Tom Hooper, Gary Kinsman, and Karen Pearlston
(The Anti-69 Forum is taking place March 23-24, 2019 at Carleton University. See www.anti-69.ca for more information)
When we say we are Anti-69, we are referring to the mythologies surrounding the 1969 Criminal Code reform. We are not Anti-69 in all contexts. There are many important events from 1969 that deserve to be celebrated, including the Stonewall riots against police repression and the origins of the gay liberation movements around the world. Some people also really enjoy 69 as a sexual position.
1. Why are you Anti-69?
We are Anti-69 because the federal government has planned and funded several efforts at commemorating the 50th anniversary of the so-called ‘decriminalization’ of homosexuality.
- A film being created by Egale
- A commemorative $1 coin, and $10 coin by the Canadian Mint
- Pride Toronto’s 2019 theme
- Theme for Ottawa WinterPride
We argue that no such decriminalization took place, and these efforts at commemoration only serve to perpetuate a myth. This myth is being used to legitimize Liberal governments, both past and present, as pro-Lesbian, Gay, Bisexual, Trans, Queer, or Two-Spirit (LGBTQ2+).
2. What law related to homosexuality was changed in 1969?
Clause 7 of the Criminal Law Amendment Act, 1968-69 (also known as the Omnibus Bill) reformed two provisions in the Criminal Code: buggery, and gross indecency. These were not repealed. Instead, the bill added an exception clause that allowed individuals to commit these crimes under certain circumstances: they had to take place between only two adults (21 years old and older), in a strict definition of private.
‘Public’ was broadly defined, it included any instance where more than two people were present, or acts involving anyone under the age of 21. The definition of ‘private’ only included sexual acts behind bedroom doors, all other practices remained criminalized.
This discriminatory age of consent was based on the mythology that older boys and young men needed ‘special protection’ from ‘homosexual advances.’ The age of consent for most heterosexual sex at this point was 14.
The first lesbian and gay rights demonstration on Parliament Hill in 1971 (referred to as the “We Demand” demonstration) was directed against the limitations of the 69 reform.
3. Why do you say that “decriminalization” is a myth?
The so-called decriminalization of buggery and gross indecency between only two adults in private merely recognized the obvious: the state did not have the resources to police the bedrooms of the nation using these Criminal Code provisions. Two people having sex completely in private would not usually be caught by law enforcement, and these are not the types of cases found in the historical records.
“There’s no place for the state in the bedrooms of the nation.” The state did not have the resources to the police the bedrooms of the nation and these are not the types of cases found in the historical records. Pierre Trudeau concludes, “when it becomes public, this is a different matter.” ‘Public’ meant anything outside shut bedroom doors with only two people.
After 1969, police forces across Canada (who opposed the reforms in the Omnibus Bill) mobilized to charge queer people for their consensual sexual activities. This was in part because the 69 reform directed their attention to ‘public’ displays of queer sex. As nothing was repealed in 1969, the Omnibus Bill did not remove the construction of queer sex as ‘indecent.’ The ‘public’ was defined as basically anything outside shut bedroom doors with only two people.
The continued criminalization of queer sex involved not only gross indecency, but also other archaic offenses not reformed in 1969, including indecent acts, vagrancy, and the bawdy house law. Charges for consensual queer sex increased after 1969 and large mass arrests took place in Montreal, Toronto, Ottawa, Edmonton, Calgary, and other centres.
The 69 reform was an application of the public/private and adult/youth law reform strategy set out in the 1957 British Wolfenden report on street prostitution and male homosexuality in the Canadian context. This strategy has also been used to intensify the policing of sex workers in the broad ‘public’ realm.
4. If decriminalization didn’t happen in 1969, when did it happen?
It still has not fully occurred. There was never an explicit Criminal Code law against homosexuality. Several provisions in the Code were used by police forces to criminalize queer sexual acts, both before and after 1969. These provisions often made use of vague antiquated terms, including ‘indecency’.
