Monday, 27 February 2017

Worldwide Law

This post gives a (very!) brief overview of the present state of law world-wide with respect to LGBT people. To explore in more detail, see the links at the foot of the post.


Same sex acts are LEGAL in 121 States - that is, in 63% of UN States.

However, that sometimes needs a caveat. For example, there are no legal provisions in


Egypt that outlaw same-sex sexual activity. However, this is really just a technical distinction because such activity, and related expression, is outlawed under other laws. Also, there is a morality or ‘public decency’ law in place in Bahrain that could be interpreted to include LGB and trans persons: it states,
Every person who entices a male or a female to commit acts of immorality or prostitution or assists in such acts in any manner whatsoever shall be liable for a prison sentence.

On the other hand, in September 2015, a new Constitution of Nepal came into force that comprehensively includes sexual orientation and gender identity.

Same sex acts are ILLEGAL in 72 States - 37% of UN States. In about half of these States, the law applies equally to women.

Although Iraq’s Penal Code does not specify same-sex behaviour, Iraq is included here because the rule of law is in disarray and non-State actors (militias and local Sharia judges) target those known/perceived to be LGBT+ with extreme penalties.

Same sex relations have been considered by the Courts of India several times recently. In 2009, the Delhi High Court found that section 377 of the Indian Penal Code (which deals with same sex relations) violated an individual's fundamental rights to equality before the law. However in 2013, the Indian Supreme Court overturned the ruling. In 2015 and 2016, two private member's bills for decriminalisation were soundly rejected. In 2016, the Supreme Court agreed to reconsider its 2013 judgment; it said it would refer petitions to abolish Section 377 to a five-member constitutional bench, which would conduct a comprehensive hearing of the issue.

In Qatar, Sharia Law runs parallel with the Penal Code and its anti-LGBT provisions are applied.

The DEATH PENALTY is used or available in 13 States or parts thereof; 6% of UN States. It is invariably codified under Sharia.


  • It is available but not known to be implemented for same-sex behaviour specifically in Afghanistan, Mauritania, Pakistan, Qatar and the United Arab Emirates.
  • It is implemented country wide in Iran, Saudi Arabia, Sudan and Yemen.
  • It is implemented provincially in 12 northern states in Nigeria and the southern parts of Somalia.
  • It is implemented by local courts/vigilantes/ non-State actors in Asia: Iraq and Daesh/ISIS-held territories in northern Iraq and northern Syria.

Thanks to the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA):
Carroll, A., State Sponsored Homophobia 2016: A world survey of sexual orientation laws: criminalisation, protection and recognition (Geneva; ILGA, May 2016).

http://ilga.org/downloads/02_ILGA_State_Sponsored_Homophobia_2016_ENG_WEB_150516.pdf

ILGA also provides a set of downloadable maps showing this information at
http://ilga.org/what-we-do/lesbian-gay-rights-maps/


See also
https://en.wikipedia.org/wiki/LGBT_rights_by_country_or_territory

Friday, 24 February 2017

The Trans Effect

It has always interested me that the first people in the LGBT+ communities to benefit from positive legislation, rather than punitive, were trans* people.

The Sex Discrimination (Gender Reassignment) Regulations 1999 extended the protections of the Sex Discrimination Act to those trans people who were intending to live, or who were living permanently in their preferred gender role, though they had to be under medical supervision.

Later, the Sex Discrimination (Amendment of Legislation) Regulations 2008 extended protection against discrimination in the provision of goods, services, housing and facilities.

For the more geeky among us, you can see the text of the Regulations here:
http://www.legislation.gov.uk/uksi/1999/1102/made
http://www.legislation.gov.uk/uksi/2008/963/made

These regulations, as well as the Act they amended, were eventually replaced by the Equality Act 2010.


And, of course, in the meantime the, admittedly flawed, Gender Recognition Act 2004 came into force. GIRES has a good explanation of the Act here:
https://www.gires.org.uk/law-archive/gra-2004


However, by the Trans Effect, I refer to two cases that had an impact on case law long before 1999 and which affected the lives of many trans* people for years after.

