Masculinity as prison: Sexual identity, race, and incarceration

California Law Review

Volumn 99, Issue 5, 2011, Pages 1309-1408

  Robinson, Russell K ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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[No Author keywords available]

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EID: 80455137165     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (185)

1. See Sharon Dolovich, Strategic Segregation in the Modern Prison, 48 AM. CRIM. L. REV. 1,2(2011).
2. See JOANNE MARINER, HUMAN RIGHTS WATCH, NO ESCAPE: MALE RAPE IN U.S. PRISONS (2001), available at http://www.hrw.org/legacy/reports/2001/prison/ index.htm.
3. Case Histories: "W.H.", HUMAN RIGHTS WATCH, http://www.hrw.org/legacy/reports/2001/prison/case-histories3.html#wh (last visited June 17, 2011).
4. Case Histories: "R.G.", No ESCAPE: MALE RAPE IN U.S. PRISONS, http://www.hrw.org/legacy/reports/2001/prison/case-histories2.html#rg (last visited June 17,2011).
5. NAT'L PRISON RAPE ELIMINATION COMM'N, NATIONAL PRISON RAPE ELIMINATION COMMISSION REPORT 217, available at http://nprec.us/files/pdfs/NPREC- FinalReport.PDF.
6. National Standards to Prevent, Detect, and Respond to Prison Rape, 76 Fed. Reg. 6257 (Feb. 3, 2011)
7. Dean Spade, Documenting Gender, 59 HASTINGS L. J. 731, 744 (2008) (internal citations omitted).
8. Michael S. Kimrnel, Masculinity as Homophobia, in THEORIZING MASCULINITIES 119, 125-26, 132 (Harry Brod & Michael Kaufman eds., 1999) ("Violence is often the single most evident marker of manhood.").
9. I thank Ali Miller for this point.
10. See Alexander Lara, Note, Forced Integration of Gay, Bisexual and Transgendered Inmates in California State Prisons: From Protected to Exposed Victims, 19 S. CAL. INTERIMS. L.J. 589, 608 (2010) (citing Los Angeles Sheriffs Department's "Core Values," which require it to "stand against racism, sexism, anti-Semitism, homophobia, and bigotry in all its forms").
11. Regina Kunzel, Lessons in Being Gay: Queer Encounters in Gay and Lesbian Prison Activism, 100 RADICAL HIST. REV. 11 (2008) [hereinafter Kunzel, Lessons].
12. I capitalize "Gay Identity" to signify that this is the hegemonic form of identity among nonheterosexual men, yet there are many "gay" identities and subcultures. I wish to highlight that one can be "gay" but not "Gay." A man may be open and honest about having sex with men, while reasonably rejecting all or part of Gay Identity and the culture associated with it.
13. I borrow this term from the public health literature, which developed it to include the vast community of men who have sex with men but do not identify as gay. Russell K. Robinson, Racing the Closet, 61 STAN. L. REV. 1463, 1465 n.3 (2003).
14. See, e.g., Gabriel Arkles, Safety and Solidarity Across Gender Lines: Rethinking Segregation of Transgender People in Detention, 18 TEMP. POL. & Crv. RTS. L. REV. 515, 515-16 (2009).
15. Helen M. Eigenberg, Correctional Officers and Their Perceptions of Homosexuality, Rape, and Prostitution in Male Prisons, 80 PRISON J. 415, 416 (2000)
16. Joan W. Howarth, Prisons Within Prisons: Gay Prisoners and Protective Custody, in 2 PRISONERS AND THE LAW 14-3, 14-8 (Ira P. Robbins ed., 1985)
17. ; Brenda V. Smith, Rethinking Prison Sex: Self-Expression and Safety, 15 COLUM. J. GENDER & L. 185, 200 (2006) ("In every state, correctional policies prohibit sexual behavior by inmates, whether that conduct is with staff or other inmates.").
18. For example, in a New York case, an inmate, Aaron Umber, accused his cellmate of repeatedly raping him. Umber v. Murphy, 757 N.Y.S.2d 379, 379-80 (N.Y. App. Div. 2003). Prison staff not only ruled that the claim was unfounded, they went on to charge Umber with violating the consensual sex ban.
19. 2 (Va. Ct. App. Feb. 10, 2004).
20. 539 U.S. 558 (2003).
21. 478 U.S. 186 (1986), overruled by Lawrence, 539 U.S. at 562.
22. Commonwealth v. Mayfield, 832 A.2d 418 (Pa. 2003)
23. It is very difficult to track official disciplinary actions against inmates for engaging in sexual activity, whether coerced or consensual. Such actions almost never result in published judicial opinions, since the punishments may be relatively minor and prisoners lack resources to protect their rights. Prisons and jails also rarely expose their enforcement (or lack thereof) to public scrutiny. The Prison Rape Elimination Act, which is in the early stages of implementation, is designed to produce more information on rape in incarceration contexts. 42 U.S.C. §§ 15601-15609(2006).
24. Stephen "Donny" Donaldson, A Million Jockers, Punks, and Queens, in PRISON MASCULINITIES 118,124 (Don Sabo et al. eds., 2001).
