LGBT+ and the law - a brief history

From prosecution to protection

When I was born in the early 1960s, it was illegal for two men to have sex with each other in this country. In this article, I'm going to give a brief overview of how the law has treated LGBT+ people in this country, beginning in the sixteenth century when the first secular law came into being. The law focussed mainly on gay men.

One Sunday night in 1394, John Britby and prostitute Eleanor Rykener were caught having sex in a London street. They were arrested and imprisoned. Then, it was discovered that Eleanor was also called John. John/Eleanor’s confession exists as evidence that in the fourteenth century, trans prostitutes were a part of London life, and also as evidence that people born male lived as women. This, and all other cases involving LGBT+ people, would have been dealt with under Church Law.

This all changed during the reign of Tudor king, Henry VIII. While Catholicism with its stories of the abomination of sodomy was spreading across Europe, Henry was busy disconnecting from the Catholic Church with his Reformation laws, which abolished the Pope’s authority in England. Henry declared himself head of the new Church of England, and became the first monarch to reign as both Head of State and Head of the Church.

He introduced secular laws based on ancient religious doctrine, including the Buggery Act of 1533, the first state law to criminalise anal sex. Sir Walter Hungerford became the first man to be executed under its terms. He had been an attendant in Henry VIII’s household, and was made Lord Hungerford by Thomas Cromwell. His wife’s pleas of abuse to Cromwell were ignored until Cromwell’s own downfall. Hungerford was found guilty of “the abominable and detestable vice and sin of buggery with William Master, Thomas Smith and other of his servants,” and he was hung on the same day as Cromwell. Anyone convicted of buggery could be put to death, whatever their sexual orientation or gender, but it was same-sex convictions between men that were the most common. To prove the act of buggery had taken place, at least two eyewitnesses were needed, as well as evidence of both penetration and ejaculation. As a result, most trials were for the lesser offence of "assault with sodomitical intent.”

Facing great personal risk of imprisonment or death, men who had sex with men created a vibrant subculture, especially in London’s molly houses. Many of these were closed down, and there was a wave of prosecutions, reaching its peak in the 1700s. Those convicted of attempted anal sex were frequently sentenced to stand in the pillory. They would be tied to a post and then subjected to verbal and physical abuse by the public. The last person sentenced to death at the Old Bailey for buggery was John Spencer, found guilty in July 1860. Thankfully, the sentence was not carried out.

In contrast to the legal records concerning men, the sexual activity of women is not seen much in the records, not because there wasn’t any sexual activity going on, but because most activity women did with each other didn’t involve anal sex. There are a small number of court cases on record in which women dressed as men, pursued sexual relationships with other women, but these are rare.

The Buggery Act provided the foundation for similar laws that spread around the world under British colonial rule some three hundred years later. In Britain, it took nearly that time for Henry VIII’s Buggery Act 1533 to be replaced by The Offences Against the Person Act in 1828. This narrowed the offence to focus solely on male same-sex activity, which remained punishable by death. Other anal sex, e.g. between a man and a woman, became de-criminalised. This meant that for the first time, gay men were singled out as the targets of the law.

1861 saw the Offences Against the Person Act enforced, where the death penalty of hanging men for anal sex was finally abolished and replaced with a minimum of ten years imprisonment, often life imprisonment. This Act was subsequently adapted, modified, and incorporated into the codes of various British colonies in Queen Victoria’s Empire, for example throughout Africa, the Caribbean and the South Pacific. We’ve got a lot to answer for.

Under the 1885 Criminal Law Amendment Act, the definition of illegal sexual activity

was widened to include “gross indecency” between men, whether or not a witness was present, and whether or not they had sex. Any acts of intimacy committed in private could be prosecuted. In practice, the law was used to prosecute men when the act of anal sex couldn’t be proven. Even a letter expressing terms of affection between two men could lead to prosecution. The legislation was so ambiguously worded that it became known as the “Blackmailer's Charter” because someone could be convicted so easily. In 1895, the author, poet and playwright Oscar Wilde was famously imprisoned for gross indecency under this Act. A further rise in arrests and prosecutions of gay men occurred after World War II, including many prominent figures. Alan Turing, the cryptographer whose work at Bletchley Park played a decisive role in the breaking of the Enigma code, which was a big factor in bringing the war to an end, was one of those accused of gross indecency. This was how society thanked him for his work.

The 1921 Criminal Law Amendment Bill was discussed in Parliament, but never became law. If passed, it would have made so-called gross indecency between women an offence, as it was between men. However, it was rejected by both the House of Commons and the House of Lords for various reasons: fears of it being used for blackmail (as the 1885 Act was against men); a perceived lack of evidence that sex acts between women took place; and a fear that it would draw attention to the possibility of being lesbian, and encourage women to explore each other. This reveals not a tolerance of female same-sex activity, but more that female sexuality, especially same-sex female sexuality, was essentially invisible in society. Parliament decided to keep it that way.

434 years after the first law to criminalise gay sex, the 1967 Sexual Offences Act, backed by the Church of England, legalised private same-sex acts between men over the age of twenty-one. Scotland followed suit over a decade later, in 1980. A year after that, the European Court of Human Rights ruled that the British Government was in breach of Article 8 (the right to a private life) of the European Convention of Human Rights by maintaining the criminalisation of gay men in Northern Ireland. Ian Paisley and his Save Ulster from Sodomy campaign accused the British Government of legislating in favour of perversion and immorality. But Paisley’s campaign was unsuccessful, and the government bowed to pressure in 1982. Further legislation to de-criminalise private sex between men came into place in Guernsey (1983), Jersey (1990), the Isle of Man (1994) and the Armed Forces (2000).

