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Justice in Reentry for Formerly Incarcerated LGBTQ People and People Living With HIV

A bird flies near the barbed wire fence surrounding a prison recreation yard in California, as the sun sets in June 2007.

Incarceration has far-reaching and often devastating consequences for system-involved individuals, their families, and their communities. Formerly incarcerated people face barriers to employment, housing, health, and education. These barriers deny them the ability to meet basic needs, push them back into incarceration, and remove opportunities for stability and advancement. For formerly incarcerated LGBTQ people, unique health care needs and ubiquitous discrimination compound and intersect with these barriers, presenting persistent challenges as people rebuild their lives after incarceration. Many people living with HIV, especially Black men and Black transgender women, are LGBTQ—and in general, people with HIV face rampant, racially targeted criminalization and are underserved by health care systems.

Sexual minorities are incarcerated at a rate three times higher than the general U.S. incarceration rate, and transgender people are also incarcerated at disproportionate rates, with Black transgender women incarcerated at approximately 10 times the rate of the general population incarceration rate. Meanwhile, the factors driving the disproportionate criminalization of LGBTQ people—such as labor and housing market exclusion, the criminalization of sex work, and structural bias in the criminal legal system—continue to harm people after incarceration and lead to further system involvement.

Efforts to end this criminalization must be complemented by adequate and affirming reentry processes. Support for formerly incarcerated people as they reenter their communities is critical to helping them meet their basic needs and reducing the risk of future system involvement. However, existing reentry policies and programs can be inaccessible or actively harmful in a variety of ways to LGBTQ people and people living with HIV. Policymakers can begin to address these harms through reforms and the provision of sufficient, targeted, and culturally competent support.

System involvement after incarceration

State control over the lives of formerly incarcerated people does not end at the prison gate. Upon release, people are often subject to probation and parole. During this period, their movements and choices are restricted by law enforcement. Officials have used these arrangements to prevent transgender people from accessing basic services, such as sex-segregated shelters, or dressing in accordance with their gender identity. Travel restrictions limit people’s access to medical care, housing options, and employment opportunities—and for populations experiencing discrimination due to both system involvement and sexual orientation or gender identity (SOGI), accessible services can be uncommon and travel is often necessary. However, violation of any of these stringent terms can result in reincarceration.

Furthermore, LGBTQ people are overrepresented in sex offender registries, which create barriers to attaining housing and employment. Until recently in California, for example, registration was mandatory for certain offenses when involving oral or anal sex but discretionary for those offenses when involving penile-vaginal sex. Many states also require registration for individuals convicted of HIV-related crimes, and bias from police, prosecutors, and judges often reinforces stereotypes. Evidence has long shown that sex offender registries do not encourage rehabilitation or benefit public safety and can cause serious collateral harms. More effective solutions to sexual violence are needed, and the tools available should not be used to target LGBTQ people and people living with HIV.

A further lasting consequence of incarceration for many transgender people is the effect of system involvement on attaining name changes and accurate identity documents. Name changes and gender markers are not just affirming—they’re useful in avoiding everyday instances of harassment, especially in health care and public accommodations. However, 17 states permanently or temporarily ban name changes for people with some criminal convictions, and a criminal record leads to additional scrutiny even in the absence of a ban. The Federal Bureau of Prisons (BOP) and state departments of corrections must create and implement guidance for correctional staff to assist incarcerated transgender people with name and gender marker changes before release and increase the availability of LGBTQ-specific reentry resources, including through the BOP community resource database.

Carceral institutions must adequately prepare people for release. Existing services for reentering people can have lengthy waiting lists, and policies for correctional staff must provide enough time to ensure that incarcerated people do not face gaps in needed services upon release. BOP’s 90-day time frame for release planning, for example, can be severely inadequate.

Reentry and housing

Access to employment, consistency in health care, and avoidance of reincarceration often depend on stable housing, and formerly incarcerated people in the United States are 10 times more likely to experience homelessness than the general population. Compounded and intersecting discrimination on the basis of criminal records and SOGI compromises the ability of formerly incarcerated LGBTQ people to secure credit or leases. Disproportionate unemployment among formerly incarcerated people and among LGBTQ people—especially in the wake of the coronavirus pandemic—further undermines housing security.

