Reading 6.1 Systemic Error: Measuring Gender in Criminological Research

Jace L. Valcore and Rebecca Pfeffer

Gender is one of the most frequently analyzed variables in research on crime and criminal justice, yet it is measured insufficiently across most mainstream studies. The almost universal operationalization of gender as a male-female binary in criminological studies either misclassifies or excludes any transgender or gender nonconforming individuals. A 2014 study estimates that as many as 1.4 million adults in the United States identify as either transgender or gender non-conforming (Flores, Herman, Gates, & Brown, 2016). Though there is evidence that this population makes disproportionate contact with the criminal justice system (Dwyer, 2011; James et al., 2016; McCauley & Brinkley-Rubinstein, 2017), they are a population glaringly absent from traditional criminological research. This is a critical issue that must be addressed.

Evidence about the importance of gender at all levels of the criminal justice process continues to accumulate. In general, the literature contends that male and female offenders are very different in their pathways into crime, in the types of criminal activity in which they are involved, and in their needs during their time of contact with the criminal justice system and beyond (Belknap, 2007; Chesney-Lind StShel- den, 2004; Van Voorhis, Wright, Salisbury', &. Bauman, 2007). This body of literature has contributed to a more nuanced understanding of the way that various experiences in childhood and adulthood can be influenced by sex or gender, such as child abuse, relationships with others, and victimization experiences. Moreover, these findings have paved the way for ‘gender- responsive’ programming in criminal justice institutions that acknowledge the distinct needs of both males and females who come into contact with the criminal justice system. Yet, many of these systemic improvements fall short of their potential because they are based upon an incomplete conceptualization of gender.

We argue that it is necessary' to also examine patterns in the pathways to crime of transgender and genderqueer/non-binary individuals, as well as their needs once in contact with the criminal justice system. In this paper, we review' the w'ay that gender has been measured in recent mainstream criminological studies and provide suggestions for improving this practice to be more inclusive and to collect more reliable information about gender diverse populations.

Gender and Sex

Gender is a common word. Gender is a common demographic, a common variable, and a common topic for research, policy, and daily discussion. Nonetheless, gender is not commonly understood. According to Noble (2004), gender is one of many ‘passionate fictions,’ along with sexuality, class, race, nationality, ethnicity, and other social categories (p. 22), but it is also a fact of life, one which invades daily interactions, dictates public spaces, and directs laws, policies, and institutions. Gender is a master status, meaning that its determination will guide how one is treated, viewed, and described by others based upon arbitrarily built and painstakingly maintained stereotypes and expectations of human identity, cognition, and behavior (Allen, 2011; Worthen, 2016). In the fields of criminology and criminal justice (CCJ), biological sex (commonly misunderstood as gender) is considered to be one of the most powerful variables and strongest indicators of crime (Belknap, 2007).

Gender, despite its importance, is often oversimplified in CCJ research by reliance upon an essentialist definition that suggests it is biologically based; that genitalia, viewed as either male or female, determines gender as either man or woman (Englert & Dinkins, 2016). Biologists inform us, however, that the basis for the common conception of gender as derived from biological sex is inaccurate because sex is a spectrum that varies based upon an individual’s chromosomes, hormones, gonads, genitals, and other secondary sex characteristics. The boundary between sexes is not as clear as it once seemed. High school biology students have long been taught that a typical female has XX chromosomes and female sex anatomy, and a typical male has XY chromosomes and male sex anatomy. But in between there are several conditions in which a person’s sex chromosomes do not ‘match’ their sexual anatomy; these conditions are commonly referred to by the collective term intersex. There is neither a consensus within the medical community regarding the classification of intersex conditions nor a single accepted definition of sex (Van Anders et al., 2017). It is recognized, however, that every aspect of sex, including chromosomes, hormones, genitalia, and secondary' characteristics like body hair, is multifaceted and widely varied (Deaux, 1985; Van Anders et al., 2017). In short, biological sex cannot be understood as a simple binary (Ainsworth, 2015) and should also not be conflated with gender, a social construct. Yet, CCJ scholars have long treated gender as a binary variable based upon invalid assumptions that sex equals gender (Cohen & Harvey, 2007).

