PRIDE & PREJUDICE
CHANGES TO THE CRIMINAL CODE IN 1969 MEANT THE BEGINNING OF THE END FOR INSTITUTIONALIZED DISCRIMINATION AGAINST LESBIAN AND GAY CANADIANS.
EVERETT KLIPPERT, A MECHANIC FROM THE NORTHWEST TERRITORIES, had received far more than his share of police attention over the years. Ultimately, however, a criminal case against him led to the 1969 reform of provisions related to same-sex activity in Canada’s Criminal Code.
He was homosexual (the word “gay” in that context was not in common use then), but it is highly doubtful that the authorities would have pursued a gay banker or lawyer the way they did Klippert. He had been convicted four times of gross indecency — namely, having consensual sex with another adult gay man, which was then a crime.
Because he had repeated convictions for a sexual offence, Klippert was subjected to a hearing to determine whether he should be considered a dangerous sex offender. The judge found him to be such an offender, which meant (as it still does, for a revised range of offences) indefinite incarceration, possibly for life.
When the case reached the Supreme Court on appeal in 1967, many Canadians, who otherwise knew nothing and cared little about discrimination against gays and lesbians, were shocked that the Supreme Court upheld the “dangerous sex offender” designation. Klippert’s case vividly showed the public that Pierre Trudeau, then the justice
minister, might be justified in seeking to reform Criminal Code provisions that had long prohibited same-sex erotic activity, especially Klippert’s “crime” of gross indecency.
Despite its euphemistic, vague name, the “gross indecency” provision was used from the 1890s into the 1980s to charge men engaging in consensual gay sex in semi-public places. As was also the case in England, lesbians, interestingly, were never subject to criminal prosecution for sexual activity in Canada. Lesbian sexual activity was nonetheless policed and punished in many professions such as teaching, the military, and the civil service, and also through familylaw provisions allowing husbands to unilaterally divorce wives accused of having engaged in lesbian sex.
Focusing on Trudeau’s 1969 partial decriminalization of gay male sex can be misleading, since it tells only part of the story. In fact, it is likely that far more people were negatively affected by non-criminal measures such as being fired or being denied housing than by criminal-law proceedings. The criminal law, however, has played an important role, in part because of its great symbolic value and in part because it was only after same-sex erotic behaviour was finally decriminalized, in 1985, that campaigns related to recognizing a wider range of families got off the ground.
The offence of gross indecency was created in England in 1885, with little if any parliamentary debate. It was understood that the new provision’s purpose was to target erotic behaviour between men, whether in private or in public. The famous Irish-English playwright Oscar Wilde was an early victim of this discriminatory and moralistic law; he was sentenced in 1895 to two years of hard labour, which hastened his death.
Gross indecency was reproduced as a crime in the Canadian Criminal Code of 1892 and was only modified, not abolished, in 1969. The 1892 Criminal Code also inherited the far older British offence of “buggery,” but that law was seldom enforced in either country. Courts interpreted it as applying only to anal penetration, which was not easy to prove in court, especially when consenting adults were involved.
The 1969 Criminal Code omnibus bill partially legalized abortion and fully legalized birth control while partially legalizing male homosexual sex. A key factor behind the changes was a British law-modernization campaign associated with the expert committee led by Lord Wolfenden. The 1957 Wolfenden report was widely circulated in medical and legal circles. Rooted in the English liberal tradition, and particularly the harm principle — John Stuart Mill’s argument that individuals should be free to act as they wished, provided they did not harm others — the Wolfenden report recommended that coercive law be used only to protect public order and to prevent harm to young people, but without meddling with consensual adult behaviour in private. In the United Kingdom it took ten years to see some of the Wolfenden recommendations become law, with the 1967 Sexual Offences Act providing that gross indecency would not be a crime if the conduct involved consenting adults in private.