THE FIRST CASE involves Sir Ewan Forbes (1912–1991), who was able in 1952 to legally
reassign as male, getting his birth certificate changed. Forbes referred to being assigned as female at birth as "a ghastly mistake". He also said, "I was carelessly registered as a girl in the first place, but of course, that was forty years ago ... the doctors in those days were mistaken, too ... I have been sacrificed to prudery, and the horror which our parents had about sex."

Craigievar Castle
This caused a huge family row about who would inherit the vast estate and title (Baronet of Craigievar). The estate could only be inherited by sons; as his three elder brothers had all died, the estate was due to go to a male cousin.

There was a bitter, but very private legal battle, which Sir Ewan eventually won, though it was appealed right to the then Home Secretary, James Callaghan. The details of the case were never fully known as the matter was kept highly secret, to avoid 'bringing the family name into disrepute', even though it was considered a major legal precedent.

Sir Ewan died in 1991, survived by his wife, Isabella, Lady Forbes. The estate and title passed to his cousin John, who had originally mounted the legal challenge in the 1960s.

https://en.wikipedia.org/wiki/Sir_Ewan_Forbes,_11th_Baronet
National Archives of Scotland, ref. CS258/1991/P892
Lady Forbes's obituary gives more information about their long and happy marriage:
http://www.telegraph.co.uk/news/obituaries/1386476/Isabella-Lady-Forbes.html



THE SECOND CASE involves a somewhat more familiar name, April Ashley.

When she married the Honourable Arthur Corbett in 1963, it seems unlikely that she could have imagined that just over six years later, in February 1970, the judgment in her divorce hearing would impact on trans people for many years.


It must be said that Corbett was under no illusion about April’s history - she had sold her story to The News of the World in 1962. However, when her husband decided to divorce her and to avoid paying maintenance, suddenly her past was very important.
Mr Justice Ormrod determined that April was not legally a woman at the time of her marriage, which was therefore a nullity.

Prior to this, it was relatively easy for trans people to change their birth certificate (unofficially) and marry. Now the validity of every marriage involving a trans person became suspect and subject to nullification, and the ‘unofficial’ changing of a trans person’s birth certificate was ceased.

Only the Gender Recognition Act 2004 changed this - and then only for those who married in their true gender.

This part of the post is adapted from When is a marriage not a marriage?, Past2Present 2010, page 35; see:

NOTE:
This post is based on a set of four posters created on behalf of Merton LGBT+ Forum for a display at Merton Civic Centre and Wimbledon Library during LGBT History Month 2017.

You can download the poster for this topic here:
https://dl.dropboxusercontent.com/u/24371157/Poster%202017%20-%20Trans%20effect%20on%20law.pdf
Feel free to use them, if you wish.


Also - this post is my 200th! Hurrah!!

Thursday, 23 February 2017

Lesbians and the Law


There is a widely held belief that the main reason that lesbians were never made subject to the criminal law in the way that homosexual men were is that Queen Victoria refused to believe that such things could occur between women.

In fact, we have been unable to find any evidence at all to substantiate that. However…


In 1921, Parliament considered the Criminal Law Amendment Bill, which proposed that the offence of Gross Indecency created by the now infamous Labouchere Amendment should be extended to cover same-sex behaviour between women:

The House of Commons passed the measure, but it failed in the House of Lords.


The Bill did not fail because their Lordships were stout defenders of lesbian rights - far from it…

“You are going to tell the whole world that there is such an offence, to bring it to the notice of women who have never heard of it, never thought of it, never dreamed of it.”  
Earl of Desart



The Earl of Malmesbury also had a great deal to say on the matter:
“My Lords, I am extremely sorry to raise a discussion upon what must be, to all of us, a most disgusting and polluting subject. ... this disgusting subject ... in passing a clause of this sort you are going to do a great deal more harm than good. You are going enormously to increase the chance of blackmail without in the slightest degree decreasing the amount of this vice. ... The more you advertise vice by prohibiting it the more you will increase it.”

