POLICING AND POLICE

In a narrow sense, policing refers to the actions of the police, that is, organized civil and military forces responsible for enforcing laws, preventing and detecting crime, and maintaining social order. In a broad sense, policing refers to any actions taken to regulate and control a community. LGBT desires, acts, identities, communities, and movements have been intensively policed in both senses.

Policing in the Broad Sense

In the broad sense, religion, the state, and science have played key roles in policing genders and sexualities, as have families, schools, and media. Religious discourses of sin (as in Christian views of sodomy), state discourses of crime (as in police perspectives on disorderly conduct), and scientific discourses of disease (as in medical conceptions of mental illness) have all been used in attempts to control same-sex sexualities and cross-gender behaviors. And discourses of sexuality and gender, in turn, have been deployed in projects of race and class control (as in the labeling of people of color, immigrants, and working-class people as hypersexual or hyposexual).

While some have identified a shift in the locus of authority from religious elites in the colonial era to political officials in the nineteenth century and scientific experts in the twentieth, others have emphasized intersections and overlaps between these forms of regulation in every era of U.S. history. In the colonial period, for instance, religious conceptions of sodomy as a sin were the basis of legal definitions of sodomy as a crime. In the twentieth century, scientific conceptions of homosexuality as a psychopathology were encoded and institutionalized in sexual psychopath and immigration statutes, and these laws remained in place long after the scientific consensus shifted away from the view that homosexuality is intrinsically psychopathological. Those who think that religious conceptions lost all power after the disestablishment of religion in the eighteenth century need only consider the influence of the Christian Right on twentieth century discourses of sexuality and gender and the ongoing power of Christianity in certain regions of the country. Cultural authority to police sexualities and genders has shifted over the course of U.S. history, but authority remains fragmented, diffuse, and pervasive.

There have also been debates and disagreements about whether to focus attention on the policing of the dominant or the deviant. While some have highlighted the effects of regulation on LGBT people and phenomena, others have emphasized the ways in which policing attempts to control not only that which is defined as abnormal but also that which is defined as normal. Attacking "sissies" and "tomboys," for example, polices not only those who are defined as gender deviants but also those who are seen as "boyish" boys and "girly" girls. Labeling women man-hating lesbians is a way of keeping straight women in line as much as it is a way of taunting deviant women. Expressing disapproval of certain types of physical displays of same-sex affection is a method of establishing strict boundaries between the appropriately homosocial and the transgressively homoerotic, policing both sides of that border.

Where there perhaps is more agreement, at least among scholars, is that because LGBT identities and communities did not exist before the late nineteenth century, it is not really possible to talk about the policing of these identities and communities before this period. And because organized LGBT movements did not exist until the mid-twentieth century, it is not really possible to talk about the policing of these movements before this period. That said, same-sex sexual desires and acts and cross-gender behaviors predate the late nineteenth century, and these were policed, in the broad and narrow sense, from the moment that Europeans first invaded North America.

Policing in the Narrow Sense

In the narrow sense, LGBT people and phenomena have been policed by a wide range of police forces. Local and state police have enforced laws against buggery, crimes against nature, cross-dressing, disorderly conduct, indecency, lewd and lascivious behavior, obscenity, prostitution, sexual psychopathy, solicitation, and a wide variety of other crimes, and they have often done so with disproportionate impact on LGBT people and phenomena. They have also enforced anti-LGBT public health and liquor control laws (for example, through raids on bath-houses, bars, and clubs) and have enforced anti-LGBT court rulings in adoption, child custody, foster care, and inheritance cases. Military police have enforced laws against LGBT sexual acts, identities, and speech in all branches of the armed forces. Federal immigration and customs officials have policed the nation's borders to exclude LGBT people, LGBT materials, and people with HIV/AIDS. Federal postal officials have enforced laws against mailing LGBT materials defined as obscene. And the Federal Bureau of Investigation (FBI) has spied on LGBT individuals and groups and has actively supported local, state, and federal officials in the enforcement of anti-LGBT laws.