Because our movement organized in resistance, various court rulings have limited the use of some of these provisions, but most continue to exist in the Criminal Code even in 2019. These include:
- Gross Indecency* – Repealed 1988
- Buggery* – Renamed Anal Intercourse in 1988
- Indecent Assault on a Male – Repealed 1983
- Anal Intercourse – Still on the books: S. 159
- Bawdy-House Law – Still on the books: S. 210
- Vagrancy – Still on the books: S. 179
- Indecent Acts – Still on the books: S. 173
- Obscenity – Still on the books: S. 163
- Nudity – Still on the books: S. 174
- Immoral Theatrical Performance – Still on the books: S. 167
*Both buggery and gross indecency were ‘triggering’ offences for sentencing as a Dangerous Sexual Offender. This was used in the gross indecency charges against Everett George Klippert that sentenced him to indefinite detention as the court determined he was likely to continue to engage in homosexual sex. This sentencing was confirmed in the infamous 1967 Supreme Court case.
Initially, Bill C-75 proposed to repeal S. 159 – Anal Intercourse. Thanks to the intervention of gay and lesbian historians, the government amended C-75 to include the repeal of S. 179 – Vagrancy, and S. 210 – Bawdy-house law. Bill C-75 is now before the Senate.
5. How did the 69 reform affect sex workers?
The 69 reform did not change the regulation of sex workers in any direct way, although sex workers were charged with gross indecency both before and after the 69 reform. However, the public/private strategy of regulation that was the basis of the 69 reform had a major impact on the policing of sex workers, as those working on the streets faced the brunt of police repression.
In the 1957 British Wolfenden report, which inspired the 69 reform, sex workers on the street were seen as a criminal problem since they were publicly visible as a “social nuisance.” This public-focused policing led to charges against people working the streets who had no access to any private space. Sex workers who were targeted by police were often poorer, Indigenous and racialized women, trans, and Two-Spirit people.
The bawdy-house and vagrancy laws had long been used to target sex workers. The use of these provisions against LGBTQ2+ communities after 1969 inspired mutual struggles of resistance with sex worker activists. In the 2013 Supreme Court case Canada (Attorney General) v. Bedford, the bawdy-house law was declared unconstitutional in its application against sex workers, as was the law against communication for the purposes of prostitution, which was the successor to the vagrancy law that was used to police street-based sex workers.
The resulting legislation, the Protection of Communities and Exploited Persons Act (PCEPA), reconstituted many of the sex work offenses declared unconstitutional in the Bedford case, and added new ones. These laws compromise the safety and security of sex workers, the resistance continues.
6. How did the 69 reform affect trans people?
Trans people, or other people found wearing clothes determined by police to be of the “wrong gender” were arrested on charges of vagrancy. Charges of gross indecency were also used against trans people, including those involved in sex work, even after 1969.
The 69 reform did nothing to lessen the tyranny of the two-gender binary system in the lives of trans people.
7. How did the 69 reform affect Two-Spirit people?
Two-Spirit people are Indigenous people who are reclaiming the traditions of gender and sexual diversity (including third, fourth, and fifth genders) among Indigenous people prior to colonization. The 69 reform discussions referred to ‘homosexuals’, acts of gross indecency, and buggery, but there was no specific mention of gender and sexual diversity among Indigenous nations.
Two-Spirit people also faced the same racism and colonialism that all Indigenous people faced including that of the 1969 White Paper (see the next question and answer).
8. How is the 1969 White Paper linked to the Omnibus Bill?
The Omnibus Bill was part of a broader platform first put forward by Pierre Elliott Trudeau in the 1968 election. This was called the ‘Just Society.’
The ‘Just Society’ was a series of liberal reforms aimed at promoting the ideal of individual Canadian citizenship. While individual rights were promoted, social and collective rights were not. This included adopting homosexuals into the state, provided they approximated normative heterosexual relations as closely as possible (only two people in a strict definition of privacy, 21 and over), but it also included as a central feature the extinguishing of Indigenous sovereignty.
The 1969 White Paper was a federal Liberal government policy document that followed this conception of the ‘Just Society’. It advocated for the elimination of all treaty rights protected by the Indian Act, and the assimilation of all Indigenous people into a homogeneous and white dominated Canadian society. Widespread Indigenous rejection of, and resistance to this forced it to be withdrawn. This kind of approach continues to inform federal Liberal government proposals to recognize ‘Indigenous sovereignty’, but now only as sub-municipal government authority and not as a real nation-to-nation relation.