A more nuanced understanding of gender is offered by social constructionists, theorists who maintain that gender is a performance, a socially created construct determined through interaction, presentation, and attribution (Len- ning, 2009). In other words, it is not predetermined by biology; rather, individuals exert agency in their expressions of masculinity, femininity, or androgyny and their attempts to fit into the box of man, woman, both, or neither, though they are often constrained by social context and norms (West & Zimmerman, 1987). Extending this perspective, queer theorists view gender as a fluid, changeable, and complex aspect of identity that exists on a spectrum. It is neither binary nor fixed at birth (Englert &. Dinkins, 2016).

Gender is a multidimensional concept. Englert and Dinkins (2016) define gender as ‘a socially constructed category that reflects a set of behaviors, markers, and expectations associated with a person’s biological sex and social norms concerning masculinity and femininity’ (p. 4). They further explain that the construct of gender can be broken down into three distinctly measurable components: physical sex characteristics, gender identity, and gender expression/presentation.

The majority of individuals are cisgender, meaning their gender identity and/or expression aligns with their sex assigned at birth. An important and increasingly visible segment of society, however, includes people whose birth sex assignment does not readily match or conform to their gender identity or expression. These individuals do not identify as simply man or woman, but as transgender, genderqueer, gender fluid, agender, non-binary, or any other self-identification chosen to reflect gender non-conformity, i.e. gender expression that does not conform to the norms of masculinity or femininity typically applied to one’s assigned sex. Many American youth today are growing up with conceptions of gender as a spectrum or continuum full of new and yet to be determined possibilities (Gevisser, 2015). Their social experiences, especially in terms of interactions with criminal justice agencies and systems, need to be acknowledged, counted, and documented by scholars in our field.

Gender in Criminology and Criminal Justice

The concept of gender was introduced as a variable in CCJ as an important means of acknowledging and addressing the existence of women in contrast to that of men, and to draw attention to the differing needs and experiences of female victims and offenders (Belknap, 2007). Many academics see the word gender in the title of an article or book, or listed as a keyword in an abstract, and recognize it to mean that the primary' topic, if not the exclusive one, is women. Most often, even then, the focus is not all women, but rather cisgender, heterosexual women. It is not uncommon to find that lesbian and bisexual women, queer women, trans women, and nonbinary females are discussed separately, in a different journal, or in a separate chapter, if at all. There is direct and recent evidence of this in mainstream CCJ research and discussions. For example, in the 2015 American Society of Criminology' Presidential Address, entitled ‘The politics, and place, of gender in research on crime,’ Kruttschnitt (2016) highlighted the political nature of research regarding gender in CCJ, noted the salience of gender stereotypes, described important gender differences for victims and offenders of crime, discussed the 40-year history of feminist criminology, and called for future gender-based research to focus on areas where it can have the most significant impact. The address (13 pages single-spaced when downloaded from Criminology) talked about men and women, males and females, girls and boys. Kruttschnitt (2016) deserves credit for highlighting the importance of sex differences in CCJ research; nonetheless, even this important call to action did not specifically mention transgender, intersex, or any non- binary gender identity, despite acknowledging the need to account for ‘multiple femininities and masculinities’ in the field of CCJ (p. 13).

Transgender and Non-Binary Persons and the Criminal Justice System

Within the criminal justice system, an individual’s perceived or reported gender impacts decisions regarding arrest procedures, sentencing, risk assessment, correctional housing, and treatment programming. Transgender, non-binary, and gender non-conforming persons are disproportionately involved in the criminal justice system (Grant et al., 2011). Despite increased awareness within law enforcement about gender and sexual identity, research finds that many officers still fail to recognize both overt and covert heterosexist and transphobic situations, or to take them seriously, as demonstrated by poor response times, insensitive responses by officers, or even inappropriate or abusive behavior by officers when answering calls for service (Grant et ah, 2011; Stotzer, 2014; Wolff & Cokely, 2007). Beyond discriminatory responses from police officers, transgender and non-binary individuals also face inequitable treatment from judges, barriers to social services, inadequate housing options, and a lack of affirming treatment and rehabilitation programs (Buist & Stone, 2014; Grant et ah, 2011).

These disparities, in turn, impact the attitudes of gender diverse persons toward law enforcement. Nearly half (46%) of the respondents who completed the National Transgender Discrimination Survey indicated that they were uncomfortable seeking assistance from the police (Grant et ah, 2011), and this was echoed in the 2015 U.S. Transgender Survey in which 57% of respondents reported that they would be uncomfortable asking the police for help (James et ah, 2016). Even more troubling is that 58% of respondents reported that they had been mistreated by police in the past year, in the form of either verbal harassment, physical and/or sexual assault, intentional misuse of personal pronouns, and being asked to engage in sex acts to avoid arrest. Intersectionality is certainly relevant for gender diverse populations in their reported experiences with law enforcement. A 2016 study found that transgender women of color face particularly high rates of perceived harassment from police as they report they are often stopped or arrested for ‘walking while trans.’ In this study, approximately a third of black trans women (33%) and multiracial trans women (30%) reported interacting with officers who assumed they were sex workers (James et ah, 2016).

