of all cases reported to law enforcement in the cities covered by NCAVP’s study.^⁴⁹²

New York: On 28 September 2001, two lesbians of color report that they were followed by two men in a car in Brooklyn who persisted in harassing them, making intimidating comments. The women report that when the men in the car pulled in and cut them off, they ran into a nearby fast food restaurant, followed by the men. The men proceeded to verbally and physically assault them in front of the restaurant staff; one reportedly yelled at one of the women: “I’m going to kill you, bitch. You’re not a man, shorty, you need to know that. I’m gonna put you in your place. Get the fuck out of the neighborhood. Get the fuck out of Brooklyn.” The two women later called 911, and police officers arrived at their location. However, as soon as one of the women said that the crime was based on homophobia, the officers reportedly left without further investigating the incident or taking a complaint. The officers reportedly also told the ambulance attendants responding to the women's call that they were not needed, although one of the women was reportedly bleeding from the head due to a blow struck by one of the men. The woman’s companion stated, “It was ridiculous. There she was running down the street bleeding and chasing after the ambulance.”^⁴⁹³

Reports to AI indicate a difference in experience for larger LGBT organizations or institutions, in comparison to the experiences of individuals, particularly transgender individuals, LGBT people of color, youth, immigrants and homeless individuals.^⁴⁹⁴Police response reportedly varies by neighborhood with institutional racism playing a role in poorer policing in certain areas. Incidents in more affluent communities or neighborhoods with a higher concentration of LGBT individuals reportedly receive better responses, while response to incidents in Black and Latino/a communities is not as good.^⁴⁹⁵

Denver, Colorado: April Mora, a 17-year-old lesbian of African American and Native American heritage, was reportedly attacked because of her gender expression and perceived sexual orientation in March 2002. Four men allegedly jumped out of a car and slashed her with razor blades, carving "dyke" into her forearm and "R.I.P." onto her stomach.^⁴⁹⁶ Reportedly the police did not respond appropriately: “They just think that I did it to myself. … I think they're saying that because I choose to look like this, I deserve it or something. It's as if—if I want to look like a guy, I should get beat up like a guy.” Mora’s girlfriend’s mother reported, "One police officer was so rude … when they first pulled up, they were asking my daughter if [she and Mora] had been fighting … They asked April how many drugs they were on. They tore my room up searching for the blade and a bloody shirt. They said they were looking for a razor blade and that the wounds looked self- inflicted."^⁴⁹⁷ Mora stated, “I'm black and Indian, but I look Chicano. I think if we were white, the cops and people would treat us differently.”^⁴⁹⁸

Failure to Identify Hate Crimes

AI has heard several reports indicating that law enforcement officers frequently fail to properly identify hate crimes.^⁴⁹⁹In 2003, NCAVP reported 80 cases in which bias classification was refused. Failure to identify crimes motivated by discrimination may be due to lack of proper training and expertise. AI has heard that police often do not know what questions to ask, even if there are signs that the crime is a hate crime. Interviews with advocates and officials indicate that there is an over-reliance by officers on survivors to articulate discrimination as a motive, or officers focus exclusively on whether a slur was used by an attacker, in order for a hate crime investigation and prosecution to be considered.^⁵⁰⁰Officers should be trained to exercise appropriate sensitivity, as LGBT individuals may not feel safe to bring their sexual orientation or gender identity to their attention and as such may be reluctant to report a homophobic slur or comment.

Los Angeles: A Latino gay man reported that he returned home late one night from a volleyball game to find "faggot," followed by his name, and "vamos ensenar a ser hombre" (we'll teach you to be a man) scrawled across his door. The message was reportedly signed by his upstairs neighbors. He called the police, who did not respond until approximately five hours later. When they arrived, they reportedly had to locate the appropriate code for a hate crime in their manual, noting that they don't often use it, and frequently list hate crimes as "something else." The officers then asked him if there had been any other incidents of verbal or physical abuse. When he told him there had not, but that he was fearful that there would be following this incident, the officers told him that there was nothing they could do because the threat was not a physical one, and merely promised to patrol the area more frequently at night.^⁵⁰¹

New York: A gay Latino man was murdered in the Bronx in August 2002. Reports indicate that he had been stabbed 46 times and asphyxiated. There was reported to be writing on the walls in his apartment, where he was found: “Crips hate fags.” Advocates report several concerns in connection with the investigation of the case, including that police failed to post an “information wanted” notice until January 2003 – five months after the murder. An advocate told AI that they met with the community affairs officers at NYPD to obtain updates on the case but it did not appear that any real work was being done in terms of investigating the case. The advocate expressed to AI that in his view, “If the victim was not Latino and gay, more would have been done.” ^⁵⁰²

San Antonio: Al Everton, a white gay man aged 74, died on 8 October 2003, reportedly after being struck in the left temple by a baseball bat. Before he died, Everton told family, friends and authorities that his attacker, who he identified as a neighbor, called him a “fucking faggot” as he hit him with the bat. The neighbor had allegedly had previous scuffles with Everton and his partner and made homophobic remarks.^⁵⁰³ Everton had originally refused to go to the authorities because he did not want the police to know that he was gay.^⁵⁰⁴ Amnesty International was told by Everton’s partner that one of the detectives called to the scene had made homophobic remarks, saying, “You’re one of those goddamn fucking queers.” The crime was never investigated as a hate crime or as a homicide and no charges have been filed. Authorities claim that altercation was the motive, whether or not the attacker used homophobic slurs while striking Everton with the bat.^⁵⁰⁵ Everton’s partner tried to contact the local FBI field office and was reportedly told, “If he’s not a woman we cannot do anything about it.” The case has reportedly now been labeled “cold”/“closed.”^⁵⁰⁶

In some instances, it appears that any indication of “mixed motives” for a crime, (e.g., although homophobic slurs were used, the victim was also robbed) means that a case is discounted as a hate crime. Following intense debate on whether “mixed motive” considerations had led to a low prosecution rate of hate crimes, an amendment to the Illinois Hate Crime Statute providing that the existence of other motives is immaterial came into effect in 2003.^⁵⁰⁷ However, in other jurisdictions, “mixed motive” issues are still of concern:

San Antonio: Chief Ortiz of San Antonio Police Department told AI that if homophobic slurs are used during a robbery then it would not be a hate crime, it would be a robbery. The Chief further indicated that if homophobic slurs were used, i.e., where “the alleged perpetrator called the victim ‘queer and all that good stuff,’ then it’s not a hate crime, but if they say the perpetrator was lying in wait and then beat me when I came out of a gay bar, then we would investigate it as a hate crime.” Advocates claim that since July 2002, three murders were reportedly committed within a one-mile radius of the area’s gay club scene.^⁵⁰⁸ The SAPD says the crimes were motivated by robbery and not linked to each other.^⁵⁰⁹

Hate crimes may take the form of sexual violence against LGBT individuals and AI is concerned that officers do not investigate whether an individual’s sexual orientation or gender identity or expression may have contributed to the motivation for a rape or sexual assault. Only 24 percent (seven) of police departments responding to AI’s survey reported they have a policy or practice governing investigation of sexual assault of LGBT individuals. AI heard reports of several lesbian women who were targeted and raped by men in San Antonio, and that law enforcement failed to investigate these crimes as possible hate crimes.^⁵¹⁰ When asked about these allegations, SAPD Chief Ortiz indicated that a victim’s sexual preference would not be part of the police report unless the victim raises it.^⁵¹¹Chief Ortiz indicated that he did not recall “there being a major problem” with the rape of lesbians and suggested that if advocates are aware of any specific cases that he would be willing to follow up. Advocates have expressed concern that failure to consider how the identity of rape survivors may have impacted such crimes may have hindered the investigation.

Chicago: A white bisexual woman reports that she was sexually assaulted by a co-worker at the restaurant where she works. When she reported it to the police, they interrogated her for an hour and a half and said, “We know from the people you work with that you identify as lesbian/ bisexual.” They threatened to call her girlfriend and tell her she was “cheating on her.” Police allegedly convinced her to sign a statement that the man who assaulted her was not responsible.^⁵¹²

Blaming the victim of a hate crime

AI also heard reports of officers directly or indirectly suggesting that survivors are in some way responsible for crimes committed against them; for example, indicating that the person “asked for it” or “provoked” an attack.^⁵¹³The NCAVP call the perception among law enforcement officers, prosecutors and judges that victims somehow "deserve" what happened to them “one of the most formidable barriers to bringing hate crimes offenders to trial.”^⁵¹⁴

Detroit, Michigan: In 2003, two men physically attacked a lesbian couple at a party in Detroit. The first officers responding to the incident allegedly left when they discovered the women were lesbians. As the party was on the border of two police departments, officers from another police department subsequently arrived. The women pointed out their attackers, who fled. The officers focused their questioning on the women, suggesting that they had been to blame for the incident and asking, “Were you in there making out in front of people?” and ignoring the women’s requests for medical attention as result of their injuries.^⁵¹⁵

Los Angeles: An Asian Pacific Islander transgender woman reportedly complained to the Internal Affairs Bureau (IAB) that officers responding to a hate crime committed against her refused to take pictures of her injuries. The IAB officer allegedly told her, "There's nothing to report, the officers didn't do anything wrong. You're not a victim of violence. If you didn't tell people you're a transsexual, people would leave you alone."^⁵¹⁶

Verbal and Physical Abuse by Police Towards Victims of Hate Crimes

AI has received reports of police being verbally or physically abusive when individuals have come forward to report a hate crime, inappropriately focusing on a survivor’s sexual orientation or gender identity. Police responses to hate crimes are reportedly frequently abusive in cases involving transgender individuals.^⁵¹⁷Reports include the following:

Cincinnati, Ohio: Spears, a 26-year-old gay man, was allegedly arrested after he was the victim of a homophobic crime. Spears alleges that while handcuffed and placed in the police car, he asked why he was being arrested. The officers stopped the car and reportedly maced him in the face and poked him with a nightstick when he squirmed to get away from the mace.^⁵¹⁸

Additional Measures by Police Departments

In some cities, centralized units have been set up in order to develop expertise in how to handle hate crimes against LGBT individuals as well as others. Marshall Wong of the Hate Crimes Reporting Unit of the LAHRC told AI that centralized units are "the best way to have accountability for investigations and training issues."^⁵¹⁹However, reports indicate that despite the existence of such units, they do not always respond to LGBT hate crimes, and often depend on the ability of responding officers to identify the crime as a hate crime and to notify them of it.

AI welcomes the attempts by some police departments or precincts within larger police departments to improve police response to hate crimes. Reported initiatives include:

Chicago: AI commends an initiative introducing bike patrols in the Lakeview area since 2002.^⁵²⁰ While advocates note it is difficult to measure the exact impact of the bike patrols, reported hate crimes fell by 50 percent in their first year. ^⁵²¹ The bike patrols reportedly have also had a positive impact in terms of outreach: one advocate told AI that some LGBT homeless youth call one of the bike patrol officers “Officer Smiley” because he is “nice and fair.”^⁵²² Individuals who have engaged in sex work reported that the bike patrols put in place because of gay hate crimes make them feel safer.^⁵²³ AI believes that the individuals selected for such duties should be provided with appropriate training, and similar initiatives should be encouraged.

