Document Type
Article
Publication Date
2022
Abstract
As lesbian, gay, bisexual, and transgender (LGBT) rights gain traction around the globe, many states have turned toward carceral punishment as a means of sanctioning discrimination based on sexual orientation and gender identity. The carceral turn has been scrutinized in racial justice and feminist literature, but few queer scholars have grappled with the growing use of incarceration globally to punish offenses like discrimination, degrading or insulting speech, or conversion practices. The use of carceral punishment to deter and punish these offenses—what I call discriminalization—raises questions about whether or when incarceration is appropriate to address affronts to equal dignity. To address these questions, this Article identifies three distinct logics that human rights advocates might use to analyze discriminalization: equal dignity, prison abolition, and proportionality. It argues that a proportionality framework is best suited to account for the various rights at stake and guide the calibration of criminal penalties where they are prescribed. The Article concludes by urging human rights advocates to recognize the limitations of carceral responses and to think creatively about holistic approaches to preventing and addressing stigmatic harm.
Recommended Citation
Ryan Thoreson, “Discriminalization”: Sexuality, Human Rights, and the Carceral Turn in Antidiscrimination Law, 110 Cal. L. Rev. 431 (2022).