Survey of Key Developments Worldwide
By Alan
Freeman
People often ask for information on how homosexual men and women have
managed to make so much progress in their campaign for social and legal
equality, and about the lessons that have been learned from the history of
their achievements and occasional setbacks. Of course, the specific issues and
the strategies for addressing them differ from one country to another, but we
can outline the stages through which the situation typically evolves, on the
basis of the experience obtained in specific cases. Much additional
information on this topic can now also be obtained through the World-wide Web,
notably from Paul Halsall's site: "People with a history" at URL: http://www.fordham.edu/halsall/pwh/
and, for UK history: http://www.sbu.ac.uk/~stafflag/
which, like the following, have numerous hyperlinks to relevant sources.
The following is a outline of what I personally think are the key
developments, concentrating on Europe and North America and is intended to
supplement the data available from organisations such as the International
Lesbian and Gay Association ILGA (http://www.ilga.org
). Unfortunately there is not enough room here to describe in detail the roles
played by ILGA member-groups world-wide in this campaign, but few if any of
the key legal rulings and legislative reforms recorded below would have
occurred without their efforts. And their work is not yet finished, as there
are still too many parts of the world where such equality appears to be
achievable only in dreams. In general these are countries dominated by
non-scientific philosophies, notably religions that deem consensual homosexual
behaviour to be the worst form of blasphemy (apparently for mainly symbolic
reasons, as the texts used to justify this are ambiguous or largely if not
completely irrelevant), and have devised extraordinarily cruel punishments for
offenders (notably the Taliban in Afghanistan).
In particular, the Old Testament story about the destruction of the cities
of Sodom and Gommorrah is far from clear about precisely why this is supposed
to have occurred, but in any case it contains nothing about consensual
partnerships between sexually mature indivuals of the same gender. And
elsewhere there is considerable evidence, such as the explanation given by the
prophet, Ezekiel, (Ez.16: 48-49) that this was because "Sodom and her
suburbs had pride, excess of food, and prosperous ease, but did not help or
encourage the poor and needy. They were arrogant and this was abominable in
God's eyes," rather than the sexual behaviour that has become known as
'Sodomy' and is neither exclusive to homosexual people nor even characteristic
of them.
Throughout Western Europe, during at least the last thousand years, the
basis of the predominant social structure was the Christian religion,
originally as embodied exclusively in the Roman Catholic Church, but
subsequently as fragmented by the various reformation movements among numerous
protestant churches, some of which became predominant in certain European
countries. The Church's teaching on sexual behaviour was probably the last of
its doctrines to be generally regarded as unquestionable, particularly because
the Church also long dominated the education system. But the scientific and
philosophical developments known as the "Enlightenment" stimulated
interest in a more rational approach to such issues, and helped to provide
more satisfactory explanations for natural phenomena that undermined religious
belief based on biblical accounts of the supernatural.
So far as the English-speaking world is concerned, homosexual acts first
became a political issue in the course of the numerous disputes between the
civil and religious authorities in the context of what is now known as the
Reformation of the (Roman) Catholic Church. Originally the Church took the
responsibility for directly enforcing its doctrines, including its belief that
all human sexual activity except vaginal intercourse intended for, or at least
open to, procreation within the bounds of marriage fell sinfully short of the
divinely revealed ideal. But when Henry VIII of England and Wales determined
to show the Pope that he was the master of his kingdom by controlling or
dissolving all Church institutions within the Roman hierarchy, he arranged for
Parliament to enact the Statute of 1533 - 25 Henry 8, Chapter 6 - which begins
"Forasmuch as there is not yet sufficient and condign punishment
appointed and limited by the due course of the Laws of this Realm, for the
detestable and abominable Vice of Buggery committed with mankind or
beast", and goes on to define it as a felony punishable by hanging until
death.
That this Statute was then mainly if not wholly symbolic of the monarch's
independence from the Pope is evident that from the fact that it was
subsequently re-enacted in 1536, 1539, and 1541 under Henry VIII;
unsurprisingly it was repealed under those subsequent monarchs who pledged
allegiance to the Pope, eg in the first Parliament of Edward VI, along with
all the new felonies established by Henry, but was re-enacted in 1548. It was
again repealed in 1553 during Queen Mary's reign. It was finally re-enacted
under Queen Elizabeth I in 1563, so becoming the basis for all subsequent
criminalisation in those countries that have been, even briefly, administered
in the name of the British Crown.
