‘Righting past wrongs’: The Americans fighting US ‘sodomy laws’ | LGBTQ
Even today, she tells her sister: “You were right. You were absolutely right.”
But that night, Wendi Cooper remembers walking down the street with the confidence that she was the most beautiful woman in the world. The dance floor was calling, car horns were blaring, and her friends were waiting in New Orleans’s Vibe nightclub a couple of blocks away.
Cooper planned to arrive late, though. She wanted to make an entrance. Because that night, when men leaned out of their car windows that evening to tell her, “You look good, boo,” she knew it was true.
It did not surprise her when another vehicle slowed to a crawl beside her, its driver trying to chat her up. She figured he was just another man, attracted to the woman he saw.
Cooper remembers that she wore her brown hair cropped short, just the way she liked it, and a borrowed knee-length skirt, white with a blue stripe, and a matching top. She always knew she was meant to live life as a woman. But it felt so good to draw the attention of this tall, handsome man, talking through the window of his car.
Cooper says she did not think much of the fact that he was a police officer. Anyone could see that he was. She remembers him circling the block, easy to spot in his police cruiser. When he asked her to hop inside the car, it did not feel uncomfortable or dangerous. He was a cop, after all. She thought she could trust him.
Cooper says the conversation started ordinarily enough. But once she was in the car, “he started talking about oral sex and anal sex and stuff like that”. Then he brought money into the conversation. She says she tried to dodge the topic: She was not interested in trading money for sex. “So that’s when I was just like, ‘Wait. Just call me later’.”
That is when she says he reached for his wallet, as if to get some paper and a pen. But instead, he pulled out his badge. “He was like, ‘You’re under arrest.’ I’m like, ‘For what?'”
It was 1999. Cooper was about to have her first encounter with Louisiana’s Crimes Against Nature laws, part of a web of so-called sodomy laws that once existed across the United States. In specifically criminalising oral and anal sex, advocates have long argued that sodomy laws were tools for discrimination against the LGBTQ community, even in cases where sexual orientation was not written into the law itself.
By 2003, four years after Cooper was charged, the Supreme Court case Lawrence v Texas would designate sodomy laws unconstitutional, a violation of “the right to liberty under the due process clause”. But just because they were nullified did not mean they ceased to have an impact. Federal law may have changed – but in many cases, criminal records and state law books did not.
“Surprising as it may be, there is no automatic right to have a conviction vacated if the law under which a person was convicted is subsequently invalidated,” said Daniel A Horwitz, a Nashville-based constitutional lawyer involved in expunging local sodomy law cases. “We as a society should be a whole lot more proactive about righting past wrongs, which are all too easy to ignore.”
Shouldering the guilt of conviction
Cooper is among those who still live with the ramifications of a conviction and whose existence continues to be shaped by the legacy of sodomy laws.
The youngest of nine children, Cooper only started identifying as transgender the year of her arrest. The decision came after a sleepless night: When morning came, she marched from the St Thomas housing development in New Orleans, Louisiana – where she had lived her whole life – to the central business district to talk to her mother and older sister.
Cooper’s announcement worried her sister. “She began to say things like, ‘It’s going to be hard for you to get a job. It’s going to be hard for you to get housing. You’re going to deal with a lot of issues with regards to police officers,'” Cooper recalls.
Her sister’s words were not meant to injure, Cooper says. They were expressed out of concern. But when Cooper faced her first sodomy law arrest, they haunted her. It would not be her last. “I always go back to what my sister had said. She tried to tell me. I think I had some kind of guilt. I felt bad because I should have listened to her, right?”
Shame, stigma, limited employment and housing prospects – the long-term effects of the US’s sodomy laws were in the news again earlier this year when the governor of California, Gavin Newsom, announced he would issue a pardon to the Black civil rights leader Bayard Rustin.
