Green Thursday, radio program, February 6, 1975, source recording
- FRANK KAMENY: I have to limit my remarks
- to about fifteen or twenty minutes, which is good enough
- for a nice opening sentence on an enormously complex subject
- on which one could, easily enough, talk for three or four
- hours and not even get a quarter of the way through.
- So as the paper I wrote, my remarks
- are going to have to be necessarily superficial
- and deal merely by way of summary.
- We have a subject here, which is a very complex one.
- The laws vary from one country to another.
- The manner of enforcement of similar laws
- varies from one country to another.
- Furthermore, the entire approach,
- cultural and in terms of the whole legal structure
- and framework, differs from one country to another.
- You have countries in which there's a formal written
- constitution and bills of rights which implies
- one way of getting at things.
- Others in which you don't have any concept of civil liberties
- at all.
- Some countries in which you are innocent until proven guilty,
- and others in which you are proven-- you
- are guilty until proven innocent.
- There are intertwined cultural approaches to the law itself,
- to homosexuality, which make it almost impossible to present
- a coherent overview in a short period of time.
- Therefore, as I found it necessary to do
- in the paper I wrote, where I was limited to fifteen hundred
- words and ended up writing over two thousand,
- I'll be forced, with some regret,
- at an international conference to deal, in major degree
- with law in the United States, but with references
- to other countries.
- But I hope that this can pave the way, at least,
- for a more extended discussion of problems
- elsewhere, to provide the start for systematic bases
- for discussion, and to show some instances where
- both where progress has been made
- and, clearly, where it needs to be made.
- Now the first area is the one in which gay people unfortunately
- and regrettably, but certainly with full justification
- have come, traditionally, to consider the law,
- and that is law as foe.
- Unfortunately, the law has set itself up,
- in most countries where it's relevant to us,
- as an adversary.
- The proper role of government, of course,
- and the only proper role of the government of law
- is to assist and protect the citizenry,
- not to fight them and persecute them.
- Unfortunately, gays, along with other minority groups,
- have found this not to be true.
- And central to those laws, or that approach
- to law in most places, are the sodomy laws.
- Now these, again, vary from country to country.
- In Britain, the laws, as I understand them, certainly
- in pre (unintelligible) Britain, apply specifically
- to homosexual sexual acts, and further, only to males.
- So as I understand, there was some comment,
- I saw it in the gay news not long ago, women in Britain
- objected to the involvement of the movement
- here with legal questions which they said did not concern them.
- On the other hand, this is not true in other countries.
- In the United States, the laws don't,
- with one or two occasional, recent exceptions,
- the laws do not single out homosexuals at all
- and don't mention homosexuality.
- They prohibit particular sexual acts, often described
- with explicitly anatomical terms,
- between any two people, including even heterosexually
- married couples.
- So they apply to male/male couples, female/female couples,
- male/female couples--
- anyone.
- However, and this is what is really important I think,
- these laws are thought of, regardless
- of what their verbiage may be, in terms, solely,
- by most people, of homosexuality.
- And therefore, they create an aura of criminality
- around homosexuality, which is intensely
- destructive both in terms of our own self image and self esteem,
- and, of course, in terms of our relationship with others.
- And these laws are often used as a pseudo-justification
- for other forms of persecution.
- You get employers who say, well, we
- don't want to hire criminals.
- You get the laws changed and then
- we'll reconsider hiring you.
- That sort of thing.
- When we get the laws changed, they'll find something else.
- So these laws do need to be approached.
- In the United States, for example, again, these laws
- are very, very rarely enforced.
- On the other hand, one of the only recent cases
- of enforcement of sodomy laws in the United States
- was with regard to two women in the state of Michigan.
- So they do apply across the board
- and are intensely damaging.
- Now they provide the basis, the underlying basis,
- however, for a whole superficial structure
- of law and concept, the so-called solicitation laws,
- I guess the term here, in Britain, is importuning,
- which are based, at least in part,
- on the assumption that if an act is criminal,
- a solicitation or a proposal to commit the act is criminal.
