Why these queer activists won’t celebrate Canada’s LGBTQ2 decriminalization story

The government’s official narrative denies our actual histories and the battles we fought for our rights

On Nov 28, 2017, Prime Minister Justin Trudeau issued an apology to LGBTQ2 Canadians, largely for government campaigns, from the 1950s to the 1990s, that purged workers from the public service and military based on their sexuality because of “national security” concerns.

That same day, the government announced several associated initiatives that would commemorate the 50th anniversary of the country’s so-called decriminalization of homosexuality in 1969. That was the year that the federal government amended the Criminal Code to change the ways certain gay sex acts were legally defined (though most remained criminalized). The government initiatives announced that day included funding for a documentary project and a travelling exhibition about “legalizing love.” And last December, the government unveiled plans for a special loonie to mark 50 years since the “end of laws against homosexuality.”

But this celebration is based on a myth: there was no decriminalization in 1969, partial or otherwise. No criminal laws were repealed. Instead, laws against “gross indecency” (often focusing on oral sex) and “buggery” (often referring to anal sex) were reformed, which made an exception for those acts only if they occurred between two people aged 21 and over behind closed bedroom doors. These were acts that were not usually the focus of police surveillance and didn’t typically lead to charges. Everything else — for instance, consensual sex in spaces like bathhouses — remained criminalized.

As a result, we — a group of activists and scholars — came together with the goal of challenging this official narrative. In March, we held a conference in Ottawa about the myth of reforms and formed the Anti-69 network.

Even what some deem positive changes to the Criminal Code were not a cause for celebration for many LGBTQ2 folks in 1969. The government provided a discriminatory age of consent, set at 21, to supposedly protect younger men from homosexual advances; meanwhile, the age of consent for most heterosexual acts was 14. Other offences, like indecent acts (including mutual masturbation) and the bawdyhouse laws (which refer to the illegality of owning, working at or even giving directions to a brothel or bathhouse) remained in full-force.

After 1969, the criminalization of queer sex escalated. Across the country, police aggressively enforced laws against men who had sex with men in bathhouses, bars and other secluded “public” places (they defined “public” very broadly), physically beating and threatening to out men they found in gay spaces. Between 1968 and 2004, at least 1,300 men were arrested under the bawdyhouse laws and associated raids. The 1969 reform also did nothing to stop the purge campaigns against queer people in the public service and the military, including large numbers of lesbians — officially, they lasted until 1992.


“A government apology is simply not enough. And a celebration of Criminal Code changes from 1969 is hardly appropriate”

In the intervening years, the belief that homosexuality was fully decriminalized in 1969 has taken hold, especially now that we are in the 50th anniversary year. But the myth of decriminalization ignores the fact that accusations of gross indecency and buggery largely applied to sex between men prior to the 1950s, not to men who had sex with women. Even after 1954, when the law against gross indecency was made gender-neutral, the offence was not often used against women who had sex with women. Gay men and their sex lives remained the main targets of criminal law.

But lesbians weren’t let off the hook — their oppression was largely organized through social and family policies. For example, the law took specific aim at lesbian sex in 1967, when a member of parliament complained that the existing grounds for divorce — which included sodomy — did nothing to help husbands who were married to “a practising lesbian.” In response, then-justice minister Pierre Elliott Trudeau added a “homosexual act” to the 1968 Divorce Act, which subjected married lesbians to legal scrutiny of their sexual conduct during divorce proceedings and made lesbian mothers in particular vulnerable to losing custody of their children well into the late 1990s.

Given the way LGBTQ2 folks have been treated over the years, a government apology is simply not enough. And a celebration of Criminal Code changes from 1969 is hardly appropriate.

Even government actions ostensibly intended to help our communities have been problematic. In 2018, Bill C-66 was passed to expunge historically unjust criminal convictions, specifically those that targeted LGBTQ2 individuals. But the application process is difficult, and the bill currently only encompasses three offences that queer people were often charged with: gross indecency, buggery and anal intercourse. It excludes many other charges that target LGBTQ2 people, including indecent acts, vagrancy (often used against trans and gender non-conforming people, as well as sex workers apprehended by police in public) and the bawdyhouse laws. As a result, those who were targeted and criminalized in bath and bar raids were effectively overlooked by this bill.

Another amendment to the Criminal Code, Bill C-75, originally overlooked other legislation that had been used to criminalize consensual queer sex, focusing only on repealing the offence of anal intercourse. But people now involved in Anti-69 appeared before the justice committee of the House of Commons and convinced all parties to amend the bill to include the repeal of both vagrancy offences and the bawdyhouse laws. The updated version of Bill C-75 is now before the Senate.

“We need to remember that our gains and victories have come from our own organizing and movement building”

The government’s celebratory narrative of what happened in 1969 denies our actual histories and suggests that our hard-won rights have been bestowed on us from above. We need to remember that our gains and victories have come from our own organizing and movement building and the allies we have gained. If we forget this, we forget our histories of resistance and struggle.

But, even more dangerously, a narrow focus on the supposed advances made in 1969 may make us forget the vital connections with other oppressed people and their struggles for justice. The government’s 1969 story is focused on the experiences of gay white men, but we are always mindful that the White Paper, which called for the end of Indigenous sovereignty, was also introduced that year. Accepting the government’s narrative undermines our ability to see the crucial connections between our struggles and the struggles against colonialism, anti-Black racism and all forms of racism; against sexism, ableism and attacks on workers and poor people; and the fight for reproductive justice, the decriminalization of sex work and the push for trans rights.

The Anti-69 approach is beginning to have an impact. When it was suggested that Pride Toronto’s theme should celebrate 50 years of decriminalization of gay sex, Anti-69 released a statement about the misconceptions surrounding this supposed anniversary. In response, Pride Toronto shifted its theme, instead choosing to focus on the 50th anniversary of the Stonewall riots in New York City. Our campaign to demystify the story behind the “gay loonie” is also going strong.

Instead of accepting the government’s official story, we are remembering our histories of resistance: this includes Stonewall, but also our rebellions against the bathhouse raids. We remember the AIDS crisis and the queer direct action organizing by ACT UP and AIDS ACTION NOW! We remember the raid on Pussy Palace and the Dykes in the Streets march. We honour this legacy of resistance and pledge to build upon it.

Still Fighting: LGBTQ2 Rights at 50

This story is part of “Still Fighting”, a series exploring the past 50 years of LGBTQ2 activism in Canada.

Gary Kinsman is a longtime queer liberation, AIDS and anti-capitalist activist, currently involved in the Anti-69 Network, the AIDS Activist History Project and the No Pride in Policing Coalition. He is the author of  The Regulation of Desire, the co-author of The Canadian War on Queers and author of many other writings on sexual and gender politics. He lives on Indigenous land and is in solidarity with Indigenous struggles.

Karen Pearlston is a legal historian and life-long activist. She teaches at the University of New Brunswick on the unsurrendered and unceded traditional lands of the Wulustukyik and Mi'kmaq peoples.

Tom Hooper is a historian of the Toronto bathhouse raids. He is contract faculty in the Law and Society Program at York University. His research on 1969 has been published in the Canadian Historical Review.

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