No doubt King Henry and his advisers were well aware that few if any of the
men who had formerly sought absolution for this sin, like any other, in the
secret of the confessional, would willingly appear on trial for their life in
his very public courts. Indeed, only a handful of executions for this felony
are known to have occurred in England during the following two centuries. But
if the authorities were already aware that the mere threat of criminal
prosecution for this ignoble felony, for which little if any material evidence
was needed, would also provide them with a very effective tool for persuading
powerful individuals to do as they were told, they took good care to keep this
idea to themselves.
It is noteworthy that this occurred only three years after William
Tyndale's unauthorised English translation of the first five Books of the
Bible was printed and published in Antwerp; copies of it were soon available
in England, despite the ban on all translations until 1539 when an officially
authorised one was placed for public reading in every parish church. Although
the original mistaken idea that the Sin of Sodom was 'unnatural' sexual acts
is usually attributed to the 11th century Italian ascetic St. Peter Damian, it
would not be too surprising if one of King Henry's counsellors realised that
the newly-accessible English translation of Genesis 19 offered a suitable
basis for applying pressure on same-sex institutions such as the monasteries,
which were indeed obliged into dissolution between 1536 and 1539.
Then, as Catherine Belsey argues in "Shakespeare and the loss of
Eden" (Macmillan, 1999), the supporters of the English Reformation
quickly realised that persuading the clergy to get married would be an
effective means of ensuring their opposition to any attempts to restore rule
from Rome, as that would require them to become celibate again. The resulting
official policy in favour of marriage as the key to personal happiness and
social acceptance was soon preached from most pulpits and taken as an
important theme for popular drama by writers of the period, like Shakespeare.
Henceforth many of those who had formerly found a congenial niche in
single-sex religious institutions were now obliged to conceal their lack of
heterosexual desire in order to avoid the risk of unwillingly playing the role
of scapegoat.
In 1785, the English philosopher Jeremy Bentham wrote one of the earliest
proposals for an enlightened alternative to the traditional opinion,
"Offences against one's self", but this had no impact then as it was
not published until nearly two centuries later [in the 1978 summer and fall
issues of Journal of Homosexuality, v.3:4 & v.4:1, 1978.) The full text is
on-line at URL: http://www.columbia.edu/cu/lweb/eresources/exhibitions/sw25/bentham/index.html
] But when the representatives of the secular and humanistic members of
society first became dominant anywhere in Europe, in the French Revolution of
1789, it is scarcely surprising that after the extensive reformulation of the
criminal law in 1791 the former capital offence of performing a homosexual act
in private with a consenting partner had been omitted [for details, see eg: http://www.gayhistory.com/rev2/events/1791.htm
].
According to "The Regulation of Male Homosexuality in Revolutionary
and Napoleonic France, 1789 - 1815", by Michael David Sibalis in
"Homosexuality in Modern France", ed. Jeffrey Merrick and Bryant T.
Ragan, Jr., Oxford University Press, 1996, ISBN 0-19-509304-6, this was at
least partly for pragmatic reasons (in the sense that it was obviously
difficult to enforce such a law and any Court hearing of such a case tended to
imply that such acts were inherently attractive, and draw them to the
attention of persons who would otherwise be unaware of them). This position
was subsequently confirmed in the Penal Code adopted in 1810, which not only
applied in France, but also formed the basis of the corresponding laws in
Italy, Spain and what is now Belgium and the Netherlands.
Of course, there was no question of following this example in any of the
European monarchies that regarded the French Revolution as an unlawful and
extremely dangerous reversal of the established political order; indeed,
during the nineteenth century many of them adopted more stringent criminal
laws restricting private consensual sexual behaviour outside of marriage,
apparently in response to various 'moral panics' - such as the campaign
against the "white slave trade". Unfortunately, at that time plain
speaking on these 'unmentionable' issues was impossible and the few debates in
Parliament and elsewhere were conducted by using vague euphemisms (eg 'gross
indecency', 'unnatural offences') that have produced considerable confusion in
interpreting the legislation ever since. Only towards the end of the
nineteenth century pioneer could researchers like Magnus Hirschman in Germany
take a more scientific approach by collecting factual information on human
sexual behaviour. But as the vast majority of homosexually oriented persons
cannot readily be distinguished from the general public, and it was then out
of the question to ask them to identify themselves, these studies were based
on case studies and clinical reports - in other words, on samples that were
not only very unrepresentative, but also consisted largely of social
nonconformists.
Little changed until after the First World War (1914-18), except in the
Russian Federation where the Revolution in February 1917 had a significant
impact in this context. According to Professor Igor Kon, 1998, [ http://www.gay.ru/english/history/kon/soviet.htm]:
"Once the old criminal code had been repealed after the October
Revolution, the antihomosexual article also ceased to be valid. The Russian
Federation criminal codes for 1922 and 1926 did not mention homosexuality,
although the corresponding laws remained in force in places where
homosexuality was most prevalent - in the Islamic republics of Azerbaijan,
Turkmenia, and Uzbekistan, as well as in predominantly Christian Georgia.