- And that's the basis, of course, for a large number of arrests.
- In the United States, we've been trying
- to create test cases to strike down
- these laws within our own constitutional framework
- and approach.
- And in order to set up such a test case,
- about a year ago, I wrote letters to our three top law
- enforcement authorities in the District of Colombia the Chief
- of Police, the United States Attorney, and the Corporation
- Council soliciting, importuning, urging, inviting each of them
- to engage with me in an act or acts of sodomy of his choice,
- in the role of his choice, in an indisputably private place
- in the District of Columbia.
- And said, "Try it, you'll like it."
- And then pointed out that as long as sodomy
- is technically illegal in the district,
- that the delivery of my letter consummated a crime
- and demanded to be arrested, so that I
- could create a test case.
- I set the thing up very carefully,
- when I had no speaking engagements and paddy
- wagons all around.
- I wouldn't be inconvenienced.
- Well, the Corporation Council is very uptight
- and he never answered.
- The United States Attorney resigned the next month.
- (laughter)
- I like to think I was responsible,
- but, realistically, I suspect I had nothing to do with it.
- Our Chief of Police, who has well, he's
- resigned since on other grounds, had a sense of humor.
- And he wrote back that he couldn't
- accept my invitation because his wife would never stand for it.
- I find it rather interesting that a chief of police
- responded to a criminal invitation
- to commit a criminal act not with an objection to doing it
- because it was a criminal act, but on grounds
- of a conflict of interest.
- (laughter)
- Which tells us something about the status
- of these idiotic laws.
- In any case, these laws, in recent years,
- have been falling like the autumn leaves.
- In the United States, they've been repealed in well
- over the last about thirteen years,
- but, particularly, in the last five, in eight states.
- And repeal actions are up in quite a number of others.
- In some, they'll succeed, in some, they won't.
- But I expect that the next year will
- see that eight, well, perhaps not double, but at least
- increase by 50 percent.
- Anyhow, possibly significantly more than that.
- We have some test cases going, which
- may take care of all the states once, and for all, and forever.
- We're waiting with bated breath for a decision
- from a federal court in Virginia, at the moment.
- That case has been carefully set up.
- One of the plaintiffs is here, today,
- as a matter of fact, a volunteer plaintiff in the civil suit.
- In other countries, again, these laws
- have also been repealed, so that they apply now
- to relatively few countries.
- I think the only major countries,
- I don't know that you would call it major, those two self
- righteous, self advertised, self proclaimed vanguards
- and examples of all human progress and enlightenment,
- Russia and the United States, which makes the question
- beautifully non-political.
- And a few minor countries Cuba, Union of South Africa,
- Scotland, Northern Ireland and Éire are a couple of others.
- Now, however, the repeals aren't all uniform,
- they vary in a number of factors.
- One of the burning questions is that of age of consent.
- And this varies enormously.
- In Britain, there's a (unintelligible)
- made it twenty-one, whereas the heterosexual relations is,
- I believe, sixteen.
- This, again, varies.
- Now in the United States, some of the states where it's been
- repealed make it eighteen, the general,
- run-of-the-mill usually is sixteen.
- In Hawaii, it's fourteen.
- It's Delaware it's twelve, if there's not
- more than four years difference between the people,
- and sixteen for everybody.
- In Illinois, it's seventeen, but an affirmative defense
- is if the younger person, down to fifteen,
- claimed to be seventeen and looked it.
- So you get it's been seriously proposed, in the District
- of Columbia, to make it twelve.
- And so this varies.
- I think, probably, realistically, as a starter,
- what we have a right to ask for and are liable to get
- is, at the least, uniformity for heterosexuality
- and homosexuality, and for men and women,
- as the phrasing of the law may go,
- if it makes distinctions in those directions.
- And that's been the general trend.
