When Different Becomes a Disparity

LBGTQ+ and gender non-conforming people in the justice system

Justice is supposed to evaluate conduct-not conformity.

Yet, LGBTQ+ and gender non-conforming people are disproportionately represented throughout the American justice system. Their identities do not cause criminal behavior. The disparities reflect something more complicated: family rejection, homelessness, poverty, trauma, school exclusion, substance use, victimization, discriminatory policing and unequal access to support.

For many, involvement with the justice system begins long before an arrest.

It begins when being different means being rejected at home.

When bullying pushes a young person out of school.

When trauma goes untreated.

When survival happens on the street.

When substance use becomes a way of coping.

When a person who needs protection instead encounters suspicion.

These circumstances do not excuse illegal behavior. They help us understand the pathways that can lead people into the system and where intervention could have changed the direction of a life.

The Disparity is Measurable

Research based on the 2011-2012 National Inmate Survey estimated that the incarceration rate for lesbian, gay and bisexual adults was approximately three times the overall adult rate: 1,882 per 100,000 LGBTQ+ adults, compared with 612 per 100,000 adults generally.

The same research found that approximately 6% of men in prison and 33.3% of women in prison identified as gay or bisexual. These figures are older and should not be presented as current Kentucky estimates, but the degree of disparity is too substantial to ignore.

Disparities can begin with law-enforcement contact. A national study found that 6% of LGBTQ+ adults reported being stopped by police in a public space, compared with 1% of the general population. LGBTQ+ adults also reported lower confidence that police behaved properly and greater reluctance to contact police again.

My own first contact with police occurred when I was about nine years old. I remember being questioned, yelled at and called “boy”. I was a child, but the encounter taught me early that being perceived as different could make me a target of authority rather than a person deserving protection.

That experience has stayed with me as I have worked in the field and also advised an LGBTQ+ support group in a close security institution. The experiences described in that room and the experiences people endure both inside and outside correctional facilities reflect trauma that is difficult to fathom. They are not isolated incidents. They are part of a continuum in which identity, gender expression and vulnerability can shape how a person is treated long before a case reaches a courtroom.

LBGTQ+ people are not simply more visible to the justice system; they are also more likely to be victims. An analysis of the 2022-2023 National Crime Victimization Survey found that LBGTQ+ people experienced violent victimization at approximately five times the rate of non-LGBTQ+ people and violent hate-crime victimization at approximately nine times the rate.

Those findings complicate the categories we often use. A person may be both justice-involved and a survivor. Someone identified only as an “offender” may have reached the system through years of trauma, rejection and victimization that were never adequately addressed.

When Sexuality Becomes the Story

Karen Brown’s case shows how sexuality can become more than one fact in a record. It can become the story used to explain everything.

During Karen’s trial, she was reportedly called a lesbian more than 250 times. Her pre-sentence investigation report described her as “a homosexual of the dominant type”. Those descriptions did not merely identify how others viewed her. They helped frame the prosecution’s theory of motive and character.

Karen was at times portrayed as a jealous lover and as a participant in a murder-for-hire scheme. But, according to the account of her case, Karen and her co-defendant had known each other for only two months and six days and they did not have a sexual relationship.

That distinction matters.

A sexual-identity label was used to support a narrative of jealousy that did not match the actual relationship. The label became a substitute for evidence. It encouraged jurors and the public to see Karen through a stereotype: the possessive lesbian lover who had a motive to kill.

But the case, as those close to Karen describe it, involved a different reality. Her co-defendant set her up as the fall-guy luring Karen to the scene through her codependent relationship while the person who actually committed the crime conspired with the co-defendant to commit the murder-for-hire.

Those facts should be evaluated through evidence, not through assumptions about sexuality. There was absolutely no forensic evidence to support the killer’s testimony that she aided in holding the victim down while the killer stabbed him multiple times. The only physical evidence that Brown was even present was one footprint in the foyer. As a stabbing victim of the killer herself as she had tried to escape, Brown did as she was told in getting specific items for the killer in the apartment.

These facts should be evaluated through evidence, not through assumptions about sexuality.

Karen’s case illustrates a broader danger: when a person’s sexual orientation is repeatedly emphasized, it can transform identity into motive. A lesbian label can be made to imply jealousy, aggression, sexual obsession or moral defect even when the evidence does not establish those things.

That is not objectivity.

It is stereotyping presented as explanation.

When Gender Non-conformity is Misread

Gender non-conforming people may not identify as transgender, gay, lesbian or bisexual. They may simply dress, speak, move or carry themselves in ways that do not match society’s expectations of masculinity or femininity.

But those expectations can influence perception.

Confidence may be read as aggression.

Self-protection may be interpreted as defiance.

Emotional restraint may be mistaken for a lack of remorse.

A woman who does not present as traditionally feminine may be judged differently from one who does, even when their conduct is otherwise comparable.

My first encounter with police showed me how early those judgments can begin. At approximately nine years old, I was not treated as a child who needed patience and protection. I was questioned, yelled at and called “boy”. That language communicated that my difference was being treated as a problem.