Halfway houses and homeless shelters provide housing stopgaps during reentry, but these environments are often unsafe for transgender people, who face harassment by residents and staff and the possibility of being placed in sex-segregated programs contrary to their gender identity. Seventy percent of transgender people who stayed in a shelter in 2015 reported experiencing mistreatment.

Longer-term housing can also be inaccessible. Rental discrimination on the basis of SOGI remains common, and rental discrimination against people with criminal records is ubiquitous and often legal. Robust enforcement of SOGI housing nondiscrimination protections and efforts to reduce housing discrimination against people with criminal records are needed to support formerly incarcerated LGBTQ people. Federal, state, and local governments should ensure that shelters and halfway houses are trained to support LGBTQ people.

Reentry and employment

In a 2020 Center for American Progress survey, more than one-third of LGBTQ Americans reported discrimination affected their ability “to be hired” to a moderate to significant degree in the year prior. When this discrimination intersects with common and often legal forms of discrimination against people with criminal records, attaining employment can become extremely difficult. Additionally, extended periods of incarceration cause some people to lack necessary job skills upon release.

Exclusion from legal labor markets and the criminalization of survival economies lead to further system involvement. While a lack of SOGI-specific recidivism data makes it difficult to identify the extent of this harm, high rates of recidivism in sex work and drug crime among the general population illustrate the problem. Continued sex-work and drug criminalization punishes and reincarcerates excluded people, compromising the safety of sex workers and hindering efforts to address the public health effects of drug use. Decriminalization in both contexts would be concretely beneficial and is recommended by advocates and impacted people.

The harms of exclusion from employment are exacerbated by the effects of a criminal record on social safety net access. Twelve states fully ban people with felony convictions from receiving Temporary Assistance for Needy Families or support from the Supplemental Nutrition Assistance Program, with other states enforcing partial bans. These and similar bans deny basic support to vulnerable populations.

Therefore, formerly incarcerated LGBTQ people and people living with HIV would benefit from decriminalization; continued efforts to reduce the effects of criminal records on employment, postsecondary education, and social safety net access; and cultural competence in job training programs. “Ban the box” advocacy efforts have led to federal and state policies eliminating or delaying criminal record disclosure or background checks but must be implemented in more states and localities and applied to more forms of employment. Proposed legislation such as the Workforce Justice Act would effectively pressure states to act.

Reentry and health care

During incarceration, people living with HIV lack adequate health care, and LGBTQ people are disproportionately subject to potentially traumatic sexual violence and solitary confinement. These experiences can have serious long-term health consequences, underscoring the importance of providing both consistent HIV treatment and trauma-informed care to LGBTQ people and people with HIV upon release. Increased funding for HIV outreach, testing, and treatment at low-barrier providers, such as federally qualified health centers from the Health Resources and Services Administration, and analogous state and local agencies would provide an avenue toward rectifying these harms, as would increasing access to affordable mental health services.

Services must be provided in a culturally competent manner. LGBTQ Americans, and transgender people of color especially, are regularly mistreated by health care providers: The 2020 CAP survey found that nearly half of transgender people of color reported providers displaying visible discomfort while treating them, with a similar share reporting that they were intentionally misgendered. Mistreatment and abuse cause LGBTQ people to avoid care, creating additional health risks.

Affordability remains one of the top barriers to care facing formerly incarcerated people writ large, however, with 80 percent of them uninsured in 2014. Policymakers must prioritize efforts to increase coverage for formerly incarcerated LGBTQ people and people living with HIV, including through the implementation of the Affordable Care Act’s Medicaid expansion in all states.

Conclusion

The harms of criminalizing LGBTQ people and people living with HIV can extend far beyond an individual’s release from prison. Serving and empowering these people during reentry provides an actionable opportunity to disrupt the racism, violence, poor health, housing insecurity, and intersectional discrimination they face.

Theo Santos is the special assistant to the LGBTQ Research and Communications Project at the Center for American Progress.