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Research

index

Nov 00 Study
- exec summary
- methodology
- context
- history
- cases
- policy
- assessment
- conclusion

IV. POLITICAL AND CULTURAL CONTEXT

From 1864 to 1885, male homosexuality was illegal in Britain unless conducted in private and by consent. In 1885, the new offense of "gross indecency" criminalized all sexual activity between men, and male homosexuality remained wholly illegal until the passage of the 1967 Sexual Offenses Act [3 - The 1864 Sexual Offences Act was amended in 1885, when Henry Labouchère added a clause to the Criminal Law Amendment Act punishing “gross indecency” between males (Hansard, Col. 1397 + 1398). See Rayside (1998) and Hall (1995) for more information on the earlier legislation.]. Female homosexuality was never similarly banned, purportedly because Queen Victoria refused to believe that lesbianism existed. In 1967, Parliament partially decriminalized gay sexual activity by legalizing private consensual sex between two men over the age of 21. Male homosexual sex with anyone under 21, in public, or between more than two men remained a criminal offense. The 1967 Sexual Offences Act also included an exemption for the Armed Forces, so that male servicemembers could still be convicted for consensual homosexual sex of any kind (Rayside, 1998; Harries-Jenkins and Dandeker, 1994).

Although British attitudes towards homosexuality have become more tolerant over the last twenty-five years [4 - There is conflicting data about British attitudes toward homosexuality.  Some attitudinal surveys have shown a gradual liberalization between 1985 and 1989, followed by a stabilization in public attitudes (see Hayes (1997)), while others suggest increases in disapproval between 1983 and 1987 followed by decreases in disapproval, with a particularly marked (more than 15%) change among British women (see Scott (1998)).  Rayside (1988) notes that Britain was one of only two countries in Europe and North America where attitudes had become more negative during the 1980s.  See also RAND (1993).] (Scott, 1998), polling data reveal continued widespread discomfort with sexual minorities. A 1994 study found that a majority of British respondents felt sex between members of the same sex is always wrong [5 - The original study was conducted by Wellings et al (1994).  See Hayes (1997) for more detail.] (cited in Hayes, 1997). The British public also continues to be conservative about issues such as gay and lesbian public school teachers and adoption by homosexuals (Hayes, 1997). The data does, however, show greater tolerance of sexual minorities in other areas. Polling on the age of sexual consent revealed that approximately 75% favored equality in principle, although less than 20% specifically supported changing the age of consent to sixteen (Rayside, 1998). With respect to the issue of homosexual service in the military, a 1999 Stonewall poll found that approximately 70% of Britons opposed the ban on homosexual soldiers, with a majority in every class and party in favor of inclusion of gays and lesbians in the military (Norton-Taylor,1999) [6 - See also Hall (1995b) for a discussion of British attitudes on homosexual service in the military.]

Homosexuality has been the subject of fierce skirmishes between the Conservative and Labor parties, and between religious leaders and gay rights advocates, for more than a decade. The passage in 1987 of Section 28, a law that bans local authorities from promoting the acceptability of homosexuality in schools, became a catalytic force for supporters of expanded gay and lesbian rights (Rayside, 1998) [7 - See also Jones (2000)]. After considerable pressure by the gay-rights groups Stonewall and Outrage!, the age of consent for homosexual sex was decreased from 21 to 18 in 1994; this new minimum was, however, still higher than the age of 16 for heterosexual consent (See Majendie, 1995). The Labor Party, which presently holds power, has long supported the inclusion of sexual minorities in the military and expanded rights for homosexuals (Rayside, 1998). The Labor government has been working on a code that will instruct employers to grant homosexual partners the same rights to health care, travel benefits and relocation allowances as heterosexual married couples (Sylvester, 2000; Sylvester, 2000a). The government has also been trying unsuccessfully for more than a year to repeal Section 28 (See Jones, 2000; Jones, 2000a; and Britton, 2000).

Until the Human Rights Act [8 - For more information about the Human Rights Act, see Shaw (1999), Shrimsley (1999), and Booth (2000)] went into effect in October 2000, Britons were not protected by a set of enumerated fundamental human rights similar to that provided by the U.S. Bill of Rights. British citizens looking for judicial redress for governmental human rights violations had to pass what is known as the "Wednesbury test", which mandated that courts could only overrule a governmental action if it "outrageously defies logic or accepted moral standards" so that "no sensible person who had applied his mind to the question could have arrived at it" (cited in The Lawyer On-Line, 1995). In practice, the Wednesbury test proved to be an extremely difficult hurdle to overcome. Since Britain was a signatory of the 1950 European Convention on Human Rights, British citizens could also take human rights complaints before the European Court of Human Rights [9 - For the actual text of the European Convention, see Convention for the Protection of Human Rights and Freedoms (1950)]. They could only do so, however, after exhausting all British channels, including the High Court, the Court of Appeals, and the House of Lords [10,11 - The opinions of the Strasbourg court are not strictly binding, but in practice Britain has always complied with its decision.  Failure by the British government to uphold the rulings of the European Court could result in Britain being expelled from the Council of Europe; participation in the Council is mandatory for all countries in the European Union.  See Cullen (1999). In 1998, Parliament passed the Human Rights Act, which incorporated the rights enumerated under the Human Rights Convention into British law.  This meant that human rights protected under the convention would be enforceable for the first time in British courts, and that British citizens could invoke the protections in the European Convention without having to go to the European Court of Human Rights (See Shaw (1999a); Shaw and Shrimsley (1997); Shrimsley (1999); and Booth (2000)).]. While the European Convention on Human Rights does not explicitly include sexual orientation, it has been interpreted expansively to encompass the rights of sexual minorities [12 - See Rayside (1998) and Shaw and Jones (1996) for discussions of earlier European Court and European Parliament decisions.  The European Court of Human Rights recently also ruled that the section of the 1967 Sexual Offenses Act that circumscribed consensual male homosexual sex was unlawful (Laville, 2000)].

This research is reproduced with the kind permission of Professor Aaron Belkin and can be found in its original context on the Center for the Study of Sexual Minorities in the Military website.

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page: research :: 200011-CSSMM-2context.htm
updated: 26 Aug 05