By the 1950s, Rustin was already a prominent figure. He had grown famous for organising nonviolent protests, like a 1947 bus sit-in known as the “First Freedom Ride”. But on a 1953 lecture trip to Pasadena, Rustin was caught engaging in sexual activity in a parked car with two white men. He was sentenced to 60 days in the county jail on a morals charge.
Decades would pass before Rustin would meet Walter Naegle on a spring day in 1977, standing on a New York City street corner. Their relationship would last until the end of Rustin’s life.
Rustin was in his 60s by then. Naegle remembers looking to one side and seeing the tall civil rights leader, so handsome with his narrow waist and broad shoulders, a shock of white running through his hair. His eyes, even then, were full of mischief.
In the decade they spent together, Naegle says Rustin did not dwell on his 1953 arrest – but it still affected him all those years later. “He would be making public appearances at places, and people would come out of the gathering, and on their windshield, there would be a photocopy of his arrest record, particularly the one from Pasadena.”
He remembers critics labelling Rustin a pervert. It had been a painful time for Rustin. Naegle says Rustin felt abandoned by the colleagues and organisations that severed ties with him after the arrest.
“Now, toward the end of his life, he would occasionally speculate on whether he was entrapped,” Naegle says. Naegle himself discounts that theory, but he does believe Rustin’s conviction was tied to his unapologetic sexuality. “If this had been a straight couple, they would have been slapped on the wrist and told to go home to their parents.”
Righting the wrongs of the past
Naegle says neither he nor Rustin ever imagined the Pasadena arrest would be pardoned. But on February 5 – 32 years after Rustin’s death – it was.
San Diego activist and city commissioner Nicole Murray-Ramirez was one of the driving forces behind the pardon. It was part of an effort to clear the way for a stamp in Rustin’s honour. “We had heard rumours that the stamp commission was concerned that Bayard Rustin had a police record and had been arrested,” Ramirez said.
When Naegle initially found out about the pardon for Rustin, though, he had mixed feelings. “Basically, my position was, ‘Well, this is all very nice, but why only him?’ If we’re going to do this, it should be about helping other people,” he said.
“There were lives that were destroyed, families that were broken up, jobs that were lost, suicides, all kinds of things. And Bayard did well, despite all of this, because he was very strong, determined and an intelligent person. But a lot of people didn’t get off so easily.”
Ultimately, California instituted a pathway to clemency for those “who were prosecuted in California for being gay”, to coincide with Rustin’s pardon. But when contacted about the number of applicants in July, the governor’s office stated that they had not received any applications before the start of California’s shelter-in-place order in March. “Staff are continuing to review correspondence,” spokesperson Erin Mellon wrote.
In Tennessee, lawyer Daniel Horwitz has been pursuing sodomy law cases since 2016. It all started when a client approached him to get “some minor misdemeanour charges” expunged.
As Horwitz sorted through the client’s records, he noticed a separate, unrelated conviction under Tennessee’s Homosexual Practices Act, a law that the state’s courts ruled invalid in 1996 – seven years before the Supreme Court would reach the same decision in the case Lawrence v Texas.
“I was aghast to see the charge, and after confirming that it was real, I offered to try to get the charge expunged pro bono,” Horwitz wrote in an email.
That realisation led Horwitz to continue digging. He says he has uncovered 41 cases in the state. In hand-written police records Horwitz shared with Al Jazeera, male defendants were accused of “having the act of fellatio performed on” them or of being “observed engaging in anal intercourse with another male”.
Horwitz found an ally in the Davidson County district attorney, who implemented a blanket policy to expunge old sodomy law convictions “in any case where the only violation was conduct proscribed by the Homosexual Practices Act”.
Ever since, Horwitz has been trying to track down the defendants in all 41 cases, going as far as to hire a private investigator. He hopes to clear all 41 by the end of next year.
“Sadly, many of the people who were charged under the Homosexual Practices Act in my county also died before I started doing this, which means that the charges will remain on their records forever unless their next of kin provide permission,” Horwitz said.
