February is LGBT+ History Month. The focus on a shared history is a response to the traditional invisibility of LGBT+ identities in public life. For instance, in the global north and west, it has really only been in the past thirty to forty years that it has become accepted for elected politicians to be identified as LGBT+. In the UK, the first government to contain openly non-heterosexual Cabinet ministers was Tony Blair’s in 1997. Among them was Chris Smith, now Lord Smith of Finsbury and Master of Pembroke College, Cambridge, who in 1984 was the first elected MP ever to come out as gay. In 1983, however, it had been politically acceptable for the tabloid press to conduct a viciously homophobic campaign to defeat Peter Tatchell as Labour candidate in the Bermondsey by-election. Invisibility was also the traditional norm in private life: something captured in the idea that there is a ‘closet’ from which a positive decision to ‘come out’ is needed.
As one of society’s central devices for regulating behaviour and enforcing norms, law has inevitably played a key role in suppressing and more recently normalising non-heterosexual sexualities. In the UK, male-male sexual acts were prohibited until the passage of the Sexual Offences Act 1967. However, the wording of section 1 is highly significant, permitting such acts only if they occur ‘in private’: a constraint which simply does not apply in this direct form to heterosexual acts. The infamous section 28 of the Local Government Act 1988 later prohibited local authorities from ‘intentionally promoting homosexuality’ and from promoting the teaching in schools of its ‘acceptability … as a pretended family relationship’. One aim here was seemingly to keep minority sexualities unmentioned if not concealed.
Nonetheless, arguments based on privacy have also been used in the constitutional context in the USA (Lawrence v Texas (2003) 539 US 558) and under the European Convention on Human Rights (Dudgeon v United Kingdom (1982) 4 EHRR 149) to preclude criminal regulation of same-sex sexual acts. In this regard, privacy has acted as a defence for sexual minorities rather than a concealment device.
More recently, many jurisdictions have moved to protect LGBT+ minorities from discrimination in contexts such as employment, and to allow for recognition of same-sex partnerships, whether as marriages or under a form of registered partnership with equivalent status (in the UK, see the Equality Act 2010, especially sections 4, 12, 13, 19; Civil Partnership Act 2004 and Marriage (Same Sex Couples) Act 2013). These developments seemingly mark a move, so far as the law is concerned, beyond the purely private realm: for, by protecting a characteristic from discrimination, we are saying that it has a positive value or at least cannot justifiably be held against a person, while granting legal recognition and protection to a partnership is - by definition - according a public status. It is perhaps no coincidence that judicial decisions recognising same-sex partnerships have, in some jurisdictions, moved beyond the language of privacy and invoked concepts of dignity (in the USA, see Obergefell v Hodges (2015) 576 US 644).
LGBT+ minorities nonetheless continue to be discriminated against in many countries: Hungary, Poland and Russia provide examples of recent official (including legal) hostility. Meanwhile, specific issues (for example, the permissibility of anti-LGBT+ policies or actions based on ‘traditional’ religious values) remain to be resolved in jurisdictions which have granted legal protections. Socially-speaking, minority sexualities also remain under threat in numerous situations and communities, whatever legal protections are in play. These points help explain the ongoing importance of LGBT+ History Month’s emphasis on public visibility and moving far beyond the ‘closet’.
* To mark LGBT+ History month, the Law Faculty hosted a conversation on 4th February 2021 between Nicholas Bamforth and Mohsin Zaidi, a barrister at 6KBW College Hill, old member of Keble and author of A Dutiful Boy: A memoir of a gay Muslim’s journey to acceptance (Penguin Random House, 2020).
(Fellow in Law, Queen’s; Associate Dean for Equality and Diversity)