As we move into LGBTQ Pride month we are being met with a deluge of public discussions, events, breaking news stories, and potentially groundbreaking legal decisions that impact not only the queer community but American social and political life. The Supreme Court is poised, by the end of the month, to make a major decision. Not on the fate, but the expansion of marriage equality. Caitlyn Jenner’s blossoming appearance on the cover of Vanity Fair moves the public discussion of transgender lives forward in major and surprising ways. The Supreme Court’s 2014 Hobby Lobby decision set a new bench mark for legal definitions of “religious exemptions” and the constantly contested interplay between anti-discrimination laws and religious freedom in America.
A decade ago, executive editor at Beacon Press Gayatri Patnaik asked me to edit Queer Ideas and Queer Action, two new series for Beacon Press. We were acutely aware that while smart books on LGBTQ issues are always needed, the news cycle of these issues, not to mention the rapid advances that the movement has been making, could easily render today’s vital topics less important, or even passé and obsolete tomorrow. The challenge was to identify contemporary, critical social and political issues, and find people to write about them in ways that would transcend the political moment and shape and form the conversation for years to come. Looking back, I believe we have done that and more.
As we celebrate National Coming Out Day – a day to stand up for who we are, honor our individual and collective power, and stand up for what we believe in – dozens of LGBT groups are “coming out” against a federal program that places thousands of LGBTQ people and communities at risk of violence and violations of our human rights.
The Secure Communities Program – dubbed “S-Comm” because there is nothing secure about it – dramatically widens the immigration enforcement dragnet by sweeping everyone fingerprinted by local police into the sights of immigration authorities. While there are already immigration agents stationed in many of the country’s jails to check the immigration status of anyone detained while awaiting trial or sentenced after conviction of a crime, by requiring that all fingerprints taken at the point of arrest be forwarded to immigration authorities, S-Comm dramatically increases the number of people subject to scrutiny of their immigration status. Under S-Comm, anyone arrested and fingerprinted by police - regardless of whether the charges against them are ultimately dropped, found to be baseless, or dispensed with through community service or a diversion program - could potentially be placed in deportation proceedings, regardless of whether they were profiled, arrested without any basis whatsoever, or picked up on a minor offense.
The program is coming under increasing attack from all quarters – not only by immigrant rights advocates, but also law enforcement agents and politicians. The governors of Illinois, New York, and Massachusetts all decided to pull out of the program, only to be told they couldn’t when the federal government took all pretense of consent out of the picture and made the program mandatory. After some minor adjustments, the administration set up a task force to assess and address concerns with the program. The task force’s listening tour was met with growing criticism, protests, and walk-outs. Ultimately, a number of task force members resigned prior to the release of the final report, including a former Sacramento Chief of Police. At the same time the National Day Laborers Organizing Network (NDLON) released a report highlighting the devastating impacts the program has already had on immigrants across the country.
As I was speaking at the recent Lavender Law conference about the issues raised by Queer (In)justice, someone said “there was time when we would be arrested just for being who we are.” The sad truth is that all too many of us continue to be arrested just for being who we are – particularly if we are poor, of color, young or immigrants in addition to being LGBT or Q. Under S-Comm, arrests based on persistent, pervasive and deeply rooted perceptions of LGBTQ people as inherently disorderly, sexually deviant, and violent will be more likely to lead to immigration detention and deportation for LGBTQ immigrants.
As documented in Queer (In)Justice, LGBTQ people, and particularly LGBTQ people of color, immigrants and young people, continue to be profiled by police at alarming rates on a daily basis as more likely to be engaged in “lewd conduct,” “loitering for the purposes of prostitution” and other sexual offenses – often without any basis beyond gender nonconforming appearance or expression. LGBTQ people, communities and establishments continued to be targets of discriminatory enforcement efforts. Thousands of LGBTQ youth who live on the streets because they have been pushed out of or runaway from their homes or foster care programs are at risk of arrest every day for minor offenses such as turnstile jumping or sleeping on a train because there is nowhere else safe for them to sleep at night. These are the members of our communities for whom the criminalization of LGBTQ people and the injustices of the criminal legal system will only be compounded by programs such as S-Comm.