Los Angeles: In West Hollywood, police track “hate incidents,” i.e., they monitor patterns in complaints which are homophobic or racist in nature, but do not amount to the level of a hate crime. Authorities maintain this approach has had some success in intervening against potential hate crimes.^⁵²⁴ AI supports this concept being explored in other police departments where there is a concentration of hate crimes based on sexual orientation or gender identity. Such initiatives could be an important step towards meeting obligations to prevent crimes against LGBT people.

Los Angeles: Authorities in West Hollywood have attempted to conduct outreach and establish contacts with advocates in the transgender community. It is reportedly now an institutionalized practice to contact transgender advocates whenever a hate crime against a transgender individual is reported.^⁵²⁵ This has reportedly meant that transgender survivors and witnesses of hate crimes are far more likely to trust and work with police officers. A transgender woman was assaulted on Santa Monica Boulevard by three men who beat her with baseball bats, almost killing her. Los Angeles Sheriff’s Department deputies arrived at the scene and immediately transported her to the hospital. Representatives of the transgender community were contacted, and acted as liaisons between the victim, the witnesses, who were also transgender women, and investigating deputies. Those responsible were apprehended and convicted.^⁵²⁶

7.3 Domestic Violence

Domestic violence is a serious problem in the United States for both heterosexual and same-sex couples. Nevertheless, some advocates suggest that there may be a reluctance to acknowledge the issue of LGBT domestic violence and a fear that bringing attention to the problems will detract from progress toward equality.^⁵²⁷Visibility and knowledge about LGBT domestic violence is minimal and survivors experience extreme isolation, a problem which is exacerbated by the scarcity of programs and resources that exist for LGBT domestic violence survivors.^⁵²⁸Some advocates pointed to the absence of community-based and controlled alternatives in many jurisdictions, which exacerbates the vulnerability of LGBT survivors and means they have nowhere to go for protection from domestic violence.^⁵²⁹

Individuals who come out to their families as lesbian, gay, bisexual and transgender, particularly young LGBT people, are often rejected and in some cases subjected to violence at the hands of their families.^⁵³⁰NCAVP report that older LGBT individuals are also vulnerable to violence at the hands of family or caregivers.^⁵³¹AI was not able to obtain a significant amount of data regarding police response to family violence against LGBT individuals, due in part, according to some advocates, to reluctance on the part of LGBT individuals to share such difficult experiences.^⁵³²

AI's research revealed that law enforcement responses to domestic and interpersonal violence involving LGBT individuals is inadequate and that police authorities are failing to act with due diligence to prevent and protect LGBT individuals from domestic violence, in contravention of international standards.

7.3.1 Background

Police Training and Policies on Response to LGBT Domestic Violence

Police departments should have policies on how to respond to LGBT domestic violence and officers must receive effective training on the issues. Only five out of 29 (17 percent) of police departments responding to AI’s survey reported having specific policies on same-sex domestic violence.^⁵³³83 percent (24 out of 29) of responding departments reported that they provide some training to officers on same-sex domestic violence.^⁵³⁴AI notes with concern that police departments in Wilmington, Delaware; Atlanta, Georgia; Baltimore, Maryland; and Omaha, Nebraska do not provide any training on same-sex domestic violence, but with the exception of Baltimore, Maryland, they do provide training on heterosexual domestic violence.^⁵³⁵

For the cities studied, AI received the following information on how police departments train and respond to LGBT domestic violence:

Chicago: The Chicago Police Department indicated in its survey response that it provides training on same-sex domestic violence “as needed” but that it does not have a specific policy or practice governing response to same-sex domestic violence. It went on to note that its existing domestic violence policy is not specific to same-sex couples, but that it covers all persons living in a household. In interviews with CPD officials, AI was told that all domestic violence is treated equally.^⁵³⁶

New York: NYPD did not respond to AI’s survey but officials told AI that they do provide training on same-sex domestic violence and that NYPD has adopted a more inclusive definition of "family" in its Training Protocol.^⁵³⁷ Officials told AI that officers use the same procedures in cases of LGBT domestic violence as in cases of heterosexual domestic violence to determine who is the aggressor.^⁵³⁸

Los Angeles: LAPD responded to AI’s survey, indicating that it does provide training on same-sex domestic violence and that it has a specific policy or practice governing responses to same-sex domestic violence pursuant to the California Penal Code and departmental policy. No further details were provided in the survey. LAPD officers are issued a small card ("palm card") summarizing procedures to be followed when responding to domestic violence calls.^⁵³⁹ Captain Garner of the 77^th Division of the LAPD told AI that he was unaware of whether officers assigned to domestic violence in his division had received LGBT-specific training, but that no such training was provided at the division level.^⁵⁴⁰ LASD officials conceded that response "may depend on where you are in the county," describing the West Hollywood station as having the best training and response.^⁵⁴¹

San Antonio: The SAPD responded to AI’s survey indicating that they do not have any policies or procedures for responding to same-sex domestic violence. ^⁵⁴² However, they maintained that officers do receive training on the issue. Nevertheless, AI received reports from an official within SAPD that such training does not take place. It was reported that such training was withdrawn following an attempt to introduce it, when the trainer was subjected to harassment. The SAPD has a Critical Response Team which deals with emergency domestic violence situations, and while it reportedly receives additional training, the team does not receive training on LGBT domestic violence. Sheriff Lopez of the San Antonio Sheriff’s Department told AI that the Sheriff’s Department does not have any specific training on how to handle same-sex domestic violence situations: “It’s handled exactly the same way as any other domestic violence [incident], no different.”^⁵⁴³

A review of the content or effectiveness of policies and training curricula was outside the scope of this report. AI recommends that such reviews be undertaken as our findings suggest problems that belie the relatively high rate of reported training on domestic violence. Advocates in Chicago told AI that “police often do not know what to do,” and that officers are often insensitive and exhibit a lack of understanding of power relationships inherent in domestic violence.^⁵⁴⁴AI is concerned that few officers may actually receive specific training about how to respond to a situation of LGBT domestic violence; for example, in how to identify a situation as a LGBT relationship and how to distinguish the abuser. For instance, in addition to what AI heard from officials in Chicago and New York, the police department in Anchorage, Alaska responded to AI’s survey that they provide training on same-sex domestic violence, but noted that “All domestic violence without respect to sexual orientation are handled the same.” This suggests that the training may not provide officers with adequate tools and techniques to respond appropriately to LGBT domestic violence, including, for example, how to recognize that an incident has occurred in the context of an intimate relationship (see below).

Furthermore, AI’s survey only covered the largest city in each state and has no information on whether officers in smaller cities or rural areas are provided with training on how to respond to LGBT domestic violence situations.

7.3.2 Police Response to LGBT Domestic Violence

Marc Kajs, a 28-year-old gay man in Houston, Texas, was shot to death by his former lover after a history of threats and domestic violence. In a lawsuit filed against the City of Houston in 2000, Kajs’ mother asserted that Kajs had “sought protection from the police several times before the shooting but was turned away by officers.” Kajs had “complained to the police five times but nothing was ever done,” the family’s attorney stated. In one instance Kajs fled to a police station at 2:30 a.m., followed by his ex-lover. Though his ex-lover threatened him in front of a police officer, Kajs received no protection and “was sent out onto the street with the person stalking him and threatening him.” Several days later, Kajs filed a report at Houston’s Montrose storefront police station after receiving further threats against his life. He was turned away “because the domestic violence unit was closed on weekends.” Hours later, Kajs was dead.^⁵⁴⁵

AI heard a number of reports from national organizations and from advocates in all of the cities studied of inadequate police responses to LGBT domestic violence incidents, including allegations that officers frequently fail to respond, or respond in an inappropriate, racist, homophobic or transphobic manner. As a result, many members of LGBT communities, particularly people of color and immigrants, advocates claim, mistrust police and would not contact them in domestic violence situations. Reportedly, race, ethnicity and the social status of an individual may influence police response to domestic violence situations, including LGBT domestic violence.^⁵⁴⁶

Police Failure to Respond to LGBT Domestic Violence

AI’s findings suggest that police often fail to respond to domestic violence, including within the LGBT community. In some cases officers may fail to recognize that the incident has occurred in the context of an intimate relationship. Advocates in Chicago, New York, Los Angeles and San Antonio as well as in D.C. and San Francisco told AI that police often do not take LGBT domestic violence seriously.^⁵⁴⁷ AI heard reports of police failing to respond to domestic violence involving transgender individuals:

Los Angeles: In September 2003, a homeless Mexican transgender woman was being abused by her boyfriend when police drove by but did not intervene, despite her pleas for help. She was severely beaten, requiring medical treatment. When officers eventually responded, after being called by a member of the public, they reportedly arrested her boyfriend for drug possession, but did not charge him with assaulting her.^⁵⁴⁸

Los Angeles: A young African American transgender woman reported that in 2001, she was living with her boyfriend, who became abusive. On several occasions when she called the police for assistance, they were initially very attentive, but once they discovered that she was transgender, they told her they could take him away for an hour, but there was nothing else they could do. On one occasion, she noticed them pointing and whispering. The fourth time she called the police, her boyfriend had "destroyed" her house and she had bruises all over her body, but the officers refused to take any action and simply left.^⁵⁴⁹

Some advocates report that where police respond to domestic violence involving lesbian couples, officers will simply “try to get the girls to calm down and get along,” or see it as a “fair fight,” failing to take such incidents as “real” domestic violence.^⁵⁵⁰ In San Antonio, AI heard from a Latina lesbian woman who told AI that when police responded to a domestic violence situation in her home, the police just “didn’t know what to do with two women.” Reportedly, her house was a mess and her partner had a gun, but while the police took the gun they did not remove her partner. She was forced to leave her home to escape the potentially dangerous situation.^⁵⁵¹

San Antonio: A 17-year-old lesbian was killed by her 21-year-old partner in October 2003. Allegedly, the police report notes that one of the responding police officers indicated that he had been called to the home “a lot.”^⁵⁵²

Police reportedly also do not take domestic violence involving two men seriously.^⁵⁵³ In some cases, officers have reportedly told men that both will have to be arrested, and suggest that instead one of them should just leave.^⁵⁵⁴Advocates report that officers reportedly respond in such a way that would suggest that “men can fight their own battles.”^⁵⁵⁵AI also spoke with a white gay man in Chicago who reported that police were reluctant to take action when he called for help in a domestic violence situation, and suggested that he had somehow provoked his partner through infidelity.^⁵⁵⁶

New York: In 2003, a gay Brazilian man called police for help in a domestic violence situation, expressing fear for his life. When police responded, they reportedly took the apartment keys away from alleged perpetrator but took no further action. Two hours later, the man who called the police was found dead. The AVP told AI that normally in such situations, the Domestic Violence unit is mandated to respond, which did not happen in this case.^⁵⁵⁷

Anonymous Location: An officer responding to a domestic violence incident involving two gay men reportedly told one of them, “You’re not hurt that bad, quit crying, don’t be a sissy.” When the victim expressed fear of his abuser and refused to press charges against him, he reports being taunted by the officers. The officers refused to take the man to a hospital to receive treatment for his two black eyes and a compound fracture of the arm. Ultimately, he had to walk to the emergency room. Reportedly, his partner is a police officer, and he suspected that that had a hand in the poor treatment that he suffered. ^⁵⁵⁸

Arrest and Threats to Arrest Both Parties or the Victim of Domestic Violence

“It’s really, really common for the victim to be arrested as the batterer.”

