Policy Papers


Wolfenden and beyond: the remaking of homosexual history

Jeffrey Weeks |

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Executive Summary

  • The fiftieth anniversary in 2007 of the publication of the Wolfenden Report on prostitution and homosexual offences provides a useful vantage point to measure the dramatic change in attitudes towards homosexuality in the past half century.
  • Although Wolfenden did not cause the change, it offered a new framework for regulating morals that has been enormously influential. The report made a crucial distinction between private actions and public order. Wolfenden proposed that it should not be the function of the law to regulate private behaviour that did not harm anyone else, however distasteful others might find it. Its role was to establish the framework of public order.
  • In practice that meant the decriminalisation of consensual male homosexuality and, by extension, of other forms of activity that could be regarded as essentially private, individual choices.
  • In this way Wolfenden conjured into being for the first time in British law the notion of the distinct homosexual personage. This paralleled the growth of a more public and affirming homosexual identity which, especially with the advent of the gay liberation movement in the 1970s, reshaped perceptions of homosexuality and hugely influenced the development of a vibrant new culture.
  • However, from the late 1960s to the 1990s, there was little progress in achieving basic citizenship rights for LGBT (Lesbian, Gay, Bisexual, Transgendered) people. By the 1990s the law lagged behind both the lived experience of non-heterosexual lives and public opinion generally.
  • More recently a radical swathe of legislation has led to the enactment of formal equality between heterosexuals and homosexuals in most matters: culminating in the Civil Partnership Act, which has been unexpectedly popular and underlines a shift from a concern with identity to a preoccupation with relationships in the LGBT community.
  • There is still widespread evidence of continuing homophobia, including homophobic violence, but what is significantly different from the situation in Wolfenden's time is that now LGBT people have the protection of the law, and the assumption of full equality.

Introduction

The efforts by religious conservatives in early 2007 - a holy alliance of evangelical Protestants, Roman Catholics and Islamicists - to block the implementation of regulations to protect the rights of lesbians and gay men in relation to the provision of goods and services reminds us that the long tail of a dying history still has a vicious last spasm in it. That history, with its prejudices, taboos, persecutions, religious anathemas and legal outlawing of homosexuality is still too fresh in the memory of its victims for it to be lightly dismissed.

Yet it is important to remember the alternative history, and in 2007, the fiftieth anniversary of the publication of the Wolfenden Report on (female) prostitution and (male) homosexual offences, we can see in a fair perspective the dramatic changes that have transformed the legal and moral climate, and revolutionised the possibilities of being openly, and freely, lesbian or gay. This is not a simple history of effortless progress from the darkness of 1950s oppression to the enlightenment of the tolerant Noughties. The road has been ragged and sometime precarious, frequently winding back on itself, sometimes blocked by wilful physical obstructions (the notorious Section 28, banning the promotion of homosexuality by local authorities, introduced by the third Thatcher government comes readily to mind), sometimes reduced to barely a crawl. But from a standpoint of fifty years it is important, if history means anything, to affirm that things have changed radically in terms of learning to live with sexual diversity: progress has been made.

In the 1950s Britain was widely regarded as having one of the most conservative sexual cultures in the world, with one of the most draconian penal codes. Today it has one of the most liberal and tolerant. That is not the result of the Wolfenden report, influential though that has been in setting a pragmatic framework for sexual regulation since the 1960s on a range of issues, from censorship to human fertilisation. Rather, it has been a process of millions of people remaking their own histories, though not necessarily in circumstances of their own choosing. But Wolfenden was a key staging point, and whilst we should never stop thinking about how far we might still want to go, it is vital that we do not forget how far we have come.

Wolfenden

The establishment by the government of the Wolfenden Committee in 1954 was a compromise, between the desire amongst more conservative elements to do something to control homosexuality and rid the streets of overt displays of prostitution, and a wish on the part of liberals to find more modern forms of regulation than prison or the law. Its task therefore was to navigate between the two extremes whilst trying to come up with an acceptable framework. In doing this it took expert advice, including from the already near infamous Alfred Kinsey, the American sexologist. Kinsey's matter-of-fact approach to homosexuality and his implicit moral neutrality pointed to a less punitive legislative framework. Also, for the first time openly homosexual citizens gave evidence to the committee, as did other perceived experts and a host of other interested parties. The result was not so much a compromise between conservative moralists and progressives as a bold new framework, offering the outlines of a new moral economy for the post-war world.

