LGBTQ+ History Month: our history through legislation

Reading time: nine minutes 

Every February since 2005, LGBTQ+ History Month has been celebrated across the UK to recognise and commemorate the LGBTQ+ community. Initially founded in 2004, by Schools OUT co-chairs Paul Patrick and Professor Emeritus Sue Sanders, the celebration occurs in February to coincide with the abolition of Section 28.  

This month offers an opportunity for all of us to reflect on the progress that’s been made, the obstacles that remain, and crucially celebrate all +1.5 million of us currently living in England and Wales. That’s right we’re still making history because in 2021, for the first time in more than 200 years, we were officially counted as part of the Census. But we’ve always been here, and over time we’ve seen incredible legislative steps taken to protect our identities. Homosexuality has been legal in the UK since 1967, and since then there’s been a steady increase in recognition and support of LGBTQ+ people. Still, sometimes legislation is enacted (or blocked) that makes us feel like we’re going backwards once more. On this note, let’s look at the laws that have landed us where we are today. 

1553 Buggery Act 

In 1553, King Henry VII criminalised the act of sodomy under the Buggery Act. This was the first time sexual activity between men had officially been criminalised through legal code; the act was referred to as “detestable and abominable” and made punishable by death. Although technically, sodomy was illegal for any person to engage in under the Buggery Act, it was gay men who were the primary target of prosecution.  

In the first hundred years of the act, only one man, Walter Hungerford, was executed. However, from 1806 to 1861 there were 8,921 prosecutions, 404 death sentences and 56 executions. Judges sought to avoid the death penalty, when possible, but the act instilled fear and shame into the lives of gay men. By 1861, courts decided to remove capital punishment from the Buggery Act; instead, sodomy became punishable by 10 years in prison under the Offences Against the Person Act. The last men to lose their lives under the Buggery Act were James Pratt and John Smith in 1835 – a full copy of the court transcript from Pratt’s trial has been made available by queer historian Rictor Norton. 

To hear how homophobic and transphobic laws were exported from England to the Commonwealth Caribbean, watch this lecture by KC Leslie Thomas.

1885 Criminal Law Amendment Act 

Skipping ahead to 1885 where Section 11 of the Criminal Amendment Act, otherwise known as the Labouchere Amendment, made any intimate act between two men illegal. This amendment sought to punish gay men in instances where sodomy couldn’t be proven; instead, the act encompassed any act that fell under the broad term ‘gross indecency’. The amendment, which was later known as the Blackmailer’s Charter, meant any man who engaged in sexual or intimate acts with another man faced a minimum of two years in prison. It’s estimated that roughly 65,000 men were convicted under this law, including Oscar Wilde and Alan Turing. It wasn’t until 2017 that Turing’s law was introduced, officially pardoning gay men and repealing convictions for all consensual homosexual acts. 

1921 Criminal Law Amendment Bill 

In 1921, in England and Wales, there was an attempt to criminalise sex between women as an additional amendment to the Criminal Law Amendment Bill. However, this amendment was never passed, as there was a lack of evidence to suggest intimate acts between two women took place, with most women stating they’d never heard of such activities. Sexual acts between women were therefore never made explicitly illegal under English law, highlighting the common erasure of lesbian and bisexual identities in British criminal law. This isn’t to say that queer-identifying women weren’t subject to penalisation. There were several vaguely worded criminal provisions and offences, such as “public nuisance” or “undermining public morality” that were used to criminalise LGB women without the creation of specific offences. The erasure of LGB women remains an issue within the queer community today. In 2017 the Solicitors Regulation Authority (SRA) found that while 3% of partners in firms with more than 50 partners identified as LGB, only 1% were gay women. Although, this disparity can be linked to the lower number of female partners in firms overall.  

To read a first-hand account from Deborah Baxter about being an LGB lawyer, read this LCN Says. 

Sexual Offences Act 1967 

The year 1967 marked a hugely important moment in history for LGB people in Britain. Under the 1967 Sexual Offences Act, after 400 years of criminalisation, homosexual acts between men were partially decriminalised. However, the act’s implementation continued to maintain deep divides between queer people and the rest of society.  

For one thing, the legislation legalised sexual acts between men over the age of 21, but the consenting age for heterosexuals was 16. In addition, the act specified such behaviour was only legal in “private”, meaning public displays of homosexuality, even in hotels, remained a criminal offence.  

The act’s stipulations were a result of recommendations made in the Wolfenden Report written 10 years earlier, which suggested that in modern society public acts of “immorality” should be persecuted, but private behaviour shouldn’t be subject to such regulation. The act also didn’t extend to Scotland, Northern Ireland, the Channel Islands, the Isle of Man, the armed forces or the Navy. In fact, it remained a convictable offence for gay people to serve openly in the UK’s armed forces until 2000.  

