LGBTQ people are disproportionately incarcerated. Here’s why.

Estimates made by incarcerated women themselves, as well as from sociologists who studied inside the prison in the 1960s, suggest that about 75 percent of people in the House of D (as it was known) were queer. Understanding why queer and trans people have historically been disproportionately represented in the American carceral system requires digging deeply into the 150-year history of women’s detention.

Originally, women’s prisons were created as sites of moral reform, places where women and girls who were considered not appropriately “feminine” could be sent to learn domestic and maternal behavior.

The origins of this modern system of incarceration date to an 1870 prison conference held in Ohio. After the Civil War, officials grappled with how to extend existing criminal legal systems (which mostly focused on the violent, anti-social behaviors of White men) to the new populations that were increasingly coming under their control: formerly enslaved African Americans and women of all races operating in the public sphere. Incidentally, 1870 was also the first year the census asked about women’s employment — another sign of the government’s recognition that women were increasingly part of civic life.

Conference-goers drafted a 37-point Declaration of Principles to guide the future of corrections in America. Their ultimate goal was “the reformation of criminals.” Point 19 advocated for “separate establishments for women,” where they would receive separate — and as it turned out, unequal — justice. Critically, the conference also advocated for “moral training,” which in their eyes required longer sentences for smaller offenses. This included indefinite sentences, which allowed a person to be held until they showed “satisfactory proof of reformation.”

Before that point, most incarcerated people were held for “crimes against people,” such as assault or rape, or “crimes against property,” such as arson or robbery. “Crimes against public order,” like drunkenness or prostitution, rarely resulted in imprisonment. But the focus on moral training saw these offenses as opportunities for the system to swoop in and incarcerate a person into virtue. Thus, for most of the 20th century, the vast majority of arrested women were imprisoned on charges of prostitution, vagrancy, drunkenness and drug use, “crimes” that rarely resulted in prison sentences for men, especially straight White ones.

Three years after the Ohio conference, the first stand-alone women’s detention center opened in the United States. In its 1875 annual report, administrators put into words the goal that animated women’s incarceration for decades to come: “to take these [incarcerated people] and so remold, reconstruct and train them, as to be fitted to occupy the position assigned them by God, viz., wives, mothers, and educators of children.” Long before our current struggle over Roe v Wade, a forced-birth agenda was deeply rooted in the criminal legal system’s approach to women and trans men.

The goal of this moral training was not to make these people good citizens, but good women who adhered to domestic and maternal obligations.

Although expressed in moral terms, this was also an economic imperative. Poverty, criminality and perversion — a laxity of the soul — were inextricably linked in the 19th century. Women were thought to have only two legal options for escaping poverty: to either become wives or maids. Both required proper femininity. Officials reasoned that to inculcate these beliefs in immoral women they needed to arrest more of them, earlier in life, for smaller infractions and detain them for longer periods of time.

In 1882, New York passed its first official wayward minor law, which applied only to girls and young women ages 14 to 21 who had been arrested for prostitution. Within a few years, it was expanded to girls who were considered in danger of becoming prostitutes, giving their parents the ability to have “incorrigible” daughters institutionalized without being arrested. The law wouldn’t be applied to boys and young men until 1925.

In 1910, New York City opened “The Women’s Court,” which almost exclusively heard cases related to sex work and public intoxication. In 1915, laws around prostitution were changed so that any woman convicted twice in two years (or three times in her life) would receive an indefinite sentence of up to two years. This was later expanded to three years.

Over the next two decades, legal precedent established that “vagrancy prostitution” (the most common charge at The Women’s Court) referred to the “common lewdness” of women and did not require the exchange of sex for money. Johns who hired women could not be charged in prostitution cases (because the crime lay in the offer of sex, not paying for it) and men could not be charged as prostitutes at all.

In 1919, at the urging of the federal government, New York and many other states passed laws mandating testing for sexually transmitted diseases for all people — meaning all women — arrested on sex work charges. Anyone testing positive was detained until cured, regardless of whether she had been found innocent, and this at a time when “curing” gonorrhea or syphilis took months and relied on toxic, ineffective compounds of arsenic and mercury.

This developing system of “women’s justice” soon collided in the early-20th century with Americans’ changing understanding of what it meant to be queer. In the 19th century, queer people were those who violated gender norms. Scientists labeled them “inverts,” and they were assumed to be bodily different — a third sex of some kind. They were physically “born this way,” which meant there was little focus on changing or rehabilitating them.

But when sexologists and Sigmund Freud helped shape beliefs that sexuality existed in the brain rather than something innate to one’s body, a dramatic shift occurred. Now, queerness was both invisible and mutable. Inverts were obvious, but lesbians and gay men needed to be found, named and cured. Minor infractions of gender, such as a girl wearing pants, became indicators of developing sexual deviancy.

The specter of homosexuality began to haunt court proceedings and case notes, even in situations that on their face had little or nothing to do with sexual orientation, and any inkling of queerness became a reason to have women and girls investigated and incarcerated. If 19th-century Americans feared girls would become prostitutes, the 20th century added the anxiety that they might also become lesbians.

For many people, particularly working-class ones, the courts became a nightmare of sexual education, simultaneously teaching them these new ideas about their sexuality and punishing them for it. The legal system then placed them in single-sex institutions — from jails to prisons to youth detention centers to halfway homes to detox programs — where their relationships with other women were closely monitored and those considered excessive, sexual or romantic were punished with extended sentences.

This web of control went far beyond the prison walls, thanks to the network of social service organizations for delinquent girls and working-class women. As women’s sexuality and criminality were now inextricably linked, these social workers took careful notes about their charges’ queer desires and experiences — inadvertently creating an incredibly robust, if biased, archive of queer history.

By the 1920s, even the New York City Department of Corrections would admit that in women’s prisons “homosexuality is always to be expected.” Yet they would do little to support, research or even acknowledge these people in their actual institutions.

These queer archives make clear that while it may be shocking that 40 percent of people in women’s prisons today identify as queer, this may actually represent an all-time low for the U.S. carceral system. In previous decades, queer women and trans men were incarcerated for immoralities such as smoking, wearing pants, being alone on the street at night, accepting a ride from a man, running away from home, fighting with their parents and sending the definition of the word “lesbian” through the mail.

A century of compounded criminalization, incarceration and neglect have taken a heavy toll on the queer women and trans masculine community, particularly people of color and the working-class. As women’s incarceration skyrockets in America — increasing 700 percent in just the past 40 years — naming and dealing with the homophobia and transphobia at its root is crucial to understanding this phenomenon and unraveling it.