Police forces in the United States, which exercise elements of the state's monopoly on the legitimate use of force, have also acted in extralegal and quasi-legal ways against the interests of LGBT people. Even when entrapment has been ruled illegal, they have set up sexual situations in which LGBT people break laws that they might not otherwise break, sometimes by flirting, pursuing, touching, and having sex with undercover police officers (who are often selected on the basis of youth and good looks). Even when courts have limited application of obscenity laws against LGBT materials, police have harassed and arrested the producers of such materials. Even when they have known that arrests of LGBT bar patrons, political activists, and public demonstrators would not be held up in court, they have brought in LGBT people for questioning, held them overnight in jails, informed their families and employers, and then released them. In the course of doing so, they have often committed physical and sexual assaults on LGBT people. Even when it has been illegal for police to collect payoffs from local businesses, they have done so with LGBT bars in exchange for protection from or information about police raids.

In both their legal and extralegal activities, police forces have been supported and aided by a variety of nongovernmental organizations that have been given unique powers by state authorities. Examples from the late nineteenth and early twentieth centuries include the Society for the Prevention of Cruelty to Children, the Society for the Suppression of Vice, the Committee of Fifteen, the Committee of Fourteen, the City Vigilance League, the Watch and Ward Society, and the Law and Order League. Mid-twentieth-century organizations include the Legion of Decency, the National Organization for Decent Literature, Citizens for Decent Literature, and the Churchmen's Commission for Decent Publications. These groups and others played critical roles in policing sexualities and genders in the broad and narrow sense.

All of which is not to say that police forces in the United States have never acted in line with LGBT interests. Especially in the last thirty years but also in earlier periods, police have investigated and arrested those who murdered, raped, and assaulted LGBT people, those who damaged and stole LGBT property, those who attempted to blackmail LGBT people, and those who committed other crimes against LGBT people. Nevertheless, in important respects LGBT people in the United States lived much of the twentieth century in what can be described as a police state, deprived of basic civil rights and targeted by police authorities. To this day, many LGBT people believe, and significant evidence supports their claims, that police forces do not treat crimes against LGBT people as seriously as they treat crimes against others.

Historical Patterns

The best documentation of pre-1969 police actions against LGBT people and phenomena has come in five forms: collections of primary texts, case studies and broad monographs on the colonial era, works that deal with military policing, historical and anthropological local studies, and studies by legal scholars. In the first three categories, the most notable works are by Jonathan Ned Katz; Kathleen Brown and Richard Godbeer; and Allan Bérubé and Leisa Meyer. In the fourth group, Nan Boyd's book on San Francisco, George Chauncey's on New York, John Howard's on Mississippi, Elizabeth Kennedy and Madeline Davis's on Buffalo, Marc Stein's on Philadelphia, and Brett Beemyn's collection of various local studies offer detailed examples and analyses of larger patterns. Legal scholar William Eskridge's book Gaylaw is perhaps the most comprehensive and synthetic national account of anti-LGBT policing, though works such as Ruthan Robson's book Lesbian (Out) Law offer important perspectives on the distinctive aspects of anti-lesbian policing.

Some have been tempted to make generalizations about national patterns of anti-LGBT law enforcement before there is sufficient evidence to do so. As Boyd has pointed out, for example, in part because of different systems of liquor control, the post-Prohibition crackdown on LGBT commercial establishments that Chauncey sees occurring in New York City in the 1930s did not occur in San Francisco. Stein's evidence suggests that Philadelphia, New York, and Washington, D.C., were close enough geographically that when anti-LGBT policing increased in one city, many LGBT people shifted some of their social activities to less-intensively policed cities nearby. If this is true, care must be taken when generalizing about national patterns of policing on the basis of local studies. Many have claimed that anti-LGBT policing reached its height during the 1950s, but the evidence that has been gathered thus far by no means establishes that the 1960s were any better than the 1950s in this regard, and significant evidence suggests the reverse. And with the exception of Howard's work, little research has been done on nonurban policing.