Soviet medical and legal experts were very proud of the progressive nature
of their legislation; in 1930, the medical expert Sereisky wrote in the
Great Soviet Encyclopaedia: 'Soviet legislation does not recognize so-called
crimes against morality. Our laws proceed from the principle of protection
of society and therefore countenance punishment only in those instances when
juveniles and minors are the objects of homosexual interest' (p. 593)."
However, Joseph Stalin adopted increasingly totalitarian policies after he
gained control at the end of the 1920s, and "by the decree of December
17, 1933, and by the law of March 7, 1934, 'muzhelozhstvo' once again became
a criminal offence. The exact reasons for this abrupt change are still
unknown. (...) According to Art. 121 of the Russian Federation criminal
code," which remained in force until June 1993, in the absence of
violence or threats "the offence was punishable by deprivation of
freedom for up to 5 years."
Elsewhere in Europe, the status of women improved dramatically after 1918,
largely because during wartime they had showed they were fully capable of
doing jobs that had previously been reserved for men. At last they gained
access to higher education and began to take a much more prominent role in
social affairs. Despite considerable initial resistance, the campaign for
women's right to understand and control their fertility, led by a number of
women themselves, gradually gained momentum. And, possible because some of the
movement's leaders were lesbians (see: http://www.observer.co.uk/uk_news/story/0,6903,330722,00.html
) it was not long before they questioned the traditional belief in the
harmfulness of other forms of non-procreative sexual behaviour such as
masturbation. These campaigns not only brought the debate about the legal and
social constraints on human sexual behaviour into the public arena, but also,
by showing that major shifts in public attitudes could be achieved in this
way, they provided an inspiration and a model for those campaigning for
lesbian and gay emancipation several decades later.
At much the same time, the results of scientific research into human
sexuality had reached the point at which they provided evidence for arguing
that the ban on homosexual behaviour by consenting adults was inhumane,
ineffective and unnecessary. These arguments were most persuasive in the
Protestant countries, where freedom of conscience ensured that rational debate
could take place, and in Denmark they even led to decriminalisation (1930),
but it was not long before totalitarian governments put a stop to these
initiatives by a new wave of repression in the nations they controlled. Thus,
on 6 August 1942 the puppet Vichy government of occupied France amended the
Penal Code by making it a criminal offence to perform a homosexual act with a
minor (ie any consenting young person under 21 years old and above the general
age of sexual maturity, 13 years). After the Liberation, not only was this
offence retained, but the general age-limit was raised to the present 15 in
1945 (C. Gury: "L'homosexuel et la loi, Lausanne, 1981, p. 154).
Subsequently, the age of majority was reduced to 18 in July 1974, and the
discriminatory provision itself (former Art. 331(2)) repealed in July 1982.
Although Sweden decriminalised in 1944, elsewhere this issue was largely
neglected in the immediate aftermath to the Second World War (1939-45).
Indeed, the political tensions between the Western powers and the Communist
block known as the "cold war" led to renewed "witch hunts"
for homosexuals in the armed services, due to fears that they might be
persuaded to reveal secret information under threat of blackmail - possible
precisely because homosexuality was prohibited. But the issue was brought to
public attention again in 1948 by the publication of Dr. Alfred Kinsey's
"Sexual Behaviour in the Human Male", which revealed on the basis of
extensive research on non-clinical samples that homosexual experience was not
in itself correlated with mental illness or character weakness, and was far
more widespread than had previously been thought. Although Kinsey was
criticised because he had inevitably been unable to obtain even approximately
representative samples of the American population at a time when all
homosexual acts were prohibited, his findings stimulated discussion of a
previously taboo topic not only among the public, but also within the medical
profession.
In Europe, the widespread recognition during the immediate post-war period
that new international institutions were needed to bind the nations concerned
more closely together in order to prevent another such war resulted in the
creation of the Council of Europe (http://www.coe.int),
which quickly drafted the European Convention on Human Rights and Fundamental
Freedoms - and the European Court of Human Rights to interpret it in practice
(for details, see URL: http://conventions.coe.int/treaty/en/WhatYouWant.asp?NT=005).
This Convention does not refer explicitly to homosexuality, and at first the
European Court considered that national laws prohibiting homosexual acts
regardless of age, privacy or consent came within the scope of the exemption
on grounds of the protection of public morals, and therefore did not breach
Art. 8 requiring the signatory States to refrain from unnecessary interference
with individuals' private and social lives. But subsequently the Court came to
recognise that such laws were not strictly 'necessary' - at least where the
official policy was not to enforce them in the case of homosexual acts by
consenting adults in private, notably in the cases Dudgeon (Northern Ireland,
1981), Norris (Ireland, 1988) and Modinos (Cyprus, 1993).
