Photo: Jerald Moldenhauer
By Tom Hooper and Gary Kinsman
The celebrations have already begun. They say 2019 is the 50th anniversary of the 1969 decriminalization of homosexuality. The Royal Canadian Mint is set to reveal a commemorative $1 coin in April and Egale Canada Human Rights Trust, a national LGBTQ2 organization, was granted $770,000 from the federal government to produce a film celebrating this anniversary.
The problem is that this is based on a myth. No such decriminalization took place, partial or otherwise. No offenses were repealed in 1969. Arrests did not go down.
Just the opposite: the policing of “indecent” sex dramatically escalated in the decades following this so-called decriminalization, including several mass arrests at gay bathhouses. The 1969 reform also did nothing to lessen the purge campaign in the military and public service, which had a major impact on people in the Ottawa area.
So why is this myth of decriminalization so widely accepted?
The ’69 reform had nothing to do with the ways that homosexuality was criminalized in practice — the state did not have the resources to police the bedrooms of the nation.
In 1967, Prime Minister Pierre Elliott Trudeau stated, “there’s no place for the state in the bedrooms of the nation,” adding “what’s done in private between adults doesn’t concern the Criminal Code. When it becomes public this is a different matter.”
The legal change in 1969 followed this principle. The government added an ‘exception clause’ for the offences of gross indecency and buggery. These would no longer be crimes if they were committed in a narrow private realm, between two adults aged 21 and over.
Prior to 1969 all acts of gross indecency and buggery had been technically illegal. No distinctions were made on the basis of whether they were committed in public or private, or on the basis of age. The 1969 reform specifically directed the police against acts in public and involving those 21 and under.
This change had nothing to do with the ways that homosexuality was criminalized in practice, both before and after 1969. Two adults over 21 who had sex in private were not usually targeted for enforcement. The state did not have the resources to police the bedrooms of the nation.
The 1969 reform was facilitated by the Supreme Court decision in the Everett George Klippert case in 1967. Klippert had been convicted of a number of counts of consensual gross indecency with males, most of whom were younger than 21.
Since Klippert was deemed likely to continue to engage in homosexual activities, he was sentenced as a dangerous sexual offender to indefinite detention. The Supreme Court majority decided that Klippert had been correctly sentenced, provoking Trudeau to make his comment on the state and bedrooms.
The very first gay and lesbian rights demonstration on Parliament Hill in August 1971 was explicitly opposed to the limitations of the 1969 reform. At this time, most heterosexual sex acts could be engaged in legally at 14, setting up very discriminatory age of consent laws.
Also, since many LGBTQ2 people did not have access to private bedrooms in order to have sex, living a discreet life often meant sex had to occur outside of the home. Although definitions of public and private shift historically and can be vague and arbitrary, the broad definition of public adopted in 1969 included bars, bathouses, washrooms and parks.
This mandated police to mobilize against spaces of ‘indecent’ sex that were outside the home, including bathhouses. Homosexual sex apparently threatened public decency somehow, even if it was taking place behind the closed doors of a privately-owned business establishment. From 1968-2004, more than 1,300 men were charged in raids on these establishments.
The ‘acts of indecency’ section of the bawdy house law was used in a raid on the Club Baths in Ottawa as part of the ‘clean-up’ campaign before the 1976 Montreal Olympics. This led to the arrest of 27 men under the bawdy house laws, with two charged for gross indecency for consensual sexual activity behind cubicle doors — which the police claimed was ‘in public.’ As in Montreal and Toronto, police refused the master key and entered rooms by smashing in doors.
Also in Ottawa in 1975, 18 men were charged with various offences for consensual sexual encounters with other males ranging in age from 16 to 21. Central to these charges was the higher age of consent set in the ’69 reform.
The police released the names and identities of those charged to the media, which in turn publicly released this information. One of those charged and outed was Warren Zufelt, a 34-year-old public servant. After his first court appearance on a charge of gross indecency, Zufelt climbed to the 13th floor of his apartment building and jumped to his death.
Gays of Ottawa held rallies protesting Zufelt’s death, police persecution of gays, biased media reporting, the printing of the names of those charged, and called for a uniform age of consent for all sexual acts.
So from these example just from Ottawa, then, we can see that the limitations of the ’69 reform had a devastating impact. At the time LGBTQ2 people did not celebrate the changes — and neither should we.
The decriminalization of homosexuality myth is also tied to other reforms in 1969. An exception from criminalization was established for abortions, provided they occurred at a hospital with the approval of a therapeutic abortion committee of at least three doctors. They could only approve cases on the narrow grounds of the pregnancy “endangering a woman’s life or health” and many hospitals did not even have these committees.
Like homosexuality, the promise of reform did not match the actual legislative changes. The following year, feminist activists created the Abortion Caravan to protest these limitations, which included a demonstration that shut down the House of Commons.
These legal changes were part of Pierre Elliott Trudeau’s “Just Society,” a broad series of proposals that sought to redefine the relationship between government and people in Canada. This included the 1969 White Paper, which called for the destruction of Indigenous sovereignty and treaty rights in the name of granting Indigenous people “the full rights of citizenship” and “meaningful equality of opportunity.” Not only did the 1969 reforms enable mass arrests at gay bathhouses and restrictions on access to abortion services, it was related to a broader project of colonialism. What is there to celebrate?
We are part of a group of activists and scholars who are challenging the myths of 1969. We are organizing a forum called Anti-69 at Carleton University on March 23-24, which includes plenaries, presentations, video showings, book displays and more.