While vulnerable to victimization, a pervasive distrust of law enforcement results in the underreporting of experiences of victimization among members of the transgender community (Buist &. Stone, 2014; Grant et al., 2011; Ritchie & Jones-Brown, 2017; Wolff & Cokely, 2007). Thus, the disproportionate contact that transgender individuals have with law enforcement tends to be in the role of perpetrators of crime. This is important because for accused perpetrators of crime, contact with police officers is only the beginning of extensive contact with the criminal justice system. For transgender or nonbinary individuals accused of crime, every step of contact with the criminal justice system presents different challenges for proper gender identification and classification that can impact their physical and mental well-being (Leach, 2007; Reisner, Bailey, StSevelius, 2014).

Sex and Gender Data Collection

The U.S. Census and other federal surveys do not currently count transgender, non-binary, or intersex persons, so it is difficult to determine the exact percentage of the population that identifies as anything other than man or woman (Grant et al., 2011). Nongovernmental sources provide the most valid information about the lives and experiences of non-heterosexual and non-cisgender people (Stotzer, 2009), and the Williams Institute provides the most recent estimate of 1.4 million transgender or gender non-conforming adults residing in the United States (Flores et al., 2016). The 2017 GLAAD¹ Accelerating Acceptance report found that 20% of millennials between the ages of 18 and 34 identify as LGBTQ (lesbian, gay, bisexual, transgender, or queer). More specifically, the study found that LGBTQ millennials are two to three times more likely to identify as transgender or a non-binary gender, such as gender fluid or agender, than LGBTQ adults age 35 and older (GLAAD, 2017). As understanding, visibility, and acceptance of gender diversity increases, criminal justice practitioners and scholars should respond, and should also be leading the way in providing the public and policy makers with relevant research and expertise (Panfil &. Miller, 2014).

A major challenge for research in CCJ is the reliance on federal, state, and local data, which

often records sex or gender classification as reported on an individual’s state-issued identification card. Policies to report non-binary gender identification are lacking at every jurisdictional level, though a few states have recently begun to issue IDs that recognize a third, neutral gender, including Oregon, California, Maine, Washington, and the District of Columbia (Capatides, 2018; Sanders, 2018). At the federal level, where there are not yet policies in place to count and properly recognize transgender and non-binary citizens, there is documented awareness of this population’s contact with the criminal justice system and steps have been taken to address their treatment and needs. The first visible recognition was when President Barack Obama signed the Matthew Shepard and James Byrd, Jr., Hate Crime Protections Act of 2009, which designated gender identity as a protected social group, thereby identifying transgender and non-binary individuals as ones likely to become victims of bias-motivated criminal offenses. In 2012, the U.S Department of Justice (DOJ) issued regulations under the authority of the Prison Rape Elimination Act of (2003) (PREA). These regulations, known as the PREA Prison and Jail Standards (2012), specified that trans- gender and gender non-conforming inmates must be given specific consideration for housing, treatment, and safety. Two years later, DOJ issued a formal guidance memorandum (2014) to federal law enforcement agencies directing that they could no longer profile or target citizens based upon their gender identity. This progression of policy action is an acknowledgment of diverse genders and reflects increased societal recognition of transgender and nonbinary individuals.

More recent federal policy changes have created more barriers to the identification, documentation, and protection of transgender individuals as both crime victims and offenders. The Department of Justice now allows for open discrimination against transgender citizens based on religious belief (National Center for Transgender Equality, 2018). Most recently, the Bureau of Prisons reversed policy regarding transgender inmates and will now place inmates into federal prisons based primarily upon sex assigned at birth, rather than gender identity, putting hundreds at increased risk for physical and sexual assault (Movement Advancement Project, 2016; U.S. Department of Justice, 2018).

