LGBTQ Legal History From 1865 to Today
Dropping the reader at the beginning of the twentieth century, Not Guilty: Queer Stories From A Century of Discrimination by Sue Elliott and Steve Humphries weaves first-person accounts with documented history, telling the story of how gay men in the United Kingdom moved through legal and social discrimination to get to where they are today. Published 50 years after The Sexual Offences Act of 1967, which “permitted homosexual acts between two consenting adults over the age of twenty-one,” Not Guilty details how gay men in the U.K. survived the last 100 years.
LGBTQ citizens in the United States share a similar history, when getting fired, arrested, or declared mentally unfit was once legal. Poet Walt Whitman is believed to have been fired from his position in the Department of the Interior in 1865, for scribing passages like “His nostrils dilate as my heels embrace him…” in his 1860 edition of Leaves of Grass. Nearly seventy years after his 1953 arrest for consensual sex with another man, social activist Bayard Rustin was “…posthumously pardoned by California Governor Gavin Newsom…” Robert Bayer documented in his book titled Homosexuality and American Psychiatry, that it wasn’t until 1973 when the Board of Trustees of the American Psychiatric Association would remove homosexuality from its official list of mental diseases.
Life today for LGBTQ Americans is light years ahead of what it was 100 years ago. However, books like Not Guilty remind us that some of the most important legal victories have only been won in the last few years. These include the repeal of the U.S. military’s Don’t Ask, Don’t Tell (DADT) in 2011, the legalization of same-sex marriage in 2015, and the U.S. Supreme Court’s decision this past June to include sexual orientation and transgender status under Title VII of the Civil Rights Act of 1964.
The U.S. military considered sodomy a criminal offense as far back as the Revolutionary War (1775–1783). However, before World War II, the six branches of America’s military did not officially exclude or discharge gay men from serving. This would change in 1942, when the psychiatry community viewed homosexuality as a sign of psychopathology. Which ushered in the era of psychiatric screening as part of the military’s induction process. Making it acceptable for the next 50 years to bar or dishonorably discharge gay men and women from the armed forces.
Attempting to appease both military and the LGBTQ community, President Bill Clinton announced on July 19, 1993, Don’t Ask, Don’t Tell, which permitted gay Americans to serve in the military if they remained closeted. What came out of this was that for the next 18 years the military discharged over 12,000 LGBTQ service members, including many with distinguished records and key language and intelligence skills. Since its repeal on September 20, 2011, openly gay persons can serve in the military. However, there continue to be occurrences that remind us that social acceptance can lag behind legal support. Like the one told by Necko L. Fleming in a 2019 New York Times article. “… my first and only duty station with the Army — I found death threats slipped under the door of my barracks room,” Fleming says. With harassment of this sort still prevalent, organizations like Military OneSource remain active to help those in need of guidance and support.
Since 1970, the LGBTQ community had been advocating for the right to marry. One of the first couples to apply for a marriage license was Richard John Baker and James Michael McConnell in May 1970, in Minneapolis, Minnesota. When Hennepin County clerk Gerald R. Nelson denied the couple, they filed a case against the Hennepin County District Court, arguing that same-sex marriage was not explicitly illegal under Minnesota law. “It goes to the core of discrimination, you cannot let non-gay people treat you differently…,” Baker said in 1973 on The David Susskind Show. The case eventually made it to the Minneapolis Supreme Court (Baker v. Nelson), where they ruled that it was legal to deny persons of the same-sex to marry.
Over the next four decades, across America other same-sex couples applied for marriage licenses with similar results, prompting certain states to create laws defining marriage as a union between a man and woman. The first to do this were Maryland (1973), Virginia, Arizona, and Oklahoma in 1975, and Florida, California, and Wyoming in 1977. A glimmer of hope came in 1989, when San Francisco passed an ordinance permitting homosexual and unmarried heterosexual couples to register for domestic partnerships.
But in 1996, gay marriage advocates faced a setback. When the federal government enacted the Defense of Marriage Act (DOMA), which defined marriage as the union of one man and one woman. The law also permitted states to refuse recognition of same-sex marriages granted under the laws of other states. DOMA remained the law of the land until June 26, 2015, when the U.S. Supreme Court ruled that same-sex couples also had the fundamental right to marry (Obergefell v. Hodges). Yet, over five years later, most states with laws prohibiting same-sex marriage have not repealed them. Thus, why LGBTQ advocacy groups continue the fight in legislative and judicial arenas.
The Society for Human Rights, founded in 1924 in Chicago, Illinois by Henry Gerber, is the United States’ first documented gay rights organization. However, because of police raids, the group dissolved in 1925. Twenty-five years would pass before Harry Hay founded the Mattachine Foundation (later changed to Mattachine Society) in Los Angeles, California, becoming the country’s first gay rights group. Notwithstanding the American Psychiatric Association’s listing of homosexuality as a mental disorder in 1952, local chapters of the Mattachine Society popped up across the United States.
The LGBTQ community entered the 1960s desiring social acceptance and equal protection under the law. The 1969 Stonewall Riots emboldened more individuals to be open, and propelled them into the 1970s, determined to live as equal citizens. And despite the assassination of Harvey Milk in 1978, the AIDS epidemic that surfaced during the 1980s, and enacted discriminatory laws, LGBTQ activists pushed forward in courtrooms and state and federal governments. Leading to the U.S. Supreme Court’s ruling this past June, which added sexual orientation and gender identity to Title VII of the Civil Rights Act of 1964.
Much has changed since Walt Whitman wrote, “The young fellow drives the express-wagon, (I love him, though I do not know him;)”. Gay men and women have created neighborhoods in metropolitan cities like Los Angeles, Atlanta, Chicago, and New York. But increased violence against the transgender community in the last few years (the majority who are black) reminds us the struggle isn’t over. And so organizations like the Human Rights Campaign (HRC), National Black Justice Coalition, and ACLU remain active and dedicated to ensuring that those in positions of power don’t roll back the hands of time, or impede future progress.