9. How did the 69 reform affect lesbians?
The 1969 Omnibus Bill only reformed the crimes of gross indecency and buggery. Although there were a few cases where lesbians were charged with gross indecency or other Criminal Code offenses, this was the exception, not the rule. In contrast to the treatment of gay men, the criminal law was not used in a systematic manner against lesbians.
Lesbian sexuality was regulated by the state in other ways, especially in family law and social policies denying social and economic autonomy and equal rights for women. In 1968, the Divorce Act made it easier for husbands to divorce their wives for engaging in lesbian sex by including a “homosexual act” ground for divorce.
The focus in the 69 reform on two offences identified with gay men’s sexuality perpetuated a male-focused narrative relating to ‘homosexuality.’ The reform did nothing to dislodge the institutionalized heterosexuality which lies at the root of lesbian oppression. As a result, the celebration of 1969 once again privileges gay male sexuality in the historical narrative, erasing the unique ways that lesbian sexualities have been regulated.
10. Did the 69 reform decriminalize abortion?
No. Clause 18 of the Omnibus Bill allowed for a limited access to abortion but only under certain conditions. Abortions could only occur at hospitals with the consent of a therapeutic abortion committee of at least three doctors. The abortion committee could only approve therapeutic abortions in cases where the pregnancy would endanger the woman’s “life or health”. Many hospitals did not have such committees and therefore no abortions were allowed, creating uneven access even within these other limitations.
As with ‘buggery’ and ‘gross indecency’ a limited exception was provided to the criminalization of abortions. All other abortions remained criminalized which meant there was limited and uneven access. The feminist movement responded to these limitations the next year with the Abortion Caravan, including a demonstration that shut down the House of Commons. Feminists and pro-choice advocates had to wage a long social and legal battle to expand abortion access after 1969.
Even though abortion was decriminalized by the Supreme Court in the 1988 Morgentaler decision, the struggle for access continues today.
11. Did the 69 reform stop the purge campaign against LGBTQ2+ people in the public service and military?
No, it did not. In the public service and military ‘homosexuals’ continued to be defined as ‘national security risks’ after 1969. We continued to be seen by the government as suffering from a ‘character weakness’ that made us ‘vulnerable’ to blackmail from Soviet agents since we supposedly had something to hide. There was no direct relation between criminal code offences and the purge campaign, although charges would lead to a confirmation that an individual was a ‘homosexual’ and needed to be purged. But most people purged never had any charges laid against them.
After the 69 reform the RCMP continued to use the threat of laying Criminal Code charges against ‘homosexuals’ (including indecent acts, but also gross indecency and buggery) to get information on gay and lesbian friends in the public service and the military so they could be purged.
The official purge campaign in the military did not end until the Michelle Douglas court case in 1992.
12. How did those supporting the 69 reform refer to homosexuals in the debates in the House of Commons?
While a range of perspectives were presented, Members of Parliament supporting the reform argued that those committing these acts in ‘private’ were not criminals who should be in jail, but instead were ‘sick’ or ‘mentally ill’ and should be under a psychiatrists, psychologists, or doctors care. In this sense ‘private’ homosexuals were transferred from the ineffective control of the police and courts to the professional control of psychiatry and psychology which then deemed us as ‘mentally ill.’
The official 69 reform language helped to put in place the psychiatric and psychological regulations that our movements confronted in the early and mid-1970s and that continue in more limited ways today.
The authors are all members of organizing committee for Anti-69:
Tom Hooper is a historian of the Toronto bathhouse raids and studies the criminalization of LGBTQ2 people in Canada.
Gary Kinsman is a longtime queer liberation and anti-capitalist activist. He is the author of The Regulation of Desire and co-author of The Canadian War on Queers.
Karen Pearlston teaches and writes in the areas of Legal History, Family Law ,and Gender, Sexuality & Law at the University of New Brunswick. She is a life-long activist whose commitment to social justice activism informs her teaching and research.
Brenda Belak and Darcie Bennett, “Evaluating Canada’s Sex Work Laws: The Case for Repeal,” Pivot Legal Society, 2016.
Canadian Alliance for Sex Work Law Reform, “Safety, Dignity, Equality: Recommendations for Sex Work Law Reform in Canada,” March 2017.
Duane Brayboy, “Two Spirits, One Heart, Five Genders,” Indian Country Today, September 7, 2017.