Despite challenges imposed by rigid gender measurement in most crime data sets, select studies conducted by criminal justice researchers have utilized modern gender classification mechanisms that extend beyond the male- fernale dichotomy. For instance, in a qualitative study about survival sex among young people in New York City, Meredith Dank and her colleagues at the Urban Institute (2015) utilized an open-ended question about gender identification in interviews with respondents. Though the potential variation in responses may seem overwhelming to researchers accustomed to binary gender classification, this study demonstrates that it is possible to categorize responses in a manageable classification scheme. Using the responses generated from an open-ended question during semi-structured interviews with approximately 300 youth, they were able to confine responses into just seven categories: ‘male’, ‘female’, ‘transgender female’, ‘transgender male’, ‘transgender other’, ‘queer and questioning’, and ‘other’ (p. 13). These gender classifications allowed for much more meaningful analysis than a traditional gender classification would, particularly for this topic. Indeed, if only given the choice between male and female, 17% of their sample would have been mislabeled, leading to less reliable findings for all groups of participants. This is because when presented with no other option besides male and female, people who represent other sex or gender identities will be forced to pick one that is in fact not representative of their identity. They may defer to their sex at birth or to the gender with which they more closely currently identify (Butler, 2004), but neither is truly correct, which leaves their true gender identity unreported and skews the results for the male and female study populations.

The conflation of sex and gender, and the mismeasurement of both as binary constructs, also poses salient questions for the advancement of criminological theory. Dolliver and

Rocker (2017), for example, recently compared measures of biological sex (male/female) and gender (masculine, feminine, androgynous, undifferentiated) in a test of General Strain Theory. Results showed that using gender, rather than sex, produced a stronger predictive model of deviance. This is empirical evidence for the need to accurately and consistently measure gender in order to better understand and explain crime and deviance.

This same problem presents in the secondary analysis of official data collected by criminal justice and other government agencies. Although the secondary analysis of data provided by police agencies, court systems, and correctional institutions at the local, state, and federal level provides invaluable insight into trends in the criminal justice system, most agencies do not yet have a mechanism for accounting for gender minorities. For example, in a study analyzing a year’s worth of prostitution incident reports from the Houston Police Department, Pfeffer (2015) had to recode 4% of sex sellers’ genders from either male or female to transgen- der. Although there was information recorded in the incident report that indicated that the person identified as transgender, the reporting officers could only choose between two tick boxes when reporting the suspect’s gender in the incident report. Therefore, if only the official HPD data was examined, it would not indicate the presence of any transgender suspects, when in fact, at least 4% were (Pfeffer, 2015). Similarly, Richards and colleagues (2016) report that population-based studies show a small percentage of people who identify as non-binary. Though the percentages are small, when translated into raw numbers, this population is sizable, yet is misrepresented in most official data.

The present study is not the first to describe or critique the way in which CCJ research measures and discusses gender. Cohen and Harvey’s (2007) study found that 60% of articles published in Criminology and Justice Quarterly from 2003-2004 utilized a measure of sex or gender. Only 1 of the 137 articles (0.07%) utilized a non- biological measure of sex and 37% mislabeled their biological measure of sex as gender. When analyzing only the articles in which sex or gender was mentioned in the title or analysis, the incorrect conceptualization of sex as gender increased to 60.5%. Cohen and Harvey (2007) were specifically concerned with understandings of masculinity and assumptions among criminologists regarding men and crime and violence. An expansion of this inquiry to include measures of gender diversity is the goal of the current study.

The Current Study

Given contemporary sociological and biological understandings of sex and gender, previous calls by researchers to better measure gender, and the changes in law and policy that have occurred in the criminal justice system, this study provides an updated examination of the field by addressing two research questions:

• (1) Do recent mainstream CCJ studies appropriately measure and operationalize the constructs of sex and gender?
• (2) Do temporal patterns in recently published research indicate improvements over earlier, invalid measures of gender?

Methodology

A total of 1,629 empirical articles published in top mainstream criminology' and criminal justice journals between the years 2010 and 2015 were examined using traditional content analysis techniques in order to determine how the construct of gender is defined and measured in recent CCJ research. The temporal scope of these data is based on two factors. The start date was selected because federal legislation first recognized gender identity at the end of 2009. While we understand that this would not necessarily translate into immediate changes in the operationalization of gender in research, as these definitional and resulting cultural changes take time, we believed it would be prudent to begin our observations with the year 2010 in order to view any trend changes over time. The year 2015 was selected as the ending data for data collection because it was the most recent year of journal publication at the time data collection began.