Sodomy law convictions are just one example of how society can change – but criminal records do not. Horwitz sees parallels between this work and how Tennessee expunged the records of individuals found guilty of protesting against segregation during the US civil rights movement. He also points to efforts in several states to expunge marijuana convictions, another area of criminal law facing reform, in large part because arrests disproportionately penalised certain demographics over others.
A symbol of ‘dark days’
But fees and a byzantine system can inhibit the average person from seeking an expungement, explains American University law professor Jenny Roberts.
As co-director of the university’s criminal justice clinic, formerly based in Maryland, Roberts has met individuals for whom even a $30 expungement fee is too high. Elsewhere, fees for expungement can rise into the hundreds of dollars. Then there are the documents to track down, paperwork to complete, and minutiae to navigate, like waiting periods and hearings.
Even when a record is “expunged”, what that means can vary from state to state. Some places destroy expunged records. Others seal them. And in Indiana, expunged records remain public. They are simply marked “expunged”.
Roberts says it would be “easy” for state legislatures to pass laws calling for expungement in old sodomy law cases. That is already happening in states where marijuana-related records are being reviewed. “Yes, some clerks will have to find some old records and make some corrections. But why wouldn’t we do that? My view is, it’s not that hard now.”
But she questions whether the political will exists to do so. “Some states still have sodomy laws on their books. They just won’t take them off, because they’re determined not to look like they in any way agree with ‘Lawrence’,” she said, referencing the Supreme Court case that invalidated sodomy laws nationwide. “Those legislatures aren’t going to do some kind of mass expungement.”
Sodomy laws remain on the books in states including Florida, South Carolina, Kansas and Minnesota, though these laws are unconstitutional and cannot be enforced. Until her retirement last year, Texas state representative Jessica Farrar carried a bill each year to repeal her state’s sodomy law.
“The purpose of it was to remind everybody, remind the world, that it’s there, that it needs to be addressed, that it needs to be changed,” Farrar said. Even though the law is null, she argues it still has real-world repercussions. “It makes a statement having it on the books. It makes a statement for folks who want to go back to dark days.”
Some police officers might not know off-hand that the law is unconstitutional “unless you happen to read Supreme Court cases,” she says. “Or they might use it to harass people even if they do know it’s unconstitutional.”
That was the case in neighbouring Louisiana. A dozen men were arrested between 2011 and 2013 under the state’s outdated sodomy law after discussing sex with male undercover officers. Those charges were ultimately dropped, according to The Advocate newspaper in Baton Rouge.
Two more Louisiana men were arrested for trespassing and “crimes against nature” after being caught having sex in the backseat of a car in 2015. The “crimes against nature” charge again had to be thrown out. The Advocate reported that the local police chief had to send out a memo after the incident to remind officers that the law could not be used for arrests.
Farrar, a Democrat, says the issue of keeping the laws on the books falls along party lines. “You’re probably never going to get it off the books as long as Republicans are in power. That’s just the truth of it.” Most voters, she adds, do not feel affected by sodomy laws, and lawmakers answer repeal efforts with religious or moral objections.
In 2020, Maryland became the latest state to remove the crime of sodomy from its laws, but elsewhere, sodomy laws have powerful defenders. Kenneth Cuccinelli, a Trump administration official serving as acting deputy secretary for the Department of Homeland Security, fought to preserve Virginia’s “crimes against nature” law in his time as state attorney general.
And in his 2010 book Fed Up!, Rick Perry – who served as the US Secretary of Energy until 2019 – used Lawrence v Texas as an example of how the Supreme Court was out of touch with ordinary Texans. He wrote, “Shouldn’t such a fundamental issue about the moral ordering of society be determined by the people themselves?”
‘It was very ugly’
Wendi Cooper of New Orleans was convicted under a “crimes against nature law” that had been on Louisiana’s books since the state adopted its first criminal code – back in 1805.
That law was expanded in 1982. Crimes Against Nature by Solicitation (CANS), under statute 14:89, was a new provision added to mete out harsher punishments than what the prostitution laws already offered – specifically for cases involving oral or anal sex.