Progress was finally being made towards equality for gay men. But then along came a formidable woman, a divisive politician, who introduced new rules that set back progress and further ignited homophobia. In 1988 the Conservative Government, led by one Margaret Thatcher, passed Section 28 of the Local Government Act, banning local authorities from promoting homosexuality. Section 28 stipulated that local authorities should not “intentionally promote homosexuality or publish material with the intention of promoting homosexuality” or “promote the teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship.”

Thatcher, a devout Methodist rather than a Catholic, nevertheless demonstrated a very catholic attitude towards homosexuality. She said, ”Children who need to be taught to respect traditional moral values, are being taught that they have an inalienable right to be gay. All of those children are being cheated of a sound start in life – yes, cheated.” This message was beamed into every living room in the country on the news, spoken by the leader of the nation, and it was less than forty years ago. Thatcher legitimised prejudice and hatred in the name of traditional values, and to win some votes at a time when homophobia was already rife because we were right in the middle of the AIDS crisis. Matthew Todd wrote in The Guardian after her death in 2013, that “she threw gay kids like me to the wolves,” and that Section 28 inflicted “huge damage on a community that desperately needed support, and smashed down any possibility of supporting confused children or educating them about how to not catch HIV.” It was quite simply a terrible time for many gay people.

Despite massive and ongoing campaigns against Section 28, it wasn’t repealed until 2003, when my kids were in school. For context, we had the Race Relations Act in 1965, the Sex Discrimination Act in 1975 and the Disability Discrimination Act in 1995, giving rights to people of colour, women and disabled people, while being gay remained discriminated against in law. It wasn’t until 2009 that Prime Minister David Cameron finally apologised for the legislation. I’m glad to say that Thatcher was still alive to see this happen.

In the year 2000, the age of consent for gay men was finally reduced to the age of sixteen, in line with everyone else. This ended hundreds of years of legal discrimination because of what gay men did in private in the bedroom, but there was still way to go before full equality was reached. This has been happening gradually as the twenty-first century has progressed.

The 2002 Adoption and Children Act allowed gay and lesbian single people and same-sex couples to adopt a child in the UK. In 2003, the Employment Equality (Religion or Belief) Regulation at last made it illegal to discriminate against lesbians, gay and bisexual people in the workplace. The 2003 Sexual Offences Act removed any distinction between genders and allowed more than two men to engage in consensual sexual activity (what we called “gang bangs”) in private. The passing of the 2004 Civil Partnership Act allowed same-sex couples to legally enter into binding partnerships, similar to marriage, but without some of the rights of married people. In the same year, the Gender Recognition Act gave trans people full legal recognition of their gender, allowing them to acquire a new birth certificate.

The 2010 Equality Act 2010 gave LGBT employees protection from discrimination, harassment and victimisation at work. Parts of this act are under review as I write, particularly with regard to trans people.

Under the 2013 Marriage (Same-Sex Couples) Act, same-sex couples in England and Wales could legally marry for the first time in history. Scotland followed suit with the Marriage and Civil Partnership (Scotland) Act 2014. Northern Ireland would follow later, when same-sex marriage became legal on 13 January 2020. However, amendments to the 2010 Equality Act allow religious and faith institutions in England, Scotland and Wales permission to refuse a same-sex marriage ceremony if this contravenes their beliefs.

The gradual de-criminalisation and the end of legal discrimination of same-sex sexual activity was complete. It had taken from 1967 until 2020 to achieve this.

2017 saw the passing of the “Alan Turing law.” Alan Turing, the World War Two cryptographer convicted of gross indecency, was chemically castrated and eventually killed himself. He was granted a posthumous royal pardon in 2013. The Policing and Crime Act 2017 subsequently pardoned all gay men’s criminal convictions of gross indecency. This has become known as the “Alan Turing law.” The Act only currently applies to convictions in England and Wales.

There have been fundamental changes in the law in my lifetime, to such an extent that for the first time in modern history, what consenting adults do with each other in private, whatever their sexuality or gender identity, is of no concern to the state. In fact, the law now seeks to protect rather than to criminalise. Gay rights campaigner Peter Tatchell said in 2017, “We have made fantastic progress. Compared to two decades ago, Britain is almost a different country. All the main anti-gay laws have been abolished. We are now one of the best countries in the world for gay equality.”

However, there is much more to be done, and now is not the time for complacency. The results of the UK Government’s survey of 108,000 LGBT people, published in 2019, serve as a pretty stark reminder. Two in five respondents had experienced an incident in the previous year because they were LGBT, such as verbal harassment or physical violence. However, more than nine out of ten of the most serious of these incidents went unreported, often because respondents thought “it happens all the time.” Of great concern, a quarter of respondents had accessed mental health services in the previous year. Unfortunately, we continue to witness inequality, homophobia, transphobia, hate speech and provocation. And it’s coming not just from right wing media, but also from our government.

This is why I speak out. Always an ally.

Em x

This article is based on a chapter in my book.

Bent Is Not Broken. Buy the eBook (various platforms) or get the paperback on Amazon via:

www.books2read.com/BentIsNotBroken

To read more blogs about about LGBT+ culture and history, and to find out more about the author, head to www.bentisnotbroken.com