25. REGINA KUNZEL, CRIMINAL INTIMACY 165 (2010)
26. Mary Sylla, Prisoner Access to Condoms in the United States-The Challenge of Introducing Harm Reduction into a Law and Order Environment, Think Piece for Project UNSHACKLE Meeting, The John M. Lloyd AIDS Project at Stony Point Center (May 16, 2008), http://www.champnetwork.org/media/Prisoner-Access-to-Condoms- in-the-United-States-Sylla.pdf (noting that just two prisons and five jails permitted condoms as of May 2008). The Supreme Court addressed prison rape in Fanner v. Brennan, 511 U.S. 825, 837-38 (1994), which held that prisons do not violate the Eighth Amendment's ban on cruel and unusual punishment unless prison officials knew of and disregarded a substantial risk of serious harm to prisoners. This standard severely limits government responsibility for many of the harmful conditions in jails and prisons, including many instances of prison rape.
27. See generally Sharon Dolovich, Cruelty, Prison Conditions and the Eighth Amendment, 84 N.Y.U. L. REV. 881 (2009).
28. K6G may seem unusual in that it establishes a legal rule requiring inmates to prove that they are gay. The immigration system contains a similar apparatus, however, which suffers from some of the problems that I discuss herein. Alice M. Miller, Gay Enough: Some Tensions in Seeking the Grant of Asylum and Protecting Global Sexual Diversity, in PASSING LINES: SEXUALITY AND IMMIGRATION 137 (Brad Epps et al. eds., 2005). Under the military's "Don't Ask, Don't Tell" policy, the military required officers they suspected of being gay to prove that they were straight.
29. JANET E. HALLEY, DON'T 27, 41 (1999). Recently, the National Center for Lesbian Rights (NCLR) sued the North American Gay Amateur Athletic Association (NAGAAA) for penalizing three San Francisco Softball players who failed to prove to NAGAAA's satisfaction that they were gay.
30. See NCLR Files Suit Challenging Discriminatory Athletic Practices, NAT'L CTR. FOR LESBIAN RIGHTS (Apr. 20, 2010, 11:00 AM), http://www.nclrights.org/ site/ PageServer?pagename=press-Apilado-v-NAGAA042010 (last visited June 17, 2011). NCLR's case echoes my critique of the K6G unit. During their interrogation, organization officials required team members to declare whether they were "predominantly attracted to men" or "predominantly attracted to women," with bisexuality not being an option.
31. UCLA's Institutional Review Board reviewed and approved my research protocol. The IRB number is G09-07-047-02.
32. Interview with Bartholomew (Bart) Lanni, at 1 (Nov. 16, 2009) (transcript on file with author).
33. Interview with John Hagar, at 6-7 (Jan. 15, 2010) (transcript on file with author) ("The sheriffs department recognized that these inmates needed some form of segregation, even when the lawsuit was filed ⋯ . " ) . Terry Smerling of the ACLU was lead counsel and filed the lawsuit. After he was appointed to the bench, a volunteer attorney in private practice, John Hagar, took over the case for the ACLU.
34. Interview with JoAnne Keatling, Director, Center of Excellence for Transgender HIV Prevention, at 3 (Nov. 2, 2009) (transcript on file with author) (statement by transgender activist and educator recounting her stay in the unit about forty years ago).
35. James Ricci, Gay Jail Inmates Get Chance to Learn, L.A. TIMES, Apr. 7, 2004, at Bl (describing Barry Greenfield, a member of the West Hollywood Public Safety Commission, as an "ardent supporter" of the SMART program, which provides special services to K6G inmates; the Jail named a classroom in K6G after Greenfield); id. (noting that "Silver Lake nightclub owner and gay activist Michaeljohn Horn" donated furniture worth $30,000)
36. Stipulation and Request for Dismissal: Order, Robertson v. Block, No. 82-1442 (CD. Cal. July 22,1985).
37. Patricia Klein Lemer, Jailer Learns Gay Culture to Foil Straight Inmates: Crime, L.A. TIMES, Dec. 27,1990, at 1 (discussing role of senior deputy Ernest Cobarrubias).
38. See Ritch C. Savin-Williams, Who's Gay? Does it Matter?, 15 CURRENT DIRECTIONS IN PSYCHOL. SCI. 40,42 (2006) (discussing competing definitions of gay identity).
39. As I discuss below, I believe that gender performance is a relevant part of the vulnerability calculus. I worry, however, that the deputies are likely to view white men as more effeminate and in need of protection than men of color, even if viewers of color would assess the men of color differently. See Phillip Atiba Goff et al., "Ain't I a Woman?": Towards an Intersectional Approach to Person Perception and Group-Based Harms, 59 SEX ROLES 392, 396, 401 (2008) (finding that white viewers rated black faces as more masculine than similar white faces)
40. See WARREN JOHANSSON & WILLIAM A. PERCY, OUTING: SHATTERING THE CONSPIRACY OF SILENCE 3,7 (1993) (arguing that the closet "makes it hard for those in the vanguard to estimate the true number of their potential followers, to collect valid samples for research, and most important of all, to organize them for political struggle. The need for collective visibility overrules the right of privacy."). A recent study commissioned by the Human Rights Campaign demonstrates the fractured nature of political interests among LGBT people.
41. See HUMAN RIGHTS CAMPAIGN, AT THE INTERSECTION: RACE, SEXUALITY AND GENDER (2010), available at http://www.hrc.org/documents/HRC-Equality-Forward- 2009.pdf. Specifically, when LGBT people of color were asked to rank their most important political priorities, many of the "gay" issues privileged by the mainstream gay rights movement, such as same-sex marriage, ranked below guaranteeing racial equality and HIV prevention/treatment, among other race- and class-inflected issues. Id. at 11-12.
42. See Mary Anne C. Case, Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence, 105 YALE L.J. 1 (1995).
43. Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. PA. L. REV. 1,98 (1995).