Sample

Previous studies seeking to assess the state of research in the field of CCJ have recognized and utilized eight ‘elite’ journals, using a variety of measures ranging from reputation to impact factors (e.g. Barranco, Jennings, May, & Wells, 2015; Kim & Hawkins, 2013; Sorensen &. Pilgrim, 2002; Steiner & Schwartz, 2006; Weir &. Orrick, 2013; Woodward, Webb, Griffin, &. Copes, 2016). It is common for content analysis of journals to be conducted in order to determine, for example, dominant methodologies (Woodward et al., 2016), scholarly productivity (Steiner &. Schwartz, 2006), measures of gender (Cohen & Harvey, 2007), and authorship trends (Tewksbury' &. Mustaine, 2011). These ‘elite’ journals include Criminal Justice arid Behavior, Criminology, Journal of Criminal Justice, Journal of Research in Crime & Delinquency, Crime & Delinquency, Journal of Quantitative Criminology, Justice Quarterly, and the Journal of Criminal Law and Criminology. Our analysis includes content from seven of these eight mainstream CCJ outlets; as Journal of Criminology and Criminal Law primarily focuses on non-empirical legal analysis, it was not included.

Every article published in the seven aforementioned journals between 2010 and 2015 was collected and analyzed. After eliminating non- empirical articles (e.g. book reviews, commentaries), the sample size of articles for analysis was 1,629 (see Table 1).

Table 1 Sample Frequencies

Coding

Each article was analyzed in order to determine 1) the methods utilized in the study (codes as quantitative, qualitative, or mixed); 2) whether gender was a focus of the study as evidenced by the inclusion of the word ‘gender’ either in each article’s title or as a keyword; 3) how the variables sex and/or gender were conceptualized and operationalized; 4) whether transgender or non-binary identities were discussed; and 5) whether any recommendations were made by the author (s) based upon sex/gender.

Results

Similar to findings by Woodward and colleagues (2016), 88.6% of the published empirical studies in this study used quantitative methods, 5% were qualitative, and 6.4% utilized mixed methods.

Gender Definition and Operationalization in CCJ Studies

In the current sample, 913 (56%) articles included an individual-level measure for sex and/or gender. The way in which the variables were labeled and operationalized is presented in Table 2. The vast majority of published studies in the sample (94.5%) utilized a binary male/ female operationalization of sex and/or gender. Most of the studies (65.2%) had a measure labeled as ‘Gender’ that was incorrectly operationalized as male/female, while only 25% of studies used ‘Sex’ as a measure. Fourteen studies in the sample (1.5%) operationalized gender as men/women. Fourteen studies presented measures for both sex and gender (usually in different data tables), or had a variable that was labeled as ‘Sex/Gender.’ Twenty-eight studies had a variable labeled Male or Female, but never specified whether it was a measure of sex or gender. Interestingly, 1% of studies offered no specific attributes and a few used both male/ female and men/women as attributes. No studies provided an attribute for transgender or non-binary gender identity.

When studies in which sex/gender were not included as measures were considered, an additional 67 articles were found that used the terms sex and gender interchangeably in describing their samples or the discussions of their data. This is a considerable concern because biological sex is not equivalent to gender (see Englert &. Dinkins, 2016). Accordingly, conclusions based upon one of these distinct constructs cannot logically be applied to the other.

Only four articles in the entire sample mentioned transgender individuals or groups. Only one of the four articles, an exploration of trans- gender identity in a women’s prison, defined and discussed transgender identity and individuals (see Sexton, Jenness, & Sumner, 2010). The second article was also published in 2010 and it misconceptualized the term sexual orient tation by including ‘transgendered.’ Although well intentioned, it is important to note that the term ‘transgendered’ is grammatically incorrect. As the advocacy group GLAAD (n.d.) explains,

Table 2 The Operationalization of Sex/Gender in Empirical Studies

The adjective transgender should never have an extraneous “-ed" tacked onto the end. An “-ed" suffix adds unnecessary length to the word and can cause tense confusion and grammatical errors. It also brings transgender into alignment with lesbian, gay, bisexual, and queer. You would not say that Elton John is “gayed” or Ellen DeGeneres is “lesbianed,” therefore you would not say Chaz Bono is “transgendered.”

Beyond the use of a term that is considered pejorative, trans refers to a gender identity, not a sexual orientation, which is a distinct concept (see Englert & Dinkins, 2016; GLAAD, n.d.). The third article, published in 2014, is included here simply because the title included the acronym ‘LGBT.’ The actual study was about anti- gay homicides, specifically, and did not include a measure of gender. The fourth article, published in 2011, included mention of transgender issues in the literature review, but did not include it as part of the study.

