Gender Behind Bars: A Deeper Look

Looking at the injustices that are engulfing marginalized communities, a clear pattern emerges: how deeply gender is woven throughout all of these struggles. Our carceral punishment system, so clearly weighted against people of color, also comes down heavily on women and LGBTQIA+ people. This discrimination and its harsh consequences are both historical, and very much in the present moment, unfolding around us in real time.

Taking a look at the carceral system through a gender lens is more than illuminating – it highlights often overlooked connections that justice funders must see and act upon. This isn’t one issue, with a one-off solution, it’s a web of interconnected issues that have gender as the common denominator. It all adds up to tremendous trauma and hardship for the 173,000 women and girls who are locked up in America today, and the thousands more who are trans. They face daily risks and hardships – which ripple out to their families, as they are often economically marginal, and the sole caregiver. 

Most recently, the Dobbs v. Jackson decision last year has brought in its wake the widespread criminalization of health providers and people seeking reproductive care. Within our current culture of mass incarceration, says researcher Hayley McMahon, "we're gonna see more people being criminalized, more people being arrested and more people being incarcerated." It’s not a matter of back-alley abortions anymore – it’s people seeking reproductive health care and ending up behind prison bars.

While providers in states banning abortion are clearly under threat, most people don’t realize that pregnant individuals themselves are also at risk of criminalization. In Idaho, a statute from 1973 remains a potential danger: a woman “who purposely terminates her own pregnancy otherwise than by a live birth” can be found guilty of a felony.  Similarly, some states have begun to explore criminalization approaches based on “fetal personhood,” aiming to increase prosecutions targeting pregnant people by classifying abortion as homicide.  

Even prior to Dobbs, prosecutors sometimes charged pregnant individuals in situations where their actions during pregnancy had allegedly harmed the fetus – including using drugs (even where prescribed by a doctor), drinking alcohol, and even falling down stairs. These seeds of criminalization have been sown for a long time, but Dobbs has allowed them to take root and grow in more communities – creating a culture of fear.

There is also nothing new about the criminalization of LGBTQ people, but now it is a trend that has gathered momentum.  Data from Interrupting Criminalization show that people incarcerated in women’s prisons (currently the fastest growing prison population) are disproportionately LGBTQ. A stunning forty-two percent of this population either identifies as lesbian or bisexual, or has had a same-sex experience. 

Behind these numbers are a larger and very frightening trend.  Arrests for women, the overall number driving this increase, are dropping much more slowly than those of men and are actually rising in several categories, including drug offenses and “broken window” offenses like vagrancy. Overall, the number of women incarcerated in the U.S. has skyrocketed, increasing 475 percent in the last four decades.

Adding to the harms, a large proportion of the women behind bars have already experienced some form of interpersonal violence. According to a recent study, 86 percent of women who have spent time in jail report that they had been sexually assaulted at some point in their lives. As well, while women represented just 13 percent of the jail population between 2009 and 2011, they represented 67 percent of the victims of staff-on-inmate sexual victimization. Sexual violence is so pronounced among jailed and incarcerated women that Sen. Cory Booker, (D-NJ,) labeled the overarching phenomenon as "a survivor-of-sexual-trauma to prisoner pipeline." 

Disrupting the criminalization of women, trans and gender non-conforming people demands looking at these patterns, according to Interrupting Criminalization: “Movements focused on police and prosecutorial reform should focus on where, how and why women are arrested.”  For example, behind arrests for weapons charges or even violent offenses you will often find a woman or trans person defending themselves against interpersonal violence or sexual assault.

When we fail to use a gender justice lens in our work to promote community safety and justice, we fail to fund critical interventions that support the full spectrum of people and experiences behind and across prison walls.  Conversely, when more holistic solutions are created by those most marginalized in our society, all of us benefit together from this broader approach. The data today compel us to both see differently and act differently.  Including gender in the picture is essential in getting community safety and justice right for all of our communities.

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maisha quint is a senior program officer at the Libra Foundation.

Artwork by Jessica Jiang, commissioned by CCWP for their 25th Anniversary Celebration, originally published on the cover of The Fire Inside, Issue #65, November 2021.