In these cases, the European Court was in fact following the principles
that had already been recognised by legislation in certain other CoE
member-States. Its ruling in Dudgeon [22 October 1981, Application No.
00007525/76, HUDOC ref.00000058, on-line at: http://hudoc.echr.coe.int/hudoc/default.asp?Language=en&Advanced=1]
was inevitable when the UK government failed to provide a credible explanation
why it considered the complete prohibition in one part of the UK to be
"necessary" while such acts had already been partly decriminalised
in another part (England and Wales) by the 1967 Sexual Offences Act. While
discriminating in numerous ways against consensual homosexual acts, that Act
was itself the first result of a long campaign based on the key recommendation
(1955) of the Committee on Homosexuality and Prostitution chaired by Sir John
Wolfenden (see http://www.sbu.ac.uk/~stafflag/wolfenden.html)
that the criminal law in a democracy should prohibit only what is objectively
intolerable to society, and no longer require a particular minority to conform
in their private life to the moral ideals of a particular religion under
threat of lifelong imprisonment.
What may seem surprising in retrospect is the absence of openly homosexual
individuals among the campaigners at that time; indeed, few of the
participants on either side of the debate in the UK admitted even personal
acquaintance with anybody 'like that'. Sir John Wolfenden himself records that
he avoided referring to such sensitive issues by using the euphemism
"Huntley & Palmers", a well-known biscuit manufacturer with the
same initials. This is a necessary reminder of both how difficult it was to
'come out' before partial decriminalisation and how important the
contributions from non-homosexuals have been, especially in 'de-mystifying'
what the media and ill-wishers have too often depict in stereotypes of the
mentally abnormal or corrupters of youth. In a democratic society, law reform
can only be achieved by convincing a majority of legislators (either directly,
or through definitive legal interpretation of a constitutional provision), and
so it is necessary to present such issues in terms that explain clearly why
they are at least broadly to the majority's advantage - as the Canadian Prime
Minister Pierre Trudeau did when he said the police have no place in the
nation's bedrooms.
The Wolfenden Committee was itself set up largely because of the public
outcry at the way in which the existing prohibition had been enforced in
several well-publicised cases. As every consenting person involved necessarily
committed an offence under this law, and so they were regarded as each other's
accomplices, the usual way to obtain sufficient evidence about acts performed
in private was to grant immunity from prosecution to one or more of the
participants in return for their 'turning queen's evidence' (or to use 'agents
provocateurs'). Obviously, any testimony given in these circumstances had
little credibility, and in the absence of independent evidence a skilled
defence lawyer could often convince the jury that it would also be unfair to
allow such admitted offenders to escape the punishment that would be inflicted
on their partners if they were convicted.
Similar campaigns gradually gathered momentum in those European countries
(and Canada) where all homosexual acts remained prohibited, even though - for
the reasons mentioned above - prosecutions for acts by consenting adults in
private had become very rare. In most cases, official Committees of medical,
social and legal specialists were set up to consider the issue and in due
course they all recommended reform of the legislation concerned - in most
cases, by redrafting it in gender-neutral terms. The legislators, however,
were usually unwilling to confront public opinion (largely based on religious
grounds) by eliminating all discrimination against homosexuality at a stroke,
and in due course they compromised by decriminalisation only under more
restrictive conditions than those applicable to heterosexual acts, eg in
Canada (1969), West Germany (1969), Finland (1970), Norway (1971) and Austria
(1971). Except in Spain, where paradoxically, the transition to a
constitutional monarchy after the death of General Franco provided the
opportunity to repeal the text of the Penal Code enacted after the Civil War
specifically to prohibit homosexual acts, leaving only the original
gender-neutral legislation on sexual offences, the criminal law still clearly
discriminated against homosexual behaviour, by the way offences were defined -
including age-limits - and the maximum punishments for them.
In the United States, among the first fruits of Kinsey's research, and
developments elsewhere, was the Model Penal Code drafted by the American Law
Institute in 1955, which deliberately omitted any offence equivalent to what
the existing laws in all States then prohibited as 'consensual sodomy' and
probably inspired the corresponding reform of the law on sexual offences in
Illinois in 1961. For their part, a few openly homosexual individuals decided
for the first time to resist official oppression, during a routine police raid
on the Stonewall Inn in New York City on 26 June 1969 - a seminal event in
homosexual emancipation which is now commemorated annually by Lesbian and Gay
Pride parades in major cities worldwide. And, in December 1973, the American
Psychchiatric Association decided to delete homosexuality from its official
classification of mental disorders (followed by the American Psychological
Association in 1975) see: http://www.thebody.com/apa/apafacts.html.
