Executive Summary - Summary of Recommendations

Find Your State

Know the laws in your state that protect LGBT people and people living with HIV.

SUMMARY OF RECOMMENDATIONS 

The issue of government misconduct directed against LGBT people and people living with HIV is complex, and there is no single solution. Many factors in addition to sexual orientation, gender identity and HIV status affect an LGBT or HIV-positive person’s experience with courts, schools and interactions with police and prison officials. Because homophobia, transphobia, racism and other forms of discrimination are still entrenched in our culture, multiple long-term approaches are needed to ensure that everyone is treated fairly under the law.

In this report, we recommend strategies to safeguard against discrimination and misconduct, as well as to foster institutional change. With increased focus nationwide on police misconduct, we consider these recommendations dynamic and evolving. We welcome feedback on these approaches, which include changes affecting policies, advocacy and education. 

All government agencies included in the Protected and Served? survey, including police departments, courts, prisons and schools, should adopt comprehensive nondiscrimination policies that do the following:

  • prohibit bias and discrimination based on sexual orientation, gender identity and expression and HIV status;
  • ensure that culturally competent services and treatment are provided to LGBT and HIV-positive detainees. Police, court, jail/prison and school staff should undergo significant cultural competency trainings about sexual orientation, gender identity and expression and HIV status so they will be able to treat all members of the LGBT community and people living with HIV in a respectful, nondiscriminatory manner.
  • provide a transparent and accessible oversight process for reporting and redressing discrimination complaints, combined with clear and enforced disciplinary procedures;
  • include employment policies to improve the hiring and retention of LGBT and HIV-positive employees as well as contribute to a more LGBT- and HIV-supportive environment.

POLICE

Police departments should:

  • adopt or amend policies, patrol guides, union contracts, and accountability mechanisms to mandate nondiscrimination and respectful treatment, and to prohibit profiling  based on race, gender, national  origin, ethnicity, actual or perceived sexual orientation, gender identity and expression, HIV status, disability, religion, immigration status, age and housing status.
  • include explicit procedures for the respectful treatment of transgender people.
  • hire and promote qualified police officers and leaders who demonstrate the necessary interpersonal skills to interact professionally, regardless of any person’s background and with a proven track record of working effectively and collaboratively with diverse communities.
  • institute “early warning systems” to flag and retrain/discipline/reassign officers who engage in insensitive or abusive behavior.
  • implement mandatory cultural competency training about LGBT and HIV issues, with community input, for all employees.
  • adopt a community-based complaint mechanism about police misconduct and discrimination, with options for anonymous reporting, and severely punish any retaliation by officers or commanders.
  • capture, track and report regularly on complaints alleging racial and other profiling or bias with regard to sexual orientation, gender identity or expression or HIV status.
  • work with LGBT community advocates to maintain training and to ensure implementation of policies.
  • implement effective policies and practices to utilize  body-worn cameras and in-car cameras as a tool for monitoring, evaluating and investigating police behavior and practices, while ensuring the privacy of community members.
  • incorporate assessments of implicit bias, and institute training and measures to address this type of bias with regard to race, gender, national  origin, ethnicity, actual or perceived sexual orientation, gender identity or expression, HIV status, disability, religion, immigration status, age and housing status.

COURTS

Lawmakers, judicial governing bodies, and/or legal associations should adopt the following rules, policies and practices to help protect LGBT people and people living with HIV participating or otherwise involved in judicial proceedings:

  • adopt measures to safeguard the privacy of people who are LGBT or living with HIV.
  • incorporate in judicial canons and attorneys’ rules of professional responsibility prohibitions on language and conduct by any court participants manifesting bias or discrimination based on sexual orientation, gender identity or expression, and HIV status.
  • Institute clear and accessible procedures for complaints about bias by judges, lawyers, court officials and court staff.
  • conduct studies, with community input, of courts’ treatment of individuals based on sexual orientation, gender identity or expression or HIV status.
  • encourage diversity, including in sexual orientation and gender identity or expression, in the appointment and election of judges.
  • support and/or enact laws that explicitly prohibit discrimination in jury selection on the basis of sexual orientation, gender identity or expression, and HIV status.
  • interpret discrimination on the basis of sex to include discrimination on the basis of sexual orientation and gender identity, and adopt policies and procedures that implement this understanding.