Years later, while working in the field and advising an LBGTQ+ support group in a close-security facility, I saw how much more severe those judgments can become for people inside the system. The trauma described in that room was beyond unfathomable. It came from experiences inside the institutions, but also from the accumulated harm people had endured outside it, at home, in schools, in neighborhoods, during police encounters and within institutions that were supposed to provide safety.

In Karen’s case, the repeated focus on her sexuality appears to have worked alongside gender expectations. She was not simply presented as a defendant accused of a crime. She was presented as a particular kind of woman: sexually defined, jealous and dangerous. None of those terms defined the Karen Brown of then and certainly no place in the conversation of the Karen Brown today.

That image could make the prosecution’s theory feel emotionally believable even where the underlying relationship did not support it.

These perceptions can follow a person from the street to the courtroom, from institutional classification to disciplinary decisions, and eventually into parole or clemency considerations.

This is why objectivity requires more than claiming not to see identity. It requires examining whether assumptions about identity have shaped what decision-makers believe they see.

Punished Again Inside

The disparities do not end after sentencing.

According to the Prison Policy Initiative, gay, lesbian, and bisexual people are overrepresented in prisons and jails, especially lesbian and bisexual women. Researchers analyzing the most recent National Inmate Survey found that lesbian, gay and bisexual people are incarcerated at a rate over three times that of the total adult population: 1,882 per 100,000 lesbian, gay, and bisexual people are incarcerated, compared with 612 per 100,000 U.S. residents aged 18 and older. This disparity, again, is largely driven by queer women, as evidenced by the researcher’s breakdown of the data by sex. Compared to the general population, in which 3.6% of men and 3.4% of women identify as gay, lesbian, or bisexual:

·         1 in 20 (5.5%) men in prison identify as gay or bisexual and an additional 3.8% report having had sex with men before arrival at the facility but do not self-identify as gay or bisexual.

·         1 in 3 (33.3%) women in prison identify as lesbian or bisexual and another 8.8% report having sex with women, but do not identify as lesbian or bisexual.

·         And almost 1 in 4 (24.6%) women in county and municipal jails identify as lesbian or bisexual, with another 9.3% who report having sex with women, but do not identify as lesbian or bisexual.

The high rates of gay, lesbian and bisexual people behind bars can in part be attributed to the longer sentences courts impose on them. The same study of the National Inmate Survey data found that in both prisons and jails, lesbians or bisexual women were sentenced to longer periods of incarceration than straight women. Gay and bisexual men were more likely than straight men to have sentences longer than 10 years in prison. The National Inmate Survey study showed these “sexual minorities” were more likely to be put in solitary confinement than straight men and women in prisons and jails. In Black and Pink’s survey of 1,118 LGBTQ+ incarcerated people, a staggering 85% of respondents reported that they had been held in solitary confinement at some point during their sentence. And BIPOC LGBTQ incarcerated people were twice as likely to be put in solitary compared to white LGBTQ incarcerated people. This is often done in the name of “protecting” queer individuals behind bars, despite the well documented, long-lasting harms of solitary confinement. But protection that removes human contact, programming, education and opportunities for rehabilitation can become another form of punishment.

According to the Bureau of Justice Statistics, lesbian, gay and bisexual men and women as well as men who have sex with men and women who have sex with women, are also 10 times as likely to be sexually victimized by another incarcerated person and 2.6 times as likely to be victimized by staff as heterosexual incarcerated people.

Bureau of Justice Statistics data from 2011-2012 found that incarcerated people identifying as gay, lesbian, bisexual reported especially high rates of sexual victimization-12.2% in prisons and 8.5% in jails. More recent BJS findings show that sexual victimization remains a serious prison-wide concern, with 4.1% of adult prisoners reporting victimization in 2023-2024, although the published highlights don’t provide a directly comparable current LBGTQ+ rate.

Safety should not require erasing a person’s identity or locking that person away from the very resources needed to build a better future.

Karen’s experience also raises a separate concern: punishment can continue through disciplinary decisions long after a person has completed the sentence imposed by a court.

According to Brown, the only institutional disciplinary ticket she has received in over 40 years, arose from kissing a woman who had just received a pardon from then Governor Steve Beshear. Brown was then confined to segregation for an inordinately longer period than others who had committed similar, and even more blatant, sexual acts openly.

The issue is not whether correctional institutions may enforce rules governing sexual conduct. The issue is whether those rules were applied consistently, whether the punishment was proportionate and whether Karen’s same-sex affection was treated more harshly than comparable conduct involving others.

A disciplinary system cannot claim neutrality while imposing unequal consequences for similar behavior. Nor should a person’s sexual orientation or gender expression become an unspoken reason to classify conduct as more threatening, more immoral or more deserving of isolation.

Kentucky Must Look More Closely

Kentucky has a Department of Corrections policy specifically addressing lesbian, gay, bisexual, transgender and intersex people, as well as a stated zero-tolerance policy concerning sexual abuse and harassment. Those protections matter.