It is not possible to identify all the influences bearing on the APA's
decision, but Dr. Thomas Szasz's book "The Manufacture of Madness"
(1970) was certainly one of them. As evidence for his thesis that "social
man not only persecutes the outsider, he needs him and if necessary creates
him," it drew copiously documented parallels between the conventional
psychiatric treatment of homosexuals at that time and medieval methods of
identifying and punishing witches, heretics and Jews. It is particularly
scathing about the way in which the American medical 'establishment'
collaborated with the US Immigration authorities in enforcing the law
prohibiting foreign homosexuals from entering the United States, as shown by
the Supreme Court's ruling in 1967 (387 U.S.118) that a Canadian, Clive
Boutilier, must be deported because, although he had no criminal record, he
had admitted performing three or four consensual homosexual acts and a similar
number of heterosexual acts a year while under 21 years old (see: http://laws.findlaw.com/US/387/118.html).
Though seldom enforced after the APA's 1973 decision, except in connection
with criminal conviction, this prohibition was not abolished until 1990.
Thus, on 15th December 1973, the American Psychiatric Association's Board
of Trustees decided to delete homosexuality from its official nomenclature of
mental disorders, the "Diagnostic and Statistical Manual of Mental
Disorders, Second Edition" (DSM-II). The board, numbering more than
seven, voted unanimously. The nomenclature change was approved by ballot,
distributed to almost 10,000 APA members, by a margin of 58-37 percent, with a
five-percent non-response. For a mental condition to be considered a
psychiatric disorder, it should either regularly cause emotional distress or
regularly be associated with clinically significant impairment of social
functioning. On the basis of research undertaken by Evelyn Hooker, Ph.D. (b. 2
September 1907, d. 18 November 1996), these experts found that homosexuality
does not meet these criteria (see URL http://psychology.ucdavis.edu/rainbow/html/hooker.html):
"Hooker's research (1957), demonstrating that expert clinical judges
could not distinguish the projective test protocols of nonclinical
homosexual men from a comparable group of heterosexual men, nor were there
differences in adjustment ratings, was validated soon thereafter by other
investigators."
The next impetus for reform was the 'sexual revolution' that occurred about
this time when the general availability of reliable contraception (notably the
'pill') finally allowed heterosexuals to enjoy intercourse without the fear of
pregnancy. Initially, however, its main impact was presumably in the
relaxation of strict censorship on descriptions of sexual activities (and of
explicit images of them in the more liberal countries). It may also have put
the final nail in the coffin burying the myths about the alleged harmfulness
of masturbation. But it was only in the last two decades of the 20th century
that the campaign for equality really started to gather momentum, particularly
in those European democracies where partial decriminalisation had enabled gay
men to meet each other and campaign openly without fear of prosecution. Note,
however, that is some countries (eg the UK, Austria) such activities were
themselves restricted by law, apparently in breach of the ECHR.
In many cases, the partial reforms mentioned above had been accompanied by
increased penalties for those homosexual acts that had not been decriminalised,
notably those involving young people, and indeed the total number of
prosecutions rose, presumably because the law enforcement authorities regarded
these increased penalties as reflecting the legislators' concerns. However,
the crucial issue in the debate about full equality was usually its symbolic
importance, and in particular the impact it would have on young people's
attitudes and behaviour. Both supporters and opponents were aware from public
opinion polls that people who were personally acquainted with openly
homosexual individuals, familiar with the information about homosexuality
given in drama and documentaries by the communications media since partial
decriminalisation and had no strong religious beliefs were already generally
unprejudiced and opposed to discrimination, unlike many of their parents'
generation.
For example, according to the results of a Gallup Poll in May 2003: http://www.gallup.com/poll/releases/pr030515.asp
60% of the US population then thought that homosexual relations between adults
should be legal (compared to 35% who thought they should not be; four years
earlier the numbers were 50 and 43% respectively). 88% of Americans believe
that homosexuals should have equal rights regarding job opportunities
(compared to 83% four years earlier). In 1999, 75% believed that being gay
should not prevent somebody being hired as a doctor (21% against), 54%
believed it should not stop them being hired as clergy (40% against), 54%
believed it should not prevent them being hired as teachers in elementary
school (compared to 42% who thought that gays should not be allowed to do that
job), 61% believed they should be allowed to work as high school teachers (36%
against) and 74% believed they should not be excluded from the President's
cabinet (23% against). The figures for 2003 are even more striking considering
that the same poll states that 44% believe that homosexuality is the result of
one's upbringing or environment (compared to 38% who think one is born
homosexual; most of the others believe both innate and environmental factors
are involved). Finally, opinion was split evenly (at 49%) on the question of
whether or not there should be a law to "allow homosexual couples to
legally form civil unions, giving them some of the legal rights of married
couples."