Matthew Pulling, Staff Counselor, Stop Partner Abuse/Domestic Violence Program of the Los Angeles Gay and Lesbian Center^⁵⁵⁹

A transgender woman was reportedly choked by her male partner and chased through their apartment as she tried to defend herself, in 2002, in Washington, D.C. She managed to get him out of the apartment and called the police, who responded by arresting her, handcuffing her and forcing her down the stairs. Her alleged abuser was not arrested. She reports that as soon as officers saw her identification, they began referring to her by male pronouns, calling her “mister.” She was detained for over seven hours at the police station, and was charged with civil assault against her alleged abuser. The charges against her were subsequently dismissed.^⁵⁶⁰

According to advocates in Chicago, New York, Los Angeles, San Antonio, San Francisco and Washington, D.C., the police have greater difficulty in identifying the abuser when responding to LGBT domestic violence calls.^⁵⁶¹Because of a misconception among law enforcement that a determination of domestic violence is based primarily on the sex of the people in the couple, many simply assign the label of mutual abuse and arrest both parties in a situation involving violence in an LGBT relationship. AI heard a number of reports of police officers arresting or threatening to arrest both parties when responding to LGBT domestic violence in Chicago, New York, Los Angeles, San Antonio and Washington, D.C.^⁵⁶²Gay men and “masculine appearing” lesbian couples are reportedly particularly at risk of being arrested under an assumption that the situation involves “mutual combat.”^⁵⁶³

New York: Two gay Latino men were involved in a domestic dispute in New York. The police officers reportedly told them that if the police were called again, they would both be arrested. The officers left without taking any action.^⁵⁶⁴

New York: A black transgender woman told AI, “Me and my roommate (she’s also a black MTF) [transgender woman] got into an argument and we called the police. One of the cops that came treated us like ‘dogs.’ He was saying things like, ‘Next time I come down here I’m going to arrest both of you.’ My roommate and I refer to each other by our female names. The officer said, ‘First, let’s stop this.’ His attitude was, ‘this is absurd.’ They didn’t help us in any way.”^⁵⁶⁵

AI is concerned by comments made by law enforcement officials in San Antonio suggesting that police may arrest both parties. Serious concerns were raised about San Antonio Police Department’s response to domestic violence, including that SAPD appears to have an unwritten policy to threaten survivors of domestic violence with arrest if they repeatedly call for assistance.^⁵⁶⁶This was confirmed by Chief Ortiz, who told AI that officers use threat of arrest as a “tactic in combative relationships” and say, “‘if you call again one of you is going to be arrested’… We use it all the time – that’s just a bluff. If they are not the problem, then it doesn’t deter them from reporting.”^⁵⁶⁷ AI is extremely concerned by such a practice and calls upon SAPD to desist from using such tactics and communicate this change in policy immediately to all officers.

When police do attempt to identify the abuser in an LGBT domestic violence situation, reports to AI suggest that transgender and gender variant survivors, immigrant survivors, survivors of color, the person perceived to be of lower socioeconomic status or the biggest and youngest person are reportedly often assumed to be the abusers and arrested.^⁵⁶⁸ The Los Angeles Gay and Lesbian Center’s STOP Partner Abuse/Domestic Violence Program has found the erroneous arrest of survivors of LGBT domestic violence to be so prevalent that it maintains a group for LGBT survivors referred by courts for mandatory batterer's intervention.^⁵⁶⁹

Los Angeles: A gay Filipino man was reportedly beaten on several occasions by his partner, a white U.S. citizen, who was reportedly addicted to drugs and alcohol. When police responded to one altercation, they reportedly arrested the Filipino man and threatened to report him to immigration authorities, saying: “You're not a citizen. We should deport you, you shouldn’t be hitting Americans; you’re not an American.” The Filipino man was sentenced to 52 weeks of batterer’s intervention in court.^⁵⁷⁰

AI heard reports of arrests of transgender domestic violence survivors in Los Angeles, Chicago, New York, San Antonio, San Francisco and Washington, D.C.^⁵⁷¹An assumption that transgender people are “deviant” or “mentally ill” and more likely to commit heinous and violent crimes is a common element of transphobia and may play into decisions by officers to automatically arrest the transgender person when responding to a domestic violence situation.

San Antonio: A transgender woman called the police because her boyfriend had broken some of her personal things and a window. On arrival, the boyfriend told police that she was bipolar. The police arrested and handcuffed the transgender woman while she was in tears, telling them that she had called the police for help. On arrival at the police station, the intake forms required her to use her male name and she was then held in a male holding cell, even though she told them that she was transgender and didn’t want to be put in with the men. She was reportedly held for two hours before being released.^⁵⁷²

21 out of 29 (72 percent) police departments responding to AI’s survey reported have mandatory arrest policies, i.e., officers are required to make an arrest when responding to a domestic violence call.^⁵⁷³ In the absence of training that enables an officer to make an appropriate assessment as to who should be arrested, this requirement may lead to prejudiced police response.

Furthermore, AI heard reports in Chicago and San Antonio that language barriers present significant problems for the immigrant population. Reportedly, if the abuser speaks better English, appears more in control of the situation and/or is a citizen, police are more likely to believe his or her version of the situation, leading to an arrest of the victim.^⁵⁷⁴AI heard reports that officers may use the abuser to translate for the survivor. While police officials in Chicago maintained that they call officers with appropriate language skills, or use translation services over the phone, ^⁵⁷⁵advocates reported that police are “often disrespectful” and make “no effort” to accommodate those who need translation services.^⁵⁷⁶

Chicago: A Latina woman had reportedly been beaten by her partner over a period of time, and neighbors had repeatedly called the police, who usually did not intervene. On one occasion, her abusive partner called the police, claiming she had been abused. Despite the long history of abuse, the victim was arrested and mandated to counseling. An LGBT domestic violence advocate told AI that the abusive partner was fluent in English and was for that reason taken more seriously by police. The victim was monolingual Spanish, unfamiliar with her rights in the United States and was “unable to defend herself verbally with police. As with most same-sex domestic violence cases, the police assume both parties liable, and the one that can speak up and makes the first accusations is considered the victim.”^⁵⁷⁷

Verbal Abuse by Police Responding to LGBT Domestic Violence

In San Antonio, one officer responding to a same-sex domestic violence call reportedly said, “I know we are supposed to be tolerant but that’s a bunch of bull, they should all be killed.”^⁵⁷⁸

AI heard reports in all four cities studied of officers making homophobic or transphobic comments when responding to LGBT domestic violence situations.^⁵⁷⁹

AI heard that transgender individuals are targeted for verbal abuse by officers responding to domestic violence.^⁵⁸⁰Officers have reportedly addressed survivors by the wrong pronoun, called transgender women “sir,” and despite valid ID, have demanded, “What’s your real name?”^⁵⁸¹AI also heard reports in San Antonio, including a report from a Latina transgender woman who was reportedly told by an officer “Shut up, faggot” when she reported that she had been assaulted by her boyfriend.^⁵⁸²

Inappropriate comments made during police response to domestic violence involving lesbians and gays have also been reported, including "Which one of you is the wife?", "What is it that you don't see in women?" and comments suggesting that domestic violence involving two men was really the result of "kinky sex."^⁵⁸³

Police need to be trained to undertake a more sophisticated and thorough assessment when responding to a LGBT domestic violence incident as the imbalance of power, which is at the center of domestic violence, is built and maintained on various issues of identity and social status including not just sexism but also issues of racism, classism, xenophobia, ageism, and community and occupational status.

Some police departments have responded to the call for improved service when responding to heterosexual domestic violence by creating specialized units or officers in domestic violence cases, and conduct outreach and work with survivors of domestic violence after the initial incident. Such units will only improve the treatment of LGBT survivors if the officers receive appropriate training.

Failure to protect, investigate and punish crimes against LGBT individuals amounts to a failure of the state’s obligation to act with due diligence, in contravention of international legal standards.

8. Training and Accountability

Summary

28 percent of responding police departments does not provide training on LGBT issues. When training on LGBT issues does take place it is frequently not provided in a systematic, ongoing manner, but is limited to a session provided for new recruits at the police academy. Amnesty International is concerned at reports that often the training which does exist reinforces stereotypes and fails to change perceptions of bias.

Anecdotal evidence suggests that there are few openly gay or lesbian officers in the U.S., and few higher ranking officers nationwide are women, people of color or openly LGBT.^⁵⁸⁴Nevertheless, only four of the 29 responding departments reported any kind of affirmative action hiring practice for LGBT individuals (14 percent).

Community outreach efforts such as LGBT liaisons or community boards are in place in some jurisdictions, but are often underfunded, overstretched or have a very limited mandate. Marginalized and disenfranchised individuals are frequently not seen as part of the “community” by police and are often not included in outreach efforts or welcome at community board meetings. There is a widespread sentiment among people of color and immigrant LGBT communities that law enforcement authorities are not particularly accountable to their communities. Furthermore, advocates charge that “quality of life” policies and practices are discriminatory against the poor and the economically disenfranchised. Young LGBT people are increasingly being pushed out of gentrifying neighborhoods and targeted for abuse, both by police and some members of the community. As one NYC advocate put it, “Whose quality of life is the City concerned about?”—noting that police departments tend to cater to the needs of the more affluent members of the community and less to the marginalized and disenfranchised segments of the community.^⁵⁸⁵

Reports to AI suggest that many individuals do not come forward with complaints about police officer conduct, including LGBT individuals. AI received a number of complaints of hostility or attempts to dissuade people from making complaints at police stations. AI also heard several accounts of retaliation against LGBT individuals who reported police misconduct. Moreover, many departments have inadequate procedures for officers to report misconduct. Public trust in police internal oversight is further undermined by the lack of transparency and delays in investigations.

Internal oversight bodies are frequently not trained in handling complaints pertaining to LGBT individuals. Only 45 percent (five of 11) of responding internal affairs departments told AI that they train their staff on LGBT issues, and of these, only two have mandatory training. In many cases, complaints are ruled “unfounded” since no corroborating evidence is found. This is particularly problematic for marginalized communities who are less likely to be believed by investigators, and who may not have witnesses to support their account. In the event that an officer is found to be culpable for misconduct, disciplinary decisions are often inadequate and there is little consistency from case to case. Reports indicate that a low number of officers are suspended or fired, even for serious abuses.

Internal oversight bodies often focus their energies on identifying individual perpetrators at the expense of examining systemic issues and policy review. While early intervention systems are increasingly being explored in order to identify problem officers, these systems frequently do not collect data regarding issues of discrimination, and are rarely mined for systemic manifestations of such issues. AI is concerned that this results in the systems having limited utility in addressing police misconduct against marginalized groups.