I need look no further than my own client files to put faces on the people in our communities who will be affected by S-Comm: a Latino gay man falsely arrested for “lewd conduct” based on a police officer’s entirely false accusation that he inexplicably dropped his pants as he took a walk in a park near his home in Queens; a homeless gay man who may in fact have been looking for some anonymous companionship in a remote area of Central Park where no one but the officer who arrested him was present, while heterosexual couples make out freely on the Great Lawn; a Latina transgender woman profiled as being engaged in prostitution as she walked to the store; a homeless LGBTQ teen arrested for “loitering”; a lesbian immigrant who was arrested when the police were called to respond to violence against her, who now lives in fear that the next time they come she will be arrested again. All were released from police custody shortly after arrest and never went to jail. Under S-Comm, because fingerprints taken from them at the police precinct would be forwarded directly to ICE, those among them who also happen to be undocumented would immediately find themselves in the cross hairs of immigration enforcement, even as the original charges against them were dismissed.
Concerns about the consequences of S-Comm for LGBTQ people go far beyond what will happen once they are deported – homophobia, transphobia, violence, and denial of basic needs await them in U.S. immigration detention facilities. Christina Madrazo, a Mexican transgender woman, was raped by a guard at the Krome Immigration Detention Center in 2000. Antonio O., a gay man and legal permanent resident from El Salvador arrested on a minor drug offense in 2007 was repeatedly denied HIV medication at an ICE processing center. Victoria Arellano, a Latina transgender woman held at the same facility, ultimately died shackled to her bed after being denied appropriate HIV/AIDS medication and treatment over an extended period of time.
It’s time for more LGBTQ groups and advocates to follow their lead and join the chorus of voices speaking out against S-Comm, and the license to profile, detain and deport LGBTQ people it creates. Come out against S-Comm, sign onto the statement, and let’s put our energies, advocacy, and political capital behind our signatures. S-Comm is one of my top 6 LGBT Equality issues - I hope you’ll make it one of yours.
Louisiana’s “Crime Against Nature” statute punishes solicitation of oral or anal sex for compensation more harshly than the state’s criminal law penalizes prostitution generally. Not only does a second or subsequent offense of offering oral or anal sex for money carry much longer prison terms and higher fines than any number of prostitution convictions, it also subjects individuals convicted of Solicitation of Crime Against Nature (SCAN) to mandatory sex offender registration. No state other than Louisiana requires anyone convicted solely of selling sex for money to register as a sex offender. Only in Louisiana does merely offering to provide oral or anal sex in exchange for something of value land you on the sex offender registry.
Far from being a technical requirement, being required to register as a sex offender affects nearly every aspect of a person’s life. In Louisiana, sex offenders are required to carry a driver’s license or state ID with the words “sex offender” emblazoned across it in bright orange capital letters.
Once on the registry, an individual’s picture, address, identifying information, and crime of conviction also appear on a publicly available website. Moreover, you are required to pay $60 a year to register, and between $200 and $750 to send out postcards to all of your neighbors featuring your picture, address, and the crime you were convicted of.
Imagine all of your neighbors receiving a postcard informing them you are a convicted sex offender. Most will think that you are dangerous, violent and prey on children, when in reality you were convicted for offering to engage in oral sex with an undercover officer for $50 bucks ten years ago when you were struggling through tough times. Imagine your kid or family members googling your name and learning more about your past than you ever wanted them to know. Imagine trying to explain to a prospective landlord, employer, or romantic interest that you have never harmed a child, or engaged in any conduct involving force, a weapon, or lack of consent.
Whether or not you end up having to register as a sex offender for 15 years – or the rest of your life if you are convicted of SCAN more than twice - is completely up to the police officer who decides to arrest you and the prosecutor who decides what to charge you with. Because the same conduct is covered by the prostitution statute, which prohibits solicitation of any kind of sex (vaginal, anal, oral, manual, and whatever else the imagination can conjure) for money, someone accused of offering oral or anal sex for compensation can either be charged with prostitution or solicitation of a Crime Against Nature – or both.
Police and prosecutors are given no guidance whatsoever in making that decision, which can change the entire course of a person’s life. You can either wind up with a misdemeanor criminal conviction, or a felony that requires you to register for a sex offender for 15 years to life.
As Queer (In)Justice argues, such unfettered discretion in the hands of law enforcement lends itself to overt and implicit policing of race, gender and gender identity, sex and sexuality, and poverty. The numbers bear it out – the vast majority (80%) of people required to register as sex offenders solely because of a SCAN conviction in New Orleans are African American. An overwhelming majority (97%) of women who are registered as sex offenders must do so solely because of a SCAN conviction. And, predictably, along with poor Black women involved in street-based economies, transgender women and gay men of color are singled out for SCAN charges.