But few older people's opinions were affected by this evolution, and so it
is not surprising that the five of the nine elderly judges of the United
States Supreme Court who ruled in "Bowers v. Hardwick" (July
1986 www.sodomylaws.org/bowers/bowers.htm)
that Georgia's 'sodomy' law did not breach the Federal constitution based
their decision largely on the long history of legal and social prejudice
against homosexuality. It should also be noted that Judge Lewis Powell later
expressed regret that his vote had created that majority - see: "The
rights of Lesbians & Gay Men", Bantam, Third ed. 1992, ISBN
0-8093-1634-X, footnote 16 p.122, ref. to "Powell regrets backing Sodomy
Law", in the Washington Post, 26 Oct. 1990 at A3).
Paradoxically, the Federal Supreme Court's ruling in this case can be seen
in retrospect as the turning point in the balance of opinion; only twelve
years later the Georgia Supreme Court ruled by 6:1 that the provisions of the
State's 'sodomy' law prohibiting acts performed in private by persons with
legal capacity to consent are - and always have been - invalid under the State
Constitution's 'due process' provisions - in 'Powell', 23 Nov. 1998 [270 Ga.
327, 336 (510 SE2d 18) http://www.lambdalegal.org/cgi-bin/iowa/documents/record?record=311].
After a few years' experience of this partial decriminalisation, it became
evident that any such compromise is unnecessary and unsatisfactory because it
legitimises irrational public prejudice and the discriminatory provisions can
be enforced only by diverting scarce public resources into unwarranted
intrusion into individuals' private lives. While the more conservative
Churches tried to maintain that traditional dogma could not be questioned,
revelations of widespread physical and sexual abuse within their institutions
destroyed much of their credibility, while theologists used scientific methods
to challenge the traditional mis-interpretations of the crucial texts. But the
inevitable consequence of this debate about purely religious dogma was to
reinforce many voters' conviction that in any case this issue should no longer
fall within the scope of rational criminal legislation. For a detailed
analysis of the various influences determining public attitudes to
homosexuality in the United States, see the Report: "Religious Beliefs
Underpin Opposition to Homosexuality" published by the Pew Forum in
November 2003 [http://pewforum.org/docs/index.php?DocID=37]."
At the end of the twentieth century, the time was ripe for achieving full
equality in the leading democracies. By the year 2000, all the 15
member-States of the European Union had, for example, decriminalised
consensual homosexual behaviour in private and only Austria, Portugal and the
UK retained discriminatory age-limits. Indeed, Her Majesty Queen Elizabeth
made an Order in Council at the Privy Council meeting on 13 December 2000 to
repeal the sodomy laws in the remaining British colonies including Anguilla,
Bermuda, British Virgin Islands (BVI), Cayman Islands, Montserrat and the
Turks and Caicos Islands, which came into force on 1 January 2001. The United
States still had some way to go, as 18 of the 52 States and Puerto Rico
retained an absolute ban on private homosexual acts regardless of age and
consent - even though, on the basis of Court rulings elsewhere, these were
almost certainly incompatible with their Constitutional provisions on
'privacy', 'due process' and 'equality before the law'.
In Canada, where decriminalisation by the Criminal Law Amendment Act,
1968-69, S.C. 1968-69, c.38, s.7 was in due course followed by removal of most
of the discriminatory conditions in June 1987, the Supreme Court Ruling "Vriend
v. Alberta, [1997] 2 S.C.R. 493" that discrimination on grounds of
'sexual orientation' is prohibited as analogous to those other grounds
mentioned in particular under Art. 15 (1) of the Canadian Charter of Rights
and Freedoms was similarly crucial, see URL: http://www.lexum.umontreal.ca/csc-scc/en/pub/1998/vol1/html/1998scr1_0493.html
This was followed by the Canadian Supreme Court's Ruling in M. v. H. (20 May
1999) that the word "spouse" must be interpreted as applying within
same-sex partnerships as well as within heterosexual marriage and
co-habitation; see URL: http://www.lexum.umontreal.ca/csc-scc/en/pub/1999/vol2/html/1999scr2_0003.html
.