Independent oversight and control has been instituted in many cities across the U.S.; however, seven out of 29 responding police departments (24 percent) indicated to AI that they do not have an external review process. Among existing review boards, AI’s findings indicate a lack of training and expertise in LGBT issues, raising concerns about their ability to respond to and investigate complaints made by this population. External review boards are also frequently limited by inadequate funds, staff and access to information, and have been criticized for failing to perform sufficient outreach. Advocates also point out that often, external review bodies are not truly independent and lack any real power, such as subpoena power, to be truly effective. Independent monitors have been instituted in some cities to monitor the internal disciplinary process of police departments, reviewing systemic issues within the department. This type of monitoring could potentially assist in identifying systemic misconduct against marginalized communities.

Very few criminal cases involving excessive use of force or discriminatory practices are brought against individual police officers. Civil lawsuits may provide financial compensation to individual survivors, but are unlikely to be filed by marginalized and disenfranchised individuals and rarely serve to hold either police departments or individual officers accountable. Federal lawsuits have resulted in drawing up of “Consent Decrees”^⁵⁸⁶in several cities, instituting reforms. However, insufficient resources are available to investigate such issues and as of 2004, to AI’s knowledge, no such lawsuits have included discriminatory treatment on the basis of sexual orientation or gender identity.

8.1 Background

Advocates charge that police culture has been – and in many cases still is – characterized by racism, sexism, homophobia and transphobia.^⁵⁸⁷These biases result in misconduct and abuse by law enforcement, particularly against these groups, and the impunity of those who perpetrate such violations. Previous AI reports have highlighted problems in U.S. police departments with use of excessive force, in particular against communities of color, but also against homeless, mentally ill and LGBT individuals. Evidence of discriminatory treatment and bias in police contacts with members of the black, Latino and Asian communities is widely documented by NGOs, commissions of inquiry, in court cases and lawsuits, and by countless individual testimonies.^⁵⁸⁸

Amnesty International and other organizations have pointed to the need for effective accountability measures in order to address many of these concerns. However, police departments have frequently resisted reforms of accountability and oversight measures, and officers reportedly often continue to block such measures, even if they are adopted.^⁵⁸⁹Some advocates have pointed out that police unions have played a significant role in restricting disciplinary reviews and measures by adhering to limitations on investigation procedures and cumbersome appeals processes, and some external complaint systems have been set up in the face of strong opposition from police unions.^⁵⁹⁰While unions try to serve the best interests of their members, AI is concerned about such barriers to effective investigations and disciplinary action to the extent that they contribute to the impunity of violators of human rights.

Effective reform requires commitment from the top ranks, and there must be a fundamental understanding of all individuals as deserving of equal rights. This must be instituted on every level of policing and management, including training, recruitment, supervision, outreach to communities and accountability measures.

8.2 Training

69 percent (20 out of 29) police departments responding to AI’s survey reported that they provide training on issues relating to LGBT individuals or communities.^⁵⁹¹28 percent (eight out of 29) of police departments responding to AI’s survey reported that they do not have any training on LGBT issues. The eight police departments that do not provide training are: Bridgeport, Connecticut; Wilmington, Delaware; Atlanta, Georgia; Baltimore, Maryland; Omaha, Nebraska; Memphis, Tennessee; Virginia Beach, Virginia; and Cheyenne, Wyoming.^⁵⁹²

International law and standards require states to provide law enforcement with training on human rights standards.^⁵⁹³While international standards do not directly require law enforcement to receive training on LGBT issues, some standards do require training to sensitize officers to particular identities. For example, the need for gender-sensitive training of law enforcement personnel has frequently been stressed in the context of violence against women.^⁵⁹⁴

In the United States, officers receive training, often at a police academy, before being able to serve on the police force. There are no federal guidelines as to the length or content of such trainings; these are set by each state. Furthermore, there is usually also a stipulation that officers must receive some in-service training after joining the force.

AI believes that training on LGBT issues is essential; however, as noted above, 28 percent of police departments (eight out of 29) responding to AI’s survey reported that they do not provide any training on LGBT issues. It is important to note that the police departments surveyed are in the largest city in every state and are more likely than smaller departments to develop training. Thus the problem may be wider than indicated by AI’s survey.

Training on LGBT issues is often limited to a short session provided to new recruits at the police academy. While one police department reported that it provides 16 hours of training related to LGBT issues for new recruits, other police departments offer far less.^⁵⁹⁵

In the cities that AI has both included in its survey and studied in more detail, we received the following information regarding LGBT training:

Chicago: Chicago Police Department indicated that officers receive mandatory post-recruit training on LGBT-related issues “as needed.”

Los Angeles: Reportedly, formal cultural sensitivity training is provided at the training academy, which includes an LGBT component. According to LAPD, four hours of in-service mandatory training is also provided relating to LGBT issues.^⁵⁹⁶ It appears that the training referred to is "diversity" training, which not only covers LGBT issues, but also issues of race, national origin, ethnicity and gender, among others.^⁵⁹⁷

New York: The NYPD informed AI that their training curriculum was recently rewritten into a unified text that “teaches not to take action against people’s differences.”^⁵⁹⁸ The NYPD reported that the curriculum was sent for review and comment to community groups, including LGBT groups. The curriculum is taught over six months at the Academy by officers from the Gay Officers Action League (GOAL) and is developed with the input and guidance of the LGBT community. Trainings involve role-play, which are developed and conducted by GOAL, and include six hours of Cultural Awareness and Diversity Training and four and a half hours on LGBT issues.

San Antonio: Chief Ortiz (SAPD) told AI that cadets go through six months of training at the academy and that during this training the cadets receive one full day dedicated to diversity training, which reportedly includes training on how to be sensitive to those with “alternative lifestyles.”^⁵⁹⁹ In an interview with Bexar County Sheriff’s Department, AI was told that there is no specific [LGBT] training: “it includes everyone.”^⁶⁰⁰ Chief Ortiz told AI that there was nothing specific in either the academy or in-service training on transgender issues.^⁶⁰¹ Amnesty International reviewed the Texas Commission on Law Enforcement Officer Standards and Education on Cultural Diversity and confirmed that there was no reference to transgender issues, and found only brief and cursory reference to lesbian, gay and bisexual issues, primarily in the section dealing with hate crimes.^⁶⁰²

Training experts as well as law enforcement officers speaking with AI on condition of anonymity noted that LGBT “sensitivity” or “diversity” training is often ineffective.^⁶⁰³Officers AI met with in Los Angeles reported that training on LGB issues is generally "glossed over," and training with respect to transgender issues is extremely limited or non-existent. AI also heard reports from community organizations in Chicago, Los Angeles, New York and San Antonio, as well as from training experts,^⁶⁰⁴that the limited training which does exist often reinforces stereotypes and fails to create learning experiences or to change perceptions of bias.

LGBT-Specific Issue Training

San Antonio: AI received reports that during a training at the academy on same-sex domestic violence the trainer was subjected to harassment based on her perceived lesbian identity even though everyone knew that she was heterosexual and married. She reportedly said she would never do it again, and AI was told that there has been no training on same-sex domestic violence since then.^⁶⁰⁵

Training experts as well as police officers interviewed by AI stressed that practically oriented training is most effective, since this makes the issues concrete and provides useful tools that officers may use in situations involving LGBT individuals.^⁶⁰⁶While AI was unable to undertake a thorough review of the content of police departments’ trainings, our survey revealed that many police departments fail to provide officers with LGBT-specific training: for example, on enforcing public morals regulations; same-sex domestic violence; hate crime prevention, response and investigation; interaction with transgender individuals; and response to and investigation of crimes against LGBT individuals.

Strip Searches/Transgender	62 percent of all responding departments (18 out of 29) train their officers on how to do strip searches; only nine out of 29 (31 percent) report that they instruct their officers in how to strip search a transgender individual.
Same-Sex Domestic Violence	24 (83 percent) police departments reported providing training on issues around same-sex domestic violence. 14 percent (four departments) reported that they do not train on issues around same-sex domestic violence.^⁶⁰⁷
LGBT Hate Crimes	19 (66 percent) police departments reported providing training on hate crimes against LGBT individuals. Eight (28 percent) police departments reported that they do not train officers on LGBT hate crimes.^⁶⁰⁸
Sexual Assault of LGBT Individuals	Most departments provide training regarding sexual assault (86 percent), but 52 percent (15 out of 29) of these do not touch on LGBT-specific issues in this regard.

In the four cities studied in greater detail, police departments reported providing the following LGBT-specific training:

	Searches of Transgender Individuals	LGBT Domestic Violence	LGBT Hate Crimes	Sexual Assault of LGBT	LGBT Sex Workers
Chicago	As Needed	As Needed	As Needed	As Needed	As Needed
Los Angeles	Yes	Yes^⁶⁰⁹	Yes	No	No
New York^⁶¹⁰	Information not available	Yes	Information not available	Information not available	Information not available
San Antonio	No	Yes	Yes	No	No

Advocates noted that more sophisticated training regarding diversity in communities of color and LGBT communities is also required. For example, stereotypical assumptions that people of color are not LGBT may lead to inappropriate or insensitive reactions. Training on LGBT issues should not exist in a vacuum but needs to incorporate how issues such as race, age, gender, socioeconomics and immigration status impacts members of LGBT communities, and trainings on race and immigration should include LGBT issues and concerns.^⁶¹¹

Trainers

It is also important to recognize the role that a trainer plays in providing effective training. Reports to AI suggest that effective trainings have involved dedicated, well-respected officers with training expertise who collaborate closely with community members on the development and implementation of trainings.^⁶¹²Advocates have expressed concerns that trainings conducted without any input from community members do not properly convey the needs and rights of the groups in question.^⁶¹³Some police departments rely heavily or sometimes exclusively on unpaid LGBT organizations to provide training without any input or support from law enforcement trainers.^⁶¹⁴Other police departments ask officers who happen to be lesbian or gay to conduct trainings although they may not be professional trainers.^⁶¹⁵While AI recognizes the important role that LGBT organizations and LGBT officers have to offer in training police departments, AI’s findings indicate that police departments themselves in many instances do not provide the support or commitment needed to ensure long-term institutionalized trainings on LGBT issues.

In-Service Training

It is of concern that officers who have been on the force for longer periods may not have received any LGBT training, as few departments offer any systematized in-service LGBT training. This is particularly problematic in the event that such officers hold more senior positions and have supervisory responsibilities for less experienced officers. One of the New York organizations AI spoke with stated, “The trainings we did were doomed to failure – it was bottom-up training. You train the rookies but then you put them out there with the homophobic and transphobic officers. You’ve got to start from the top.”^⁶¹⁶

New York: NYPD told AI that trainings are held at the precinct and promotion levels, with each new recruit undergoing a special two-day orientation to a precinct upon reassignment, addressing issues of particular concern and relevance to that precinct, and conducted by the commanding officers.^⁶¹⁷ LGBT community members, for example, participate in trainings conducted at the 6th precinct. However, one officer told AI that he and other LGBT officers had proposed putting together one-day training workshops on LGBT issues to be undertaken at the precinct level as well as during promotion. He reports that as yet, these trainings have not been realized.^⁶¹⁸
San Antonio: Chief Ortiz (SAPD) told AI that all SAPD officers receive 40 hours of in-service training every year, which includes four to eight hours of cultural diversity training. AI was told that in the next cycle they will be covering ethnicity and that over time, the training covers age, gender and sexual orientation.