Clearly, the disparity in sentencing consequences for the solicitation of oral and anal sex stems from historical condemnation of sexual activity that is non-procreative or traditionally associated with homosexuality. How can this still be happening almost ten years after the U.S. Supreme Court decided Lawrence vs. Texas, the historic case which was hailed by Lambda Legal as "a legal victory so decisive that it would change the entire landscape for the LGBT community," and supposedly eliminated criminal penalties for conduct associated with homosexuality? That’s what I thought when I first heard about this. Then I read this fateful line in the Supreme Court’s decision in Lawrence, which was decided on the basis of privacy.
This case does not involve … public conduct or prostitution.
In other words, while Lawrence eliminated criminal penalties for those engaged in consensual homosexual activity in private, it has been interpreted – erroneously, we argue - to not provide any relief to queers who engage – or are perceived as being engaged - in public sexual conduct or the sex trades. Their landscape remains, in fact, the same.
People like Michael (a pseudonym), a Latino man who was kicked out of his home for being gay at age 13 and forced to make his own way on the streets, are unfairly punished by this law. Because Michael once offered an undercover cop oral sex in exchange for $50, he was convicted of SCAN, spent 4 years in jail, and was forced to join the ranks of the Louisiana sex offender registry. He is now HIV+, and he can’t stay in a homeless shelter, get a job, or find housing because he is branded as a sex offender – and will be for the next 15 years. People like Stella (also a pseudonym), a young African American transgender woman who, like so many other transgender women, is often profiled as being a sex worker and is constantly arrested for and charged with solicitation of Crimes Against Nature every time she steps into New Orleans’ storied French Quarter as a result, is forced to register as a sex offender for the rest of her life. She’s not alone – as one person put it, “I feel like if trans women are just walking down the street, they hit them up with that charge...”
People like Frances (also a pseudonym), a middle-aged African American grandmother who was arrested and charged with SCAN as a teenager trying to make her way through high school despite grinding poverty, will continue to live in shame and fear of humiliation and harm.
Yes, this law also affects middle-aged grandmothers. As Queer (In)Justice highlights,
Cathy Cohen points out in her groundbreaking essay Punks, Bulldaggers, and Welfare Queens, gender conforming heterosexuals can also be policed and punished for exhibiting behavior or indulging sexual desires that run contrary to the vast array of punitive rules, norms, practices, and institutions which “legitimize and privilege heterosexuality.”
…women of color [are] by definition outside the bounds of heteronormativity, and therefore inherently subject to gender policing and punishment. For instance, Black feminists have consistently highlighted the development of a number of controlling narratives casting Black women as dangerous, gender deviant, “castrating matriarchs,” or as sexually aggressive, promiscuous, and depraved, to justify their regulation as both inherently criminal and as “breeders” of criminals. Cohen also points to the use of heteronormativity to exclude single mothers on welfare, predominantly perceived to be almost exclusively women of color, and sex workers, from who is “normal, moral, or worthy of state support” or legal recognition.
One African American woman forced to register under the Crime Against Nature statute asks "I was raped and used myself a lot of times. I never hurt anyone - why am I on the registry as a sex offender?" Another, who has struggled with poverty and addiction and has spent most of her life behind bars, in large part due to SCAN charges, as a result says: “There are children getting raped every day, but no, you want to go after me, and go after the transsexuals out there ... It just vex my spirit.”
In other words, there is both theoretical and real common ground among poor non-transgender Black women and transgender and gay men of color who are, or are perceived to be, involved in the sex trades, on which multi-racial and multi-issue organizing can be solidly built. The disparate punishment of certain types of commercial sexual exchanges based on ancient notions condemning queer sex should also be considered an LGBT rights issue that affects both queers and heterosexuals.
Unlike earlier efforts to challenge the statute post Lawrence, the campaign currently underway to, spearheaded by local harm reduction agency Women With A Vision, focuses on the experiences of both queers and heterosexuals of color who share experiences of policing and poverty. In this way, it represents exactly the kind of organizing Queer (In)Justice hails as the future of a progressive queer movement. Led by lesbians of color, bringing together civil rights, racial justice, women’s health, AIDS, LGBT, juvenile justice, and anti-police brutality attorneys, advocates, and organizers, and centering the voices and experiences of all people affected by the law, the campaign recognizes that issues of poverty, race, criminalization, gender, sex, and sexuality are inextricably intertwined.
Join Women With A Vision’s No Justice Campaign in demanding the repeal of Louisiana’s Crime Against Nature statute and retroactive removal of everyone who is on the sex offender registry solely as the result of a non-violent SCAN conviction. It’s just one step toward ensuring that no queer is left behind.
Queer (In)Justice: The Criminalization of LGBT People in the United States, by Joey L. Mogul, Andrea J. Ritchie, and Kay Whitlock went on sale in bookstores across the country on February 15, 2011.