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Two decades after age of consent was equalised for gay men, LGBTQI rights have stalled

There appears to be no appetite for further LGBTQI legislation.

Jonathan Cooper
1 December 2020, 4.12pm
Convictions for consensual sex between gay men continued late into the 1990s.
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PA Images

Twenty years ago, consensual sex between sixteen or seventeen-year-old young men was considered a crime. The laws governing sexual offences were a mess: the age of consent for gay men was eighteen, but for everyone else it was sixteen. And it gets worse. If a sixteen-year-old man had sex with another man aged eighteen or nineteen, the older teenager could face a jail sentence. 

There were crimes that only gay people could commit. To make it easier to penalise homosexuals, the Victorians came up with the offence of gross indecency, which effectively criminalised any form of intimacy between gay men. In theory, gross indecency could only be committed consensually, otherwise the sexual act would amount to sexual assault, but lazy prosecutors would prosecute non-consensual sex as gross indecency because it was so easy to prove.

Over time, defences to gross indecency emerged. If both parties were over eighteen and the acts took place in private, a crime was not committed. But a snog and fondle in the park, a rite of passage for most teenagers, could result in a two-year prison sentence for young, gay men.

Gross indecency was one of many laws that were used to oppress gay men for over a century. Gay sex was also criminalised under buggery laws (known as sodomy laws in Scotland) and gay men could be convicted for just trying to meet another man for sex. Throughout the twentieth century, the police thought it a good use of their resources to employ undercover police officers to entrap people in those circumstances. 

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Gay identity was reduced to sex and that sex was a crime. Being gay was a criminal enterprise. Gay people became outlaws and were driven underground. And yet, those gay babies carried on being born. 

Gay men were considered ‘crypto-criminals’.

Partial decriminalisation of homosexual acts in 1967 seemed to herald a new age of toleration. Yet prosecutions for consensual sex between gay men increased throughout the 1970s, 1980s and 1990s. No measures were adopted to protect the LGBTQI community from discrimination. 

And then, in 1988, a new strategy was pursued – public authorities were banned from promoting homosexuality. Why hadn’t they thought of this before? If talking about LGBTQI people was off limits too, then so too was supporting them. Providing funds was out of the question. Schools considered themselves actively barred from mentioning sexual orientation and gender identity to their students.  

This persecutory environment could be justified because all gay men were crypto-criminals, requiring a criminal law regime all of their own. While that framework was in place, equality was a dream. 

Parliamentary battle

Democracy works in strange ways. Despite there still being a preponderance of distaste for homosexuals, Britain wanted change. They elected New Labour in 1997 and the party was committed to ending unjustified discrimination of LGBTQI people. The justification for discriminating against gay men and lesbians was the enhanced criminalisation of gay men, including the unequal age of consent. Make gay men equal in the eyes of the law and the excuse for discrimination falls away. Tony Blair, then prime minister, and his government committed to an equal age of consent.

Easier said than done. Reactionaries refused to give up on their hostility towards LGBTQI people. Those who opposed New Labour’s equality agenda knew that to concede parity between gay and straight teenagers would mean that their edifice of gay enmity would crumble. In the House of Lords, they dug in. They consistently voted against an equal age of consent.

Blair went for the jugular. He circumvented the House of Lords using the Parliament Acts, a rarely used parliamentary procedure that allows MPs to force through bills without the approval of the Lords. The bill establishing an equal age of consent for both heterosexual and homosexual sexual activity was passed on 30 November 2000. 

The significance of using the Parliament Acts to introduce an equal age of consent cannot be overstated. It was only the sixth time a bill was passed using this procedure, and it has been used just once since. 

House of cards

Once the age of consent had been equalised, anti-LGBTQI laws fell one-by-one. Following Scotland’s example, the law banning the promotion of homosexuality was repealed in 2003. In that same year, England and Wales finally got a victim-centred sexual offences regime. Gay-only offences were wiped from the statute book. The offence of gross indecency, which had tormented gay men for nearly 120 years was gone. The crime of buggery was consigned to the dustbin of history. 

In a few short years, a raft of legislation securing additional LGBTQI rights was passed including civil partnerships, discrimination protections on sexual orientation and adoption rights for same-sex couples. Attempts at contrition for past harms done to gay men were hatched. Some men convicted for historic gay sex offences were offered pardons.

The future looked rosy, until, once again, LGBTQI issues started to be demoted. Apparently, there is no longer a need to fund anti-LGBTQI bullying projects for schools. There are faith-based forces lining up to oppose LGBTQI inclusive relationship and sex education. Those that can’t comply with traditional constructs of sex, gender and sexual orientation identities are told to kow-tow and fit in. This dilution of support for LGBTQI rights makes it clear that the dignity of all LGBTQI people is not yet unassailable.

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