Since ’81

Torontonians having sex – or even merely a good grope – in a park or a bar or a theatre have learned to keep an eye peeled for cops who might charge them for indecency, disorderly conduct or some other offence.

But that’s in a park, bar or theatre. In the 20 years since the bathhouse raids of 1981, the tubs have come to occupy a different part of the brain for the city, the police and the citizens of Toronto. As activist and long-time bathhouse habitué George Hislop says: “People have come to think having sex in a bathhouse is a right.”

But that right is not what it seems. It remains based more on the perceived power of Toronto’s gay community and some lower court decisions than real entitlement.

“If we have any protection from the police, it’s because of the overkill they exercised in the raids,” says Peter Bochove, a co-owner of Spa Excess and former owner of the Spa On Maitland. “People were outraged. Nobody on either side wants to have that kind of trouble again.”

Since police with sledge hammers and other such charming accessories raided four Toronto bathhouses in Feb 5, 1981 – arresting 266 customers and 20 staff, publishing the names of the accused and destroying hundreds of thousands of dollars worth of property – laws concerning sex and sex-oriented businesses haven’t changed much.

In the weeks that followed, thousands of people marched, fell into violent scuffles with the police (one officer’s shoulder was dislocated) and damaged property. Rev Brent Hawkes went on a hunger strike.

For their efforts, activists got a strongly worded provincial report by law student and reporter Arnold Bruner, who said the police have to try harder to improve relations with the gay and lesbian community, and that the force should put a lower priority on arresting consensual adults having sex in public places. But legislative change was not on the agenda.

In the Criminal Code today, two people having sex where others can see them or join them are breaking the law. (“How dreary,” says City Councillor Kyle Rae.)

Any business operated for the purpose of prostitution or the practice of indecent acts can be considered a bawdy house, resulting in criminal prosecution for owners, staff and customers (the maximum sentence for keeping a bawdy house is two years). Indecent acts themselves, though not very well defined, are illegal.

But since the ’81 raids – and the community mobilization and mainstream disgust with the police that followed – Toronto’s bathhouses have been something of a sacred institution. Charges at the Bijou porn theatre in 1999 and charges against organizers of the Pussy Palace lesbian bathhouse night in September 2000 seem like exceptions. But the circumstances of these busts prove the rule – that Toronto bathhouses are special places. If they watch themselves.

“What has been achieved is that we’ve created an established role for bathhouses,” says Rae. “This is about a political reality. In politics, perception is more important than reality.”

Bathhouses were originally places where people without their own washing facilities went to get clean. But through the years cruisiness overtook cleanliness. In the 1960s gay men started opening bathhouses of their own, and now people think of steam baths as places where men go to have sex with each other.

Read the city by-law governing public baths and you’ll find ancient and often obsolete rules about pool scum, hot tub temperature and felt hats (the baths aren’t allowed to provide them as steam protectors for your hair because they might spread lice). You’ll find nothing about sex.

Still, businesses wanting to operate a place where men go to have sex on the premises are expected to have a steam bath licence, says Rae. If, say, someone wanted to open a business where guys could have sex in cubicles, and if that business didn’t have bathing facilities, Rae says it would likely require an adult entertainment licence – and the city’s not granting any of those.

(In contrast, Ottawa has no licensing for steam baths at all, other than standard city zoning requirements; Vancouver has a different licensing system which puts steam baths in a larger category of businesses.)

The connection between sex-on-the-premise businesses and steam has political roots; politicians want to avoid the anger of ’81 when people rioted for the sake of the bathhouses.

“I think there’s a lot of symbolism. The word ‘bathhouse’ enters into it,” Bochove says. “Roy McMurtry [the Ontario attorney-general who was closely connected with the ’81 raids and now Ontario’s chief judge] would have been the next premier if it wasn’t for the raids. Higher up, no one wants anything to do with it.”

Also, all those ’81 bawdy house charges gave the courts an opportunity to re-examine what bathhouse are. Were they bawdy houses – like all those charges the police laid implied – or were they something else altogether?

“One of the reasons for convictions in ’81,” says Bochove, “is because the courts ruled there was an absence of legislation.”

Though not as dramatic as raids and protests, the Spa On Maitland’s application for a steam bath licence in 1989 completed the redefinition of bathhouse from possible bawdy house to something else where steam and sex co-mingle.

The Spa’s application was blocked by then-building commissioner Michael Nixon, who thought that too much of the proposed facility was taken up by cubicles. He thought the bathing area should be bigger, as if to suggest that cleanliness, not sex in cubicles, should be the purpose of the spa.

The spa’s argument was that the purpose of a steam bath was broader. A tub-goer since the 1940s, George Hislop was asked to give an affidavit. He said the baths were also places to relax and talk and have social interaction. They were gay places.

Ontario district court judge CN Herold agreed with Hislop (who was thus enshrined in court documents as a Canadian expert on steam baths).

“It is quite clear from the material that a series of incidents in Toronto history, some 10 years ago, known as the bathhouse raids, is at least lurking just beneath the surface, if not the reason for the refusal of the building commissioner to issue a permit,” Herold wrote. He ordered that the permit be issued and that the city pay the Spa’s costs. Nixon stalled and the city was held in contempt of court. In the end, city council itself voted to issue the permit in the summer of 1990.

Herold’s decision helped put distance between bathhouse and bawdy house.

“The courts seemed to have decided that the little rooms in the bathhouse were private spaces and what went on inside those rooms was private,” says Jerry Levy, who owns the Spa, Club Vancouver, Club Toronto and the Barracks.

Rae agrees: “Are people entitled to have sex in a bathhouse? That would be incorrect. In the closed areas of a bathhouse, people can have sex.”

The steam bath licences, as anachronistic as they are, also give owners a courtroom strategy to use if the police pick on them.

“The by-law didn’t change, but the intent of the by-law did,” says Bochove. “In every licence application to the city, in the place to fill out purpose [of the business], we put, ‘For gay men to meet to have sex.’ We decided not to hide that purpose. We’re not pretending to be anything. So if the police come in and it goes to court, lawyers can argue that these people [operators and customers] had every reason to believe what they were doing was legal. The city knew.”

What’s the difference between a bathhouse with a liquor licence and a bar with dark areas where men might have sex? Spa Excess and Spa On Maitland serve booze without problems, but since the early ’90s backrooms haven’t been permitted in Toronto bars.

What sets the apart, Rae says, is the separation between drinking and intimacy. Patrons can’t carry their drinks into cubicle areas or wet areas – and they can’t be naked in the licensed areas.

The Bijou was a bar and porn theatre which offered dark spaces for men to get off. In the summer of 1999, police arrested its staff and customers for indecency and repeatedly visited until the place closed. The indecency charges were eventually withdrawn by the crown, but it hurt the business.

Bijou owner Craig Anderson got rid of the bar, installed lockers and a wet area, got a bathhouse licence and the police stopped going – though the purpose of going to the Bijou is likely to be more about sex since the repositioning.

The police visit to the Pussy Palace lesbian bathhouse night, held at Club Toronto in September, seems also to have focussed on whether booze and sex mingled too closely. The charges laid were against two organizers for liquor licence infractions. Critics say the police had other motivations, like their own titillation. But it was the alleged technical factors that gave them the opportunity.

The steam bath licences, the separation of booze and sex, the private cubicles – all these things are worn like talismans to keep 1981 from happing again. It’s worked so far. Will it forever?

“The police can do it [raid bathhouses] anytime they want,” says Levy. “If they decide to do it again, they can do it. What stops them is the politics. And that, right now, there doesn’t seem to be instruction from the top.”