Based on evidence from various locations, Eskridge argues that sodomy arrests were quite rare before the 1880s, but then increased dramatically (especially in the years surrounding World War I), at precisely the time that sodomy was being redefined in many states to include oral sex (instead of just anal sex) and to include same-sex female as well as same-sex male sex. Eskridge observes another dramatic increase after World War II. In terms of reported "sodomy" cases (which may or may not correspond to arrests), the total number peaked in the period from 1971 to 1985, but the number involving consenting same-sex adults peaked in the period from 1956 to 1970. These figures mask significant local variations. Though figures are missing for key years, Eskridge's statistics suggest that for the period from 1875 to 1920, "sodomy" arrests peaked from 1906 to 1910 in Boston and Chicago, from 1911 to 1915 in Philadelphia and San Francisco, and from 1916 to 1920 in Los Angeles and New York. During the period from 1920 to 1965, they appear to have peaked in the late 1940s in Washington, D.C., the late 1950s in New York, and the early 1960s in San Francisco. Far larger numbers of LGBT people were arrested for crimes such as disorderly conduct; in New York, arraignments for "degenerate" disorderly conduct peaked at more than 3000 per year from 1947 to 1949, though penalties were less severe than they had been in earlier years. Eskridge's figures suggest that the number of soldiers receiving anti-LGBT military discharges, as a percent of total forces,

peaked in the period from 1957 to 1961 and then declined, but in absolute terms discharges peaked in the 1960s, declined in the mid-1970s, peaked again in the early 1980s, declined to a low point in 1994, and then began rising again (after the "don't ask, don't tell" policy was adopted during the Clinton presidency). Much more research and analysis will be necessary before a more definitive periodization of anti-LGBT policing can be established.

More research will also have to be conducted to understand race, class, and gender differences in anti-LGBT policing, but what is known thus far is highly suggestive. Katz reports that Pennsylvania's 1700 sodomy law made sodomy a capital crime for blacks but not whites; Virginia's 1800 sodomy law removed the death penalty for free persons but not for slaves. According to Eskridge, of the sixty-three prisoners reported incarcerated for crimes against nature in the 1880 U.S. Census, thirty-two were men of color in the South and one-third of the white prisoners were immigrants from Europe. Chauncey writes that most sodomy prosecutions in early-twentieth-century New York involved poor immigrants and in the 1940s and 1950s involved African Americans and Puerto Ricans. Statistics on sodomy arrests and sexual psychopath commitments from Philadelphia and Pennsylvania in the 1950s also suggest disproportionate impact on working class people and people of color.

Some have argued that lesbians have been less policed than gay men, and if policing is conceptualized narrowly (for example, in terms of sodomy arrests) there is evidence to support this position. However, if lesbians have restricted their public activities because the police have not protected them from rapes, sexual assaults, and physical violence, then lesbianism has been policed in the broader sense. Rendering lesbianism invisible in the public sphere is a form of social policing, as is conceptualizing lesbians as less sexual than gay men. Economic discrimination against women, to the extent that it encourages women's dependence on men, is also a form of anti-lesbian policing. In the realms of adoption, child custody, and foster care, lesbians have probably been policed more intensively than have gay men. And in proportion to their numbers, the same has been the case in the military. To the extent that it diminishes lesbians and conceptualizes them only in comparative relation to gay men, the claim that lesbians have been less policed than gay men is itself a form of anti-lesbian policing.

Most anti-LGBT policing, whether directed against males or females, has been aimed at social and sexual activities, but police forces have also targeted political activities. While the policing of the organized LGBT movement began with the crackdown on the Society for Human Rights in the 1920s and continued with the attempt in the 1950s to ban distribution of ONE magazine through the U.S. postal system, it appears that the most intense period of anti-LGBT movement policing may have taken place in the 1960s and 1970s. In these decades, homophile activist meetings and events were raided by local and state police (in Greater Philadelphia and San Francisco); the FBI spied on and disrupted homophile, gay liberation, and lesbian feminist groups in various locations; and local, state, and federal officials, through a coordinated campaign of surveillance, harassment, and prosecution, effectively destroyed the Janus Society, Drum magazine, and the Homosexual Law Reform Society. Ironically, some of the best evidence that documents the activities of these and other LGBT political groups comes from police records obtained by researchers through Freedom of Information Act requests.

Recent Developments

Given the important role that police forces have played in policing LGBT communities, it is perhaps not surprising that the most well-known episode in LGBT history, the New York City Stonewall Riots of 1969, was precipitated by a confrontation between police and LGBT people. And given the ability of LGBT people to eroticize almost any relationship of power that exists in society, it is perhaps not surprising that a major genre of gay pornography features characters who appear (at least briefly) in police uniform.

