Gender is a social construct that encompasses notions of masculinity and femininity, which are fluid, dynamic, and interconnected. Gender identity refers to one's internal sense of self as male, female, nonbinary, agender, etc., while sexual orientation describes an individual's romantic and/or sexual attraction towards people of different genders. In the past few years, there has been increased awareness and acceptance of transgender individuals who identify as neither exclusively male nor female or have dual gender identities.
They face discrimination in various aspects of life, including education, employment, healthcare, housing, and criminal justice. This essay explores how gender identity affects experiences in the justice system, focusing on the legal definition of gender identity and gender expression, examples of discriminatory practices, and recommendations for reducing such prejudice.
The justice system includes law enforcement, courts, prisons, jails, probation, bailiffs, judges, prosecutors, defense counsel, juries, witnesses, victims, and community service providers. Gender identity is a fundamental aspect of every person's self-identity and should be respected by all actors within the system. The legal framework must recognize this diversity and provide equal rights regardless of gender identity. A judge may question someone about their gender identity during trial and ask them to verify it with documents, but this practice can be humiliating, especially when someone does not fit into conventional gender norms. The prosecution team may use derogatory language or stereotypes that reinforce negative views of nonconforming individuals. The police may misgender people, which could lead to harassment or violence from other officers or civilians. Juries may refuse to convict people who do not conform to traditional expectations of masculinity or femininity. Witnesses may perceive nonbinary individuals as unreliable or confused. Victims of sexual assault or abuse are often asked if they identify as male or female, leading to further trauma for those whose identities fall outside these categories.
Gender identity affects all aspects of criminal justice, including arrest, booking, detention, plea negotiations, sentencing, parole, reentry, and probation. In most cases, transgender and nonbinary individuals face higher rates of incarceration than cisgender ones due to discriminatory policing practices, prejudicial courtroom rulings, and bias in corrections settings.
Police officers often assume a crime is related to sex work or drugs when encountering transgender women, resulting in harsher penalties. Transgender men and women experience violence in prison and jail because of their gender presentation, such as being placed in solitary confinement or denied access to hormone therapy medication. Nonbinary individuals may be forced to choose either male or female designations during the intake process, which can cause confusion and distress.
To reduce this discrimination, judges should use appropriate pronouns and language when referring to defendants, victims, and witnesses. Police officers must receive training on how to avoid stereotypical assumptions about gender identity. Lawyers should advocate for fair treatment of nonbinary clients and ensure they are represented accurately before the courts. Prosecutors must consider each case objectively without biases based on gender identity. Correctional facilities should provide safe spaces and support services for transgender and nonbinary inmates. Community service providers must be sensitized to the needs of marginalized populations, especially those who have experienced trauma related to gender expression.
Gender identity plays an essential role in criminal justice outcomes, from arrest through parole. Judges, prosecutors, defense counselors, juries, witnesses, and community service providers must recognize that individuals are more than just binary categories. They should respect all identities and eliminate prejudice towards nonconforming persons. This will lead to a more just and equitable society where everyone is treated with dignity and respect regardless of their gender identity.
How does gender identity affect experiences in the justice system?
Gender identity is one of the most important factors that can influence an individual's experience in the criminal justice system. It has been found that individuals with non-binary or transgender identities are often discriminated against during their interactions with law enforcement officers, prosecutors, defense attorneys, judges, juries, and other people involved in the process of law.