44. See, e.g., Nguyen v. United States, 539 U.S. 69 (2003) (claiming that the fact that women give birth justifies differential treatment of citizen mothers and citizen fathers in immigration law). Consider, for instance, laws that prohibit women from exposing their breasts in public but permit men to reveal theirs. Judicial decisions that legitimate such bans tend to turn not on a close analysis of any physical differences between the average male and female breast, but rather on society's designation of certain body parts as erogenous zones. Luke Boso, A (Trans)Gender-Inclusive Equal Protection Analysis of Public Female Toplessness, 18 LAW & SEXUALITY 143 (2009). However, even this social question is blinkered by gendered lenses. Judges deem female breasts erotic and male breasts not erotic by enforcing a heterosexual male perspective and not that of a heterosexual woman, a gay man, or a bisexual man or woman.
45. see also Russell K. Robinson, Perceptual Segregation, 108 COLUM. L. REV. 1093, 1137-38 (2008) (noting that gender of judge influences resolution in some sex discrimination cases).
46. See Francisco Valdes, Queers, Sissies, Dykes, and Tomboys: Deconstructing the Conflation of "Sex," "Gender," and "Sexual Orientation" in Euro-American Law and Society, 83 CALIF, L. REV. 36,72 (1995).
47. David C. Plummer, The Quest for Modern Manhood: Masculine Stereotypes, Peer Culture and the Significance of Homophobia, 24 J. ADOLESCENCE 15, 18-19 (2001).
48. See Michael J. Bailey et al, Butch, Femme, or Straight Acting? Partner Preferences of Gay Men and Lesbians, 73 J. PERSONALITY & SOC. PSYCH. 960 (1997) (study of personal ads in one Chicago publication finding that "[b]oth gay men's self-descriptions and their desired partner characteristics were massively biased toward masculine descriptors," although over half of the ads did not reference gender performance). At the same time, some gay men have internalized the belief and fear that gay men tend to be less masculine than straight men, which requires monitoring potential partners to make sure that they do not "slip" and drop the masculine "facade," revealing an inner girl. Although this inspection is understandable insofar as gay men ground their identities in attraction to men, and not women, one should be on guard against unrealistic gender expectations and recognize that the search for "perfect" masculinity is futile.
49. Luke Boso, Disrupting Sexual Categories of Intimate Preference, 21 HASTINGS WOMEN'S L.J. 59, 78 (2010) ("No one is 100 percent anything.") (internal quotation marks omitted)
50. See, e.g., Brian Moylan, The Secret Sex Life of John Travolta, GAWKER (NOV. 19, 2010, 2:57 PM), http://gawker.eom/#l5685811/the-secret-sex-life-of- john-travolta (cataloguing tabloid stories on John Travolta's alleged gay sex exploits in Los Angeles bathhouses); Lindsay Robertson, Meredith Baxter's Surreal Today Show "Confession," JEZEBEL (Dec. 2, 2009, 11:00 AM), http://jezebel.com/5417001/meredith-baxter-birneys-surreal-today-show- confession (recounting how tabloid efforts to out her led actor Meredith Baxter to come out on NBC's The Today Show).
51. See, e.g., Gavin Rossdale Admits to Gay Fling with Singer Marilyn, HUFFINGTON POST (Oct. 14, 2010, 8:40 AM), http://www. huffingtonpost.com/2010/ 10/13/gavin-rossdale-admits-to-n-761413.html (stating that singer Gavin Rossdale, who is married to pop star Gwen Stefani, explained an early affair with a man by saying that he was just 17, and "It's a part of growing up"); HALLEY, supra note 38, at 47 (discussing how the military allowed service members to prove that they were heterosexual and that their engagement with homosexual conduct was a momentary experiment).
52. See Katherine Raymond, Confessions of a Second Generation ⋯ Dyke?: Reflections on Sexual Non-identity, in PoMoSEXUALS: CHALLENGING ASSUMPTIONS ABOUT GENDER AND SEXUALITY 59 (Carol Queen & Lawrence Schimel eds., 1997) [hereinafter PoMoSEXUALS] ("[QJueer identity-and conversely, homophobia-are often based in large part on factors other than what people actually do in bed."). Early military policy grappled with the difficulty of identifying male sexual "degenerates" by developing regulations specifying certain supposed physical markers, including traits associated with women. William N. Eskridge, Law and the Construction of the Closet: American Regulation of Same-Sex Intimacy, 1880-1946, 82 IOWA L. REV. 1007,1053(1997).
53. Cf. Vickie M. Mays et al, HIV Prevention Research: Are We Meeting the Needs of African American Men Who Have Sex with Men?, 30 J. BLACK PSYCHOL. 78, 83 (2004) ("Although mainstream society tends to think of homosexuality as homogenous, it is more accurate perhaps to think of these diverse populations ⋯ as representing homosexualities.")
54. Sonia Katyal has incisively examined the clash between Gay Identity and local culture in non-Western countries when the LGBT movement has tried to "export identity." Sonia Katyal, Exporting Identity, 14 YALE J.L. & FEMINISM 97, 100 (2002) ("[T]he presumed equation between sexual conduct, sexual orientation, and sexual identity, so prevalent in Western legal thought, tends to swiftly unravel when viewed in a cross-cultural framework."). In this Article, I try to show that Gay Identity may seem foreign to American men as well, especially men of color. Men who live in rural spaces may also have a vexed relationship to Gay Identity, which centers on an urban, affluent perspective.
