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Masculinity As Prison: Sexual Identity, Race, and Incarceration Russell K

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Masculinity As Prison: Sexual Identity, Race, and Incarceration Russell K Berkeley Law Berkeley Law Scholarship Repository Faculty Scholarship 1-1-2011 Masculinity as Prison: Sexual Identity, Race, and Incarceration Russell K. Robinson Berkeley Law Follow this and additional works at: http://scholarship.law.berkeley.edu/facpubs Part of the Law Commons Recommended Citation Russell K. Robinson, Masculinity as Prison: Sexual Identity, Race, and Incarceration, 99 Cal. L. Rev. 1309 (2011) This Article is brought to you for free and open access by Berkeley Law Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Berkeley Law Scholarship Repository. For more information, please contact [email protected]. Masculinity as Prison: Sexual Identity, Race, and Incarceration Russell K. Robinson* The Los Angeles County Men's Jail segregatesgay and transgender inmates and says that it does so to protect them from sexual assault. But not all gay and transgenderinmates qualify for admission to the K6G unit. Transgender inmates must appear transgender to staff that inspect them. Gay men must identify as gay in a public space and then satisfactorily answer a series of cultural questions designed to determine whether they really are gay. This policy creates harms for those who are excluded, including vulnerable heterosexual and bisexual men, men who have sex with men but do not embrace gay identity, and gay-identified men who do not mimic white, affluent gay culture. Further,the policy harms those who are included in that it stereotypes them as inherent victims, exposes them to a heightened risk of HIV transmission, and disrupts relationships that cut across gender identity and sexual orientation. Thus, this Article casts doubt on the claim that the policy is intended to and actually protects gay and transgender inmates. Moreover, it interrogates the Jail's failure to protect many other categories of inmates who have been shown to be vulnerable to sexual assault in jails, including those who are young, first- time offenders and those with disabilities. The Jail's policy ultimately reflects and reinforces problematic social assumptions about masculinity, including the notion that gay men are not "real men." Copyright © 2011, Russell K. Robinson. * Professor of Law, UC Berkeley School of Law. I thank Anita Allen, Luke Boso, Michael Boucai, Kim Shayo Buchanan, David Cruz, Devon Carbado, Elizabeth Emens, Cheryl Harris, Su Li, Jerry Lopez, Alice Miller, Shannon Minter, Melissa Murray, Camille Gear Rich, Dean Spade, Lara Stemple, Amanda Tyler, Frank Valdes, and Noah Zatz for comments on earlier drafts of this paper. I received valuable feedback from presenting earlier drafts at UC Berkeley, Columbia, and USC schools of law, to the faculty of the Critical Race Studies program at UCLA School of Law, and to the Multidimensional Masculinities and Law: A Colloquium at UNLV William S. Boyd School of Law, the 2010 LatCrit Colloquium on International and Comparative Law, and DePaul University College of Law's 2011 MLK Commemoration. My research assistants Ryan Dunn, Alex Ferrando, Jerome Price, Jay Purcell, Vikram Swaruup and especially Tia Koonse provided invaluable help. As always, the library staff of the Hugh and Hazel Darling Law Library at UCLA, especially Amy Atchison and June Kim, provided excellent assistance. 1309 HeinOnline -- 99 Cal. L. Rev. 1309 2011 1310 CALIFORNIA LAW REVIEW [Vol. 99: 1309 This Article goes on to argue that the Jail's screening process implicates the constitutional right to privacy. The Jail encourages inmates to come out as gay and yet fails to protect their disclosure of sensitive sexual information or consider the long-lasting ramificationsof coming out in jail. Indeed, the Jail requires K6G inmates to broadcast their sexuality by wearing powder blue uniforms-in contrast to the dark blue uniforms worn by inmates in the Jail's general population. Although the gay rights movement often has portrayed coming out as a duty for every man who has sex with men, this Article illustrates the double-edged nature of coming out, particularlyin the violent context of incarceration.Especially for men who are black, Latino, and poor, the decision whether or not to come out should be left to the individual. Introduction.................................... ....... 1311 I. The K6G Unit............................. .......... 1319 A. Origin of the K6G Unit.. ..................... ...... 1319 B. Intake Process ....................................... 1322 C. The K6G Screening Test.......................1324 D. Bisexual Exclusion .......................................1328 II. Masculinity and Gay Identity ..................... .... ..... 1330 A. The Production of Masculinity in Mainstream Culture ................ 1330 B. Stereotyping Gay Identity................. ......... 1335 1. Effeminacy ........................... ...... 1336 2. Promiscuity .........................................1341 3. Affluent Consumption .................... ..... 1344 C. The K6G Screening Test's Reliance on Gay Identity .... .... 