Discussions Regarding Gender in CCJ Studies

Our analysis found that even when gender is not of central relevance to a study’s main inquiry, it is often still included as a variable in analysis. While only 6.3% (n = 103) of the articles in this study had an indication that gender was a focus of the analysis (by either listing gender as a keyword or including it in the title of the paper, 34.4% (n = 561) included a mention of sex or gender in the discussion or limitations sections. Many of these references were simply to note that the sample of females was too small to draw conclusions, or non-existent, thus preventing generalization of the results.

Several studies similarly noted that comparisons and analyses based on gender, while missing in their study, should be attempted in future research. For example, ‘Further, research in this area might also consider whether peer influences on self-control depend in part upon the sex- composition of the peer network and the sex of the target respondent.’ (Meldrum, Young, & Weerman, 2012, p. 460).

Conceptions of Gender in CCJ Studies, 2010-2015

Because sociopolitical understandings of gender continue to progress, changes in measurement over time were examined in order to determine whether or not criminological research is utilizing more valid conceptions of the important social construct.

As can be seen in Figure 1, the number of articles utilizing a measure of sex or gender varies slightly year to year, but the proportion of articles misconceptualizing gender as a simple male/female dichotomy, rather than a more complex spectrum, has not decreased over

Figure 1 Measuring Sex/Gender from 2010-2015

time. Over the six-year period described here, the percentage of articles using the binary attributes of niale/fenrale to represent gender in a given year ranged from 57% in 2013 to 72% in 2011. The year 2010 had the most articles measuring gender (n = 169), and also had a high percentage (64.5%) of studies which attributed male/female to the variable. For every year included in this study, the majority of articles measuring gender used invalid attributes.

Discussion

This research identifies a need for improvement in the way we measure, report, and operationalize gender as a variable in criminological studies, but we do not wish to stop there. The following discussion also provides tips and methods for improvement.

Secondary Analysis in CCJ Research and Gender Classification

The vast majority of criminological research published in those CCJ journals considered ‘elite’ involves the use of surveys and secondary data analysis with no subject contact (Woodward et al., 2016). Field research or ethnography that would perhaps more readily allow for the observation of gender as perfonnative, or qualitative interviews that would allow for exploration of gender presentation/expression, are comparatively rare. Woodward and colleagues’ (2016) examination of research methodologies in seven top criminology and criminal justice (CCJ) journals revealed that 88.5% of published articles utilized quantitative methodologies, and among those the most common methods were utilization of secondary data-sets (39.1%) and data collection that required no contact with participants (28.8%). Primary data collection was used in just 27.8% of published studies. This heavy reliance on quantitative methods has been criticized by several scholars for the way in which it renders invisible persons and groups who do not readily fit into one of the provided check boxes (Johnson, 2014; Pfeffer, 2015) and severely limits the ability of scholars to provide valid and reliable discussions of complex topics like gender, race, and class (Cohen & Harvey, 2007). Even recent research which purports to account for gendered experiences and discusses gender non-conformity is limited by reliance upon survey data that measures gender as a binary variable indicated as male or female (e.g. Button &. Worthen, 2014).

There are four primary' purposes of social science, and therefore criminological research: exploration, description, explanation, and application (Maxfield & Babbie, 2015). If social scientists wish to be able to understand or explain a social problem or phenomenon, they must first be able to describe it. Gender is a social construct, a concept. As such, it requires researchers who utilize it as a variable to engage in conceptualization and operationalization (Maxfield & Babbie, 2015). As the results of this study show, it continues to be accepted within criminal justice and criminology, though, that gender can be simply treated as a binary variable, indicating male/female. Few mainstream scholars even bother to provide a justification for measuring gender this way, at least not when publishing in ‘elite’ journals (Cohen & Harvey, 2007). This treatment of gender has long dominated criminal justice research, programs, and policies, despite advances in the fields of biology, psychology, sociology, and many others, and despite the growing acknowledgement within U.S. society that gender is not, in fact, equivalent to sex.

The measurement of gender as male/female, therefore, lacks construct validity. If the construct of gender is understood to be perfonnative and to include a spectrum of possibilities, then treating it as a binary variable is invalid and will produce invalid results. The attributes of male and female to the variable gender is neither a mutually exclusive nor exhaustive measure because it excludes intersex persons and ignores trans and non-binary gender identities. There is a further need to improve the common conceptualization of gender to include expression/presentation so that scholars may better understand how gender truly impacts society and individual experiences (Len- ning, 2009). Toward that noble end, CCJ researchers must first cease the common reliance on invalid, binary measures of gender.