55. ENCYCLOPEDIA OF HOMOSEXUALITY 455 (Wayne R. Dynes ed., 1990). The editors of the Encyclopedia allegedly listed a fictitious female as the author of several entries regarding lesbians. Francine Fialkoff, In Reference We Trust? LIBRARY J. June 15, 1995, at 58. Indeed, the last name they picked for her, "Gettone," stands for "token" in Italian.
56. Kenji Yoshino, Covering, 111 YALE L.J. 769, 845 (2002)
57. GEORGE CHAUNCEY, GAY NEW YORK: GENDER, URBAN CULTURE, AND THE MAKING OF THE GAY MALE WORLD 1890-1940, at 7 (1994).
58. See Theodore Weissbach & Gary Zagon, The Effect of Deviant Group Membership Upon Impressions of Personality, 95 J. SOC. PSYCHOL. 263, 264-65 (1975).
59. Aaron J. Blashill & Kimberly K. Powlishta, Gay Stereotypes: The Use of Sexual Orientation as a Cue for Gender-Related Attributes, 61 SEX ROLES 783 (2009).
60. Stephanie Madon, What Do People Believe About Gay Males? A Study of Stereotype Content and Strength, 37 SEX ROLES 663, 677 (1997).
61. See, e.g., 'Idol' Reject Sues for $300 Million-Anti-Gay Allegations, TMZ.COM (July 27, 2010, 12:25 PM), http://www.tmz.com/2010/07/27/ american-idol-sued-ian-benardo (reporting on lawsuit by American Idol contestant who alleged sexual orientation discrimination, including that the TV show's producers instructed him to "gay it up").
62. KENJI YOSHINO, COVERING: THE HIDDEN ASSAULT ON OUR CIVIL RIGHTS, at ix (2006).
63. For an extended discussion of Yoshino's scholarship on covering, see generally Russell K. Robinson, Uncovering Covering, 101 NW. U. L. REV. 1809 (2007) (reviewing KENJI YOSHINO, COVERING: THE HIDDEN ASSAULT ON OUR CIVIL RIGHTS (2006)).
64. William Byne, Science and Belief: Psychobiological Research on Sexual Orientation, in SEX, CELLS AND SAME-SEX DESIRE: THE BIOLOGY OF SEXUAL PREFERENCE 303,306 (1995).
65. Mat 313-30.
66. Kerri L. Johnson et al., Swagger, Sway, and Sexuality: Judging Sexual Orientation from Body Motion and Morphology, 93 J. PERS. & SOC. PSYCHOL. 321 (2007).
67. Nalini Ambady et al., Accuracy of Judgments of Sexual Orientation from Thin Slices of Behavior, 77 J. PERS. & SOC. PSYCHOL. 538, 541 (1999).
68. See, e.g., Richard J. Wolitski et al., Self-Identification as "Down Low" Among Men Who Have Sex with Men (MSM) from 12 U.S. Cities, 10 AIDS & BEHAV. 519, 526 (2006) (finding that "[down low]-identified MSM were less likely to report having had any involvement with the gay community"). Ambady and her coauthors acknowledged this limitation.
69. William D. Mosher et al., Sexual Behavior and Selected Health Measures: Men and Women 15- 44 Years of Age, United States, 2002, 362 ADVANCE DATA FROM VITAL & HEALTH STAT., (Nat'l Ctrs. for Health Statistics), Sept. 15, 2005, at 1, 13 (identifying a group of men who described their sexuality as "something else").
70. See Stephen Ellingson & Kirby Schroeder, Race and the Construction of Same-Sex Sex Markets in Four Chicago Neighborhoods, in THE SEXUAL ORGANIZATION OF THE CITY 93, 96 (Edward O. Laumann et al. eds., 2004) ("Different components of gay culture ⋯ celebrate a transactional orientation toward sexual partnering.").
71. See DAVID NIMMONS, THE SOUL BENEATH THE SKIN: THE UNSEEN HEARTS AND HABITS OF GAY MEN 82-90 (2002) (arguing that most gay relationships are not monogamous); Richard Goldstein, My Big Fat Funky Queer Marriage, VILLAGE VOICE, June 15, 2004, at 39 (stating that his boyfriend's sex partners "could practically fill the Radio City Music Hall" and that their committed relationship permitted his boyfriend to keep "tricking" and Goldstein to have "affairs"). The K6G unit essentially substitutes the predatory stereotype for one that imagines gay men as inherent victims.
72. Anthony Tommasini, Looking for a Breakthrough? You 'II Have to Wait, N.Y. TIMES, Jan. 14, 2008, at 2-3.
73. David M. Skover & Kellye Y. Testy, LesBiGay Identity as Commodity, 90 CALIF. L. REV. 223, 235 (2002) (emphasis added).
74. MICHAEL WARNER, THE TROUBLE WITH NORMAL: SEX, POLITICS, AND THE ETHICS OF QUEER LIFE 34-35 (1999).
75. Mat 35.
76. See Gregory B. Lewis, Black-White Differences in Attitudes Toward Homosexuality and Gay Rights, 67 PUB. OPINION Q. 59, 66 (2003).
77. M.V. LEE BADGETT, MONEY, MYTHS AND CHANGE 111, 120-21 (2001). Although Skover and Testy acknowledge that poor LGBT people-including many people of color-lack access to this commodified identity, they blithely assume that poor LGBT folks will eventually follow the same "trajectory" as more affluent LGBT people.
78. See GARY GATES & R. BRADLEY SEARS, LATINO/AS IN SAME-SEX COUPLES IN CALIFORNIA DATA FROM CENSUS 2000 (2005), available at http://www.law.ucla.edu/ williamsinstitute/publications/Latino-as%20in%20same- sex%20couples%20in%20california%20-s.pdf.