The decriminalisation of homosexual acts between men failed to have a profound impact on social acceptance; being gay was viewed as a disease, a moral failing, an abnormality and even a mental illness, as classified by the World Health Organisation (WHO) until 1992. In the years following the act, convictions for homosexual offences also rose rather than declined. A report from the House of Lords discovered that: 

• during the period 1967 to 1997, 23,669 men were convicted of buggery, and 35,394 men were convicted of gross indecency, rising from 14,539 and 32,565, respectively; and 

• between 1967 to 1974, gay pubs and clubs were actively targeted and aggressively policed, with convictions increasing by 55% at this time. 

1981 Dudgeon v United Kingdom 

1981 marked a landmark decision by the European Court of Human Rights to declare Northern Ireland’s laws criminalising homosexuality as a violation of the European Convention on Human Rights’ (ECHR) “right to privacy”. The case was launched by Jeffrey Dudgeon who argued that the law was an “unjustified interference with his right to respect for his private life” thus breaching Article 8 of the ECHR. The court’s decision had a much greater impact than the case in question. The principle that homosexuality shouldn’t be criminalised became an express condition for states wishing to join the Council of Europe, with many countries repealing such laws before joining. 

1988 Section 28 

Arguably one of the most significant pieces of legislation in queer history is Section 28 of Thatcher’s Local Government Act, which banned local authorities and schools from “promoting” homosexuality. Schools were legally banned from teaching LGBTQ+ relationships as an acceptable family relation. This not only alienated queer people, but also deprived generations of LGBTQ+ children from seeing people like themselves in books, plays, films or leaflets. To put this into context, any mention of being LGBTQ+ or what that might mean was expunged from every classroom. As someone who grew up with gay parents myself, it meant in the early years of my education, teachers couldn’t legally acknowledge my parents’ relationship.  

The political opportunism of Section 28 was deliberate and vindictive. It was enacted on the back of the stigmatism and hysteria surrounding the AIDs crisis. The impact of Section 28 was devastating. Deborah Baxter, solicitor and director of The Modern Family Law Company, said that it “completely legalised homophobia, that had us all looking over our shoulders”. Despite Section 28 being repealed in 2003, the horrors and discrimination that it promoted were long-lasting; a Stonewall School Report from 2017 found that 40% of LGBTQ+ pupils have never been taught about LGBTQ+ issues at school, with 45% of students (or 64% of trans students) being bullied at school or college. It is, however, worth mentioning that it was the campaign against Section 28 that led to the creation of Stonewall and all the incredible work it does today. 

1997 Sutherland ?v UK 

By 1994 the age of consent for gay men had been reduced to 18 but it wasn’t until 2001 that the age of consent was equalised. The ruling to facilitate such change was held in Sutherland v United Kingdom, which ruled that differing ages of consent for homosexual men was discriminatory and violated Article 8 of the ECHR. 

2004 Civil Partnerships Act and Gender Recognition Act  

In 2004, two important acts were introduced that recognised and supported the LGBTQ+ community. The first was the Civil Partnership Act, which allowed same-sex couples to make a legal commitment to each other. For some, this was a significant step in achieving similar legal rights to heterosexuals, but to others, it signified lingering biases and continued segregation of gatekeeping the act of marriage.  

The second legislation, the Gender Recognition Act, enabled transgender adults to apply for a Gender Recognition Certificate to have their gender legally recognised. This was considered a world-leading piece of legislation; however, at the time applicants were still required to be medically diagnosed with gender dysphoria, which WHO classified as a mental health disorder until 2019. More recently, Scotland attempted to pass a gender reform bill that would make it easier for transgender people to self-identify. This was blocked by the UK parliament over concerns it would impact UK law – this is the first time in history that a Scottish law has been blocked for this reason. 

2013 The Marriage (Same Sex Couples) Act 

To tie-up this legislative accumulation, it felt fitting to close with a law concerned with tying the knot. In 2013 the Marriage (Same Sex Couples) Bill completed its historic journey and gained royal assent. The act allows same-sex couples to marry in both civil and religious ceremonies, while also guaranteeing the exertion of religious freedom to religious organisations that don’t wish to marry same-sex couples. The act also allows individuals who wish to change their legally recognised gender to do so without first having to file for divorce. 

A final note 

As is evidenced through this short history on LGBTQ+ legislation, the law and society are progressing, but that doesn’t mean now is the time to become complacent. It’s crucial that the legal profession acts as an active ally to the LGBTQ+ community, continuously building an infrastructure to facilitate long-term meaningful change. At current, approximately 5.1% of lawyers are LGBTQ+ and yet, according to InterLaw Diversity Forum, gay men earn approximately half as much as their straight counterparts, with LGBTQ+ women earning even less. It’s important to recognise the prejudices we’ve overcome, while continuing to challenge those that remain. Happy LGBTQ+ History Month to each and every one of you.  

If I can offer one piece of advice to all LGBTQ+ identifying individuals reading this, it’s a radical act to be yourself, to love yourself and fight for yourself, but I promise you it’s worth it, and I promise you it does get better – just look at how far we’ve come.  

If you’d like to act as an ally towards the LGBTQ+ community read this Oracle on practising allyship. 

Niamh Gray (they/them) is a content and engagement coordinator at LawCareers.Net.