This year, the federal government is funding several initiatives to celebrate 50 years since the 1969 decriminalization of homosexuality in Canada.
Egale Canada Human Rights Trust, for example — a non-profit that works to improve the lives of LGBTQ2 people — has been granted $770,000 to produce a film and travelling exhibit, and the Canadian Mint will soon release a special $1 coin.
The only problem is that the idea that homosexuality was decriminalized in 1969 is essentially a myth.
No laws were repealed. The reforms that were passed had no practical effect. And criminal charges for consensual gay sex among adults increased in the decades after 1969, dramatically.
There was never an explicit section of the Criminal Code outlawing homosexuality. Instead, acts of gay sex were criminalized under various 19th century provisions. The reforms in 1969 dealt with two of these: buggery and gross indecency.
These were not repealed from the Code. Instead, an "exception clause" was added that allowed two adults 21 years and older to commit these crimes provided they did so in a strict definition of private. Gay sex remained criminal.
The exception clause stated: "(1) Sections 147 and 149 do not apply to any act committed in private between (a) a husband and his wife, or (b) any two persons, each of whom is twenty-one years or more of age, both of whom consent to the commission of the act. (2) For the purposes of subsection (1), (a) an act shall be deemed not to have been committed in private if it is committed in a public place, or if more than two persons take part or are present."
The reforms followed a notorious 1967 Supreme Court ruling in the case of Everett George Klippert. The decision upheld multiple convictions against him for gross indecency, resulting in a declaration that he was a dangerous sexual offender.
This prompted then-Justice Minister Pierre Trudeau to make the famous statement: "There's no place for the state in the bedrooms of the nation." But in truth, the state did not have the resources to police the bedrooms of the nation, and these are not the types of cases found in the historical records.
Klippert was not charged for sex in a private bedroom. Like many men, he often made use of his vehicle and other secluded "public" spaces to have gay sex. Klippert also had sex with guys who were under 21, including while he too was underage. As a result, the 1969 reforms had no effect on Klippert's case, and he remained in jail until 1971.
While the 1969 debates in the House of Commons focused on whether homosexuality was a dangerous threat or a medical disease, members from all political parties agreed on one thing: the reform accomplished nothing.
Ralliement créditiste MP Bernard Dumont said, "When two homosexuals want to commit such acts privately, nobody will denounce them and no sentence will be passed on them, I cannot see why are being led to believe that this bill is going to change anything." Progressive Conservative Eldon Woolliams agreed: "Two consenting adults are not going to go out and report what they do in private to the law officers."
NDP MP David Orlikow quoted an academic study of gross indecency in Toronto and found there were no charges against two adults in private, concluding "I do not believe this change in the Criminal Code will really do very much."
Even the governing Liberals admitted this. MP Gilles Marceau stated, "Gross indecency is still a criminal act which may be punishable by five years in jail. And the amendment which will enable consenting adults to do certain acts in private only confirms the inviolability of private life."
Justice Minister John Turner was more emphatic, stating that the reform does not promote homosexuality, "it does not advocate such acts, it does not popularize such acts, it does not even legalize this kind of conduct."
When the reforms became law in August 1969, the headline in the Toronto Star read, "State leaves bedrooms, but little has changed." A morality squad detective with more than 18 years experience was interviewed and could not recall a single arrest for two consenting adults having sex in private.
Not only did charges for gross indecency continue after 1969, they escalated. In one example from 1976, two young men were arrested at 5 a.m. in an Edmonton park because they were kissing in their parked vehicle. Over an eight-month period in 1982, a group of gay activists attended the Old City Hall courthouse in Toronto and tracked 74 charges of gross indecency against adults for having gay sex.
Charges also escalated for other 19th century Criminal Code relics that were untouched in 1969, including indecent acts, vagrancy, obscenity, and the bawdy-house law. From 1968 to 2004, more than 1,300 men were charged under the bawdy-house law for being in a gay bar or bathhouse. They could not claim protection using the 1969 reform because more than two people were present in these instances, even if they were behind closed doors.
So why is the Canadian Mint releasing a coin commemorating an event that led to the mass criminalization of LGBTQ2 communities in the decades after 1969? Whom does this commemoration serve?
It does not serve lesbians, who were not captured by these Criminal Code provisions. Nor does it serve Two-Spirit and Indigenous communities, who in 1969 mobilized against the White Paper, which called for the destruction of their sovereignty and treaty rights.
It does not serve the gay and lesbian community, which, in 1971 gathered on Parliament Hill for their first national protest organized in direct opposition to the 1969 reform. They called for an actual decriminalization and the repeal of all "indecency" laws. This commemoration also ignores LGBTQ2 members of the military and civil service, who continued to be purged until as recent as 1992.
Instead, this commemoration celebrates the so-called accomplishment of a Liberal named Trudeau, a myth that is literally going on our dollar.
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