79. See Jed Rubenfeld, The Right of Privacy, 102 HARV. L. REV. 737, 780 (1989) (critiquing pro-gay defenders of the importance of sexual identity for "reproducing] the heterosexual view of homosexuality as a quality that, like some characterological virus, has invaded and fundamentally altered the nucleus of a person's identity"). The idea of gay difference is clearly reflected in the cable TV series Queer Eye for the Straight Guy, which cast gay men as sophisticated and effeminate assistants to a masculine straight man who displayed ignorance about feminine things like fashion, grooming, and fine food. No less than three "reality" TV series have been based on the concept of gaydar: Gay, Straight or Taken? (Lifetime); Boy Meets Boy (Bravo); and Playing It Straight (Fox).
80. Kittiwut Jod Taywaditep, Marginalization Among the Marginalized: Gay Men's Anti- Effeminacy, 42 J. HOMOSEXUALITY 1, 20 (2001)
81. See, e.g., Leanne Fiftal Alarid, Sexual Orientation Perspectives of Incarcerated Bisexual and Gay Men: The County Jail Protective Custody Experience, 80 PRISON J. 80, 81 (2000);
82. Kim Shayo Buchanan, Our Prisons, Ourselves: Race, Gender and the Rule of Law, 29 YALE L.&POL'Y REV. 1,15-16(2010).
83. Clifford Krauss, Well-Dressed Officer: Navy, Not Powder Blue, N.Y. TIMES, Oct. 7, 1994, at B3 (noting that New York Police Department "switched from navy to powder blue in 1972 to give the force a softer look after race riots that broke out in cities around the country").
84. MICHAEL SCARCE, MALE ON MALE RAPE: THE HIDDEN TOLL OF STIGMA AND SHAME 75 (1997) ("Some people may believe that gay men could not possibly rape straight men because all gay men are supposedly feminine and physically weak, thus unable to overpower a 'real man.'");
85. Marc Spindelman, Surviving Lawrence v. Texas, 102 MICH. L. REV. 1615, 1665 (2004) (discussing abuse in same-sex relationships).
86. SEE, E.G., J.L. KING, ON THE DOWN LOW: A JOURNEY INTO THE LIVES OF "STRAIGHT" BLACK MEN WHO SLEEP WITH MEN (2004).
87. See Dictionary of Gay Terms: S, AARONSGAYINFO.COM, http://www. aaronsgayinfo. com/AlphaMenu/Sterms.html, (last visited Jan. 27, 2010) ("a gay male with a sexual preference for partners with large penis [sic]").
88. See Dictionary of Gay Terms: P, AARONSGAYINFO.COM, http://www. aaronsgayinfo. com/AlphaMenu/Pterms.html, (last visited Aug. 26, 2011) ("A peircing on the penis that punctures the urethra and exits through the meatus.").
89. Los Angeles Gay Pride Parade 2010, GAYTRAVEL, http://gaytravel.about.com/ od/previewsofpridefestivals/qt/LA-Pride.htm, (last visited June 19,2011).
90. 2006-2008 U.S. CENSUS AMERICAN COMMUNITY SURVEY (ACS), available at http://factfmder.census.gov (hover over "Data Sets" and select "American Community Service;" then select 2006-2008 data base; then select "Data Profiles" and conduct a "Name Search" for "West Hollywood" and "Los Angeles;" for each, highlight the correct geographic unit and click on the "Show Result" button);
91. see also Charles I. Nero, Why Are the Gay Ghettoes White?, in BLACK QUEER THEORY: A CRITICAL ANTHOLOGY 228, 230-234 (E. Patrick Johnson & Mae G. Henderson eds., 2005) (documenting the historical process whereby a New Orleans gay enclave was formed as a racially-exclusive space).
92. See, e.g., Nancy Wolff et al., Measuring Victimization Inside Prisons: Questioning the Questions, 23 J. INTERPERSONAL VIOLENCE 1343, 1346, 1354 (2008) (revealing how different framings of questions produce different results in surveying inmates about violence and sexual assault). Depending on the study and the particular prison(s) or jail(s) surveyed, sexual assault prevalence rates range from 1 to 40 percent.
93. EVE KOSOFSKY SEDGWICK, EPISTEMOLOGY OF THE CLOSET 45 (1990).
94. Russell K. Robinson, Structural Dimensions of Romantic Preferences, 76 FORDHAM L. REV. 2787, 2800-01 (2008). Then Justice Rehnquist (joined by Justice Blackmun) illustrated the homophobic fear of sexual contamination in his dissent from the denial of certiorari in a 1978 case involving the University of Missouri's refusal to recognize a gay liberation student group.
95. See Ratchford v. Gay Lib, 434 U.S. 1080, 1084 (1978) (comparing gay students to people with measles).
96. See generally Bennett Capers, Real Rape Too, 99 CALIF. L. REV. 1163 (critiquing legal and social failure to take male rape seriously).
97. See Nina T. Harawa et al, Sex and Condom Use in a Large Jail Unit for Men Who Have Sex with Men (MSM) and Male-to-Female Transgenders, 21 J. HEALTH CARE FOR POOR & UNDERSERVED 1071, 1073 (2010).
98. Laurel Walker, Stand Gets 15 Years in Prison in Facebook Coercion Case, MILWAUKEE J.-SENTINEL (Feb. 24, 2010), http://www.jsonline.com/news/waukesha/ 85252392.html.