In some cities and counties, advocates have attempted to provide some form of in-service training and education to officers by conducting roll call trainings, where advocates have the opportunity to speak to officers for 10 to 20 minutes at staff meetings which take place before the beginning of a shift. Since there is no additional cost for administrators in terms of staff hours and advocates are usually willing to volunteer their services, police departments may be more receptive to requests from advocacy organizations to provide such trainings to their officers.^⁶¹⁹

AI is concerned that the limited time available during a roll call is not conducive to covering new or complex ground. Advocates told AI that with the proper support, roll call trainings may serve as useful reminders for officers, but that they cannot replace thorough training sessions.^⁶²⁰Furthermore, AI has received reports of trainers who have endured transphobic and homophobic environments.^⁶²¹

Washington, D.C.: In 2000, the organization Helping Individual Prostitutes Survive (HIPS) was invited to provide a sensitivity training at a roll call. HIPS told AI that it was a very negative experience – “one of the worst” experiences the organization has ever had. Reportedly, the presenters from HIPS were ridiculed by officers, who particularly targeted the transgender presenter who was belittled, ridiculed, laughed at and called “bad names.” Reportedly, they “laughed her out of the room.” According to HIPS, the officer who had invited them did nothing to halt the abuse. HIPS has not done roll call trainings since this incident.^⁶²²

Condoning inappropriate treatment of trainers who act as representatives of LGBT communities reinforces the perception that members of LGBT communities are less deserving of rights than others. When supervisors stand by while their subordinates are openly hostile and homophobic or transphobic, they furthermore reinforce the belief among officers that human rights training is something they “have to” endure and that it bears little relation to policing in practice.

8.3 Recruitment and Diversity on the Force

“… A police force representative of its community will enjoy improved relations with the community and will, consequently, function more effectively.”^⁶²³

U.S. Commission on Civil Rights

When it was discovered that a police officer was transgender in 2000, because of emails sent to other transgender women found on the officer’s computer, the officer was pressured to leave the department. The officer told AI that after being called to the Police Chief’s office, the Chief reportedly said, “I know about your other lifestyle… I can’t have you working here. You’ve got a problem. There is something wrong with you. I’ve known you my whole life and this sickens and disgusts me… this is unacceptable.” The Chief reportedly suggested that the officer get a doctor’s note so that the officer could be off for six months and then leave the police department. The officer gave in to the pressure to leave. Since leaving the force, the officer told AI that former colleagues have made remarks such as “you disgust me” and “pervert.”^⁶²⁴

International standards and guidelines stress that law enforcement agencies should be representative of the community as a whole, noting that this is a prerequisite for the humane performance of law enforcement functions,^⁶²⁵and stipulate, “The recruitment, hiring, assignment and promotions policies of police agencies shall be free from any form of unlawful discrimination.”^⁶²⁶While AI believes that demographics alone are unlikely to change the underlying culture, police forces should mirror the composition of the communities they police and include proper representation throughout the ranks of LGBT individuals, women and people of color.

Anecdotal evidence suggests there are relatively few LGBT officers who are in a position to be open about their sexual orientation or gender identity, although LGBT police officer associations exist in some larger cities; for example, GOAL in New York.^⁶²⁷However, AI is only aware of a fairly small number of LGBT officers who serve on police forces in the U.S.^⁶²⁸

Only four out of 29 responding police departments in Los Angeles, California; New York, New York; Fargo, North Dakota; and Salt Lake City, Utah reported any kind of affirmative action hiring practice for LGBT individuals. The Phoenix, Arizona police department did not make clear whether or not it maintained an affirmative action hiring practice for LGBT individuals, but indicated that it recruits at LGBT events.

Even in departments where relevant affirmative action policies exist, other factors impede appropriate diversity within the police force. The U.S. Commission on Civil Rights has noted that although police forces have tried to implement affirmative action policies for women and people of color, they have been unable to accomplish diversity, in part because claims of sexual and racial harassment and disparity in pay make police careers unattractive.^⁶²⁹In light of pervasive homophobia and transphobia, it would follow that LGBT individuals face similar disincentives to seeking careers within police departments.

Some lesbian and gay officers (as well as one transgender officer) AI interviewed reported a predominantly positive experience when they came out. Others expressed frustration over transphobic or homophobic remarks from colleagues. Reports indicate that prejudice surfaces in everyday situations, including inappropriate comments in the locker room or via email and as screen savers.^⁶³⁰Perceptions that such behavior and beliefs are somehow acceptable foster discrimination within the department, and moreover, it is unlikely that such attitudes would not impact treatment of members of the public on some level. Police officials told AI on several occasions that it is impossible to control what their officers think or believe, and that training on behavior is sufficient.^⁶³¹Nevertheless, this attitude allows such beliefs to go unchallenged. These discriminations intersect with other discriminations, including racism.

Los Angeles: A gay law enforcement officer told AI, “If someone were to use words like ‘nigger’ or ‘spic,’ they would be immediately disciplined. However, if they use the word ‘faggot,’ generally nothing happens to them. Discipline only happens if someone steps forward, complains and says they are offended. Jokes and innuendoes in the locker room are still tolerated. This still happens rampantly across law enforcement. Racial jokes and slurs are immediately dealt with, regardless if there is a ‘complaining party’ or not, but with gay jokes, if no one complains, no one is disciplined. It needs to be seen as any other form of discrimination.”^⁶³²

It must be made clear that any expressions of prejudice are unacceptable and will be disciplined appropriately. Discrimination within the police, including racism, sexism, homophobia and transphobia, must be rooted out and addressed in order for treatment of members of the public to change.

8.4 Community Accountability

"In order for police to be effective, they need to understand that we're part of the community, not just policing the community."

Richard Odenthal, former Captain of West Hollywood Division LASD, Public Safety Manager, City of West Hollywood ^⁶³³

Diversity in the police force is only one potential marker of progress towards accountability and not an end goal in and of itself. Accountability to the communities they serve should be the guiding value of all law enforcement policies and practices.International guidelines suggest that involvement in and partnership with the communities is an important part of police work. The UN High Commissioner for Human Rights states that a prerequisite for the humane performance of law enforcement functions includes ensuring that “every law enforcement agency should be representative of and responsive and accountable to the community as a whole.”^⁶³⁴ Principles for community policing include recommendations that police establish community outreach and public information programs; liaise regularly with all groups in the community; involve the community in identifying problems and concerns; and coordinate policies, strategies and activities with non-governmental organizations.^⁶³⁵

AI’s findings indicate the need for the police to work more proactively to build effective relationships with the communities they serve. Some community groups and activists have argued that one way to help this process and promote better accountability is for police departments to institute residency requirements for officers. AI’s findings also demonstrate the need for local authorities to ensure that policing policies and practices serve the interests of all members of communities and do not result in systemic discrimination of targeted and marginalized groups.

Advocates in Chicago, Los Angeles, New York and San Francisco noted that police departments tend to focus their attention on older, wealthier members of the community, including business or property owners, to the exclusion of the needs and rights of the more marginalized and disenfranchised communities.^⁶³⁶In some cities, “community boards” or beat meetings between police and local communities have been established, and these meetings provide an important channel of communication. However, they have been criticized for being dominated by police officials, and for only welcoming certain groups and individuals.^⁶³⁷AI found a pattern of inadequate proactive outreach to LGBT communities, in particular to the more marginalized, including LGBT people of color and homeless youth. For example, in New York officials told AI, “Most of the young people who come to the Village don’t live there; they don’t have jobs there. It’s too expensive for them anyway. They’re not part of the community.”^⁶³⁸

Some police departments have instituted Advisory Boards and Task Forces which consist of community members who meet with officials on a regular basis to bring up issues of concern.

AI is pleased to note that the West Hollywood Station of the LASD has a Gay and Lesbian Conference Committee, where, according to Sheriff Baca, anyone can walk in and participate. According to LASD officials, these are very effective, and allow them to stay in touch with community concerns.^⁶³⁹The City of West Hollywood has established a Transgender Task Force which addresses policing issues, among others.^⁶⁴⁰AI believes that such models may be a good idea provided that communities are effectively represented by those selected to be on the board.^⁶⁴¹

Some U.S. police departments have appointed officers to be LGBT liaisons, serving as a link between LGBT communities and the police. Only 11 of 29 responding police departments (38 percent) told AI they have an LGBT liaison officer.^⁶⁴²Surveyed police departments without LGBT liaison officers are: Birmingham, Alabama; Anchorage, Alaska; Bridgeport, Connecticut; Wilmington, Delaware; Honolulu, Hawaii; Chicago, Illinois; Lexington, Kentucky; Jackson, Mississippi; Kansas City, Missouri; Omaha, Nebraska; Las Vegas, Nevada; Manchester, New Hampshire; Albuquerque, New Mexico; Memphis, Tennessee; San Antonio, Texas; Virginia Beach, Virginia; and Cheyenne, Wyoming.

AI found that while organizations and advocates generally expressed appreciation for LGBT liaisons, in many locations only one or two individuals cover a population of several million people, making it difficult to undertake substantive issues and to properly serve the entire LGBT community. In some cities, advocates charge that LGBT liaisons function merely as public relations managers, limiting their work to liaising with the larger mainstream organizations, with little or no input into police policy or training and lack of respect from the rest of the force. However, reports indicate that it can make a difference to have an advocate who understands police work as well as LGBT issues, depending on the mandate and personal impact of the liaison.^⁶⁴³

Chicago: Even though the Chicago Police Department indicated in its response to AI’s survey that it does not have an LGBT liaison, AI learned that one precinct in the department has a LGBT liaison officer. This liaison has established an advisory group and invited representatives from various organizations to participate.^⁶⁴⁴ Furthermore, the Hate Crime Unit has a LGBT liaison to provide assistance or to report particularly sensitive cases.

Los Angeles: LAPD has two officers assigned as LGBT liaisons who work under Chief Bratton. The LGBT Liaison for the West Hollywood Station of the LASD was described by several LGBT community members and activists as an effective advocate for LGBT concerns.^⁶⁴⁵

New York: The New York Police Department has one LGBT liaison. He explained to AI that he reports directly to the Commissioner on LGBT issues and that his role is to monitor LGBT protests and speak with council members, but that he doesn’t conduct outreach to LGBT communities, although he remains in touch with some groups. While there are not LGBT liaisons at the precinct level, local outreach is the responsibility of Community Affairs officers at each precinct.^⁶⁴⁶

San Antonio: Neither SAPD nor Bexar County Sheriff’s Department has a member of staff designated to liaise with LGBT communities. Chief Ortiz (SAPD) told AI that he would be willing to meet on a regular basis with members of LGBT communities. AI urges SAPD to follow up on this commitment and also advises that outreach is undertaken to LGBT communities in San Antonio.