Scholars are also limited by reliance on agency records and reporting practices. At the point of initial contact with law enforcement, officers are often instructed to record the gender of suspects based on the gender as listed on their official government identification card. Therefore, this problem must be addressed at a larger structural level. It is impractical to suggest that researchers can comb through data and recode gender. A more feasible solution would be to advocate for policy changes that allow for at least a third gender category on official government documents. There is already precedent for this change, as there are now three states and Washington, DC, that recognize a third gender on state driver’s licenses. Residents in Oregon, Maine, and California can select from gender options male, female, and X, which indicates that they identify as non-binary or unspecified (Capatides, 2018; O’Hara, 2017). The addition of X gender in official government data is very promising for future research in CCJ utilizing secondary datasets from government sources.

Measuring Gender in Criminology and Criminal Justice

Key to our findings in this paper is that gender minorities are underrepresented in criminal justice research. Shockingly few studies in the sample (.002%) mentioned or considered transgender persons. When gender minorities were addressed, it was often in a section on ‘limitations,’ or ‘next steps.’ Echoing this concern, in an NIJ systematic review of 34 studies about campus sexual assault published from 2000- 2015, Fedina, Holmes, and Backes (2018) noted that none had included any students who identify as transgender, though they are known to be a population vulnerable to this type of victimization. Following up on this notable gap was appropriately noted as an important next step. But as this study demonstrates, a persistent relegation of the study of gender minorities to be addressed at some ambiguous time in the future can no longer be acceptable.

It must certainly be recognized that there are scholars attempting to accurately study gender and the criminal legal system but thus far, such vitally important work is overwhelmingly being submitted to and published by non-elite journals (Panfil & Miller, 2014). Anecdotally, the publishing process may also be a hindrance for scholars. For example, in a personal communication with a leading scholar on the intersection of sexuality and criminal justice who has been the editor in chief of several journals, including one of the ‘elite’ journals samples in this study, we learned that mainstream journal editors and peer reviewers sometimes demand the use of the term gender, rather than sex. And we are aware of at least one scholar who reported experiences to us in which papers were desk rejected for the stated reason that the scholarship focused on transgender populations and, therefore, was not of widespread interest to mainstream scholars in the field.

The emphasis in this study was on mainstream journals and orthodox criminology because that is where the majority of students, instructors, and practitioners get their information. Mainstream CCJ research is the foundation of the most widely used textbooks, resources, and trainings, and is the basis for curriculum development and CCJ education in the United States. LGBTQ content is not widely taught and is rarely included in criminal justice courses and textbooks (Cannon & Dirks- Linhorst, 2006; Fradella, Owen, & Burke, 2009). This is important because as a discipline, we are failing to prepare students and practitioners alike for work in the criminal legal system if they are leaving our institutions without adequate understanding of sexual and gender diversity and without adequate education to identify and meet the needs of an under-served population (Cannonet al., 2014; Miller &. Kim, 2012).

Other fields of study have begun to shift away from the traditional understanding of sex and gender as a parallel dichotomy. In health, for example, there has been progress toward understanding that while measuring sex is important when talking about health outcomes, it is just as important to consider the effects of social norms and expectations that come with gender identity and the role of sex in public policy (e.g., Phillips, 2005; Van Anders et al., 2017). It is important now that we advance the way we measure gender in the field of CCJ to align with modern understandings of sex and gender as non-binary and multifaceted. Fortunately, there are some feasible steps we can take to improve the way that gender is measured in research in criminology and criminal justice. Although this may seem initially daunting to researchers, some contemporary frameworks for measuring gender are already emerging.

Promising Methodologies

One general approach that has been proposed is the use of a two-step question that captures a person’s current gender identity as well as their assigned sex at birth. The Center of Excellence for Transgender Health recommends first asking for ‘current gender identity,’ followed by a question about the respondents’ ‘assigned sex at birth’ (Sausa, Sevelius, Keatley, Iniguez, & Reyes, 2009). Other researchers (see, e.g., Cahill & Makadon, 2014) have advocated for the same two-step process, but in the opposite order—first querying about assigned sex at birth and then current gender identity (see also Flentje, Васса, & Cochran, 2015). The Williams Institute at UCLA published a report on best practices for identifying gender diverse respondents that similarly suggests a two-step process which distinguishes between sex and gender (GenlUSS, 2014).

