Justice After Stonewall: a view from 2023

By Kenneth Norrie - Posted on 18 December 2023

On 8th December 2023, I was at Edinburgh University, attending the launch of a book, published by Routledge and under the editorship for Professor Paul Behrens and Sean Becker, called Justice After Stonewall: LGBT Life Between Challenge and Change.  My own chapter in this remarkable book carries the rather clunky title “Perceptions of Homosexuality as Revealed by the Law of Defamation in Scotland”.

I describe the book as remarkable because, even for a proud generalist like myself, I found the range of disciplines that the book covers almost unprecedented.  But then sexuality and gender identity do suffuse every aspect of an individual’s life - so perhaps it is not so surprising  that a book on the topic can include contributions from lawyers, sociologists, economists, political scientists, diplomats, philosophers and religious thinkers.

The original aim of the book was to explore the developments in justice for LGBT people in the fifty years since the Stonewall Riot in New York kick-started the gay-rights movement.  A conference was held in Edinburgh in 2019 and contributors were invited to write up their presentations into a book chapter.  Covid rather delayed matters but the book has now appeared, and the event on 8th December was a time to reflect on the book’s conclusions - and indeed developments between 2019 and 2023.

That is only four years, but the mood today is distinctly darker for LGBT people than it was in 2019.  Especially the debates around transgender issues have become disturbingly vicious, and a wider worry is that arguments used against the equality and dignity of trans people overlap very substantially with the arguments against gay and lesbian equality and dignity (all those “it’s just not natural” sentiments).

At the launch, various contributors reflected on their own chapters.

One contributor was Sir Steven Wall, who had been British Ambassador to Portugal, then the UK Permanent Representative to the EU.  He explored from an historical perspective the pre-Stonewall debates around the Wolfenden Report which had recommended in 1957 the decriminalisation of gay sex (which happened in England in 1968 and in Scotland in 1980).  In submissions to the Wolfenden Committee, the surgeon Patrick Trevor Roper (brother to the historian Hugh Trevor Roper) argued that gay people led normal lives and that homosexuality was neither a physical nor a mental illness but a manifestation of the diversity of humankind.

But his was a minority view amongst those who made submissions.  The BMA and the (English) Law Society argued that homosexuality, being repulsive and an outrage to decency, ought to remain criminalised.  Both institutions raised the fear of “contamination”.  Sir Stephen’s point was that a Report published over 65 years ago is not just of historical interest.  The same fear of “contamination” of the decent by the abominable surfaced again in the Section 28 debates in 1988 and are being repeated in today’s trans debates.  They all have in common that they do not focus on individuals but instead seek to demonise identities.

The chapter by Lynne Reagan from Kent University reports on a pilot study she had carried out in relation to trans students in Higher Education.  She examined university policies on transgender students, involving 61 universities and personal interviews with seven individual students.  She discovered that while universities were good at writing non-discrimination policies, converting these to practical help was often seriously wanting.

Apparently simple things like registering changes of name or gender within university systems was fraught with difficulties and often practically impossible:  systems like (at Strathclyde) Pegasus have real difficulty in allowing a person to proceed or even graduate when their name or gender is different from their original registration.  Some universities create so-called gender neutral toilets simply by changing the signs on disabled toilets.

Also from Kent University, Caren Tunaker’s chapter is about LGBT youth homelessness.  She identified what she calls the Paradox of Progress.  The more LGBT people feel comfortable and part of society the more we ignore the dangers of hidden homophobia and transphobia - especially in the home.  The falsity of this security is manifested for example by increased rates of homelessness.  Studies from the Albert Kennedy Trust (an LGBT homeless charity) reveal that 25% of homeless people are LGBT.  This is a massive over-representation of dire need in an already vulnerable group.

Andy Hayward and Helen Fenwick from Durham Law School wrote about ECHR developments, showing how Strasbourg has been a stronger force than domestic legislatures in most European countries (including the UK).  But Strasbourg is still a cautious body, and while it insists that some regime for same-sex couples is required, the form and content are still within the margin of appreciation, allowing different member states to carve out domestic exceptions to true equality with opposite-sex couples.

And illustrating again the paradox of progress, the fact that Western countries have moved far ahead in developing LGBT rights means that reactionary governments (such as Russia’s) are able to paint LGBT rights as Western impositions that can and should for nationalistic reasons be resisted.

Paul Behrens’ own chapter was on conversion practices and the pressure to ban them.  Most agree today that such practices cause harm both physical and psychological.  They also send out a message of negativity towards LGBT people.  One problem in designing any law to prohibit conversion therapy is what lawyers call the de minimus rule: when does a practice become a crime – the Bishop of Manchester wondered about a “gentle prayer to God to change the person”?  Paul commended for further study the approach adopted recently in the Australian state of Victoria in outlawing conversion therapy.  This is a long piece of legislation, running to 49 pages, but it seeks to regulate investigations and it explores education and options other than criminal charges.

The book has many more chapters, including on being a lesbian non-biological mother, Jewish approaches to LGBT issues, and personal reflections on the differences between marriages and civil partnerships.  The overall message from the launch was the importance of maintaining solidarity between L and G and B and T people: the arguments against one can and will be used against the others – and, ultimately, against everyone who does not conform to an imagined norm.

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