In the last thirty years, in large part because of the work of LGBT activists, police regulation of LGBT sexualities and genders in the narrow sense has changed dramatically. By most accounts, raids on LGBT bars and clubs have declined, sexual psychopath laws have been overturned, overt immigration exclusions of LGBT people have been removed, and, as of 2003, sodomy laws have been declared unconstitutional. Police in many jurisdictions now collect statistics on hate crimes against LGBT people. Various towns, cities, and states have appointed officers and committees to serve as official liaisons between LGBT communities and the police. The nonhiring of LGBT persons seeking employment with police forces and the firing of openly LGBT police officers has decreased, and some police forces have declared their interest in hiring LGBT people. Many police departments are now covered by laws prohibiting discrimination on the basis of sexual orientation, and some by laws prohibiting discrimination on the basis of gender identity. Since the founding of the Gay Officers Action League in New York in 1982, many organizations of LGBT law enforcement professionals have been established.

Anti-LGBT policing, however, continues. In the narrow sense, local and state police continue to enforce laws against prostitution, public sex, and solicitation, they continue to use zoning laws to displace sex businesses, and they continue to discriminate against LGBT people and phenomena in the enforcement of disorderly conduct laws. Police authorities continue to be called upon to enforce discriminatory decisions in adoption, custody, and inheritance disputes. Since the advent of AIDS, public health laws have been used aggressively to police LGBT commercial establishments (such as bathhouses). Since the introduction of the internet, obscenity laws have been used in new ways by those opposed to LGBT representations. Military police have arguably stepped up their anti-LGBT practices, and immigration officials now police the nation's borders to exclude people with HIV/AIDS. Reports of reprehensible police conduct continue to circulate in cases where LGBT people are murdered, raped, sexually assaulted, or otherwise victimized. And in the broad sense, cultural authorities continue to police transgressive and normative sexualities and genders, changing tactics and strategies but still attempting to impose order on the most disorderly of human desires.

Marc Stein

Bibliography

Beemyn, Brett. Creating a Place for Ourselves. New York: Routledge, 1997.

Bérubé, Allan. Coming Out Under Fire. New York: Free Press, 1990.

Boyd, Nan Alamilla. Wide Open Town. Berkeley: University of California Press, 2003.

Brown, Kathleen. " 'Changed … into the Fashion of Man'." Journal of the History of Sexuality 6 (1995): 171–193.

Chauncey, George. Gay New York. New York: Basic, 1994.

D'Emilio, John. Sexual Politics, Sexual Communities. Chicago: University of Chicago Press, 1983.

D'Emilio, John, and Estelle Freedman. Intimate Matters. New York: Harper and Row, 1988.

Eskridge, William N., Jr. Gaylaw. Cambridge: Harvard University Press, 1999.

Foucault, Michel. The History of Sexuality. Volume 1. Translated by Robert Hurley. New York: Vintage, 1978.

Godbeer, Richard. Sexual Revolution in Early America. Baltimore: Johns Hopkins University Press, 2002.

Howard, John. Men Like That. Chicago: University of Chicago Press, 1999.

Katz, Jonathan Ned. Gay/Lesbian Almanac. New York: Harper and Row, 1983.

Kennedy, Elizabeth Lapovsky, and Madeline D. Davis. Boots of Leather, Slippers of Gold. New York: Routledge, 1993.

Meyer, Leisa D. Creating G.I. Jane. New York: Columbia University Press, 1996.

Newton, Esther. Cherry Grove, Fire Island. Boston: Beacon, 1993.

Robson, Ruthann. Lesbian (Out) law. Ithaca: Firebrand, 1992.

Rupp, Leila J. A Desired Past. Chicago: University of Chicago Press, 1999.

Stein, Marc. City of Sisterly and Brotherly Loves. Chicago: University of Chicago Press, 2000.

Marc Stein

see alsocensorship, obscentiy, and pornography law and policy; crime and criminalization; federal law and policy; hate crimes law and policy; immigration, asylum, and deportation law and policy; military law and policy; rights of association and assembly; sodomy, buggery, crimes against nature, lewd and law and policy; stonewall riots.