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 √Čire 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)