- Then, after that, you can go in along with everybody,
- and ask to have it lowered for everyone.
- Now leaving, for the moment well, not for the moment,
- leaving, at least for my formal presentation
- the question of law as foe, we come to another area.
- Years back, when some of us got into the gay movement,
- back in the early sixties, when in the United States
- the whole question of civil rights,
- at that time, civil rights for blacks,
- was very much in the air, we used
- to sit back, once in awhile, and dream
- of some far, distant, Utopian future, when we might have
- civil rights laws for gays.
- And we used to imagine, some day,
- when perhaps if we played our cards just right,
- and luck was with us, and we lived long enough
- and we didn't really expect to we
- might very well see civil rights laws, affirmative protection,
- for gays as law in it's proper function of protecting us
- and as law and government, in their proper function
- of protecting and assisting the citizenry.
- And suddenly, within the past almost three years,
- we've had them.
- The first such law was passed in the small city of East Lansing,
- Michigan, in March, I guess it was, February or March,
- almost three years ago.
- And since then, these laws have been
- passed in some fourteen or thirteen or fourteen
- other cities.
- So far, only at the municipal level,
- although efforts are being made to pass them at the state
- level in a number of places.
- And I suspect some will pass and some won't, initially.
- These laws vary enormously and no two are alike.
- In fact, the two organizations that have profited most
- from the passage of such laws in the most immediate sense
- are the Xerox company and the post office.
- Because every few weeks, I get a request, as other people do,
- from someone who says, we want to introduce a human rights
- law into our city council.
- We have no models to go by, send us
- copies of all the other laws.
- So I go out and spend a fortune on xeroxing, and then
- another fortune on postage, and mail them all off.
- And then six months later, out rolls another human rights law,
- hopefully.
- They don't always.
- Where these laws are complete, and they are not all complete,
- where they are complete they prohibit discrimination
- on the basis of homosexuality.
- Sometimes just that.
- Some of them, as the law in Washington,
- cover a large number of groups as well in any employment,
- public or private.
- It's with sometimes civil penalties,
- sometimes criminal penalties for the offending employer,
- sometimes both.
- It's any discrimination in rentals, housing, real estate
- transactions.
- Discrimination in the use of public accommodation,
- ensuring either we dance everywhere or no
- one dances everywhere.
- In licensure, accreditation, ranging from cab
- drivers' licenses, and so on, on up to admission to the Bar
- and admission to practice medicine.
- In credit, and insurance, and so on.
- These laws of course the fact that you
- have a law on the books, doesn't mean
- that your problems are solved and they may not
- be at two different levels.
- First, of course, as in, I believe,
- Toronto, if I have my facts correct,
- we simply have an uncooperative municipal structure.
- The law is there and they refuse to do anything about it.
- In other cities, this is not so.
- I'll come to Washington again on that.
- Secondly, of course, as we find in any context
- of this kind, anything that human ingenuity can devise,
- human ingenuity can evade.
- And so the whole battle escalates
- to one level higher or lower, if you wish,
- of sophistication, subtlety, and nuance.
- But it means that while we may have
- to work a little bit harder, the opposition
- has to work harder also.
- And sometimes, they find it not worth it.
- Now in Washington, where I come from, Washington DC,
- we have one of the best of these laws, to be a bit chauvinistic.
- And it's being actively implemented.
- As a couple of examples, these posters
- are going up all over the city.
- I'll put them up somewhere.
- They're put out by our human rights office,
- stating that it is unlawful for any person
- to practice discrimination in employment
- in the District of Columbia on the basis of race, religion,
- national origin, sex, age, marital status,
- sexual orientation, and a number of other areas.
- Similarly, it is unlawful for any person
- to practice discrimination in the rental or sale of housing,
- accommodations, and commercial space in the District
- of Columbia on the basis of similar groupings,
- including sexual orientation.
- And these apply the employment ones
- to employment agencies, labor unions, and so on.
