Triangle Roses website.
http://www.triangles-roses.org
(accessed February 11, 2008).
Van Dijk, Lutz.
La Déportation des homosexuels
. Paris: H & O Editions, 2001.
—Communism; Contagion; Decadence; Far Right; Fascism; Germany; Gulag; Himmler, Heinrich; Hirschfeld, Magnus; History; Scandal; Violence.
DEVLIN, Patrick
On August 24, 1954, after a series of scandalous trials that indicted homosexuals, the British Parliament created a committee “to consider … the law and practice relating to homosexual offences and the treatment of persons convicted of such offences by the courts.” The committee’s findings were collected in the Wolfenden report (named for the committee’s chairman, Lord Wolfenden), published on September 3, 1957, which recommended, among other things, that homosexual acts taking place in private between consulting adults should be decriminalized. This and other recommendations, if approved, would have constituted a break with tradition going back all the way to the Henry VIII’s Statute 25 of 1533, also known as “the Buggery Act.”
In the aftermath of the report, an ideological clash took place between legal professor and philosopher H. L. A. Hart, who was in favor of the recommendations, and Patrick Devlin, a British lawyer and judge who was staunchly against it. Hart developed a utilitarian argument based on the view that the law had no right to intervene in private acts that did no harm to anyone, while Devlin invoked traditional Judeo-Christian morality in arguing for the continued
criminalization
of homosexual acts.
Devlin’s conceptions seemed to reflect a desire to reinstate the sexual morals of medieval Christianity (or at least of the Reformation), likening them to the loyalty owed by a citizen to the modern state. Hart responded to this by stating that only this sort of ancient society would “support Devlin’s denial that such a thing as a private immorality can exist, as well as his comparison of sexual immorality, even when it takes place ‘in private,’ to
treason
.”
One major point of discussion consisted of establishing the definition and statute of morality. According to Devlin, every society needs a moral code that is shared and dominant and which is entrenched in the law. He maintained that a society which fails to oversee the morality of its individuals is condemned to fail, and even advanced the opinion (then current, but rejected today) that historically there was evidence of the connection between the loss of moral bonds and a society’s disintegration. Hart agreed that a certain amount of common morality was essential to the existence of any society, but argued that it was unacceptable that any change to a society’s moral code would bring about its destruction.
Devlin also stated that “English law has its own basis of reference—the reasonable man, the right-minded man, the man on the Clapham bus [a middle-class neighborhood in South London]—who should not have to defend his belief that a behavior he instinctively views as abominable is abominable.” In this way, Devlin contradicted himself, the implication being that his previous arguments premised on historical precedents were in fact moot; here, he seemed to say that if the general public wanted to maintain homosexuality’s criminalization, then that should be the case.
Devlin’s vigorous opposition to the Wolfenden report ultimately failed, however. Ten years after it was published, the recommendations led to the passage of the Sexual Offences Act 1967, which replaced previous anti-homosexual laws that had existed since 1861. The Act served to partially decriminalize private homosexual acts between two men over the age of twenty-one, paving the way for its full
decriminalization
later on.
—
Flora Leroy-Forgeot
Devlin, Patrick.
The Enforcement of Morals
. Oxford: Oxford Univ. Press, 1965.
Hart, H. L. A.
Law, Liberty and Morality
. Oxford: Oxford Univ. Press, “The Harry Camp Lectures,” 1963.
Leroy-Forgeot, Flora.
Histoire juridique de l’homosexualité en Europe
. Paris, Presses universitaires de France, 1997.
———. “Expression, répression et démocratie: le débat Hart-Devlin et la dépénalisation de l’homosexualité en Angleterre.” In
Homosexualités, expression/répression
. Edited by Louis-Georges Tin. Paris: Stock, 2000.
Wolfenden, Sir John, et al. “Report of the Committee on Homosexual Offenses and Prostitution.” London: H. M. Stationary Office, 1957, GMD 247.
—Criminalization; Decriminalization (France); Discrimination; England; European Law; Tolerance; Utilitarianism.
DIFFERENCE.
See
Gender Differences
DISCOURSE.
See
Rhetoric
DISCRIMINATION
For a long time, homosexuality has been perceived in a negative light, even though today, this tends to happen less and less, at least in the Western world. Paradoxically, the evolution of this tolerance coincides with the appearance of the fight against homophobia. Tolerance does appear to diminish homophobia. On the one hand, some complain about modern homophobia, which they see as being strong; on the other hand, others challenge the validity of these complaints, believing that homophobia is not an issue. These diverging views are closely linked to the evolution of the concept of “discrimination,” of which homosexuals have been victims (and still are, in some ways).
In the beginning, homosexuality was closely identified with “evil” and was suppressed, an act which was not perceived as discriminatory because it was legitimate in the eyes of the majority. Those few who contested this legitimacy did not raise the flag of “discrimination” or “homophobia”; the fight against the repression of homosexuality was simply a fight against intolerance. It was not a question of equality, but rather about the right to not be killed or imprisoned because of one’s homosexuality.
Little by little, homosexuality was decriminalized in many countries. Simply put, its status changed from a crime to an illness. In this context, the fight against homosexual discrimination slowly became possible. In theory, because gays and lesbians were no longer considered responsible for their sexuality, they should be treated as equals to heterosexuals, barring certain “legitimate” exceptions. It was in this way that France removed certain discriminatory laws against homosexuals, but all the while maintaining certain other inequalities that were considered justified, such as the lack of any official recognition of same-sex couples.
Today, as the fight against homosexual discrimination (at least in the Western world) becomes increasingly successful, it is apparent that it is transforming itself into a fight against homophobia. There has not been any extreme division between the two struggles; rather, there was a crucial change of perspective when it was recognized that the problem was no longer homosexuality, but homophobia. Since then, any inequality between homosexuals and heterosexuals (including those related to
marriage
and to
adoption
) is now considered a form of homophobia that must be tackled.