He clearly knew that blackmail was a real problem for homosexual men, and therefore would likely be so for homosexual women, adding to crime rather than controlling it. He also realised that obtaining evidence to prove the offence would be 'so imperfect that no jury will convict'.

Indeed, some Members of the Commons had wanted to ignore it, in the hope that it would go away:


“There are only three ways of dealing with perverts.  The first is the death sentence… The second is to… lock them up… The third way is to leave them entirely alone, not notice them, not advertise them. That is the method that has been adopted in England for many hundred years, and I believe that is the best method now…”
Lieutenant-Colonel Moore-Brabazon



Colonel Josiah Wedgewood was horrified at the idea that the House would pass the Clause, because it was 'a beastly subject' and was 'being better advertised by the moving of this clause than in any other way'.

They were wrong, of course. Even though the Bill failed, it didn’t go away.


Sources:
Rebecca Jennings, 2007, A Lesbian History of Britain
http://hansard.millbanksystems.com/lords/1921/aug/15/commons-amendment-2
Oram & Turnbull (eds), Parliamentary Debates [House of Commons] Criminal Law Amendment Bill, 167


NOTES:

1. Labouchere Amendment - see http://lgbthistoryproject.blogspot.co.uk/2017/02/gay-men-and-law.html for a brief description.

2. This post is based on a set of four posters created on behalf of Merton LGBT+ Forum for a display at Merton Civic Centre and Wimbledon Library during LGBT History Month 2017.

You can download
the poster for this topic here:
https://dl.dropboxusercontent.com/u/24371157/Poster%202017%20-%20Lesbians%20and%20Law.pdf
Feel free to use them, if you wish.

Monday, 13 February 2017

OUTing The Past



 My notes of an event at the National Archives on 11 February 2017

This year, The National Archives was one of the national hubs for the OUTing the Past: National LGBT History Festival. The speakers at this event were chosen to reflect the TNA’s vast collection (some 11-12 MILLION items are archived there).

Mark Dunton spoke first about the Sexual Offences Act, 1967, which came into force 50 years ago. This topic has been touched upon recently on this blog, but I was able to glean additional insights, thanks to Mark’s excellent talk.

He showed an article from The Sunday Pictorial on 25th May 1952 with a bold headline “Evil Men”. It was not talking about murderers or gangsters, but about homosexual men - whom the article equated with paedophiles, as was par for the course in those times.

The 1950s were a repressive time when homosexuals were at risk of blackmail and there were many high profile prosecutions, including that of Lord Montagu in 1954.

In 1958, the Homosexual Law Reform Society was set up, at least in part because it was clear that the Government had no intention of following the recommendations of the Wolfenden Report, published in September 1957.

In October 1965, an opinion poll (in The Daily Mail of all places) suggested that a large majority of respondents, while still of the view that homosexuals needed psychiatric or medical help, thought that they ought not to be made criminals.

The Sexual Offences Act 1967 was finally passed by a vote of 99-14 (at 5.44am, which may explain the low numbers) and received Royal Assent on 27th July 1967.

Mark noted that the requirement that homosexual acts should take place ‘in private’ was followed strictly by the Police and so prosecutions went on at similar rate as they had before that Act for some time.

In her talk, Sapphic Suffragettes: The key role of lesbians in the fight for Votes for Women, writer Hillary McCollum explored the impact and role of woman loving women in the Suffragette Movement. As always, lesbian history is even more difficult to uncover than gay male history, but she wove a fascinating story about the Pankhursts and their associates.

The Bodyguard were new to me, a group of women trained in jujitsu by Edith Garrud who provided security at rallies and helped suffragettes escape from difficult situations.

So too, Lilian Lenton who was repeatedly arrested for arson and underwent force feeding. Several times she escaped custody or arrest dressed as a man.

Dr Emma Vickers of Liverpool John Moores University spoke about the Dry Your Eyes, Princess exhibition shown last year at the Museum of Liverpool. It was based on her research into the experience of trans* veterans before, during and after life in the armed forces and photographs by Stephen King.

