The Road to Equality: The Struggle of Gay Men and Lesbians to Achieve Equal Rights Before the Law
Introduction
In this piece I want to consider the legislative journey toward equality which in March 2014 saw the Marriage (Same Sex Couples) Act 2013 giving lesbians, gay men, bisexuals and transgender people (LGBT) almost parity with heterosexuals before the law. The major focus is the exploration of key legislation that has been in place and the impact this has had on the LGBT community, particularly gay men; a history that is sometimes forgotten.
Lesbians have not been subject to the law in the same way as gay men although it is clear that the impact of legislation against men has had consequences for women in terms of for example, inheritance, marriage and indeed the way they lived their lives. I will consider why lesbians have been almost invisible before the law and how their behaviour was policed.
A theme of the work is that legislation not only defines legality but it also seems to be important in terms of setting out a state's attitude to equality and particular groups. It can signal the move from state homophobia to state recognition. At the same time the changing of attitudes, relationships of power and inequality take more to shift than legislation alone can achieve.
Finally, I will consider if the Marriage (Same Sex Couples) Act 2013 is a step in the right direction on the road to LGBT equality. Have the latest developments in legislation brought genuine equality and choice within a traditionally patriarchal society or will the LGBT community become just another consumer group with the ‘pink pound’, now to be sold ‘gay weddings’?
The Law and Male Homosexuality
In March 2014 it became lawful for same-sex couples to enter into a partnership of marriage (this does not apply in Northern Ireland). Thus an opportune time to consider the road to equality as experienced by the lesbian, gay, bisexual and transgendered community (LGBT). Whilst there remain some outstanding issues regarding equality, for example, couples of the same sex are not entitled to inherit their partner’s pension; it is not an insignificant step in the process for both the community and individuals. In considering sexual orientation in terms of the legislative framework, Chakraborti and Garland (2009) point out that unlike many other aspects of discrimination, the gay community’s private and sexual lives have been subjected to police scrutiny as well as legislative and parliamentary intervention. Stout (2010) observes that the journey to equal treatment for the gay community is quite different from other groups as although discrimination has been longstanding in terms of race and gender, it has never actually been illegal to be black or a woman. One might question if it has actually been illegal to be ‘gay’, but judging from reports of the policing of gay venues in the 1950s and 1960s, then attendance seemed to be the only requirement to being arrested.
According to Stonewall (2013), the first mention of a punishment for homosexuality in English law was in 1290, the traditional ‘buggery’ statute was introduced in 1533 and was still in effect up until 1967 (Crompton, 1980). In 1628 Sir Edward Coke, a celebrated judge, compiled a list of all existing criminal offences. In volume three of ‘The Institutes of the Laws of England’ there is a chapter titled ‘Of Buggery or Sodomy’ This chapter is ‘the first piece of legal scholarship that addresses homosexual relationships in English Law’ (Moran 2000:98). Coke (in Moran 2000) lists a number of statutes such as the Queen Elizabeth I Act criminalizing sexual relations of this nature but notes that references to same-sex sexual relationships are a rarity in law. Whilst buggery & sodomy are not exclusively sexual acts between men, the work does make reference to sexual relations between people of the same sex. Buggery and sodomy are seen as serious offences and are likened to rape or treason, the only suitable punishment being death, usually by hanging. Coke’s (in Moran, 2000) view is that ‘homosexual acts’ are forbidden by the law of man and by God. This link between state and religion is a constant theme at this time and it is not until the State moves to a more secular position post war, that legislation has gradually liberalized (Moran, 2000). That said current debates as reported by the media, about the legalising of marriage between same-sex couples arguably have largely focused on matters of religion.
Successful prosecutions were rare during this period, largely due to the need for an eye witness to confirm penetration had taken place. Up until 1816 the most common form of punishment for those convicted was to stand in the town or village pillory and be pelted by a largely hostile crowd. Records from the Old Bailey Proceedings (2013) identify that between 1679 and 1772 there were 1072 convictions for sodomy and 96 for Assault with Sodomite Intentions. The proceedings also record a number of Thefts by Extortion against homosexual men. Jeremy Bentham in "Offences Against One's Self: Paederasty," written in 1785 argued for the liberalization of laws concerning homosexual activity but the essay was never published in his lifetime due to his fear of the probable reaction.
During the late 17th and 18th Century there were a number of waves of prosecutions against homosexual men. They were often the result of self-appointed groups who advocated for the ‘moral’ savings of the day. The society for the Reformation of Manners used spies and provocateurs to pursue and prosecute homosexual men (Emsley et al., 2013). Between 1806 and 1835 60 men were punished by hanging (Crompton, 1980). In July 1860 John Spencer became the last man to be sentenced to death at the Old Bailey for the offence of sodomy; the sentence was never carried out. The following year the Offences Against the Person Act formally abolished the death penalty for buggery in England and Wales (Old Bailey Proceedings, 2013).
The Criminal Law Amendment Act (the Labouchere Amendment) was introduced in 1885 creating the offence of gross indecency, making all sexual acts between two men illegal. It became known as the ‘Blackmailer’s Charter’. The criminal law became focused on the punishment of homosexuality. One of the first men to be prosecuted under this Act was the playwright and author Oscar Wilde who was prosecuted in 1895 for gross indecency and sentenced to two years hard labour at Reading Gaol. Once the law had decreed that he and his behaviour were criminal he was shunned by many of his former friends and ‘society’ in general. The point being that Wilde as a popular man of the day, with his male companion Lord Alfred Douglas, was socially acceptable, once he was convicted of gross indecency he was not. Hypocrisy appears to be a constant theme on the road to equality.
What about Lesbians?
Lesbian sexuality has been an area that legislation has not been concerned with. Sex between women was not illegal and therefore it is more difficult to identify and compare lesbian life with gay men’s during this period. If women did appear before the law in the late 16th to early 18th century, it most likely would be for impersonating a man by cross dressing and thus they would be prosecuted for deception or fraud. There were a number of women who lived their lives as men, marrying women, dressing and engaging in male occupations of the day such as joining the army (Faderman, 1992).
A further reason why it is difficult to identify lesbian life (Moran, 2000) is that much legal scholarship has concentrated on same-sex relationships between men and whether or not they should be criminalized. Crompton (1980) is clear about the dearth of writing...
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