It is this change of perspective that explains the paradox identified above: the intensity of discrimination against homosexuals is weakening (at least, again, in the Western world); however, in light of this new fight against homophobia, such discrimination is becoming less tolerated. Thus, the fight against homophobia is a renewal of the fight against homosexual discrimination: identifying the limitations of the law (homophobia is a sociological reality capable of remaining discreet, which can make it difficult to fight homosexual discrimination). In addition, it breathes new life into the struggle: in fact, the fight against homosexual discrimination has transformed into a matter of political choice (to refuse any inequality, even with regard to marriage and adoption), rather than a subject for judicial reasoning.
Homophobia & Discretion
Today in many countries, certain acts of discrimination against homosexuals are forbidden. For example, according to French
workplace
law, it is theoretically forbidden to fire a person due to his or her “manners” (or “customs”); that is, especially by reason of his or her homosexuality. In practice, though, it is difficult to prevent homophobic infractions because it is difficult, if not impossible, to learn the real reason behind certain behaviors. As a result, homophobia, being a sociological issue, cannot be eradicated by law alone. Even if it is obviously progressive to have laws in place which protect against homosexual discrimination, it is no less true that the new “evil” (homophobia) will not disappear unless such laws are accompanied by a corresponding sociological evolution. The discretion of homophobia is thus an obstacle in the struggle against homosexual discrimination. This discretion can manifest itself not only as part of daily life, but also in a “learned” way in the discourse of certain magistrates.
To understand the mechanism of this “learned homophobia,” it is useful to remember that there are two major aspects to law: one corresponds to a complex, logical machine in which there is no room for subjective opinions. This “objectivity” is to ensure what is known as “legal certainty.” A case brought before the courts is not subject to the goodwill of the judge; it is submitted to the objective machine that is the law. The other aspect of law determines that the legal system is a machine of such complexity that the path leading from legal problem to legal solution is not always the same. There are many possible “legal constructions,” and it is from these that a judge must choose the one that seems the most appropriate. In this context, a desire for one solution over another is not exactly neutral. As such, homophobia can influence the reasoning of certain magistrates, without this influence ever being visible. The debates surrounding the establishment of the legal definition of “cohabitation” should leave no doubt about this fact.
Cohabitation (
concubinage
, in France) is a de facto situation characterized by a life shared by two people who are not married. In the beginning, it was considered to be a shameful situation, with no laws to protect it, but over time those who “lived together” outside of marriage became commonplace and, according to many, entitled to certain rights. It was in this context that lawmakers began to debate the definition of “cohabitation.” Did the term assume that it was necessarily between a man and a woman? An answer of “no” would have been correct from a linguistic and historical point of view. However, for many important magistrates (including the Court of Cassation, the court of last resort in France), the answer was yes. This decision, when taken out of context, would be relatively harmless. In practice, though, it had the consequence of excluding same-sex couples from a number of rights (most notably, that of a surviving partner to retain his deceased partner’s lease). The result was a type of discreet homophobia: homophobic in that it originated in the desire to keep certain rights from same-sex couples, and discreet in that it concealed what was really an ideological debate (whether or not to grant these rights to gays and lesbians) with a technical debate that was seemingly neutral, ideologically (the definition of the word “cohabitation”).
To fight discrimination against homosexual cohabitants, it was first necessary to contest the linguistic pertinence on which the discrimination was based. In recent years, French law took a stand and stated that cohabitation is defined as two people living together, regardless of their gender. Learned homophobia has not been eradicated, though: it holds sway in other levels of the law and requires those working in the legal system to be particularly vigilant against the phenomenon.
Faced with the discretion of homophobia, it becomes apparent that the law must be both modest and rigorous in fighting discrimination. Modest because, regardless of what the law states, the difficulty in obtaining proof often prevents the law from accomplishing its mission; rigorous, because the fight against discrimination takes place less often at the ideological level (lawyers will seldom claim to be racist or homophobic) than the technical (it is usually by way of a judicial construction that homophobia can, quite alarmingly, find a foothold and lend a façade of legitimacy to discrimination).
Homophobia & Political Choice
The legal fight against discrimination is based on the insistence that two parties (such as homosexuals and heterosexuals) be treated in an equal manner, unless there are “legitimate” reasons otherwise. In the case of extending adoption rights to same-sex couples, many opponents claim that there are indeed legitimate reasons to refrain from doing so.
Those who consider this denial of rights to be legitimate most often invoke the necessity of putting the interests of the child first, the implication being that allowing homosexuals to be adoptive parents would be against the child’s best interests. Those who, on the contrary, fight for the right of gays and lesbians to adopt refer to studies that contradict such claims.
This debate, as interesting as it is, clouds the fact that debates over some of the most pertinent social issues cannot be properly resolved by science; at a certain level of reasoning, a “political” is required. No one can know with absolute certainty whether or not it is detrimental for children to be raised by homosexual partners; by the same token, it is impossible to know whether or not it is detrimental for children to be raised by divorced heterosexual parents. With regard to these questions, a political choice (between the avoidance of discrimination or the avoidance of risk) must be made.
This is why the issue of the right to marry or to adopt does not necessarily elicit the same response, depending on whether one’s rationale is “non-risk” or “non-homophobia.” In the first, one debates the legitimacy of a discrimination based on an instinctual risk, such as that of a child’s best interests. In the second, such an instinctual risk is a symptom of homophobia and, as a consequence, is suspect. This kind of discrimination could only ever be tolerated if it were justified to some extent, and if this justification were proven. In short, doubt should benefit those who are being discriminated against.