The American Civil Liberties Union is challenging the warden of one Kentucky prison for censoring books, magazines and mail sent to inmates that may "promote homosexuality," the state's ACLU legal director William Sharp said Wednesday.
In a letter to warden Kathy Litteral, Sharp wrote that items censored from the prison mail include “personal letters and photographs not marked as sexually explicit, as well as periodicals such as Out magazine and The Advocate, which contain articles about popular culture and politics of interest to the LGBT community.”
Sharp said the ACLU filed a freedom of information request to investigate the Eastern Kentucky Correctional Complex, a men's medium security prison that houses 1,689 inmates, according to its website. The prison is located in West Liberty, just 25 miles from the courthouse where clerk Kim Davis staged a standoff against marriage equality.
In his investigation, which included mail censored over a period of several months, Sharp said he found 13 instances in which the policy was used to confiscate mail, some of which was not sexually explicit. "This policy was targeted at any mail that promotes homosexuality," Sharp said. "You got your magazine getting censored, ostensibly because of viewpoint discrimination."
Lucas Grindley, editorial director of Here Media, which owns The Advocate and Out, said LGBT publications have been banned before. “This isn’t the first example of an institution trying to prevent people from reading The Advocate and Out magazines,” Grindley says. “Even in today’s climate of increasing acceptance for LGBT people, it won’t be the last. Everywhere it’s happening, people need to be called out for discrimination that’s based entirely on sexual orientation or gender identity.”
While the Kentucky Department of Corrections doesn't have a stated ban on all LGBT materials, it does ban pornography that depicts homosexuality. In state prison guidelines, it is written "exclusion shall not be based on sexual content alone," leaving significant room for interpretation.
Opening someone else's mail is a federal offense, but inside of a prison, it is routine due to safety concerns. Prisons are allowed to prohibit certain types of mail including contraband, but what is or is not allowed in may vary from location to location, according to Sharp. "Generally speaking, the courts give prisons a lot of latitude, especially when the prison says it has something to do with security," he said.
He explained that in past cases, prisons have argued that LGBT publications could make inmates targets of violence based upon perceived sexual orientation. "There was a case where the inmates who wanted to get the material were out, so that rationale didn’t hold up," Sharp said.
In his letter to Litteral, sent March 15, Sharp demanded a response within 14 days and wrote that the restriction violates First Amendment rights and is discriminatory.
"After The Supreme Court unequivocally recognized the equal dignity of gay people in Obergefell v. Hodges, 135 S. Ct. 2584 (2015) and United States v. Windsor, 133 S. Ct. 2675 (2013), it can no longer be seriously argued that being gay constitutes a security threat that justifies discriminatory treatment of gay prisoners," Sharp wrote.
Sexual relations between prisoners is banned at correctional facilities and since facilities like EKCC are defined as single-sex, Sharp said they may be using this as a basis for outlawing LGBT publications. However as Sharp sated in his letter: "Reading articles in Out magazine or The Advocate does not make anyone gay anymore than reading articles about heterosexual couples in People magazine makes someone heterosexual."
In a statement to the Lexington Herald-Leader, Lisa Lamb, a spokeswoman for the state Corrections Department, said “We are going to review all of the policies, both institutionally and system-wide.” Warden Litteral could not be reached for comment. If Sharp does not receive a response to his letter, he said the ACLU will consider legal action.