Washington, D.C.: The Gay and Lesbian Liaison Unit (GLLU) in Washington, D.C. is staffed by four full-time officers and 10 volunteers and the head of the unit, Sgt. Brett Parson, reports directly to the Police Chief. The officers undertake police work as well as outreach, which was noted by the unit as an important factor in gaining respect and credibility within the police department. GLLU is also involved in training efforts within the police department.^⁶⁴⁷ LGBT organizations and advocates in D.C., including those representing marginalized populations such as sex workers and homeless youth of color, expressed great appreciation for the unit, praising individuals involved and the extensive outreach conducted. AI heard from one transgender woman of color who works as an advocate for sex workers that the unit “engages marginalized people and the LGBT community organizations in this city like no one ever has … I would call Brett before I called 911.”^⁶⁴⁸

Effective community outreach, whether in the form of LGBT liaisons or LGBT-specific task forces, must not be seen as isolated from the rest of the police department. Commitment to change must be a proactive effort department-wide, and reform must be supported and led by senior officials in order to truly impact the culture and actions of the police force as a whole.

8.5 Leadership and Supervision

As a leader in the Los Angeles County Sheriff's Department, I commit myself to honorably perform my duty with respect for the dignity of all people, integrity to do what is right and fight what is wrong, wisdom to use common sense and fairness in all that I do, and, finally, courage to stand against racism, sexism, anti-Semitism, homophobia and bigotry in all its forms.

Los Angeles Sheriff’s Department Core Values

Activists and individual police officers also brought up the need for diligent supervision and commitment from leadership in order to achieve effective reform and any lasting change.^⁶⁴⁹Moreover, to the extent that elected officials appoint police chiefs and influence the running of police departments, they must take responsibility for ensuring that police departments adhere to international human rights standards and operate in a transparent and inclusive manner.

Clear statements from senior police officials are an important step towards addressing institutional and cultural issues. AI is pleased to note, for example, that Sheriff Baca of the Los Angeles Sheriff’s Department introduced an amendment to the department’s core values, to include non-discrimination against sexual orientation.^⁶⁵⁰Police departments are further encouraged to institute regular internal audits in order to identify institutional dynamics that may facilitate discrimination.

Supervision and monitoring of operations in day-to-day police work is also important. Reports and lawsuits have documented the lack of diligent supervision as one of the root causes of police misconduct.^⁶⁵¹The findings of this report point to the need for particularly diligent supervision, monitoring and training in handling of the most marginalized communities – including LGBT people of color, youth, sex workers and homeless individuals.

Evaluations by supervisors of a police officer’s performance are also a powerful way of sending a message about values and actions that the department believes are important. Some organizations believe police performance should be evaluated in a more holistic way than currently takes place, incorporating human rights aspects of policing. For example, issues of quality of service, perceptions of safety and confidence in policing can be measured by victim perception surveys.^⁶⁵²The U.S. Commission on Civil Rights has suggested a system of rewards to incorporate and reinforce both the goal of crime prevention and protection of civil rights.^⁶⁵³

8.6 Accountability for Police Misconduct and Abuse

8.6.1 Complaint systems

"You want to root out any problems there may be. If you don't, they will come back and bite you."

Captain Linda Castro, former Captain of West Hollywood Station of the LASD, explaining why she "went out of her way to actively encourage people to file complaints" of police misconduct.

“Get complainants to tell the truth and then we wouldn’t waste our time…”

Comment made by a representative from San Antonio Police Department’s Internal Affairs Unit when AI asked what would help make the processing of complaints easier.^⁶⁵⁴

A white lesbian wrote to AI describing an incident in July 2000, in St. Paul, Minnesota. She reports that while grocery shopping, a man repeatedly pushed his cart into her partner, eventually knocking her to the ground, and calling her a “dyke.” As a result, she sustained a sprained wrist. The woman told AI that an officer stationed at the front of the store was called by a store employee, and “when we reported what had happened he informed us that he was off-duty (despite the fact that he was wearing his police uniform and badge and carrying his police-issue weapon). He said that if we wanted to press charges then he would have to arrest both my partner and the man since he did not know ‘who started it.’ When I informed him that the man had been following us for several minutes and had called my partner a ‘dyke,’ he told me that if we ‘chose that lifestyle we had to expect some people to have a problem.’ He refused to take a report and when we said we wanted his badge number he said that we could only get that if he arrested my partner.” The woman took down his badge number and reported the incident to the police precinct, where she was informed that since the officer had not filed any incident report, she could not file a complaint against him. The woman contacted a LGBT newspaper about the incident. Shortly afterwards she was reportedly fired from her job working for the state of Minnesota. She told AI she was informed by her employers that her involvement in the incident was “conduct unbecoming a state employee.”^⁶⁵⁵

In order for police departments to be held accountable for misconduct and abuse, there must be an effective system in place for members of the public to make complaints.^⁶⁵⁶Procedures for making complaints should be readily available, straightforward and be in all languages spoken in the community.

AI is concerned at reports in New York, San Antonio, Los Angeles, Chicago, Washington, D.C., Houston and San Francisco that suggest many people do not come forward with complaints about police officer abuse and misconduct, particularly LGBT people of color, LGBT homeless individuals, immigrants or youth.^⁶⁵⁷Some individuals interviewed expressed resignation or fear of coming forward due to an expectation of mistreatment by society in general and by police specifically.^⁶⁵⁸A Chicago advocate explained the unlikelihood of transgender women coming forward to make a report, saying, “They expect to be demeaned and abused by the police, they tolerate that… [They do not report because] they feel nothing will be done.”^⁶⁵⁹Survivors of misconduct who were engaging in conduct that could result in criminal charges (such as sex work and lewd conduct) fear prosecution for the activity they were engaged in when the misconduct occurred.^⁶⁶⁰

In contrast to these reports, police officials in Los Angeles, San Antonio, Chicago and New York expressed confidence in the complaint system to AI.^⁶⁶¹Seven out of 11 (64 percent) responding internal affairs departments told AI that they conduct outreach to specific communities to inform them of the availability of the complaint procedures. However, such outreach may involve simply providing written responses to requests for information on how to file a complaint.

AI found that complainants may face daunting and complex procedures when trying to make a complaint against a police officer. For example, the Internal Affairs Bureau in San Antonio requires a sworn and notarized statement from anyone making a formal complaint, and warns complainants of criminal liability for perjury for making a false complaint. While this may deter frivolous complaints, it could also have the effect of stifling complaints particularly from marginalized or indigent communities, who already fear that they will not be believed. Indeed, an official from the Internal Affairs Unit in San Antonio told AI that some people leave without making a complaint after being informed of the procedure.

Another obstacle individuals may face when to trying to make a complaint is the need to identify the individual officer. Advocates and members of the LGBT community in New York City indicated that one of the issues that prevent people from reporting misconduct is some officers’ refusal to provide a badge number or name. One transgender attorney commented, “I’ve never had a negative interaction with the police when they don’t cover their badges.” ^⁶⁶²

AI heard that individuals sometimes feel more comfortable making a complaint if they can do so anonymously. In AI’s survey, eight of 11 responding internal affairs bureaus (73 percent) accept anonymous complaints. Survey responses from Little Rock, Arkansas and Minneapolis, Minnesota indicate that these states do not accept anonymous complaints. A brochure regarding the San Antonio Internal Affairs Unit provided by San Antonio indicates that anonymous complaints will not proceed for serious or formal complaints. AI heard that in Chicago, according to a union contract, anonymous complaints are not allowed.^⁶⁶³ Some cities including New York^⁶⁶⁴and Los Angeles also allow third parties to make complaints on behalf of the victim. However, AI heard from officials in San Antonio that such complaints cannot be made. AI heard in Los Angeles that anonymous and third party complaints have been successful in some instances where precinct commanders were willing to conduct extensive investigations within communities.^⁶⁶⁵However, according to the Inspector General (who has the power to audit, investigate and oversee LAPD's handling of complaints of misconduct by police officers) there is a tendency to use the fact that an investigator was unable to speak with a complainant as an excuse not to investigate.^⁶⁶⁶AI also heard from officials that anonymous and third party reporting poses a barrier to proper investigation. While AI appreciates that investigations may be difficult without detailed identifying information, the organization urges departments to seek other methods of pursuing such complaints, for example through tracking patterns, rather than focusing only on identifying individual officers who may have committed misconduct.

AI has received a number of reports from LGBT individuals who faced hostility, ridicule or attempts to dissuade them from making complaints at police stations.^⁶⁶⁷Other organizations, investigative journalists and independent auditors, including some in Los Angeles and Chicago, have documented such issues, including intimidation of individuals wishing to make a complaint and failure to provide necessary information or forms.^⁶⁶⁸

AI is particularly concerned about reports of retaliation against people who have come forward with complaints against police officers.^⁶⁶⁹AI heard reports of officers charging the victim or potential witnesses with offenses such as resisting arrest, interfering with an arrest, or assault when they file or express an interest in filing a complaint.^⁶⁷⁰

In addition to receiving reports of police abuse and misconduct from members of the public, international standards stipulate that police officers have an obligation to report violations of human rights to their superiors.^⁶⁷¹While nine of the 11 responding internal affairs departments indicated that they maintain procedures for officers to report misconduct, the remaining two departments^⁶⁷²(18 percent) told AI they have no such procedures. Furthermore, the “code of silence” (an unwritten rule and custom that police will not testify against a fellow officer and that police are expected to help in any cover-up of illegal action)^⁶⁷³has created a formidable barrier to reporting.^⁶⁷⁴So-called “whistle-blowers” have allegedly faced ostracism and retaliation.^⁶⁷⁵Nevertheless, while there are confidential reporting procedures for officers in some departments, officers reportedly still fear that their colleagues will retaliate against them.^⁶⁷⁶

8.6.2 Internal Accountability Measures

Once a complaint has been made it is usually investigated by a police department’s internal affairs department. AI’s survey results indicate that internal affairs departments do not train their staff specifically on LGBT issues: only 45 percent (five of 11)^⁶⁷⁷of responding internal affairs departments told AI that they train their staff on LGBT issues, and of these only two have mandatory training.^⁶⁷⁸This may impact their ability to identify and investigate sensitive issues impacting these groups.

Reportedly, only a relatively small number of complaints overall are sustained – some reports suggest that it may be as low as five percent.^⁶⁷⁹One of the reasons behind this is a high number of cases where insufficient evidence is available to either confirm or deny the complaint – often in instances where the only evidence is the complainant’s word against the officer’s.^⁶⁸⁰This is particularly concerning in light of the findings of this report, since the most marginalized individuals often may not be able to draw on witnesses, because the incident may have occurred in a desolate area, or because potential witnesses are transient, impossible to locate or afraid of coming forward.