- And these are being very actively implemented.
- In the area of public accommodations,
- for example, which our law also covers, about a month of go,
- two of our people reported that they
- had gone into a straight establishment near where
- they lived one evening.
- There was dancing, so they got up and chose to dance.
- They were asked by the management to leave.
- Well, a couple of years ago, our only recourse
- would have been a zap of some sort or do nothing.
- Here, we have the law.
- So we simply call on the human rights office,
- we set the thing up with them, they sent out
- an observer, about a dozen of us got together.
- The observer went in first and sat quietly at the bar.
- We went in by ones, and twos, and threes.
- At a signal, started dancing.
- We got thrown out.
- The proprietor was told what the law was.
- He refused to obey the law.
- The observer was quietly listening
- to the whole exchange, which had been planned in advance.
- Complaints had been filed.
- That proprietor will either allow us to dance
- or he will have a padlock put on his door within the next month.
- That's the end of it and it was taken care of.
- So I think that can make a laws of that kind can make
- a very considerable difference.
- Now one of the important things, with respect
- to those kinds of laws, is, of course, the impact
- that they're going to have on our own community.
- When the laws of that kind become
- widespread, first of all, and then, secondly,
- when their impact has sunk in on people
- below the mere intellectual level,
- just as a simple fact that you know that you are protected
- in employment when it's sunk down to a gut level,
- so you feel, not just know.
- If you know my employer can't fire me
- if he finds out I'm gay because he'll go to jail,
- that's when people are going to start coming out on that.
- And then all the ground rules will change completely.
- We'll have a whole new ballgame, much for the better.
- CONFERENCE ATTENDEE: Thank you.
- Could I just ask you when you--
- FRANK KAMENY: I'm about to.
- I'm about to.
- Now there are quite a number of other areas
- that time hasn't committed me to cover, as you just noticed.
- Immigration laws, for example, it's
- questionable whether a conference of this sort
- could even be held in the United States or Canada
- because I don't think most people here, who are not
- citizens of either country, would be allowed in,
- if they're known as gays.
- Problems with the gay organizations,
- there are a number of countries, Mexico, some others, Spain,
- where gay organizations are illegal.
- Problems with the civil service and problems
- with the armed services, which we are fighting vigorously
- in, certainly, the United States,
- where, surprisingly or, perhaps, not surprisingly well,
- surprisingly statistically I've gotten somewhere
- over 50 percent of my cases that I've
- handled on the armed services in the last few years from women.
- (unintelligible) a lot of them successfully.
- Questions of transvestism and drag, on which the laws vary.
- In provincial cities, like New York, it's still illegal.
- In more advanced cities, like Washington,
- it's perfectly legal.
- Questions of gay marriage, which are being pushed vigorously.
- One area of tremendous ferment in the law,
- in, obviously, the United States,
- are two quite distinct, but obviously related
- the four quite distinct, but obviously related
- areas of child adoption, foster child placement, custody
- of children by previously married gays,
- and visitation rights by previously married gays.
- And the number of cases in those is going up very quickly.
- It's an area of obvious ferment.
- It's not an area, of course there's a tendency
- to involve ourselves, all in all,
- while taking the law in general, sometimes
- to the exclusion of other things.
- The resolution to all the legal questions
- is not going to be the resolution for all
- of our problems, obviously.
- The complete game is not entirely civil liberties,
- naturally, it's societal attitudes.
- But there's also a strong tendency,
- as was found in other contexts and other minorities,
- to find that once you have the law with you,
- there is very strong pressure for attitudes in due court
- to conform themselves to the reality of the laws with which
- they are imposed which are imposed upon them.
- The blacks found this in the south, where changes attitude
- followed upon changes in law.
- It did not precede as, some people argue, they must.
- So it is a vitally important area
- and one which I think is fundamental to all
- the things we're trying to do.
- I have been hastened to finish my talk, so I'm finished.
- (applause)