California pardoned a gay civil rights leader. Activists want clemency for more LGBTQ+ prisoners
Bayard Rustin, who worked alongside Martin Luther King Jr and died in 1987, was arrested in 1953 under a law used to prosecute LGBTQ+ people
Bayard Rustin, leader of the March on Washington in New York City in 1963.
The California governor has launched an initiative to grant clemency to people historically prosecuted for being gay, starting with a posthumous pardon for Bayard Rustin, a celebrated gay civil rights leader.
Rustin, who worked alongside Martin Luther King Jr and helped organize the March on Washington, was arrested in 1953 for having consensual sex, convicted under a “vagrancy” law long used to prosecute LGBTQ+ people.
Governor Gavin Newsom announced Wednesday that his office would pardon Rustin, who died in 1987, and also allow others subjected to this kind of discriminatory policing to apply for clemency. Rustin, who also helped organize the Montgomery bus boycott and who was given a posthumous presidential medal of freedom by Barack Obama, was sentenced to 60 days in jail and forced to register as a sex offender after his arrest.
Black and LGBTQ+ lawmakers praised the pardon for Rustin, which some of them had formally requested. Some activists and civil rights attorneys, however, said they were eager to see the governor move beyond largely symbolic measures – and address the harms facing queer and transgender people incarcerated today.
“The governor has so much power,” said Colby Lenz, a legal advocate for LGBTQ+ prisoners in California. “It’s great he’s doing this initiative, but it’s painful when I think about visiting so many queer and trans people who are incarcerated who continue to face so many barriers to release.”
Newsom’s new clemency program relates to a law that previously criminalized consensual gay sex, which was repealed in 1975. In 1997, California allowed people convicted under that law to get off the sex offender registry, but that process did not remove their underlying conviction and did not constitute a pardon. The initiative unveiled this week seeks to identify eligible pardon candidates and allow people to apply.
A spokesperson said the office didn’t have numbers on how many people might be eligible, and it’s unclear if anyone currently incarcerated would be affected.
Newsom’s announcement said he was tackling “historic homophobia in the justice system”. But activists said they would like to see the effort extend to contemporary discrimination in the way LGBTQ+ people are arrested, prosecuted, sentenced and ultimately denied release.
Lenz, who is part of a coalition that lobbies the governor’s office for the release of trans prisoners, says she would like to see the pardon effort extend to currently imprisoned trans people, who are disproportionately represented in the system, and can face high rates of violence and abuse inside.
Survived and Punished is one of the partner groups, which advocates for survivors of abuse and domestic violence who were incarcerated after defending themselves, such as the famous case of Cyntoia Brown, sentenced to life at age 16 for murder, but recently released. There are numerous trans women incarcerated with similar cases in California, said Lenz, who estimated that Newsom has received at least 50 clemency requests on behalf of trans prisoners but has yet to grant any.
Janetta Johnson, a trans rights activist in San Francisco who was formerly incarcerated, agrees that for the trans community “their crimes are survival crimes because of lack of opportunities, lack of access to employment and housing”. Some end up in prison because they fought their abusers, she said, and trans people often face harsher sentences, she says. “[The governor] needs to acknowledge the discrimination and punitive punishment for the queer and trans community.”
Lenz has also advocated for queer cisgender women who have faced homophobic prosecution and abuse inside, and she noted that biases throughout the process can make it especially hard to get pardons and releases for LGBTQ+ people.
Amber-Rose Howard, the executive director for Californians United for a Responsible Budget, a group that works to reduce the prison population, said she was pleased to see the news about Rustin and the clemency initiative, but that she hoped it would be a first step: “We will not address mass incarceration until we start to think about people convicted of more serious offenses.”
Assemblywoman Shirley Weber and state senator Scott Wiener previously called on Gavin Newsom to posthumously pardon civil rights leader Bayard Rustin.
While Rustin’s offense was a misdemeanor, Howard noted that many queer and trans people languishing in California prisons today were locked up for serious felonies, some sentenced to life without parole, meaning they will die inside if not granted a pardon: “I hope the conversation opens up … and I’m really hoping to see a lot of pardons answered.”
Lynly Egyes, the Transgender Law Center legal director, noted that there were a range of laws that were still used in the US to criminalize trans people, such as loitering ordinances that have been described as “walking while trans” offenses. In addition to granting pardons to people criminalized in this way, a governor’s pardon power could also save immigrants from detention and deportation when they are facing removal due to a criminal conviction.
“I would really hope the governor is using pardons to help all people who need to be released,” she said.
Newsom has commuted the sentences of just over 20 people in his first year in office. His predecessor, Jerry Brown, issued commutation orders for 283 people.
A Newsom spokesperson did not respond to questions about advocates’ calls for broader pardons for LGBTQ+ people.
The announcement Wednesday echoes the recent apologies from police officials about the historic cases of law enforcement violence against LGBTQ+ people in the infamous Stonewall riot and similar attacks.
Newsom similarly made made history when he formally apologized to Native Americans last year, acknowledging the brutal genocide and “war of extermination”. Indigenous leaders in the state praised the announcement but also called for specific reparations.