In general, AI’s findings suggest that when investigations of complaints against officers are undertaken internally by officers, complainants face substantial skepticism: Internal Affairs officials in San Antonio told AI that complainants often lie, and indicated that people who are being charged with a crime “automatically” file a complaint in order to deflect attention from their own actions.^⁶⁸¹Furthermore, reports indicate that Internal Affairs investigators are more likely to believe an officer’s testimony when a complaint has been made by members of marginalized groups, such as sex workers or homeless individuals.^⁶⁸²Independent inquiries into several large police departments have found that internal investigations of allegations of abuse lacked thoroughness and that officers were given the benefit of the doubt even if there was evidence of misconduct.^⁶⁸³

AI is concerned by certain time limits that impact the ability to fully investigate and subsequently bring disciplinary action against an officer. Such restrictions have reportedly led to cases reaching the time limit before officers have been subject to disciplinary action, and the cases therefore have been dropped. Such problems have been reported in cities including New York, Los Angeles and San Francisco.^⁶⁸⁴ In 2002, San Francisco police officials reportedly planned to drop at least six disciplinary cases against officers because investigators had not completed the cases before the one-year statute of limitations expired, and therefore, no disciplinary action would be taken.^⁶⁸⁵ AI is particularly concerned that the Internal Affairs Unit in San Antonio only has 180 days to investigate from the date of the alleged misconduct, as stipulated by the police union contract.^⁶⁸⁶

Public confidence in the complaints and disciplinary process is further undermined by the secrecy of police internal investigations. Some police departments have refused to provide information to victims, their families and their attorneys as well as to NGOs – in some instances on the grounds that “personnel matters” are not subject to disclosure under state confidentiality laws.^⁶⁸⁷All 11 internal affairs departments responding to AI’s survey reported that they provide information on the outcome of a complaint; however only three^⁶⁸⁸provide the complainant with any justification for the decision.

AI notes the initiative by Internal Affairs in both Los Angeles and New York to utilize undercover surveillance operations of officers suspected of misconduct, after receiving complaints.^⁶⁸⁹ For example, in Los Angeles, officials told AI that when a sex worker alleged that an officer was sexually abusing women, an undercover operation was arranged to recreate the circumstances of the original complaint and the officer’s conduct confirmed the allegations made by the complainant. However, such operations are very costly, and therefore only a limited number of such investigations can take place.^⁶⁹⁰

Discipline

In the event that a complaint is sustained against an officer, disciplinary measures may often seem lenient compared to the alleged conduct. Even for serious abuses, reports indicate that a low number of officers are suspended or fired.^⁶⁹¹The lack of transparent and consistent guidelines for disciplinary measures has been cited by monitors and organizations as a factor contributing to a lack of consistency.^⁶⁹²

Proactive Actions and Policy Issues

"To change behavior effectively, an oversight body must look beyond the particular cases of misconduct to systemic issues implicating policy and training."

LASD Office of Independent Review^⁶⁹³

Authorities must accept that while police officers are individually responsible for their actions, the systems that recruited, trained and supervised them are also responsible. Nevertheless, most of the remedies outlined above are largely reactive, and deal with individual complaints, not systemic failings. Police departments have failed to identify and stop “problem officers” from repeatedly committing misconduct, as well as to tackle the larger systemic issues which give rise to and allow such misconduct to take place, often with impunity.^⁶⁹⁴

More proactive ways of identifying misconduct are being explored by some police departments, including so-called “early warning” systems. Such systems consist of a data management tool intended to identify officers whose performance is problematic, and provides intervention, including counseling or training, to correct those problems.^⁶⁹⁵ AI’s survey of internal affairs departments found that eight of 11 responding internal affairs bureaus (73 percent) reported having an early warning system in place, and one reported plans to introduce such a system. The internal affairs departments of Bridgeport, Connecticut and Indianapolis, Indiana reported that they do not have an early warning system. In the four cities studied by AI, San Antonio (which is included in the survey of internal affairs departments), New York and Los Angeles Police Departments have an early warning system, but Chicago Police Department does not. Measuring the effectiveness of such early warning systems, however, is beyond the scope of this report.^⁶⁹⁶

Police accountability experts warn that such systems should incorporate several types of data and not rely solely on citizen complaints, which may only represent a portion of misconduct because of underreporting. For example, the Pittsburgh early warning system requires input from computerized records of each officer's disciplinary, training and complaints history (including unsustained complaints and data on civil lawsuits), as well as data on all arrests, traffic stops, use of force incidents^⁶⁹⁷and race, including alleged use of racial epithets.^⁶⁹⁸

In light of the findings of this report indicating that LGBT individuals, including LGBT individuals of color, homeless people, sex workers, youth and immigrants, are targeted for police misconduct, police departments should be vigilant about identifying discrimination and misconduct against members of these communities. AI believes that while many early warning systems seek mainly to identify violent behavior, it is also important for police departments to be able to identify patterns of individual or systemic discriminatory treatment, including indications of an officer’s homophobia, transphobia or racial bias.

One of the methods of tracking information for an early warning system is through complaints filed. Five departments out of 29 (17 percent) responding to AI’s survey reported that they document the gender identity of complainants. Four departments out of 29 (14 percent) reported that they document sexual orientation.^⁶⁹⁹ AI notes that while tracking sexual orientation or gender identity or expression of all complainants may reveal discriminatory patterns beyond those cases where overt homophobic or transphobic slurs are used, formally requiring sexual orientation or gender identity or expression of complainants to be recorded may dissuade LGBT individuals from coming forward to make a complaint. If individuals feel comfortable sharing information on their sexual orientation or gender identity, then such information should be tracked and monitored.

AI believes that in order to identify systemic issues of discrimination, police departments must not only track complaints alleging discriminatory treatment and abuse, but should work with advocacy groups in order to better identify problems and solutions to these, and should provide an independent oversight body with the ability to periodically review data with a view to identifying patterns of discriminatory treatment and abuse.

8.6.2 Independent and External Civilian Oversight

As public opinion increasingly has expressed concern about the ability of law enforcement to self-regulate and deal appropriately with unethical conduct, some form of independent oversight has been instituted in many cities across the U.S.^⁷⁰⁰ As part of its survey of police departments in the largest city in each state, AI asked whether some form of external review mechanism was in place. While the majority of respondents have such a body, seven out of 29 responding cities (24 percent) indicated to AI that they do not have an external review process. The police departments that reported they do not have external review mechanisms are Birmingham, Alabama; Wilmington, Delaware; Jacksonville, Florida; Atlanta, Georgia; Lexington, Kentucky; Jackson, Mississippi; and Manchester, New Hampshire.

There are many different models of external review, including systems where review boards with civilian investigators investigate complaints and issue recommendations, and those in which the police investigate complaints which are then reviewed by an outside civilian body. In nearly all cases, the external review systems have an advisory function, and the Chief of the Police Department remains responsible for deciding on discipline.^⁷⁰¹An exception to this is San Francisco’s Office of Citizen Complaints (OCC), which is publicly funded, has 15 investigators, subpoena power and authority to discipline—including firing—officers.^⁷⁰²

For the four cities studied, the following systems are reportedly in place. It should be noted that AI is unable to conduct a thorough review of the effectiveness of the systems in each city; however, AI notes with concern that not all of the following systems represent independent, external civilian oversight:

Chicago: The Office of Professional Standards (OPS) was created in 1974. It is part of the Chicago Police Department but is staffed by civilians. The vast majority of cases investigated by OPS are found “not sustained,” meaning that OPS could not determine whether the incident took place as alleged by the complainant. OPS does not have subpoena power, does not hold public hearings and, if it makes policy recommendations, they are not made public. The OPS files a monthly report to the Police Board, composed of nine civilians appointed by the mayor. The Board reportedly often exonerates officers and usually does not explain the reasoning behind its rulings.^⁷⁰³

Los Angeles: The Office of the Inspector General (OIG) was created as a form of civilian oversight following the Christopher Commission report. The OIG is authorized to have complete and unrestricted access to all LAPD documents, to obtain direct and prompt access to any LAPD or Police Commission employee, and to subpoena witnesses and compel the production of any materials. The Inspector General audits, investigates and oversees the Police Department’s handling of complaints of misconduct by police officers.^⁷⁰⁴

New York: Two external agencies play a role in monitoring and overseeing the conduct of NYPD officers: the Commission to Combat Police Corruption (CCPC)^⁷⁰⁵ and the Civilian Complaint Review Board (CCRB).^⁷⁰⁶ The Board may receive, investigate, hear, make findings and recommend action on complaints against police officers alleging use of excessive or unnecessary force, abuse of authority, discourtesy or the use of offensive language.^⁷⁰⁷ The CCRB reports its findings and recommendations to the Police Commissioner and issues semi-annual reports. The Board is not authorized to discipline officers.

San Antonio: Once San Antonio’s Police Department’s Internal Affairs Unit has completed an investigation, the case is forwarded to the Chief’s Advisory Action Board. The Board consists of seven police officers and two civilians: they review the case and present its findings to the Chief of Police. Captain Geraldine Garcia, Professional Standards Commander of San Antonio Police Department’s Internal Affairs Unit, told AI that while civilian input is important, she would not be supportive of an external civilian review board.^⁷⁰⁸

AI surveyed 24 Civilian Complaint Review Boards that exist in the largest city of each of the 50 states and the District of Columbia and received completed surveys from nine.^⁷⁰⁹Survey responses indicated a lack of focus on and expertise in LGBT issues, raising concerns about the ability of external review boards to respond to and adequately investigate complaints made by this population. Only three of the nine responding agencies^⁷¹⁰(33 percent) report that they have any practices to recruit LGBT individuals. Only two of the responding nine agencies (22 percent) reported having a LGBT liaison.^⁷¹¹One of these two agencies^⁷¹²was also the only one to report that it offered training for staff on LGBT issues. One agency^⁷¹³did not indicate regular training, but noted that its staff had received a presentation by an LGBT organization. Furthermore, only one out of the nine (11 percent) responding external review boards^⁷¹⁴has a policy on how to handle complaints filed by LGBT individuals.

Criticism on a more general level has been expressed at a number of external review boards for failing to live up to expectations of their mandate. In many instances, this critique appears in part to be reflective of limitations on external review boards’ power, funds, staff and access to information. In several cities these limitations have created a severe backlog of cases and a reduction in cases fully investigated.^⁷¹⁵Many external investigatory bodies have no power to order witnesses to appear, and their investigations are thwarted if the police or others refuse to cooperate.^⁷¹⁶

AI is further concerned that many civilian oversight systems do not have the authority to make policy recommendations. While some bodies that have such authority have made regular constructive policy recommendations, others have reportedly failed or been unable to use such powers effectively.^⁷¹⁷

New York: Although the CCRB has the authority to make recommendations for system-wide policy changes, to date, the Board has made little use of these powers. The CCRB has publicized only three policy recommendations over the past 11 years, addressing the practice of strip searching detainees who have been charged with minor violations, the use of no-knock search warrants, and officers’ refusal to provide their name and/or badge number.^⁷¹⁸

Oversight agencies have been criticized for failing to effectively communicate the results of their investigations, in some cases because they are restricted from giving out detailed information on specific cases. However, some oversight agencies do provide public reports with statistical breakdowns of the number and types of complaint, and include a breakdown of the race of the complainant and officer. The publication of such data is something that should be required in all cases.

Only 10 out of 29 police departments responding to AI’s survey (34 percent) indicated that data on complaints against individual officers was publicly available, indicating a need for greater accountability and transparency. Civil rights groups and others have also reported difficulty in obtaining data that should be available under public records acts, such as information on shootings, compensation payments and lawsuits. While some police departments provide statistical information on the number of complaints investigated and the number of officers disciplined each year, the amount of data varies, and rarely provides the kind of information which would shed light on the misconduct against and accountability for victims belonging to marginalized groups, such as LGBT individuals, individuals of color or youth.