99. See, e.g., TRANNYTROUBLEBLOG, http://www.trannytroubleblog.com (offering several scenes in which the transgender woman is submissive, and others where she is dominant).
100. See Damien Crosse and Francesco D 'macho Got Married, THE SWORD (May 26, 2009) http://www.thesword.com/index.php/skintrade/2678-damien-crosse-and- francesco-dmachogot-married.html.
101. See David Cole, Playing by Pornography's Rules: The Regulation of Sexual Expression, 143 U. PA. L. REV. I l l , 167-68 (1994).
102. Robin J. Shattock & John P. Moore, Inhibiting Sexual Transmission of HIV-I Infection, 1 NATURE REVS. MICROBIOLOGY 25, 27 (2003) (stating that any lubrication that reduces trauma to the mucosal epithelium (the skin of the rectum) is "likely to diminish the chance of infection");
103. Reducing the Risk of Getting HIV from Sexual Activities, S.F. AIDS FOUND. (Aug. 25, 2008), http://www.thebody.com/content/art2503.html [hereinafter Reducing the Risk of Getting HIV] ("It is important to use a lubricant ⋯ to reduce friction on the outside of the condom during sexual intercourse. When in doubt, more lubrication should be added."). Eight percent of respondents in the Harawa study cited the lack of lubricant as a reason not to use condoms. Harawa et al., supra note 296, at 1080. If inmates, deprived of proper lubricant, attempt to improvise by using hand lotion or Vaseline, they might reduce pain/trauma to the rectum, but also undermine the ability of the condom to protect them from disease, as oil-based lubricants degrade latex condoms. See supra, Reducing the Risk of Getting HIV.
104. See NATIONAL HIV/AIDS STRATEGY FOR THE UNITED STATES 14 (2010), available at http://www.whitehouse.gov/files/documents/nhas-implementation.pdf.
105. CNTY. OF L.A. PUB. HEALTH, AN EPIDEMIOLOGIC PROFILE OF HIV & AIDS 89 (2009), available at http://publichealth.lacounty.gov/wwwfiles/ph/hae/hiv/2009- EpiProfile.pdf. This is consonant with the finding that 1.9 percent of state prisoners are known to be HIV positive. Nina T. Harawa et al., Using Arrest Charge to Screen for Undiagnosed HIV Infection Among New Arrestees: A Study in Los Angeles County, 15 J. CORRECTIONAL HEALTH CARE 105, 106(2009).
106. U.S. Ctrs. for Disease Control & Prevention (CDC), HIV Prevalence, Unrecognized Infection, and HIV Testing Among Men Who Have Sex with Men-Five U.S. Cities, June 2004- Aprii 2005, 54 MORBIDITY & MORTALITY WEEKLY REPORT 597, 597-601 (June 24, 2005), available at http://www.cdc.gov/mmwr/PDF/wk/ mm5424.pdf.
107. Cf. Lawrence v. Texas, 539 U.S. 558, 578 (2003) (noting that case involved "sexual practices common to a homosexual lifestyle").
108. 1 J. HUMAN BEHAV. SOC. ENV. 243, 246 (1998).
109. For example, an interviewer asked a black community organizer who coined the term "same gender loving" for black sexual minorities whether it was "self-degrading" for him not to "admit to being gay." Phillip Esteem, In Touch with Cleo Manago, CHUMA SPIRIT MAGAZINE, http://chumaspiritmagazine.typepad.com/chuma-spirit-magazine/2007/10/ in-touch-with-c.html (last visited Jun. 19, 2011).
110. But see Ritch Savin-Williams, Refusing and Resisting Sexual Identity Labels, in ADOLESCENT IDENTITIES, at 67, 74 (Deborah L. Browning ed., 2007) ("[I]t's possible not to identify oneself sexually and still embrace one's sexuality.").
111. Thomas C. Mills et al., Health-Related Characteristics of Men Who Have Sex with Men: A Comparison of Those Living in "Gay Ghettos" with Those Living Elsewhere, 91 AM. J. PUB. HEALTH 981 (2001) (finding that MSM who reside in gay enclaves are more likely to be out and to have a domestic partner).
112. For instance, there are public sites, such as craiglist.org and adam4adam.com, which allow people to post advertisements for sex without displaying any personal photographs or permit the option of displaying photographs of body parts other than faces. David Amsden, Married Man Seeks Same for Discreet Play, N.Y. MAG., July 23, 2007, http://nymag.com/news/features/ 34985 (describing professional New York City men meeting other men for sex on craigslist.org)
113. James E. McGreevey, The Making of a Gay American, N.Y. MAG., Sept. 18, 2006, http://nymag.com/ news/politics/21340 (same in Washington, D.C.).
114. Kery Murakami, Attacks Alarm Gay Community, SEATTLE POST-INTELLIGENCER (Oct. 25, 2007, 3:00 PM), http://www.seattlepi.com/local/336781-gaybashing25. html.
115. HUMAN RIGHTS CAMPAIGN, HATE VIOLENCE CONTINUES TO SHOCK THE NATION: HOW MANY MORE MUST DIE BEFORE CONGRESS TAKES ACTION? 14 (2005).
116. See, e.g., Devon W. Carbado & Mitu Gulati, Working Identity, 85 CORNELL L. REV. 1259, 1307 (2000) (illuminating "shadow work" of stereotype negation).
117. Cf. Lawrence v. Texas 539 U.S. 558, 571 (2003) (noting that "religious beliefs" have contributed to "powerful voices to condemn homosexual conduct as immoral").