It was interesting to hear that, while the forces are currently very willing to show how supportive they now are, with a number of media-trained personnel able to tell their stories, they are much less willing to discuss previous, much less happy stories.

There followed a break, during which we were able to look at some of the LGBT relevant documents held at the Archive. Then there was a moving performance by some of the TNA’s staff based on the writings of Oscar Wilde during his imprisonment.

In Sex at Sea: Homosexuality and the Royal Navy in the Great War, Dr Laura Rowe of the University of Exeter discussed life at sea during the First World War, where men in the Navy in particular were in a very homosocial environment. She used the term ‘homosex’ to talk about same sex sexual activity between men in a confined environment who might well not be homosexual, but who had no other sexual outlet.

Much of her evidence is from a limited number of discipline cases and courts martial of what were effectively criminal offences. Interestingly, she had found that sexual activity between men of similar rank was frequently ignored, but where there was a large difference in rank or where Boy Seamen (who might be as young as 15) were involved matters were taken far more seriously. Indeed, in the latter instance, the Navy took a very paternalistic view and might treat the older participant very harshly.

She noted also that naval regulations in this area were extremely lengthy and complex and took the view that male rape was not possible. The idea was that no man would submit unwillingly to such disgusting practices.

The final talk was in many ways the most moving - so my notes are annoyingly scant. E-J Scott spoke about the Museum of Transology. This is an exhibition at the Fashion Space Gallery, running until 22nd April 2017. It is a display of trans artefacts of various kinds, provided by individual trans* people, who in some cases felt the exhibition was so important that they donated items of great personal significance.

E-J is hoping to find a place to hold this collection once the exhibition closes.


Queer City

Queer City: London club culture 1918-1967
March 2017

Police raid on a queer venue in Fitzroy Square, 1927; The National Archives, CRIM 1/387
Police raid on a queer venue in Fitzroy Square, 1927; The National Archives, CRIM 1/387
The National Archives and the National Trust have joined forces for a re-creation of The Caravan, a queer-friendly members club of 1934, at Freud Café-Bar, which is on almost the exact spot where the club originally stood..


They will also be running daytime tours of the Soho area, focussing on LGBTQ+ heritage and club culture. There will also be a programme of talks, debates and performances at the venue.

Cover of Past2Present magazine 2010
For more information about the events:
https://www.nationaltrust.org.uk/queer-city-london

There is an article about The Caravan, based on a National Archives file (MEPOL 3/758), in the 2010 edition of our magazine, Past2Present:
https://dl.dropboxusercontent.com/u/24371157/Past2Present-2010.pdf

Thursday, 9 February 2017

Gay Men and the Law

There is a long history in Britain of criminal legislation affecting men who have sex with men.


Henry VIII of England (c 1530-35) by
Joos van Cleve; The Royal Collection
1533 The first legislation against homosexuality in England was introduced during the reign of King Henry VIII. The Buggery Act defined the offence as “the detestable and abominable Vice ... committed with mankind or beast” and was the first criminalisation of homosexual activities in the UK. It provided for a maximum sentence of death.

Prior to this, same sex sexual behaviour had been dealt with in the ecclesiastical courts as a crime against the Will of God and against Nature. It was considered so appalling that it was only referred to obliquely, usually along the lines of "peccatum illud horribile, inter Christianos non nominandum", or "that horrible crime not to be named among Christians".

The Buggery Act allowed the death penalty, which meant that the property of anyone executed could be confiscated by the Crown.

The first execution for buggery, along with treason, was of Walter Hungerford, 1st Baron Hungerford of Heytesbury in 1540, although it was probably the treason that cost him his life. Nicholas Udall, a cleric, playwright and Headmaster of Eton College, was the first to be charged with violation of the Act alone in 1541, for sexually abusing his pupils. In his case, the sentence was commuted to imprisonment and he was released in less than a year.