Canadian Alliance for Sex Work Law Reform, “Safety, Dignity, EqualityOpens in a new window: Recommendations for Sex Work Law Reform in Canada,” March 2017.
Glen Sean Coulthard, Red Skins, White Masks, Rejecting the Colonial Politics of Recognition, Minneapolis: University of Minnesota Press, 2014.
Julie Depelteau and Dalie Giroux, “LGBTQ Issues as Indigenous Politics: Two Spirt Mobilization in Canada,” in Mannon Tremblay, ed., Queer Mobilizations, Social Movement Activism and Canadian Public Policy, Vancouver: UBC Press, 2015: 64-81.
Qwo-Li Driskill, “Stolen From Our Bodies: First Nations Two-Spirits/Queers and the Journey to a Sovereign Erotic,” Studies in American Indian Literatures 16:2 (2004): 50-64.
Tom Hooper, “The Police Records of a Bath Raid Found-In: Excluded from Bill C-66Opens in a new window,” ActiveHistory.ca.
Tom Hooper, “‘More Than Two is a Crowd’: Mononormativity and Gross Indecency in the Criminal Code, 1981-2,” Journal of Canadian Studies, 48:1 (2014): 53-81.
Tom Hooper, “‘Enough is Enough’’: The Right to Privacy Committee and Bathhouse Raids in Toronto, 1978-83.”? PhD Dissertation, York University, 2016.
Gary Kinsman, The Regulation of Desire, Homo and Hetero Sexualities (Montreal: Black Rose, 1996).
Gary Kinsman “Wolfenden in Canada: Within and Beyond Official Discourse in Law Reform Struggles,” in Corinne Lennox & Matthew Waites eds., Human Rights, Sexual Orientation and Gender Identity in The Commonwealth: Struggles for Decriminalisation and Change (London: School of Advanced Study, University of London, 2013), 183-205
Gary Kinsman and Patrizia Gentile, The Canadian War on Queers: National Security as Sexual Regulation (Vancouver: UBC Press, 2010).
Suzanne Lennon, “”Making It Right,” Keeping It White: Race and the Demand for Queer Redress,” Canadian Journal of Women and the Law, 30:3 (2018): 543-566.
Steven Maynard, “Through a Hole in the Lavatory Wall: Homosexual Subcultures, Police Surveillance, and the Dialectics of Discovery, Toronto, 1890-1930,” Journal of the History of Sexuality, 5:2 (1994): 207-242.
Steven Maynard, “Police/Archives,” Archivaria, 68 (Fall 2009): 159-182.
Steven Maynard, “To Forgive and Forget? Homonationalism, Hegemony, and History in the Gay Apology,” C4e Journal: Perspectives on Ethics, 11 (2017).
Tim McCaskell, Queer Progress: From Homophobia to Homonationalism, Toronto: Between the Lines, 2018.
Nancy Nicol, “The Struggle for Choice,” 1986 Intervention Video Inc.
Karen Pearlston, “Avoiding the Vulva: Judicial Interpretations of Lesbian Sex Under the Divorce Act, 1968,” Canadian Journal of Law and Society, 32:1 (2017): 37-53.
Becki L. Ross, “Whoreorganizers and Gay Activists: Histories of Convergence, Contemporary Currents of Divergence, and the Promise of Non-Normative Futures,” in Elya M. Dursin, Emily van der Meulen, and Chris Bruckert, (eds). Red Light Labour, Sex Work Regulation, Agency and Resistance, Vancouver: UBC Press, 2018, pp. 256-271.
Stuart Russell, “The Offence of Keeping a Common Bawdy House,” Ottawa Law Review, 14:2 (1982).
George Smith, “In Defence of Privacy,” Action! (publication of the Right to Privacy Committee), 3:1 (1981).
George Smith, “Policing the Gay Community: An Inquiry into the Textually-Mediated Social Relations,” International Journal of the Sociology of Law, 16 (1988): 163-183.
Miriam Smith, “Homophobia and Homonationalism: LGBTQ Law Reform in Canada,” Social and Legal Studies(January 2019): 1-20.
Shannon Stettner, “‘We Are Forced to Declare War’: Linkages between Women’s Anti-War Protests and the 1970 Abortion Caravan,” Social History/Histoire Sociale 46, no. 92 (November 2013): 159-178.