Editors' note: Alexis Agathocleous is a staff attorney with the Center for Constitutional Rights and is co-litigating Doe v. Jindal.
In 2003, the LGBT community rejoiced after the US Supreme Court's landmark decision in Lawrence v. Texas, but in Louisiana, sodomy laws are still alive and kicking in 2011.
Lawrence struck down a Texas sodomy law and held that sexual intimacy at home is constitutionally protected under due process and privacy principles. Coming seventeen years after Bowers v. Hardwick, the Supreme Court's seething antigay decision that upheld a Georgia sodomy law, Lawrence felt like a sea change. Laws actually criminalizing the community, many people assumed, were a relic of the past. And accordingly, the LGBT rights movement shifted gears: litigation, lobbying, advocacy, and resources in the years since Lawrence have overwhelmingly focused on civil institutions such as marriage and visibility in the mainstream media. In short, the mainstream LGBT community stopped talking about criminal justice.
But as a federal civil rights lawsuit filed this week in Louisiana illustrates, this may have been hasty. Louisiana's own archaic sodomy law is having a devastating effect on hundreds of people - principally low income women of color, including transgender women. The promise of Lawrence, it would seem, has not been fulfilled at the margins of the LGBT community.
In Louisiana, people accused of soliciting sex for money can be criminally charged in two ways: either under the state's generic prostitution statute or under the solicitation provision of the 206-year-old Crime Against Nature statute, which for two centuries outlawed all oral and anal sex.
If you're convicted of prostitution (which encompasses oral, vaginal, and anal sex), you've got a misdemeanor on your record. But if it's alleged that you offered oral or anal (but not vaginal) sex for a fee, police and prosecutors can choose to charge you under the Crime Against Nature statute. And if they do and you're convicted, then you are forced to register as a sex offender. Multiple convictions get you registered for the rest of your life.
In other words, sex commonly associated with LGBT people is still being singled out by Louisiana for harsher criminal punishment through this antiquated and discriminatory law. And to be clear: just offering someone a blow job for money gets you labeled as a registered sex offender.
Most of the Crime Against Nature statute was unambiguously rendered unconstitutional by Lawrence. But because Lawrence only directly addressed private, noncommercial sex, the solicitation provision of Louisiana's Crime Against Nature statute has so far been upheld by the state courts. Lawrence, the Louisiana Supreme Court said, has nothing to do with how badly the state treats people who agree to engage in sodomy for money.
Doe v. Jindal, the federal lawsuit filed by the Center for Constitutional Rights (CCR) along with civil rights lawyer Andrea Ritchie and the Loyola Law School clinic, takes issue with that position. The lawsuit doesn't argue that Louisiana can't criminalize sex work. But it does challenge the fact that a Crime Against Nature by Solicitation conviction brands you as a sex offender simply because it involves oral or anal, rather than vaginal, sex. That irrational distinction, the lawsuit contends, violates basic constitutional equal protection principles and constitutes cruel and unusual punishment.
Every other offense that requires sex offender registration in Louisiana involves violence, lack of consent, or a child. There's no force or lack of consent or children involved here. There's just no public safety rationale that could justify the distinction the state has drawn. All that animates this law is a long history of moral disapproval of non-procreative sex acts and blatant homophobia. And as such, the entire LGBT community should be outraged about what's happening in Louisiana.
This law has cost the plaintiffs in Doe v. Jindal dearly. They must carry a state driver's license and identification card which features the words "SEX OFFENDER" printed in bright orange capital letters. They have had to send postcards to neighbors, schools, parks, community centers, and churches announcing themselves as sex offenders and disclosing their names and addresses. Their photographs, names, and addresses also appear on the online sex offender registry.
Some of the women who have joined this lawsuit as plaintiffs have been denied access to homeless shelters and drug treatment because those facilities won't accept sex offenders. As one woman explained: "When I call about a job, I have to ask if they will hire sex offenders." The answer is generally predictable. And as another woman pointed out: "When you mail those cards it's so humiliating. People kill you for that." More than one person has said that they fear for their safety.
Most of the people affected by this are poor women of color and LGBT people who have turned to sex work as a means of survival. And astonishingly, almost 40% of registered sex offenders in Orleans Parish are on the registry because of a Crime Against Nature conviction. This not only serves no purpose, but is an astounding waste of resources.
A group of people whose lives have been so profoundly impacted by this law are standing up against this injustice along with a broad coalition of grassroots groups. The LGBT rights movement has a moral and political duty to take notice and should join them in this struggle.