1345 D. Construction of Gender in Prisons and Jails .............. 1350 E. Segregating Homosexuality, Purifying Masculinity .... ..... 1356 III. Harms of Inclusion in K6G .................. ............ 1361 A. Casting Gay and Transgender People as Inherent Victims........... 1363 B. Disrupting Sexual Relationships and Denying Sexual Autonomy 1363 C. Exposing Gay and Trans Inmates to Heightened HIV Risk.........1366 IV. Deciding Whether or Not to Come Out......... ............... 1369 A. Profound Consequences of Coming Out ................ 1371 B. Racial Impact .................................... 1375 V. Constitutional Implications of Coming Out.............. ..... 1378 A. Informational Privacy . ....................... ...... 1379 B. Important Life Decisions ...................... ..... 1383 C. The K6G Policy and Coming Out............. ........... 1386 D. Special Context of Jail/Prison: What Constitutional Rights Remain? . 1390 VI. Solutions ......................................... 1397 Conclusion ...................................... ..... 1407 HeinOnline -- 99 Cal. L. Rev. 1310 2011 2011] MASCULINITY AS PRISON 1311 INTRODUCTION Every day in the world's largest jail, Los Angeles County Men's Jail ("the Jail" or "Los Angeles"), two heterosexual, white deputy sheriffs inspect new inmates to determine whether men who identify as gay are truly gay. Inmates identified as such are housed in a segregated unit termed K6G. The deputies determine gay identity largely by testing inmates on perceived norms of gay culture. For example, deputies often expect an inmate to describe accurately bars in West Hollywood, Los Angeles' gay-and predominantly white- neighborhood; define terms such as "glory hole" and "Prince Albert"; and provide names of people, such as his mother, who can confirm his "gay lifestyle." Defenders of this segregated unit claim that gay and transgender inmates are uniquely vulnerable to rape in jail and that the unit protects them.I The Jail only recognizes vulnerability in "out" gay men and transgender women. The following stories highlight the experiences of men who were highly vulnerable to rape in jail or prison, yet not one of whom would qualify for protection within the K6G unit. Consider W.H., who was a first-time offender incarcerated for burglary in a Texas prison.2 He was African American, small in stature (5 feet 4 inches and 126 pounds), wore thick glasses, and had a soft-spoken demeanor. During a five-week period in 1996, W.H. was violently raped by several prisoners.3 R.M., a Florida prisoner, describes himself as of slender build and not very muscular, though I am not a bean-pole either. Due to my demeanor and awkwardness (gait, inability to effectively talk as a typical prisoner, etc.) I am targeted for harassment and extortion by other prisoners. I am not homosexual and it has been my resistance to [sexual coercion] that has brought me injury and reproach.... When I confronted the administration with the true facts of what was occurring to me, I was told to use violence to solve my problem.4 G.C. reports that [w]hen I first came into Lake Butler [prison] I was being raped by the same person everyday.. .. When I went to speak to the inspector he was also trying to tell me that I was a homosexual. He was making this assumption by the way I was sitting and talking with him in his office. He was telling me that I was bring[ing] on the problem myself, in other words, he was telling me that [it happened] because of the way I look.5 1. See Sharon Dolovich, Strategic Segregation in the Modern Prison, 48 AM. CRIM. L. REv. 1, 2 (2011). 2. See JOANNE MARINER, HUMAN RIGHTS WATCH, No ESCAPE: MALE RAPE IN U.S. PRISONS (2001), available at http://www.hrw.org/legacy/reports/200 I/prison/index.htm. 3. Case Histories: "W.H. ", HUMAN RIGHTS WATCH, http://www.hrw.org/legacy/reports/ 2001/prison/case histories3.html#wh (last visited June 17, 2011). 4. MARINER, supra note 2, at 226. 5. Id at 228. HeinOnline -- 99 Cal. L. Rev. 1311 2011 13 12 CALIFORNIA LAW REVIEW [Vol. 99: 1309 To qualify for admission into the K6G unit, inmates must come out as gay during the initial intake process and then prove their gay identity to the two deputies who act as gatekeepers. R.G. was locked up in L.A. County Men's Jail, which houses the K6G unit; he was a gay, middle-aged, skinny, African American who was described as a "nerdy intellectual." 6 Human Rights Watch reports that [a]lthough R.G. was raped in prison, it was in jail that he suffered the most vicious sexual abuse. The first incident occurred in 1988, when he was confined at a Los Angeles jail for tampering with a vehicle- charges that were later dropped. R.G. was placed in a two-man cell, and on his first night there was awakened at about 1 a.m. by his cellmate and three others. Sticking a sharpened mop bucket handle into the soft skin of his neck, they warned him, "You're going to do what we want or you're going to die." They pulled him off the top bunk, where he had been sleeping, and threw him onto the bottom bunk, where they spent over an hour taking turns orally and anally penetrating him.7 R.G., the only person who was gay and the only one who was incarcerated in L.A.
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