In 1967, after nearly ten years of campaigning, “private homosexual acts” between men aged 21 and over were decriminalised as part of the Sexual Offences Act. As the fiftieth anniversary dawns on this landmark piece of legislation, it begs the question: is changing the law enough when it comes to making progress?
To answer this, we must look back in time. All the way back to 1533, in fact, when sodomy was first criminalised and England’s homophobic history of legislation began. Nothing changed until 1861, when the Offences Against the Person Act reduced punishment for such an act from capital punishment to life imprisonment, as proposed by the MP Henry Du Pré Labouchère. However, the Labouchère Amendment made the law surrounding gay sexuality much more insidious; it extended the punishment to any homosexual act between men, defined as “gross indecency”. This made prosecution easier, as evidence of penetrative sex was no longer required. This amendment was often referred to as “the blackmailer’s charter”, as the vagueness regarding evidence and consent led to expansive judicial interpretations. The writer Oscar Wilde is the most well-known victim of this legislation; he was imprisoned and sentenced to two years of hard labour in 1895.
Fast forward to the twentieth century, specifically to 1954, thirteen years before the Sexual Offences Act came to pass. The government appointed a committee to review the laws dealing with homosexuality and sex work, chaired by John Wolfenden. The increase in the number of homosexual “offences” and media scandals had become a cause of concern, as had the visibility of sex workers in London in the early 1950s. The Wolfenden Committee reported back to the government in 1957, recommending the decriminalisation of private homosexual activity between consenting adults (at the time, this was still anyone aged 21 or over, five years older than the age of consent for heterosexual couples). However, they also recommended that heavier penalties be placed against activity in public places. The Homosexual Law Reform Society campaigned for change and the subject was addressed in Parliament in discussions on Private Members’ Bills in 1960, 1962, and 1966. Despite this, no change was effected until 1967, with the passing of the Sexual Offences Act.
So, what difference did it make? According to Lord Arran, Conservative politician and sponsor of the bill, gay men owed a lot to the generosity of the government. “I ask those [homosexuals] to show their thanks by comporting themselves quietly… any form of public flaunting would be utterly distasteful… [And] make the sponsors of this bill regret that they had done what they had done,” he was quoted as saying in The Times in 1967. Research by human rights campaigner Peter Tatchell may cause one to presume that this threat of regret was the case anyway, since an estimated 15,000+ gay men were convicted in the decades following the 1967 decriminalisation. Moreover, between 1885, when the maximum penalty of life imprisonment was repealed for anal sex between two men, and 2013, when sodomy laws were officially repealed in Scotland, nearly 100,000 men were arrested for same sex acts.
Furthermore, despite the decriminalisation of private acts, the age of consent for gay men remained 21, exacerbating the harmful stereotype that older men seduce and corrupt younger men. The punishment for those over 21 having non-penetrative sex with males aged 16 to 21 increased from two to five years of imprisonment in 1967.
In 1966, a year before decriminalisation was passed, 420 men were convicted of gross indecency. By 1974, six years post-decriminalisation, the annual number of convictions was 1,711. In the Home Office archives, it was found that as late as 1989 there were still 1,718 convictions and cautions for gross indecency. A total of 2,022 offences of gross indecency were recorded that year. 2,034 were recorded in 1954.
Additionally, the Sexual Offences Act only applied to England and Wales; it didn’t include Scotland, Northern Ireland, the armed forces, or the merchant navy. Indeed, gay military personnel and merchant seamen could still be jailed as late as 1994. Shockingly, the legislation authorising the sacking of seafarers for homosexual acts on UK merchant ships was only repealed in April this year.
Gay and bisexual men, as well as lesbians (albeit less frequently) continued to be arrested until the 1990s for public displays of affection such as kissing and cuddling, under public order and breach of peace laws.
In fact, it could be argued that full reform did not happen until 2003, with the repeal of the 1885 gross indecency law and decriminalisation of anal sex. However, once again this change in legislation only applied to England and Wales. The ban on anal sex was not repealed in Northern Ireland until 2008. Scotland’s anti-gay laws were repealed in 2009, but in the case of sodomy did not take effect until 2013.
Has it all been negative in the fight for LGBT rights, though? Legislative equality may only be one step towards total equality, but the steps are undoubtedly still being made. In 2002, equal rights were granted to same sex couples applying for adoption, while same sex civil partnerships were legalised in 2004, followed by marriage equality in 2013. 2003 saw the repeal of Section 28, a law that had made it illegal to talk positively about homosexuality in schools since 1988. In 2004, the Gender Recognition Act allowed transgender people to change their legal gender and in 2005 the Criminal Justice Act meant that homophobic crimes were now classified as hate crimes and therefore were treated more seriously.
On the other hand, a report commissioned by Pride in London found that almost 50% of LGBT+ Londoners have been a victim of a hate crime in the past year. Only 21% of victims reported the crime to the police, further evidence of the fact that LGBT+ people are less likely to report hate crimes than the rest of the population. A report by the Equality and Human Rights Commission suggests that this is because of a fear of how they will be treated by the authorities. And is this distrust really so hard to believe, when one takes into account the homophobic legislation exacerbated by the police force over the past decades?
Equality laws are undeniably a step in the right direction; better late than never, as the saying goes. But is the twenty-first century’s strive towards equal rights enough to undo decades of oppression and abuse? Hate crime statistics and the failure to report and therefore prosecute the perpetrators would suggest otherwise. Legislation can enable progress, but it cannot singlehandedly alter public opinion. Moreover, is the attitude of the government accurately reflected by the laws they pass? For example, the 1967 Act and the work of the Wolfenden Committee was ultimately an attempt to decrease the number of gay media scandals. It could also be argued that a major goal of the 2013 marriage equality legislation was simply to bolster liberal public support for the Conservative Party. Although it was the Tories that instigated this bill, it would not have passed if it had not been for the votes of Liberal Democrat MPs in the coalition. Furthermore, while this decision was celebrated, the Home Office continued to deport LGBT+ asylum seekers. The government’s attitude towards equal rights for the LGBT+ community is inconsistent, to say the least.
In the fifty years since the 1967 Sexual Offences Act, it is clear that progress has been made towards equality, both de jure and de facto. Indeed, in the eyes of law total equality for LGBT+ people has perhaps already been achieved with the passing of 2010 Equality Act, which brought all protections into one law. However, real, lived equality amongst gay and bisexual men, and the LGBT+ community in its entirety, would still appear to be out of reach. Incidences of hate crimes are still high and discrimination still exists in the minds of many people.
So, to return to the question at hand: is legislation enough when it comes to making progress? “Not in the slightest”, would appear to be the answer. Life is a lot better now for the marginalised than it was in 1967, but how much of that the Sexual Offences Act can take credit for is questionable. However, legislation is still important, marriage equality being one such example. Not the be all and end all in terms of equal rights by any means, but important nonetheless when the struggle of victims and their partners during the AIDs crisis is taken into account.
So, although things may have improved for LGBT+ people in the last 50 years, praise of the Sexual Offences Act of 1967 should always be taken with a pinch of salt.