118. Gregorio A. Millett et al., Explaining Disparities in HIV Infection Among Black and White Men Who Have Sex with Men: A Meta-Analysis of HIV Risk Behaviors, 21 AIDS 2083, 2084 (2007) ("Data from several studies overwhelmingly supported the assertion that Black MSM are less likely than White MSM to identify as gay."). A Department of Justice survey also indicates a significant community of inmates who rejected conventional sexual categories. Inmates were just as likely to identify as "other" as they were to identify as "homosexual," and nearly three times as many inmates identified as bisexual as homosexual. (The study did not report the racial demographics of the "other" group.). See LOCAL JAILS, supra note 222, at 6. Sexuality researchers are struggling to understand why subjects choose "other" or "something else" when given such an option. This group appears to include people who reject traditional categories of sexual orientation, people whose sexuality is evolving, including those beginning to come out, transgender people, and people confused by terms such as "heterosexual."
119. Gary Goldbaum et al., Differences in Risk Behavior and Sources of AIDS Information Among Gay, Bisexual, and Straight-Identified Men Who Have Sex with Men, 2 AIDS & BEHAV. 13, 16 (1998) (finding that black men at MSM public sex venues were more likely to identify as bisexual or straight than white men)
120. Gregorio Millett et al., Focusing "Down Low": Bisexual Black Men, HIV Risk and Heterosexual Transmission, J. NAT'L MED. ASS'N, July 2005, at 52S, 53S ("Studies clearly show that black MSM are more likely than MSM of other races and ethnicities to identify themselves as bisexual and to be bisexually active.")
121. J.P. Montgomery et al., The Extent of Bisexual Behaviour in HIV-infected Men and Implications for Transmission to Their Female Sex Partners, 15 AIDS CARE 829, 831 (2003) (reporting that the following percentages of HIV-positive MSM reported sex with women in the last five years: 34 percent black, 26 percent Hispanic, 19 percent Asian/Pacific Islander, 13 percent American Indian/Alaska Native, and 13 percent white).
122. Despite these disparities, the Court requires a showing of intentional discrimination to make out a race-based equal protection claim. McCleskey v. Kemp, 481 U.S. 279, 297 (1987). Consequently, it is unlikely that such an equal protection challenge would be successful.
123. See Patricia Leigh Brown, Gay Enclaves Face Prospect of Being Passe, N.Y. TIMES (Oct. 30,2007), http://www.nytimes.com/2007/10/30/us/30gay.html.
124. A number of LGBT organizations, mostly younger, grass-roots groups, have added "Q" to the LGBT acronym. See LGBT, WIKIPEDIA, http://en.wikipedia.org/wiki/LGBT#cite-note-In-Between-Bodies-6 (last visited June 19, 2011) (cataloguing variants of "LGBT').
125. See FACEBOOK.COM, http://www.facebook.com/event.php?eid= 55015910340&ref=mf (Facebook page for the Bisexual and Bi-Curious Men's Group, a Boston-based discussion group "for men who are bisexual or think that they might be") (last visited June 19, 2011).
126. ASANTE KAHARI, HOMO THUG (2004).
127. Compare GOYS.ORG, http://www.gOys.org (last visited June 19, 2011) ("The Movement for Guys who feel deep affection for other guys, -but do NOT relate to the term 'GAY'"), with CHAUNCEY, supra note 150, at 5 ("Many [men] bitterly resented the dominant culture's insistence that their homosexuality rendered them virtual women and despised the men among them who seemed to embrace an 'effeminate' style.").
128. See, e.g., Katherine M. Franke, The Domesticated Liberty of Lawrence v. Texas, 104 COLUM. L. REV. 1399 (2004)
129. Kendall Thomas, Beyond Privacy, 92 COLUM. L. REV. 1431 (1992). My interest in this Article is not in trying to resolve the arguments for or against privacy doctrine. Rather, I deploy it strategically, recognizing that it is one of the few spaces in current constitutional law where applicants to K6G may be able to obtain relief. Sharon Dolovich's study of K6G purports to show that the K.6G policy does not violate the Constitution. However, she errs in reducing potential constitutional objections to an equal protection claim. Dolovich, supra note 1, at 82. Her cursory analysis fails to recognize potential
130. Whalen v. Roe, 429 U.S. 589, 600 (1976).
131. Whalen, 429 U.S. at 600.
132. Nelson, 131 S. Ct. 746 (2011).
133. Sterling v. Minersville, 232 F.3d 190, 193 (3d Cir. 2000).
134. 478 U.S. 186 (1986), overruled by Lawrence v. Texas, 539 U.S. 558, 562 (2003).
135. NASA v. Nelson, 131 S.Ct. 746, 757-58 (2011)
136. Johnson v. California, 543 U.S. 499 (2005) (holding that strict scrutiny applies to equal protection claim based on racial segregation in California prisons).
137. 726 F.2d 459, 471 (9th Cir. 1983).
138. Mat 462.
139. 846 F.2d 627 (10th Cir. 1988). Mat 629.
140. see also Shuman v. City of Philadelphia, 470 F. Supp. 449 (E.D. Penn. 1979).
141. Shuman, 470 F. Supp. at 457
142. Sterling v. Minersville, 232 F.3d 190, 197 (3d Cir. 2000)
143. Thome v. City of El Segundo, 726 F.2d 459 (9th Cir. 1983).
144. See Zablocki v. Redhail, 434 U.S. 374, 387 & n.12 (1978) (indicating that laws that "significantly interfere" with protected decisions trigger heightened scrutiny)
145. ERWIN CHEMERINSKY, CONSTITUTIONAL LAW (2d ed. 2005) (stating that the Court considers '"directness and substantiality of the interference'" with the right, but that the Court has provided "surprisingly little discussion of what constitutes a direct and substantial interference")
146. (quoting Michael C. Dorf, Incidental Burdens on Fundamental Rights, 109 HARV. L. REV. 1175, 1182 (1996)) (identifying an implicit "substantiality threshold").
