Masculinity as Prison: Sexual Identity, Race, and Incarceration

The Los Angeles County Men's Jail segregates gay and transgender inmates and says that it does so to protect them from sexual assault. But not all gay and transgender inmates 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, firsttime 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." 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 ramifications of 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, particularly in 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.