The Wolfenden proposals have been described as 'shockingly pragmatic' and this is true in the sense that they came up with concrete proposals to deal with perceived social problems in practical, and, as it turned out in the long run, widely acceptable ways. But there was a coherent framework behind the proposals published in 1957 which was to be enormously influential for the rest of the century, and not only in Britain. The recommendations were based on two axes: between private and public, and between legal moralism and utilitarianism. The philosopher of utilitarianism, Jeremy Bentham had classed homosexuality as an 'imaginary offence' dependent on changing concepts of taste and morality. The greatest of his successors, John Stuart Mill, had argued in On Liberty that the only justification for legal intervention in private life was to prevent harm to others. Wolfenden took up these arguments and agreed that the purpose of criminal law was to preserve public order and decency, and to protect the weak from exploitation. It was not to impose a particular moral view on individuals. So it followed, in the Wolfenden logic, that the law should at least partially retreat from the regulation of private behaviour, however distasteful the majority of the committee (and the population) felt it to be, whilst at the same time the law must continue to intervene, more strongly if necessary, to sustain public standards. Just as prostitution in itself was not illegal as a private activity, there was no real logic in homosexuality in private being illegal. Hence the thrust behind the two main recommendations. The report proposed that the law against street offences should be tightened to eradicate the public nuisance of prostitution. But at the same time it proposed that male homosexuality in private, for consenting adults, should be partially decriminalised, whilst penalties for public offences should be increased.

The report made a dramatic impact on publication, and its recommendations on prostitution became the basis of the Street Offences Act of 1959, which sought to eradicate street prostitution. It took another ten years before the recommendations on male homosexuality were translated in a modified form into law, in the 1967 Sexual Offences Act for England and Wales (Scotland and Northern Ireland had to wait until 1980 and 1982 respectively). But whatever the day-to-day challenges posed by actual reform processes, the new legal and moral framework proposed was to prove immensely influential.

In the first place, it shifted perceptions about the role of the law in enforcing sexual morality. The report generated an immediate debate, in the famous Hart-Devlin controversy. Lord Devlin in his Maccabean Lecture in 1959 firmly reasserted the absolutist view that 'society cannot live without morals', and that it was fundamental to society that laws be based on morals, or at least on 'those standards of conduct which the reasonable man approves'. However, the more pragmatic view endorsed by H.L.A Hart and encoded by Wolfenden, effectively saying that the law's capacity to change private behaviour was limited, was the one that prevailed. This was not after all a call to rip down all barriers. It was not in any sense a libertarian charter. For many subsequent critics the Wolfenden position put forward a more effective strategy for societal regulation than an outdated and distrusted moralistic legal framework. The recommendations themselves would have seen only a modest diminution of the prison population, while the Sexual Offences Act of 1967 actually increased penalties for public displays of homosexuality, leading in the immediate aftermath of 1967 to an increase in prosecutions. The privatising of homosexuality could be seen as a more effective way of controlling it.

The second point to note is that this new framework for regulation had differential impacts on men and women, and on heterosexually- and homosexually-inclined people. The Street Offences Act in 1959, a direct result of Wolfenden, drove women off the streets by increasing fines and imprisonment. But it led at the same time to a reorganisation of prostitution, resulting in a huge expansion of massage parlours and call-girl rackets, under the control of men. As ever, legislation had unintended consequences.

Thirdly, Wolfenden articulated a view of homosexuality that was to be immensely influential both for women (although the section of the report addressing homosexuality was not directly concerned with them) and for men. For in a real sense it bought the idea of a distinctive homosexual identity and way of life into the law for the first time. Prior to 1957, homosexuality as such had had no presence within the law at all. It had been dealt with under legislation relating to 'unnatural offences', gross indecency, importuning and the like. In order to provide a more modern framework Wolfenden had to conjure the homosexual into being. The committee 'discovered', even invented, the meaning of homosexuality as sexual identity, sexual practices and forms of knowledge. A new form of sexual wrong was invented in order that it could be righted, through decriminalisation. Although Wolfenden hardly endorsed homosexuality, it recognised that for many it was an irrevocable destiny. Behind Wolfenden's framing of the issues was a broad tendency away from ethical collectivism towards the individualisation of decision making, and a feeling that the autonomy and self-determination of individuals should be respected. Wolfenden, the classic re-statement of legal liberalism in the 1950s, offered a framework for the expression of self identities that pointed forward to the new opportunities of the 1960s and beyond. Lesbians were to benefit from this shift alongside homosexual men.

