Marriage and Mass Incarceration


In considering marriage litigation, it is critical to consider its impact on the most vulnerable members of LGBT communities and on other marginalized communities. My skepticism about the struggle for “same-sex” I marriage is grounded in my work against criminalization and imprisonment, particularly as they affect transgender people of color.

The United States incarcerates more people per capita than any other country in the world. California, the seat of the controversy leading to Perry v. Brown, held more people in prison than any other state in the country until recently. We do not know how many trans people are in prisons and jails, but we know that the number is high. A San Francisco study found that 65% of trans women and 29% of trans men had a history of incarceration. A national study found that 16% of trans people had a history of incarceration; while a lower rate than the San Francisco study, this percentage is still much higher than the overall rate of incarceration in the United States.

Suggested Reading

This is an excerpt from Kenji Yoshino’s new book, Speak Now: Marriage Equality on Trial. In his book, Professor Yoshino explores the Hollingsworth v. Perry trial, which he calls “one of the most powerful civil rights trials in American history.” Professor Yoshino