In addition, attorneys and judges should:

  • promptly respond to jokes or disrespectful comments about an individual's actual or perceived sexual orientation, gender identity or expression or HIV status.
  • address transgender and gender-nonconforming (TGNC) individuals according to their preferred pronouns (“he” and “him,” or “she” and “her”).
  • oppose the introduction of evidence of actual or perceived sexual orientation, sexual conduct, gender identity or expression or HIV status unless these characteristics are relevant to an issue in the proceeding.
  • conduct voir dire (screening of potential jurors) that respects people’s right to confidentiality regarding their sexual orientation, gender identity or expression and HIV status, and that avoids involuntary outing.
  • ensure that jurors are not discriminated against on the basis of sexual orientation, gender identity or expression or HIV status.

Judges should:

  • when instructing jurors that biases are to play no role in their decisions, explicitly include bias, prejudice and other preconceived notions about sexual orientation, gender identity or expression and HIV status.

Attorneys should:

  • when appropriate, ask questions during voir dire to expose juror biases and prejudices based on sexual orientation, gender identity or expression and HIV status, and seek to remove biased jurors for cause.
  • challenge peremptory strikes (removals of jurors without explanation) that appear to be based on sexual orientation, gender identity or expression, or HIV status.

Correctional departments, jails and prisons should:

  • ensure that transgender people receive an individualized assessment for housing placement in accordance with the federal Prison Rape Elimination Act (PREA), taking into account the person’s gender identity and safety.
  • adopt and fully implement policies, including PREA, to protect LGBT people from sexual abuse and other violence while incarcerated.
  • prohibit the use of solitary confinement as routine or standard protective placement for people who are LGBT or people living with HIV.
  • eliminate policies and procedures that provide for differential treatment or enhanced disciplinary measures based solely on an inmate’s HIV-positive status.
  • follow PREA standards regarding searches, and train staff in conducting professional and respectful searches, particularly as they affect transgender individuals.
  • ensure that transgender people and people with HIV have access to all medically necessary health care. For transgender people, that may include hormone therapy and surgeries. For people living with HIV, that means uninterrupted access to the medication and the range of care they need.
  • implement transparent and effective complaint review processes.
  • require correctional staff to undergo cultural competency trainings about sexual orientation, gender identity and expression and HIV.

SCHOOLS

Schools should:

  • limit interventions that push students out of school—such as expulsions, disciplinary transfers, out-of-school suspensions, referrals to law enforcement, and school-based arrests—to conduct that poses a serious, prospective safety threat to students and staff.
  • refrain from imposing discipline as a means of policing gender. Schools should not interfere with students’ access to restrooms in accordance with their gender identity, or with students’ dressing and grooming according to their gender identity.
  • create anti-bullying policies that specifically include sexual orientation and gender identity and expression and make these policies easily accessible in student handbooks and online.
  • implement comprehensive curricula supporting diversity and respect for all.
  • train administrators, educators, school safety officers and other staff to address anti-LGBTQ bullying and harassment. Trainings should include information about how to interrupt and to report bullying and harassment by students, staff and security personnel. 
  • support LGBTQ-affirming clubs like gay-straight alliances, and promote safe spaces for LGBTQ youth in schools.
  • consider alternative programs when appropriate, including peer mediation, conflict resolution, guidance counseling, peer juries and courts, mentoring, restorative justice practices and parental and community involvement initiatives.
  • at the district level, ensure that significant control and accountability for school security remains with the school or school district so teachers and administrators can interrupt and report harassment and bullying by security.
  • at the district level, comply with or create a public reporting system for school discipline data including expulsions, in- and out-of-school suspensions, school-based arrests, and referrals to law enforcement.