Identities

Wolfenden was a government initiative, commissioned reluctantly, and it came up with policies that the Conservative government of the late 1950s and early 1960s would have preferred not to confront. Wolfenden really came into its own with the great wave of liberal reforms - on abortion, censorship, and divorce, as well as homosexuality - in the late 1960s. That liberal hour, it turned out, was brief, and no comparable period of legislative reform was to recur for another thirty years. But what is more crucial is that from the late 1960s the initiative for change shifted, away from the liberal moral reformers to the grassroots. The emergence from 1969 of second-wave feminism and from 1970 of a gay liberation movement ultimately changed the terms of the debate. Wolfenden deliberately avoided any endorsement of homosexuality as a valid life choice; it was a problem that needed to be dealt with. The new social movements, however, positively affirmed the merits of lesbian and gay lives, and of the necessity of self-activity in defence of those lives.

The initial impulse of all homosexual politics since the nineteenth century had been the assertion of the validity of same-sex desire and love, and the shaping of a viable sense of self, of identity. The difference the gay liberation movement represented was that an individual process of the construction of the self now became a consciously collective process, a new form of agency through a social movement whose aims were radical.

In practice, for most people this translated into a celebration of guilt-free same-sex activity, and the development of a meaningful sense of identity and community. The relationship between the two was not always straightforward. For men in particular, sexual freedom was a high imperative, and remained so throughout the trauma of AIDS and beyond. This was in part about the possibilities of easy sex, and that became a leitmotif of the 1970s for gay men, though heavily criticised by many lesbians. But more fundamentally it was also about questioning the social relations of sexuality: compulsory coupledom, monogamy, marriage and the traditional family, which was of as much concern to lesbians as to gay men . The affirmation of valid identities, built around sexuality but not reducible to it, became the central element of the movement as it developed into the 1980s, sustained by a wider sense of belonging. The idea of 'community' became central to this.

A sense of community, of wider belonging, was more than a pious aspiration. In a real sense it was a precondition of making new identities possible. But this did not imply a monolithic ideology or politics. From the start in Britain, as in the USA and elsewhere, there was a proliferation of political beliefs, practices and organisations often competing, or in sharp disagreement, with each other. Debates about identity and difference overlapped with debates about the organisation of desire and with concerns about public policies and private practices. In each country and culture gay liberation took on local characteristics. In Canada it overlapped with Quebec secessionism; in France with republican ideals of universalism; in the Netherlands it was shaped by the heritage of 'pillarisation', the belief in the coexistence of parallel but different patterns of life; in the USA it rapidly adopted an almost ethnic-identity-based pattern; in South Africa, post-Apartheid, it ultimately became part of a politics about the fundamental rights of non-discrimination.

In Britain gay liberation was at first strongly associated with the political left, and identified strongly with the trade-union and labour movements. But, in the end, rather than see it in terms of its political positioning, it is more useful to see it as a broadly-based overlapping cluster of arenas of collective activity. Like feminism, gay liberation was from the first largely a movement amongst radicalised, often university-educated, young people of the baby-boom generation. It passed most of the lesbian and gay, let alone the wider, population by during most of the 1970s. But what it did was to provide the cultural context for a mass coming-out of homosexuality, and to provide a new and more positive context for the shaping of self in new collective worlds. Instead of 'the end of the homosexual', and of the heterosexual too, as proposed by early gay liberationists, we see the embedding of strong lesbian and gay identities, and in their wake a proliferation of other sexualised identities, based on gender, sexual desire, ethnicity and race, faith, object choice, the transcendence of biology, and so on, and potentially on again. The emergence of a new collective identity from the 1990s - LGBT (Lesbian, Gay, Bisexual, Transgendered) - signalled this ever-broadening sense of identity.

Finding and affirming identity was a crucial element in fuelling political and cultural energy, and in stimulating the enormous growth of gay community institutions: from newspapers and journals to sex clubs, from faith groups to discos, from specialist sex shops to gay restaurants and hotels, from masseurs to gay lawyers, dentists and estate agents. This vast social and entrepreneurial space, evident in all the metropolitan areas of the west by the 1980s, represented a growing integration of dissident sexualities into the market economy. But it fed on, and in turn shaped, the spaces of identity through which individual lives were lived.

Equality and citizenship

Wolfenden conjured up the individual homosexual making moral decisions about sexuality in private. Discretion was the watchword. The new gay movement, on the contrary, asserted the importance of public affirmation of gayness as a way of enhancing and legitimising private lives: flaunting it. Despite the often extremely hostile climate, accentuated in the 1980s by the tragedy of the HIV/AIDS epidemic amongst gay men, by the 1990s dramatic change was evident in the everyday world where people shape their lives. The LGBT world was increasingly diverse and complex, and in a variety of different ways lesbians and gays reached a new public profile. Today, in the arts, theatre, politics, trade unions, academia, business, television, journalism, the police - in 2006 a policeman won the Mr Gay UK title - there are now openly lesbian and gay people in prominent places. Beneath the froth of public life something yet more important was happening. Thousands of LGBT people were quietly building their lives - falling in love, having relationships, caring for children or parents or significant others - as if they were fully equal citizens, assuming rights and responsibilities often in advance of the law, but creating facts on the ground that the law ultimately had to respond to.