During much the same period, the campaign for equal rights in Europe was
helped by several key developments within the various organs of the Council of
Europe. As far back as 1981, the CoE's Parliamentary Assembly had adopted the
Recommendation 934/81 which urged member-states to eliminate all
discrimination in legislation, notably including age-limits. This Resolution,
and the Assembly's Written Declaration of February 1993 which reinforced this
policy in the context of the enlargement of the CoE to include new
member-States from Eastern Europe, certainly stimulated further
decriminalisation, eg in Lithuania and Ireland (1993) and ultimately Romania
(1997) and Cyprus (1998). But these texts had little impact on the European
Commission on Human Rights until 1 July 1997 when it was finally persuaded to
adopt the principle of an equal 'age of consent' in its ruling (by 14 votes to
4) in the case of Euan Sutherland v. the United Kingdom (Application No.
00025186/94).
According to the Judgement of the European Court in this case, issued on 27
March 2001 (HUDOC ref. 00002404, text on-line via: http://hudoc.echr.coe.int/hudoc/default.asp?Language=en&Advanced=1),
"6. On 13 October 1997 the UK Government and the applicant submitted an
agreement to the effect that the Government would in the summer of 1998
propose a Bill to Parliament for a reduction of the age of consent for
homosexual acts from 18 to 16. Once legislation had been passed and the
Government had agreed to pay the applicant reasonable costs, the parties would
apply to the Court inviting it to approve a friendly settlement. (...)"
Although that Bill (and another with similar provisions) was indeed approved
by the House of Commons, it was blocked by the House of Lords, and became law
as the Sexual Offences (Amendment) Act 2000 only after invocation of the
provisions of the Parliament Act, with effect from 8 January 2001 (see: http://news.bbc.co.uk/2/hi/uk_news/politics/1047291.stm).
The ECourtHR would presumably have followed this precedent in dealing with
the application made in February 2002 by a gay man who had been sentenced to
imprisonment under Art. 209 of the Austrian Penal Code for his love-affair
with a 17 year old man (Wilfling vs. Austria) [see: www.paragraph209.at].
But in fact the proceedings at the European Court were interrupted by the
decision of the Constitutional Court of Austria, announced on 24 June 2002,
that Art. 209 was unconstitutional. Art. 209 stipulated a minimum age of 18
for consensual male-to-male sexual relations where the older partner is 19 or
older, while the general age of consent for all other sexual acts, including
lesbian relations, is fixed at 14.
On 13 August 2002 the Criminal Law Amendment Act 2002 was published in the
Austrian Federal Law Gazette (BGBl I 134/2002, p. 1407). According to Art. I
lit. 19b of that Act (p. 1410), and in accordance with Art. IX of the Act (p.
1421) (in connection with Art. 49 par. 1 of the Federal Constitution Act 1920)
the old Art. 209 was repealed with effect from the end of the same day.
Furthermore, the existing Art. 207 which set the general minimum age-limit of
14 years was modified by the addition of a new gender-neutral provision, Art.
207b, which creates a new offence of causing a person under 16 years old to
participate in a sexual act where that person is too immature to understand
its significance or to cope with its consequences [http://www.paragraph209.at/pdf/207b.pdf,
in German].
On the other side of the globe, Australia and New Zealand retained the laws
they had inherited from the British Colonial period. Campaigns for
decriminalisation there were inspired mainly by developments in other
English-speaking countries. According to Melissa Bull, Susan Pinto and Paul
Wilson, 1991, [http://www.aic.gov.au/publications/tandi/ti29.pdf]
the first territory to reform its law was South Australia, in 1972, followed
by the Federal capital (1976) Victoria (1980) and the Northern Territory (s.
128 of the Criminal Code Act 1983). Like the corresponding reforms in New
South Wales (1984) Western Australia (1989) and Queensland (1990), the new
laws set more restrictive conditions, notably a higher minimum age-limit, than
those applicable to heterosexual behaviour. In New Zealand, however, the
controversial Homosexual Law Reform Act of 1986 adopted the same age-limit
(16) as for heterosexual acts.
After repeated attempts to achieve decriminalisation in Australia's
smallest State, Tasmania, had failed, a member of the Tasmanian Gay and
Lesbian Rights Group, Nick Toonen, made a complaint to the United Nations
Human Rights Committee. And in due course the United Nations Human Rights
Commission ruled, in the case of "Toonen v. Australia" (Community
no. 488/1992, 50th Session UNHCR, CCPR/C/50/D488/1992, of 31 March 1994) that
the provisions of the Criminal Code of Tasmania, prohibiting all physical
_expression of sexual attraction between male persons, regardless of age,
privacy or consent were in breach of Articles 17 (privacy) and 2 and 26
(non-discrimination on grounds of sex) under the UN International Covenant on
Political Rights, (in force since 1976). Details of the UNHRC's ruling in
"Toonen v. Australia " are given in doc. no. CCPR/C/50/D488/1992, 1,
I.H.H.R. 97 (31 March 1994) [ See: http://www.austlii.edu.au/au/journals/PLPR/1994/33.html]
The impact of this ruling is described in Simon Bronitt's Submission to the
Senate Legal and Constitutional Legislation Committee on the potential impact
of the Human Rights (Sexual Conduct) Bill (Cth) 1994 [http://www.austlii.edu.au/au/journals/AJHR/1995/4.html],
from which the following extracts have been taken:
"In April 1994, the UN Human Rights Committee handed down its
decision on the merits upholding the complaint. It found that the existence
of the offences in Tasmania constituted an arbitrary interference with
Toonen's privacy, even though no prosecutions had been brought for nearly a
decade. (...)