Cooper saw one of those punishments every time she took out her driver’s licence. The words “sex offender” were stamped right below her picture, in orange capital letters. Being labelled a sex offender was only half of it, though. Convictions under CANS were also designated a felony, a higher charge than what other prostitution arrests merited.
Cooper says she did not have the means to fight her conviction, though. In 1999, she was a young adult struggling to make ends meet. “I didn’t have no money to get a private lawyer. My mother, she didn’t have no money. My sisters, they didn’t have any money. My brothers, they didn’t have any money,” she said. A public defender counselled her to plead guilty, rather than risk a lengthy prison term.
She calls the arrest “the day my life went into shambles”. She says she spent the night imprisoned and woke up the next morning in disbelief. It was the first time she remembers experiencing how the criminal justice system disempowers Black and transgender people.
“I saw so many women who looked like me,” she said. “Women of my experience, 10 laying on the floor and 10 laying on the bed. It was just very ugly. It was very ugly because when a person wants to live their truth, it’s a beautiful feeling. But at the end of the day, the consequences are very ugly.”
Her second arrest under the CANS law came two years later. Cooper credits it to “walking while trans”. Again, she says was headed to the same nightclub, an LGBTQ-friendly lounge. Again, a police officer called her to his car. This time, she says, he pulled down his pants and asked her for oral sex.
“I told him I’m not doing that, I’m about to go to club Vibe,” Cooper recalls. “When I walked off, all the police that I saw riding around jumped out of their cars, slammed me on the ground, put their foot on my neck. I couldn’t breathe.”
A 2012 class-action lawsuit took aim at the CANS statute, identifying the sex offender registry requirement as unconstitutional. Cooper was among nine anonymous plaintiffs. The Center for Constitutional Rights, one of the organisations behind the lawsuit, found that CANS convictions at the time amounted to 40 percent of registered sex offenders in the New Orleans area. Most CANS defendants were female or Black.
Ultimately, the state was forced to remove nearly 900 individuals convicted under CANS from the sex offender registry. Cooper was one of them. She remembers crying when she heard the news.
“Once that stamp was gone from off my licence, there were times I still thought I was a sex offender,” she says. She had grown used to the required check-ins with police, to the point where she had to remind herself not to go to the police station. “I had to realise I’m no longer that person.”
But the legal victory did not erase CANS from the law. It could not. To do so would have required lawyers to argue that prostitution itself was unconstitutional, not just the sex offender registration requirement.
“It wasn’t a complete victory, because the registration component was removed, but you are still affected by having that felony conviction on your record,” Cooper said. “So when you’re doing job searches or you’re trying to get housing or you’re doing these different things, it was very hard – and it still is hard – for us to be able to access these different services.”
Of the nine original plaintiffs in the lawsuit, only Cooper stepped forward to speak publicly. Back then, she figured her privacy had already been stripped away: “I’m on the sex offender registry. What’s anonymous about that?”
So she spoke out. Cooper admits it can feel embarrassing to talk about her experiences but she knows the embarrassment will go away.
“I’m not going to ever be anonymous. This is something I need people to know about. I want people to know this is what happened,” she said. “This is what happened to me in Louisiana.”
Since the 2012 victory, Cooper has founded “CANScantSTAND,” a campaign to demand the repeal of the “crimes against nature” law. Last year, she organised a march on the same weekend as Southern Decadence, a high-profile LGBTQ celebration in New Orleans. Cooper says she could not help but notice a disparity in the gatherings, though: While white gay men danced on Bourbon Street, she and other Black trans women protested in the streets.
“There was one point in time, I was dust on the ground and people walked on me like I was that dust,” Cooper said. But she credits her faith in God for pushing her to continue. When she gets angry, a little voice reminds her to be kind. “Remember when you were a sex offender,” it whispers. “Remember when you wanted to eat and people did not want to feed you.”
The legacy of the sodomy laws is not finished, but neither is Cooper. It is a fight for liberation, she says – and she is determined to win.