In the early years of this new century, the long march to full, equal citizenship has at last been embodied in law. Despite a slow start, largely because the House of Lords blocked reforming legislation, the post 1997 Labour government, prompted in part by European court decisions, has moved to equalise the law and treatment of LGBT people: immigration rights, equal adoption and fostering rights, an equal age of consent at 16, repeal of Section 28 of the Local Government Act, abolition of the specifically gay offence of gross indecency in the Sexual Offences Act, protection against discrimination in the provision of goods and services, employment protection, the Gender Recognition Act, and the passing of the Civil Partnership Act. There was no positive crusade to promote LGBT rights by the government, and some of the legislation was passed following backbench amendments to wider legislation rather than the government leading from the front (though it did use the Parliament Act in an unprecedented way to ensure passing of the equal age of consent). This was liberalism by stealth, helped along by the quiet but forceful lobbying of the gay-rights group, Stonewall. But the result has been a remarkable modernisation of the law, historically unprecedented and one of the most important batches of reforms introduced by the Blair government (and characteristically ignored in most attempts to assess the successes and failures of that government). When the Royal Navy, which until 2000 was sacking around 200 sailors a year for their homosexuality, announced it was working with Stonewall to recruit lesbian and gay sailors in 2005, or the Metropolitan Police sponsored Lesbian and Gay History week in 2006, something remarkable had happened to traditionalist Britain.

The direction of change was unmistakeable, but its meanings are still contested. The development of the post 1970s lesbian and gay world has been contradictory, both deploring the historic closet which locked LGBT people in isolation, but also in some ways strengthening a sense of separatism through the development of distinctive communities and ways of life. The key question today is the degree to which this comfortable 'ghettoisation' of homosexuality is dissolving under the impact of broadening liberalisation. For some the very idea of the homosexual is dissolving as formal equality erases the distinctiveness of the gay world. Others point to the minoritising logic implicit in even the apparently most radical of reforms, civil partnerships for same sex couples. It is undoubtedly the case that many lesbians and gays are increasingly 'normalising' and 'routinising' their homosexuality, so that a double life is less and less a defining aspect of their lives, with sexuality one part rather than the core of their identities. At the same time we see, not the dissolution of identity, but the multiplication of possible subject positions and ways of life in which a strong sense of self, embedded in relationships and distinctive social worlds, remains the key to personal meaning.

Conclusions

A sense of difference is continually reinforced by the continuing strength of the heterosexual assumption. Despite really significant transformations, in many quarters homophobia remains rampant, from vicious queer bashing to school bullying, from heterosexist jokes to the self-mocking of openly gay television personalities. A continuous undercurrent of unease remains pervasive. The gay lobby group GALOP have claimed that 83% of young gay people have experience verbal abuse, and 47% anti-gay violence. Reality television shows such as 'Big Brother' may display an easy acceptance of multi-sexuality amongst people trapped in a house together, but on the streets young gay people can still be murdered just because of their sexuality.

What is fundamentally different today, however, is that LGBT people have the protection of the law, with recognised rights (and attendant responsibilities), and social recognition. The unexpected success of the Civil Partnership Act - in the first nine months of 2006, 15,000 same-sex couples took advantage of the opportunity compared to a government expectation of no more than 20,000 by 2010 - underlines the significance of the shift over fifty years. Wolfenden had for the first time defined the legal personage of the homosexual. The following thirty years saw a strong affirmation of LGBT identities and ways of life. Today there is a renewed emphasis on the importance of relationships, and the right to full and equal citizenship. LGBT people have moved from the extreme margins to the mainstream in barely half a century.


Further Reading


Andrew Holden, Makers and Manners: Politics and Morality in Post-War Britain (London: Politico 2004).

Matthew Waites, The Age of Consent: Young People, Sexuality and Citizenship (London: Palgrave 2005).

Jeffrey Weeks, Sex, Politics and Society: The Regulation of Sexuality since 1800 (2nd edition, Harlow: Longman 1989).

Jeffrey Weeks, The World We Have Won: The Remaking of Erotic and Intimate Life (London: Routledge, forthcoming 2007).

Lesbian Gay Bisexual Trans History Month

Paying the price again: prostitution policy in historical perspective, Julia Laite, History and Policy, October 2006

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