But written policies cannot tell us whether disparities are actually decreasing.

Kentucky publishes correctional population reports and PREA statistics, but I could not locate publicly reported state figures comparable to the national data on LGBTQ+ overrepresentation, discipline, restrictive housing, programming access, sentence length or parole outcomes.

When a state does not measure a disparity, it becomes much easier not to see it.

Kentucky should confidentially and voluntarily collect appropriate sexual-orientation and gender-identity data; examine disparities in discipline, protective custody, programming and parole outcomes; strengthen staff training; enforce PREA protections; and ensure LGBTQ+ and gender non-conforming people receive equal access to treatment, education, religious services, recovery support and reentry planning.

It should also examine if other disciplinary rules are enforced consistently across sexual orientations and gender identities. That review should include the use and duration of segregation, the treatment of consensual affection, the classification of sexual conduct and the consequences imposed after a person has completed the sentence ordered by the court.

Staff should also be trained to recognize the difference between security concerns and identity-based assumptions. Calling a child “boy” as an insult, treating gender expression as defiance or interpreting vulnerability as misconduct can begin a pattern that follows a person into adulthood and incarceration.

Karen Brown and the Danger of a Frozen Identity

Karen Brown’s story belongs in this conversation because her sexuality was not treated as a private characteristic. It was repeatedly used in court to construct a motive, a personality and a threat.

She entered prison at 21 years old. More than four decades later, the person society continues to judge is too often the young woman preserved in the narrative of 1986, not the woman who has lived, learned served, worshiped, mentored and changed through all the years since.

The original narrative should not be erased. But it should be examined.

Was Karen’s sexuality treated as evidence when it was stereotype?

Was a relationship described as sexual or romantic when the people involved had known each other for only two months an six days and had no sexual relationship?

Was Karen’s case as a jealous lover because that story was easier to understand than the possibility that she had been manipulated and used as the ‘fall-guy’ or because that brought more media attention, making headlines and selling newspapers to fit their exploitive narrative?

Were the actions of the actual killer and the role of the absent codependent relationship adequately separated from the assumptions placed on Brown?

And after Brown had served her sentence, was she punished more severely for kissing a woman who had just received a pardon than others were punished for similar or more blatant sexual conduct?

These are not questions of special treatment. They are questions of accuracy, consistency and proportionality.

Gender expression and sexual orientation should not become aggravating factors, spoken or unspoken. Nor should failing to fit traditional expectations of womanhood make it harder for a person’s humility, accountability or transformation to be recognized.

Karen Brown’s history should not be erased. But neither should the labels used against her prevent decision-makers from objectively examining what happened, what evidence supported the original theory, whether institutional rules were applied fairly and who she is today.

There is another reason meaningful second-look laws matter.

A structured review process would require decision-makers to consider evidence: the original harm, the reliability of the original narrative, time served, accountability, institutional conduct, rehabilitation current risk and reentry readiness. It would make it more difficult for stereotypes, notoriety or discomfort with someone’s identity to silently substitute for an individualized assessment.

A second look would not guarantee Karen or anyone else’s release.

It would help guarantee that the person is evaluated through a fair process rather than a narrative built around a sexual stereotype and permanently frozen in the past.

Seeing the Whole Person

LGBTQ+ and gender-non-conforming people are not a single group with one experience. Race, gender, poverty, disability, trauma and geography can deepen disparities. A Black transgender woman, a gender-non-conforming girl, a bisexual woman in prison and a gay man returning to a rural community may encounter very different risks.

Fairness does not mean treating identity as the only fact that matters.

It means ensuring that identity is neither used against someone nor ignored when it creates vulnerability.

My own experience of being questioned, yelled at, and called “boy” at approximately nine years old is only one example of how early these harms can begin. The experiences I later encountered while working in the field and advising LGBTQ+ support in a close -security facility showed me how deeply those harms can accumulate. The trauma people described was beyond unfathomable, both inside the facility and in the lives, they had lived before arriving there.

That trauma should not be dismissed as weakness, manipulation or misconduct. It should be understood as part of the context in which people encounter the justice system and as a reason institutions must respond with professionalism, safety and humanity.

In Karen’s case, sexuality should not have been allowed to become a shortcut to motive. A label should not replace proof. A stereotype should not become a substitute for examining the actual relationship between people, the conduct that occurred and the role each person played.

Nor should a disciplinary system impose a harsher penalty because the conduct involves same-sex affection or because a woman does not conform to traditional expectations of femininity. Rules must be applied consistently, and punishment must be proportionate to the conduct, not to the identity of the people involved.

Justice should hold people accountable for what they have done. It should also examine whether identity-based assumptions distorted the way their conduct was understood, protect their dignity while they are confined, and remain capable of recognizing who they become.

LGBTQ+ people are not asking for a separate standard of justice.

They are asking for the same objectivity, safety, opportunity and humanity that justice promises everyone.

Because being different should bever become an additional sentence.