Independent Monitors and Ombudsmen Audits

AI notes that some authorities have appointed independent monitors to monitor the internal disciplinary process of police departments. They may be permanent and review systemic issues within the department, rather than individual cases. They may also undertake “integrity audits”: stings or spot checks where undercover agents test practices and procedures in random or select locations. This type of operation may be effective in identifying systemic weaknesses and abuses. Independent monitors or ombudsmen should therefore have sufficient resources to carry out policy analysis and research, in order to identify policy reforms to address systemic patterns of abuse.

8.7 Prosecutions and Lawsuits

In the U.S., very few criminal cases involving excessive use of force or discriminatory practices are brought against individual police officers.^⁷¹⁹The standard of proof in a criminal case is high and often rests on the word of the victim (who may also be charged with an offense) against that of the accused officer. It can therefore be difficult to obtain sufficient evidence to convict unless police witnesses come forward, which is hampered by the existence of the “code of silence,” as discussed above. Observers point out that prosecutors often do not prosecute police officers, because police and prosecutors depend on each other in their daily work life and these connections may hinder their ability to function impartially in the role of prosecution.^⁷²⁰Independent “special prosecutors” have been suggested as one way of ensuring that prosecutions are undertaken in the most effective manner.^⁷²¹Another shortcoming of criminal lawsuits is that even successful prosecutions have usually only been able to prove the guilt of individual officers, rather than systemic failings.^⁷²² The Department of Justice may also bring federal criminal charges against law enforcement officials; however, of the thousands of complaints of police brutality filed with the Justice Department each year, only a small proportion result in prosecutions.

Individuals may also bring civil claims against individual law enforcement officers and, under some circumstances, municipalities, for monetary compensation.^⁷²³While civil lawsuits may provide financial compensation, they are unlikely to be filed by the most marginalized individuals in a community and rarely serve to hold either police departments or individual officers accountable. Although cities in some cases pay out large sums of money in damages in settlements or judgments the money is usually paid out of a general city or county fund. Furthermore, in many cities, civil lawsuits are not kept track of or recorded in officers’ files, meaning that vital information needed to monitor officers’ behavior is lost.

The Police Accountability Act, incorporated into the Violent Crime Control and Law Enforcement Act of 1994 (Crime Control Act), gave the Justice Department the authority to bring civil actions in federal courts against police departments accused of engaging in a "pattern or practice" of abuses.^⁷²⁴ As of July 2005, pattern or practice investigations of 14 agencies were ongoing.^⁷²⁵This is an important remedy which has led to a significant reform program being drawn up in police departments, in most cases formulated as Consent Decrees.^⁷²⁶Consent Decrees entered over the past 10 years have addressed a number of issues, including excessive use of force; search and seizure policies and practices, including strip searches, racial profiling and bias; discrimination on the basis of religion; accountability mechanisms such as internal investigation structures and practices; and the development and implementation of "early warning systems" designed to track and address problem officers, areas or practices. Unfortunately, the Justice Department does not have the resources to investigate more than a small proportion of problem agencies.

Finally, AI believes that alternatives to official systems of accountability should be considered alongside official systems. In light of the particular needs of marginalized populations and communities as discussed in this report, other approaches to accountability should also be considered, including potentially granting powers to civilian oversight bodies to facilitate mediation or Alternative Dispute Resolution between complainants and police.^⁷²⁷Mediation has also been brought forward by scholars in the field of police accountability.^⁷²⁸Such processes may not be appropriate in serious cases of police misconduct, or in cases where a clear pattern of abuses has been documented around a particular unit or area.

9. Identity-Based Discrimination and Police Abuse

“Within the lesbian community I am Black, and within the Black community I am a lesbian. Any attack against Black people is a lesbian and gay issue, because I and thousands of other Black women are part of the lesbian community. Any attack against lesbians and gays is a Black issue because thousands of lesbians and gay men are Black. There is no hierarchy of oppression.”

Audre Lorde ^⁷²⁹

As AI’s findings indicate, police abuse and the forms this takes are often specific to the different aspects of the victim’s identity, such as sexual orientation, race, gender or gender identity, age or economic status. Identities are complex, multi-layered and intersectional, such that a person may be targeted for human rights violations based on a composite of identities that that person seems to represent. The targeting of lesbian, gay, bisexual and transgender people for discriminatory enforcement of laws and their treatment in the hands of police needs to be understood within the larger context of identity-based discrimination, and the interplay between different forms of discrimination—such as racism, sexism, homophobia and transphobia—create the conditions in which human rights abuses are perpetuated. This chapter will provide a brief overview of the larger context of some forms of identity-based discrimination facing individuals within the LGBT community in the United States.

As noted earlier in this report, much of AI’s research has clearly demonstrated that discrimination, the systematic denial of rights to certain people, is a grave human rights abuse and can often lead to further human rights abuses.^⁷³⁰Discrimination dehumanizes its victim, who is deemed someone who can be treated inhumanely. Institutional discrimination feeds impunity, denies justice and can incite violence against targeted people or groups. Discriminatory practices and policies have tremendous consequences for targeted groups not only in terms of the nature of their ill-treatment by government agents or society at large, but also in terms of their access to redress and equal protection under the law. Discrimination also often leads to a lack of official action, such as investigations into alleged abuses, which further reinforces impunity.

Transgender People

Transgender people, often seen as threatening to a gendered social order, are some of the most discriminated-against members of the LGBT community, sometimes encountering prejudice from within the lesbian, gay and bisexual community.^⁷³¹The lack of legal recognition and protection of the full human rights of transgender people, including their economic, social and cultural rights, combined with endemic prejudice, leaves them prone to discrimination. The right of access to the most basic areas of daily life, such as employment, housing and health services, are rights under the ICESCR. Nearly 70 percent of transsexual people in some cities in the U.S. are reportedly unemployed or underemployed.^⁷³²Reports indicate that a significant proportion of the transgender community is homeless, particularly transgender persons of color and immigrants.^⁷³³Homeless transgender people face difficulties accessing homeless shelters that are safe for them.^⁷³⁴Lacking access to safe shelter, they often face life on the streets, which gives rise to a set of risk factors. To make money for food and rent, some transgender individuals may resort to engaging in illegal activity, further increasing the likelihood of encounters with law enforcement.

Violence and discrimination against transgender people by police can be seen as enforcement of socially constructed boundaries of gender inflicted on those who transgress social “norms” regarding “gender appropriate” conduct and presentation. As this report documents, transgender and gender variant people may come into contact with police simply for being who they are. Reportedly, the likelihood and the quality of police interactions are affected by how visible an individual's perceived gender variance is.^⁷³⁵Further compounding this issue is that an individual’s lower socioeconomic status may play a role in how he or she is treated by the police, since low-income transgender men and women may not be able to afford the hormones, surgical procedures or make-up and wigs which enable them to “pass” and therefore be more likely to escape police attention.

The impact of pervasive discrimination against transgender people is compounded further for those who endure other prejudices due to their race, ethnicity, age or socioeconomic and/or immigration status. Reports to AI indicate that transgender people of color are discriminated against on the basis of race and gender identity, and are especially at risk of police abuse.

Communities of Color

In its 1998 report Rights for All, Amnesty International found that “members of racial minorities bear the brunt of police brutality and excessive force in many parts of the U.S.”^⁷³⁶Reported abuses include racist language, harassment, ill-treatment, unjustified stops and searches, false arrests, use of excessive force, unjustified shootings and torture.^⁷³⁷The systemic racism inherent in U.S. policing was also noted by the U.N. Special Rapporteur on Racism, Racial Discrimination, Xenophobia and other Related Intolerances in his report on the United States, which found that law enforcement officers disproportionately used excessive force against people of color.^⁷³⁸

Document - USA: Stonewalled : Police abuse and misconduct against lesbian, gay, bisexual and transgender people in the U.S.

Introduction

International Law

4. Profiling and Selective Enforcement

4.1 Policing Gender - Profiling of transgender individuals

4.1.1 Law Enforcement Training and Policies

4.1.2 Profiling transgender women as sex workers

4.1.3 Identification

4.1.4 Policing Bathroom Use

4.1.5 Morals Enforcement – Policing Public Space

4.1.5.1 Vague Laws and Targeted Undercover Enforcement of Morals Regulations

4.1.6 Police Raids of LGBT Gatherings

4.1.7 Demonstrations – Targeting of LGBT Demonstrators and Activists

4.2 “Quality of Life” Enforcement and Gentrification

4.2.1 Discriminatory enforcement of “quality of life” ordinances

5. Sexual, Physical and Verbal Abuse

5.1 Sexual abuse

5.2 Physical Abuse

5.3 Verbal abuse of LGBT Individuals

6. Searches and Detention

6.1.1 Police Policy and Training Procedures

6.2 Treatment in Detention/Holding Cells

6.2.1 Failure to Protect LGBT Individuals From Other Detainees

6.2.1.1 Housing of LGBT Detainees: Detention Policies and Procedures

Placement of LGBT Individuals: Placing Individuals at Risk

Segregation

Other concerns about conditions in detention

7. Police Response to Crimes Against LGBT Individuals: Fear of Reporting; Police Failure to Respond and Inappropriate Police Response

7.1 Fear of Reporting Crimes

7.2 Hate Crimes

7.2.1 Hate Crimes: Background

Documentation and Statistics

Hate Crime Laws

Illinois State

Chicago City

YES470

YES471

Los Angeles

California State

Los Angeles

YES476

No Hate Crime Law477

New York State

New York City

YES481

YES482

Texas State

San Antonio

NO485

NO HATE CRIME LAW

7.2.2 Police Response to Hate Crimes

Failure to Identify Hate Crimes

Verbal and Physical Abuse by Police Towards Victims of Hate Crimes

Additional Measures by Police Departments

7.3 Domestic Violence

7.3.2 Police Response to LGBT Domestic Violence

Arrest and Threats to Arrest Both Parties or the Victim of Domestic Violence

Verbal Abuse by Police Responding to LGBT Domestic Violence

8. Training and Accountability

8.1 Background

8.2 Training

LGBT-Specific Issue Training

Strip Searches/Transgender

Same-Sex Domestic Violence

LGBT Hate Crimes

Sexual Assault of LGBT Individuals

LGBT Hate Crimes

Chicago

Los Angeles

New York610

Trainers

8.3 Recruitment and Diversity on the Force

8.4 Community Accountability

8.5 Leadership and Supervision

8.6 Accountability for Police Misconduct and Abuse

8.6.1 Complaint systems

8.6.2 Internal Accountability Measures

Discipline

Proactive Actions and Policy Issues

8.6.2 Independent and External Civilian Oversight

YES^⁴⁷⁰

YES^⁴⁷¹

YES^⁴⁷⁶

No Hate Crime Law^⁴⁷⁷

YES^⁴⁸¹

YES^⁴⁸²

NO^⁴⁸⁵

New York^⁶¹⁰