Following the ruling in "Toonen", with no immediate prospect of
the introduction of legislation in Tasmania to repeal the offending
sections, the Federal Government moved to provide the applicant with the
"effective remedy" required by the Human Rights Committee. The
Federal Government put forward the Human Rights (Sexual Conduct) Bill 1994,
which was passed in the last session of Parliament in 1994. The legislation
came into effect on the 19 December 1994. (...)
Conclusion: The primary aim of the Human Rights (Sexual Conduct) Act 1994 (Cth)
is to legalise, throughout Australia, homosexual activity between consenting
adult males in private. The Act, however, does far more than this. The right
to privacy created by the Act has the potential to protect sexual
_expression beyond the range of sexual conduct envisaged by the Federal
Government. We should not expect that privacy discourse can eradicate
sexuality-based discrimination, but it does open new strategies for reform.
What is "private" and what is "sexual" are malleable
social and legal constructs. The courts should adopt a broad construction of
both concepts that is consistent with the recognition in international law
that the right to privacy extends beyond the negative conception of privacy
as freedom from unwarranted state intrusion into one's private life, to
include the positive right to establish relationships in order to develop
and fulfil one's emotional needs."
After lengthy debate, the Australian State of Tasmania decided to repeal
all discriminatory provisions in a vote on 1 May 1997. Subsequent experience
not only demonstrated how absurd the fears of opponents had been, but within
six years ensured that the last state in Australia to decriminalize
homosexuality became the first to institute a registry for same-sex couples.
The Tasmanian Government's Relationships Bill [http://www.parliament.tas.gov.au/bills/pdf/48_of_2003.pdf]
passed through the upper house on 28 August 2003 after a lengthy and often
angry debate. The reforms will allow same-sex couples to register their
relationships, adopt their partner's children and have access to their
partner's pension. The new law also guarantees inheritance rights and allows
one partner the power to make medical decisions when the other partner is
incapacitated. By then the other States (other than Queensland)
had also eliminated the discriminatory
provisions in their laws, most recently New South Wales (26 May 2003) ; the
Northern Territory followed suit by the "Gender Law Reform Bill"
enacted on 26 November 2003 [http://www.abc.net.au/].
On 26 June 2003, in the case of Lawrence
v. Texas [http://www.supremecourtus.gov/opinions/02pdf/02-102.pdf]
the majority of Judges of the Supreme Court of the United States reversed the
Court's ruling in the case of Bowers v. Hardwick (above), and held that
"Sec. 21.06. Homosexual Conduct" of the Texas State Criminal Code
was contrary to the Federal Constitution's guarantees of privacy and equal
treatment under the law. It is interesting to note that this ruling includes
an explicit reference to the ECourtHR's decision in Dudgeon (1981, see above).
At a stroke, all the remaining similar laws in 14 States and Puerto Rico were
struck down, effectively achieving the goal of decriminalisation throughout
the industrialised part of the world.
Even before that, however, the main focus of debate on discrimination
against lesbians and gay men in the industrialised countries had shifted from
the criminal law to the civil law. In North America this has included
campaigns which have persuaded many leading employers to provide health
insurance coverage for their employees' same-sex partners. Where the scope of
social security is wider, in Europe, this has been regarded as less important,
but provisions intended to eliminate social and legal discrimination, notably
in the workplace, have been adopted throughout the European Union [COUNCIL
DIRECTIVE 2000/78/EC of 27 November 2000 establishing a general framework for
equal treatment in employment and occupation; hyperlink from: http://europa.eu.int/comm/employment_social/fundamental_rights/legis/legln_en.htm].
Discussions continue on how to reconcile the EU member-States' very different
concepts of and attitudes to family relationships in the case of same-sex
couples, which currently range from provision for full marriage in Belgium and
the Netherlands through various forms of registered partnerships and ad-hoc
rulings to treating the partners as completely unrelated.
*****
Any comments or questions about this survey should be sent
to the author: Alan
Freeman
[Home] [History]