147. See Roe v. Wade, 410 U.S. 113 (1973).
148. See Troxel v. Granville, 530 U.S. 57 (2000);
149. Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923).
150. See Zablocki v. Redhail, 434 U.S. 378 (1978);
151. Loving v. Virginia, 388 U.S. 1 (1967).
152. See, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965).
153. Lawrence, 539 U.S. at 567.
154. Loving v. Virginia, 388 U.S. 1, 13 (1967).
155. Zablocki v. Redhail, 434 U.S. 374, 384 (1978).
156. Moore v. City of E. Cleveland, 431 U.S. 494 (1977); Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925)
157. See. e.g., Planned Parenthood v. Casey, 505 U.S. 833 (1992) (joint opinion); Pierce, 268 U.S. at 510, 535
158. Interview with Matt Foreman, at 16 (Nov. 19,2010).
159. Lanni Interview, 13-14.
160. In light of Justice O'Connor's leading role in shaping the Court's gender equality jurisprudence, see, e.g., Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982).
161. Cf. Grutter v. Bollinger, 539 U.S. 306, 327 (2003).
162. Johnson, 543 U.S. at 506 (internal quotation marks omitted) , 488 U.S. 469,493 (1989)).
163. Lawrence v. Texas, 539 U.S. 558, 580 (2003).
164. MICHEL FOUCALT, l THE HISTORY OF SEXUALITY: AN INTRODUCTION (1978).
165. See, e.g., Niels Teunis, Making Badlands Good: Still Confronting Racism in the Castro, NAT'L SEXUALITY RES. CTR. (July 12, 2005), http://nsrc.sfsu.edu/ article/making-badlands-good-still-confronting-racism-castro;
166. See DwiGHT MCBRIDE, WHY I HATE ABERCROMBIE AND FITCH, 122 (2005);
167. Patrick A. Wilson et al., Race-Based Sexual Stereotyping and Sexual Partnering Among Men Who Use the Internet to Identify Other Men for Bareback Sex, 46 J. SEX RESEARCH 399 (2009).
168. McCleskey v. Kemp, 481 U.S. 279, 297 (1987).
169. Philip Goodman, " Just Black, While, or Hispanic ": An Observational Study of Racialized Moves in California's Segregated Prison Reception Centers, 42 L. AND SOC'Y REV. 735 (2008).
170. See Lance Pollack et al., Evaluation of the Centers for Disease Control and Prevention's HIV Behavioral Surveillance of Men Who Have Sex with Men: Sampling Issues, 32 SEXUALLY TRANSMITTED DISEASES, 581, 583 (2005).
171. Michael Joseph Gross, Has Manhunt Destroyed Gay Culture? A Cost-Benefit Analysis of Our Quest to Get Laid, OUT.COM, http://out.com/detail.asp?id=24005 (last visited Jan. 27, 2010).
172. MEN4SEXNOW.COM, http://www.men4sexnow.com (last visited June 19, 2011).
173. ADAM4ADAM.COM, http://www.adam4adam.com (last visited June 19, 2011) ("A club for gay men.").
174. GRINDR.COM, http://www.grindr.com (last visited June 19, 2011);
175. see Meredith May, Gay Men Meet Up Through Grindr App for iPhone, S.F. CHRON., Mar. 19, 2010, http://articles.sfgate.com/2010-03-19/entertainment/ 18838701-l-grindr-gay-men-marriage.
176. Cf. Douglas Quenqua, Dude You Are So (Not) Obama, N.Y. TIMES, Aug. 23, 2009.
177. See David Colman, Gay or Straight? Hard to Tell, N.Y. TIMES, June 19, 2005, http://www.nyturies.com/2005/06/19/fashion/sundaystyles/19GAYDAR.html.
178. Cynthia L. Blitz et al., Physical Victimization in Prison: The Role of Mental Illness, 31 INT'L J. L. & PSYCHIATRY 385, 389-90 (2008);
179. At the time, there was no question that sexual orientation did not receive heightened scrutiny under the Equal Protection Clause. Romer v. Evans, 517 U.S. 620, 646 (1996).
180. Employees should carefully consider and endeavor to respect the views of gay, bisexual, transgender, and intersex inmates who request or do not want heightened protection. NAT'L PRISON RAPE ELIMINATION COMM'N.
181. Cf. Kimberle Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. CHI. LEGAL F. 139 (1989).
182. See Robert Post, Prejudicial Appearances: The Logic of American Antidiscrimination Law, 88 CALIF. L. REV. 1, 20 (2000);
183. Katrin Bennhold, In Sweden Men Can Have It All, N.Y. TIMES, June 9, 2010, http://www.nytimes.com/2010/06/10/world/europe/10iht-sweden.html.
184. Darren Lenard Hutchinson, "Gay Rights" for "Gay Whites"?: Race, Sexual Identity, and Equal Protection Discourse, 85 CORNELL L. REV. 1358, 1371 (2000) (noting this danger); http://www.wpaag.org/ Homosexuals%20and%20Same%20Sex%20Marriage.htm.
185. TIM DEAN, UNLIMITED INTIMACY: REFLECTIONS ON THE SUBCULTURE OF BAREBACKING (2010).