by Raylene Fang
Fifty years after the Stonewall uprising in 1969 in the US, June every year is celebrated as Pride Month. In 2017, the UK marked the 50th anniversary of the Sexual Offence Act 1967, which decriminalised homsexual relationships between men in England and Wales. Behind the increased recognition of LGBTQ+ rights are the hard-won battles for equality that were fought and legislative changes made throughout the British legal history.
Pre- 1900s: The Dark Old Days
The earliest anti-homosexuality law in the UK can be traced to the reign of Henry VIII, when Parliament passed the Buggery Act 1533 to punish “the detestable & abominable vice of buggery committed with mankind or beast”. Originally dealt with in ecclesiastical courts, buggery was made a statutory offence punishable by death penalty and confiscation of possessions. Although the Act did not specifically target male homosexuality, convictions of men for sodomy were the most common.
The rationale behind the 1533 Act has always been an area of academic interest. In Homosexuality and Civilization, Crompton argues that the 1533 Act was spurred by Henry VIII’s struggles with the papacy, and fitted nicely into the puzzle of legislative developments in Parliament that aimed at limiting the ecclesiastical jurisdiction. The law was also an expedient tool aiding Henry VIII to execute monks and nuns and to take their monastery land.
No matter what the true intention of Parliament passing the 1533 Act had been, its legacy of criminalising buggery lingered on, notwithstanding the repeal and replacement of the 1533 Act with the Offence Against Persons Act 1828. In particular, buggery remained a capital offence in England and Wales until the enactment of the Offence Against Persons Act 1861, which instead imposed a new lower minimum of 10 years’ imprisonment.
Yet, the reduction in penalties in the 1861 Act did not signal a trend towards liberalisation of homsexuality in the legal landscape. Known as “the Blackmailer’s Charter” for its ambiguous phraseology, the Criminal Law Amendment Act 1885 escalated the draconian nature of England’s homophobic law. Originally proposed by MP Henry Du Pré Labouchère, the 11th clause of the 1885 Act clause adopted the term “gross indecency”, effectively extending the scope of criminalisation to any homosexual acts between men including acts in private. Not requiring evidence of penetration, it greatly eased the prosecution: often a letter expressing affection between two men was sufficient to found a charge. In 1895, Oscar Wilde – ironically, a man Labouchère once admired – fell victim to the clause. Overall, the 1885 Act ushered in a prolonged era of persecution of the male homosexual community, perpetuating stigmisation for more than 80 years until the landmark Sexual Offence Act 1967.
With the colonial expansion of the British Empire between the late 16th and early 18th centuries, homophobic laws - a deep-seated feature of the English common law legal system - were incorporated into numerous colonial Penal Codes. Regrettably, in many British Commonwealth countries, the lingering ghost of the colonial-era homophobic law stays on until this day and age. In May 2019, the High Court in Kenya - a previous British colony - affirmed the constitutionality of Sections 162(a) and (c) and Section 165 of the Kenyan Penal Code, which criminalised male homosexuality.
1900s: A Bumpy Road to Sexual Offences Act 2003
In the post-World War II period, there was a significant rise in the number of prosecutions of male homosexuals, many of whom were from high ranks and held public offices. This was the darkness before the dawn. The increase in prosecutions brought into question the legal status of male homosexuality, which provided a crucial impetus for the eventual enactment of the 1967 Act.
Whilst the 1967 Act is often celebrated for decriminalising male homosexuality, this is an overstatement of its significance. While it legalised the male homosexual acts over the age of 21 conducted in private, it fell short of equalising the age of consent across sex orientations and of legalising anal sex. The age of consent was set at 21 for sex between men, in contrast to 16 for sex between men and women. Arguably, the 1967 Act was held back by the notion that young men would be seduced and corrupted by older men. The 1967 was still tinged with moral disapproval of male homosexuality. This was evident from the increase in penalty from two to five years’ imprisonment for a man over 21 having non-anal sex with a man aged 16-21. The “corruption of young men” notion also held significant weight in the House of Lords’ reasoning in R v Brown (1993) – the famous male masochistic case. Moreover, the 1967 Act only applied in England and Wales; it took more than another decade for similar reforms to take place in Scotland and Northern Ireland.
It has been far from a smooth journey to the full legalisation of male homosexuality in Sexual Offences Act 2003, which provided an equal age of consent across all sexual orientations. A regressive development was Section 28 of the Local Government Act 1988 introduced by the Conservative government, which banned local authorities from ‘promoting homosexuality’ or ‘pretended family relationships’. In the context of the Conservative government’s “family value” campaigns, catalysed by the moral panic over AIDS, the number of recorded offences of gross indecency in late 1980s spiked to almost the same level as pre-1967 times. It was not until 2003 that Section 28 was repealed and male homosexuality fully legalised.
From the dark old days to the Sexual Offence Act 2003, the legal history of LGBTQ+ rights witnessed a gradual change in the legal status of male homosexuality. Whilst only male homosexuality was subject to criminalisation in most part of our history, the battle over its legal status has had wider significance in galvanising the entire LGBTQ+ community, particularly the transgender group, in late 20th century and early 21st century. Yet, the fight was far from over. The development in the 20th century amounted to a shift from “disapproval” to “tolerance”. Yet, it is only with a more comprehensive legal protection of the LGBTQ+ community’s human rights that “acceptance” of the LGBTQ+ community can truly be achieved. We continue this theme in Part II of this article, which focuses on LGBTQ+ rights in the 21st century.
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Ruilin (Raylene) Fang is a staff writer for OWLSS. She is interested in commercial law and legal history. Ruilin is a current affairs writer for Right For Education Oxford and a college representative of Oxford Women in Business Society. You can reach her at ruilin.fang@magd.ox.ac.uk.