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Outlawed: Legal Discrimination against Gays and Lesbians

“The love that dare not speak its name”

“What is ‘the love that dare not speak its name’?” asked Charles Gill, prosecutor in the trial of Oscar Wilde in London in 1895. It is a question that remains relevant today: laws from around the world that target lesbian, gay, bisexual, and transgender (LGBT) people are often sweeping in application and vague in definition. Throughout history, one can chart how language has been used to stigmatize and persecute same-sex relations.

Wilde was initially arrested on charges of both “sodomy” and “gross indecency,” and was prosecuted for the latter. The now famous phrase – “the love that dare not speak its name” – was penned by his lover, Lord Alfred Douglas, in a poem published in 1894, a year before Wilde’s arrest. Two decades earlier, in 1870, German psychiatrist Carl Westphal wrote the first medical account of “contrary sexual feeling,” which French philosopher Michel Foucault cites as the origin of “homosexuality” as a medical category.

The examples of Wilde and Westphal illustrate a history of criminalization and medicalization of homosexuality that has left an indelible imprint on the language of the law, and there is a biblical reference in the crime of “sodomy” to the story of Sodom and Gomorrah. To delve into the history of homosexuality in the Western world one needs to surround oneself with police records, medical files and religious edicts. These are the self-appointed “voices of institutional authority” that have historically sought to define, regulate, and control same-sex sexuality. 

In claiming a right to speak for themselves, LGBT people have sought to redefine their identities on their own terms. For these reasons language is a particularly important – and sensitive – topic within the LGBT movement. LGBT people have organized around the very identities that have been used to oppress them through medical diagnosis, legislation and social opprobrium. Terminology is thus an inevitable part of this struggle against pathologization, criminal penalties, and social stigma.  

LGBT people have been inventive in re-appropriating invective to affirm their identities. For example, queer, once an insult, is now an affirmation; radical faeries rejoice in being faeries; and even gay has shaken off its 19th century associations with immorality, promiscuity, and prostitution, and is now used without irony in the most respectable circles. The same is true in other languages.  For example, the pejorative South African words, “moffie” (Afrikaans), and “stabane” (Zulu), are now used by insiders with a spark of pride.

Myriad terms are used in law to describe same-sex sexual conduct and—as this global map shows—these can be a confusing tangle: the “abominable crime of buggery” coexists with other terms in the legal lexicon including  “sodomy,” “gross indecency,” “debauchery,” “pederasty,” “unnatural and indecent acts,” and “carnal knowledge against the order of nature.” 

Some of these terms, such as “buggery,” have persisted in law for almost five centuries. Jamaica, for example, still retains a prohibition against “the abominable crime of buggery,” first promulgated on the island in 1864. The crime of “buggery” has a genealogy dating back to English King Henry VIII’s 1533 Buggery Act, which he successfully used against the Roman Catholic Church. Having passed the law, he promptly prosecuted Catholic monks under the law and confiscated their monastic lands: more a land acquisition strategy than a moral crusade. Indeed a distinctive feature of today’s “sodomy laws” is the way in which they are frequently used for political ends, as a strategy to discredit political opponents, or imprison them, as the 2015 jailing of Malaysian opposition leader Anwar Ibrahim demonstrates. 

One of the legal legacies of British colonialism is the prohibition against sodomy, defined as “carnal knowledge against the order of nature,” introduced in 1860 as section 377 of the Indian Penal Code, and then reproduced across the British Empire. Section 377 has a precursor in the form of an 1837 revision of the penal code outlawing “unnatural lust,” introduced by Lord Macaulay as part of his concept of an imperial “civilizing mission” in India. The law was kept deliberately vague on grounds articulated by Lord Macaulay:

[W]e are unwilling to insert either in the text or in the notes anything which could give rise to public discussion on this revolting subject, as we are decidedly of the opinion that the injury which could be done to the morals of the community by such discussion would more than compensate for any benefits which might be derived from legislative measures framed with greatest precision.

To this day, of the 80 countries that retain section 377, similar legislation, or outlaw the discussion of LGBT rights, more than half can trace their origins to this British law refined in the Indian Penal Code. Some judges, notably Mounir Suleiman, the presiding judge in a 2007 case in Lebanon, have questioned the application of laws “against the order of nature,” pointing out that what is considered unnatural is closely linked to “the mood of a society and its traditions.” Mozambique took a similar stance before quietly dropping “vices against nature” from its revised penal code in December 2014. 

Sodomy laws attempted to outlaw non-procreative sex for homosexuals and heterosexuals alike, but in 1885, “gross indecency” was included in British law with the intention of outlawing any sexual intimacy between men in public or in private. To this day, sodomy and gross indecency laws are broadly defined and often include consensual and non-consensual sex, bestiality, oral, and anal sex. Vague, seemingly unrelated laws, such as debauchery, immorality or contempt of religion have been used to clampdown on LGBT communities in Egypt, for example. Laws that ban cross-dressing are used to target transgender communities in countries such as Malaysia and Kuwait

A recent trend is the attempt to expand the purvey of the law beyond specific sexual acts, or forms of behavior, including “debauchery” and “immorality,” to outlaw the positive expression or assertion of identities based on sexual orientation or gender identity. In 2013, Russia adopted the so-called “propaganda law” that made it illegal to claim social equivalence based on “non-traditional” sexual relations. Similarly in Nigeria, under the guise of outlawing same-sex marriage, a law was introduced in January 2014 that makes it illegal to support the rights of LGBT people. 

In some countries, sodomy laws are retained on the books, but are largely dormant, with prosecutions rare. This point was made in the 2013 Supreme Court of India judgment that held up the sodomy laws. However, even when unenforced, these laws have insidious effects. LGBT people are forced to live under the shadow of laws that render them felons, whether apprehended, or not. They are often misused by law enforcement agencies for the purposes of blackmail and extortion, violence and discrimination. These laws provide the legal basis for state sanctioned homophobia, and give legitimacy to negative social attitudes. 

An overview of the myriad laws that have been used over the centuries to unsuccessfully straightjacket desire provides insight into changing social mores. They have also caused untold misery to the lives of LGBT people throughout the world.  

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