As discussed above, we recognize that at present a large majority of research is secondary and relies on previously compiled datasets that may conflate sex and gender and had only a dichotomous sex/gender measure. In those cases, an acknowledgement of the limitations of such a gender measure would constitute a step in the right direction. Yet, to increase understanding of transgender and non-binary persons and their contact with the criminal justice system, CCJ studies must continue to expand and improve the measurement of gender identity. Therefore, for those collecting primary data, we recommend the utilization of a more advanced sex measure, with at the very least, an option to choose between ‘male,’ ‘female,’ and either ‘X’ or ‘intersex,’ with a text box for participants to elucidate if desired. When measuring gender, the options should ideally include, ‘man,’ ‘woman,’ ‘trans man,’ ‘trans woman,’ ‘genderqueer or non-binary,’ and ‘different identity.’ Of course, quantitative methods, the dominant methodology in mainstream CCJ research, require large and comparable sample sizes. This reason undoubtedly contributes to our finding that transgender and non-binary study participants are often eliminated from the analyses in studies published in leading criminal justice journals.

To address this concern, we encourage quantitative researchers to consider asking respondents about gender using three distinct categories: (1) ‘man/transman,’ (2) ‘woman/ transwoman,’ and (3) ‘non-binary/different gender identity.’ This would help reduce the erasure of people along the spectrum of gender identities while potentially preserving a sufficient number of cases in cells to meet the requirements of many statistical techniques.

Limitations and Conclusion

Although the CCJ journals analyzed here may be generally considered the leading or top journals in the field, there is certainly disagreement among scholars regarding reliance on those journals as representative of the field. For instance, Kleck and Barnes (2011) noted that many CCJ scholars publish in journals in other fields, and Rowe, McCann, and Hemmens (2017) analyzed the marginalization of legal research in CCJ journals. And although reliance on impact factors has also been critiqued (see, e.g., Dejong & George, 2018), Sorensen (2009) found that a combination of impact measures and prestige surveys can fairly reliably identify a ‘rather stable hierarchy of outlets’ (p. 510). With these critiques of the classification of ‘elite’ journals in mind, future research should examine the measurement of sex and gender in specialty journals to see if binary measures are similarly prevalent, and perhaps discover other methods of operationalizing gender. The ‘cutting edge’ research on gender (broadly) and LGBTQ issues in CCJ (more narrowly) is often published in specialty journals, such as Feminist Criminology, Critical Criminology, and Women & Criminal justice, just to name a few. As a result, it may be that better operationalization of gender is common (or at least in increasing) in CCJ research that is published in these journals. Alternatively, these journals may be like their ‘elite’ counterparts insofar as they reify the status quo about the conflation of sex and gender and the mismeasure of both constructs.

Note

1 GLAAD was created as an acronym for the Gay and Lesbian Alliance Against Defamation, but the organization stopped using GLAAD as an acronym in 2013 to broaden its mission to include advocating for equality for transgender people.

Discussion Questions

• 1. Explain how using dichotomous, close- ended “gender” or “sex” variables can be problematic for research.
• 2. How has the widespread use of official records and secondary analysis in criminal justice research impacted the move toward more comprehensive study of gender and/ or sex?
• 3. How have the results of studies using more comprehensive definitions of gender and sex differed from studies that define them dichotomously?

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Reading 6.2 We Don’t Like Your Type Around Here

The internet facilitates the spread of ideas and allows for anyone who wants to have a platform to be heard. Unfortunately, the ideas can be hateful, and the internet has generated a new way for people to be cruel to each other—cyberbullying. Cyberbullying can be attractive to would-be offenders, since they can often do it anonymously and rarely suffer any consequences for their behavior. Since members of the LGBTQ community are disproportionately likely to be victims of harassment offline, Costello, Rukus, and Hawdon (2019) suspected that they would also be attractive targets for cyberhate. Costello and colleagues used routine activities as a theoretical framework for their project, as they believed that exposure to potential offenders, target suitability, and guardianship would impact the extent to which respondents would report being victims of online hate. To test their hypotheses, they had to take the concepts outlined in routine activities and consider how to generate measurable survey items. The operationalization section of the paper provides readers with a good explanation of this work. Specifically, Costello et al. identified dimensions of the theory’s three concepts and explained, in great detail, how they operationalized each of them.