LGBT History and Legal History, by Matthew Flood

Continuing our LGBT History Month series, Matthew Flood, Global General Counsel at Ingeus, combines law and history to challenge traditional perceptions of the LGBT community and offer a new way of thinking about the law. 

The history of Lesbian, Gay, Bisexual and Transgender people is bound up inextricably with the law. While various ecclesiastical statutes and canons of the Catholic Church had declared homosexuality a sin, it was Henry VIII in 1533 who first promulgated the Buggery Act. Under the terms of this Act, any intercourse ‘per anum’ involving either two men or a man and woman, or indeed any intercourse with an animal, was deemed an offence. The Act actually only referred to ‘an unnatural sexual act against the will of God and man’ – but the courts interpreted it in this way – the title of the Act being a giveaway.

With one fell swoop, the sexual practices of consenting adults was, in England (and subsequently the Nation States it created in the Commonwealth), punishable by death. The Act also had the nasty effect of equating sex between two men as equivalent to having sex with an unintelligent animal. While most people would no longer seek to make this comparison, I do recall there was a student in a criminal law class in 1996 at the university where I studied who asked the lecturer in front of the rest of class:Matthew Flood

“Sir, if having sex with dogs is illegal, why shouldn’t two men having sex be illegal?”

The professor shrugged his shoulders. One gay member of the class stood up, walked out and lodged a formal complaint. That was 20 years ago. I’m sure this sort of question still gets asked in universities to this day, but hopefully less often and one would expect a lecturer to put the proponent back in their box. At the time, the University did condemn the behaviour of the student, and gave coaching to the lecturer, but it is a good illustration of how the stigma of an association created by an ancient law still impacts those of us who had to live through the gradual improvement of society’s views on homosexual relations.

When I was at university, I wrote an honours thesis on memory and history. It looked at the way people remember the past. Essentially, the theory is that over time people develop a collective consciousness of history which changes depending on the prevailing cultural and political viewpoints. Given Wikipedia is basically a reflection of public consciousness, I think it is a very interesting site to get a bellwether sense of how society currently ‘remembers’ history. When you read the Wikipedia page ‘Timeline of LGBT history in Britain’, it is mostly a timeline of legal history, other than the bits about Kings and Lords who did whatever they pleased, cavorted with hot knights and gave them lands and estates (see e.g. Edward II and James VI of Scotland and James I of England). Likewise, when you go to the LGBT History month website, and look at their timeline, again it creates quite a similar picture. When you look at equivalent sites with timelines of the history of women, generally speaking the timelines are not about laws affecting women. To find that kind of timeline you need to look at the history of ‘oppression of women’. When you look at the history of black people, to see all the cases, arrests, trials, statutes and proceedings, you generally have to look at a ‘civil rights timeline’.

However, LGBT history as a whole (as presented by Wikipedia and other relevant populist timelines) is essentially a list of annulled marriages, arrests, sodomy trials, legal treatises by eminent thinkers, European court judgements, and a myriad of Bills and Acts of Parliament.

Gay history is inextricably linked with the history of law, because the law defined homosexual acts as illegal, and therefore LGBT history is the history of slowly making what was illegal legal again. We have not yet moved to a point in our collective consciousness where LGBT history is the history of LGBT individuals, and LGBT oppression history, or LGBT civil rights history, is the history of that oppression and the struggle against it.

I am a lawyer, but I also have a history degree, and during this LGBT history week I think it is time we stopped defining LGBT history by reference to the legal definition placed on us. Let us refer to that history as the history of LGBT oppression. The pioneers who fought cases, proposed new acts of parliament and who were jailed for overturning unfair and prejudiced laws against homosexuality have led us to a point where, hopefully, we can now tell gay history like any other history – as the history of people (who happen to be gay). Of course, we can’t tell that history without understanding the backdrop of the legal situation they were faced with, but is it not more relevant to gay history, for example, that Alan Turing cracked the enigma code and invented the forerunner of the computer, than that he was sentenced to chemical castration and committed suicide (which is the focus of the Wikipedia timeline)? Is it not more important that Oscar Wilde wrote ’The Importance of Being Earnest’ than that he was tried for gross indecency? I certainly think so.

As lawyers, we can ensure that the history of gay oppression is understood. As people, we can celebrate the achievements of LGBT people despite this oppression. Through celebration of those achievements and by describing LGBT people just like any others, we can hope to improve the rights of gay people in other countries where our sexual practices are seen as matters requiring state intervention. We need to normalise the LGBT discourse, so that it is equivalent to talking about someone’s race or gender and thereby disempower ancient, moralistic stereotypes and doctrines that still pervade many people’s (and peoples’) consciousness.

LGBT History month looks at putting LGBT history before LGBT legality. It’s about time. Literally!

Matthew Flood has been Global General Counel at Ingeus since January 2015. Prior to joining Ingeus, Matthew was General Counsel of Balfour Beatty’s Services Division. While at Balfour Beatty, Matthew launched Balfour Beatty’s LGBT Network, and was co-chair of the Services Division Diversity Committee (and a member of the Group Diversity Committee).  Matthew is Founder and Co-Chair of “Off Site”, a sector-wide LGBT network for the Construction & Infrastructure sector, together with Pinsent Masons. You can connect with Matthew on LinkedIn here.

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