The last execution, on 17 November 1835, was of James Pratt and John Smith, two poor, married men caught in the act in a run-down boarding house in Southwark. Their appeals for clemency were rejected and they were hanged together before a crowd that was ‘excessive, but exceedingly decorous’, according to The Times.


1861 The Offences against the Person Act 1861 (under section 61, ‘Unnatural Offences’) dropped the death penalty. However, you still risked penal servitude for between 10 years to life.

1891 The Penal Servitude Act abolished the minimum penalty for sodomy.

Even then, the social consequences could be so appalling that:-
On 21 November 1891, at Newcastle Assizes (now the Crown Court), George Canham (28) and M Baker (31) were convicted of sodomy with each other and both sentenced by a Judge Wills to 10 years penal servitude. Baker committed suicide by taking poison in the police cell passage immediately after being sentenced.


1885 A late night amendment to the Criminal Law Amendment Act 1885 (referred to as the Labouchere Amendment, after Henry Labouchere, the man who put it forward) introduced the offence of "gross indecency", which made any remotely sexual act between men a crime. It ensured prosecutions might succeed where sodomy (in this case, specifically anal sex) could not be proved.

Most famously, it was used against Oscar Wilde, who was sentenced to two years' hard labour in 1895, and Alan Turing, who in 1952 agreed to have oestrogen injections (chemical castration) as an alternative to prison.



Oscar Wilde, one of the English language’s literary giants
Alan Turing, genius, mathematician, code
breaker, father of modern computing.


John Wolfenden, later Baron Wolfenden
1954 saw the first meeting of the Wolfenden Committee, commissioned to look into the laws on homosexual offences and prostitution. John Wolfenden, CBE, the chairman, suggested they spare the blushes of the ladies on the committee by referring to homosexuals as ‘Huntleys’ and prostitutes as ‘Palmers’, after the biscuit manufacturers.

Despite some difficulty, the Wolfenden Committee were able to call three homosexual men to give evidence. What they said about the impact of the law on their lives affected the Committee’s recommendations.


1957 The Wolfenden Report, published on 4th September, recommended that "homosexual behaviour between consenting adults in private should no longer be a criminal offence". It said that, "homosexuality cannot legitimately be regarded as a disease, because in many cases it is the only symptom and is compatible with full mental health in other respects." And, "The law's function is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others... It is not, in our view, the function of the law to intervene in the private life of citizens, or to seek to enforce any particular pattern of behaviour."

It may also have helped that Wolfenden’s son, Jeremy, was homosexual.



1961 The film, Victim, starring Dirk Bogarde as a married, homosexual lawyer, was the first English language film to use the word "homosexual". Even before its release in the US, a news report in The New York Times described it as a political work: "the movie is a dramatized condemnation, based on the Wolfenden Report, of Britain's laws on homosexuality."

Victim became a highly sociologically significant film; many believe it played an influential role in liberalising British attitudes towards homosexuality and made decriminalisation more likely. In retrospect, it is even more remarkable in that several of the actors were either themselves homosexual or closely connected to men who were. Among them were:

  • Dirk Bogarde, who never came out but lived most of his adult life with Anthony Forwood.
  • Alan McNaughton, who was a friend of actor Alec McCowen, who was homosexual.
  • Hilton Edwards, who was partnered to the Irish actor, Micheál Mac Liammóir.
1967 A decade after the publication of the Wolfenden Report, its recommendations were implemented in the Sexual Offences Act 1967. However, it applied only to England and Wales. It is important to note that, to comply with the law, sex had to be between two consenting men aged over 21 and in private. (What constituted ‘private’ was a contentious issue.)

And finally...
2004 The Sexual Offences Act 2003 came into force, removing gay-specific offences and making all sexual offences gender neutral.

NOTE:
This post is based on a set of four posters created on behalf of Merton LGBT+ Forum for a display at Merton Civic Centre and Wimbledon Library during LGBT History Month 2017.

You can download the poster for this topic here:
https://dl.dropboxusercontent.com/u/24371157/Poster%202017%20-%20Gay%20Men%20and%20Law.pdf
Feel free to use them, if you wish.