LESBO LEGAL
Lesbians are not mentioned generically by name anywhere in British law. But for many lesbians, acceptance by and into the system as it stands is a worthwhile objective - however tough a task it appears. Legal recognition - and thereby, validation - of lesbianism as a sexuality, identity or 'lifestyle' could be the legal foundation on which to build demand for anti-discriminatory legislation. Unfortunately, lesbians have been deprived of a political existence because we are seen as 'female versions' of gay men, therefore our concerns are the same.
Many branches of Christian theology dictate that lesbianism (and homosexuality) is totally immoral and should be punished; some Muslim countries still maintain laws that allow lesbians and gay men to be stoned to death for their sexuality. Lesbianism is an attractive byline to any tabloid journalist who writes about female criminals, and the age-old argument about women being kept 'barefoot and pregnant' still pervades our society. But the law does not take lesbianism (and as a consequence, lesbians) seriously.
The history of British lesbians always seems to begin when Queen Victoria allegedly denied women could have sexual relations together, although the word 'lesbian' had been used for the Lesbian Rule, a term used to describe an 18th Century post facto law which made an act the precedent for a rule of conduct. Exactly where the connection lies remains a total mystery.
As male historians have effectively covered up any traces of lesbian sexuality, the biographies of many female figures have been distorted, and the sexuality of many women has never been well documented. Traditional historians might argue that a person's sexuality is irrelevant to their standing, but if you compare the hidden sexuality of Florence Nightingale to the well-publicised and quite relevant sexuality of Oscar Wilde, you realise this is a moot point. Accounts of the persecution of lesbians are even less well-documented. Prior to the French Revolution, lesbian sex was legally on a par with male sodomy, punishable by death. Cases have been recorded of women being hanged, burned at the stake, drowned and tortured for being lesbians, although the actual details are sketchy. These are the tip of the iceberg, and many of these women could easily have also been denounced as witches and it is tremendously difficult to find cases where lesbianism is cited. Four hundred years on, and the situation doesn't appear to have changed much.
During the run-up to the 1992 General Election (dark days for many of us), OutRage! mounted a corresponding campaign under the title of 'Equality Now'. It might have had an exclamation mark at the end. I don't recall. The simple purpose of the campaign was to draw voters' attention to the lack of proposals for lesbian and gay law reform in the main party manifestoes. It covered a number of issues (employment and partnership rights, soliciting laws, military homophobia, the repeal of Section 28) and OutRage! pulled off a routinely high-profile series of well-attended actions and publicity stunts. Given premier billing was the issue of Britain's anachronistically high gay male age of consent.
Not only for a few lesbians, it was the item on the OutRage! agenda that held least immediate relevance. However, lesbians stoically backed the age of consent theme, for the emphasis OutRage! had on it was not misplaced. After 20 years of debate and lobbying, the age of consent was in the public consciousness, meriting a re-examination by a new Parliament. OutRage! went for the option most likely to get a gay agenda running amongst Parliamentarians.
As the 'Equality Now' campaign was in its planning stages, the idea was mooted amongst OutRage! members that perhaps a demand should be incorporated for recognition of lesbian sexuality and identity. It was suggested that this acknowledgement could be achieved through a lesbian age of consent, perhaps as part of establishing a universal age of consent at 16 years of age. The idea was dropped, not least due to the lack of opinion canvassed and the underwhelming enthusiasm such a small number of lesbians gave. Consequent debate amongst lesbians gave rise to the feeling that the introduction of lesbianism onto the statute books should not be used to establish criminality where none existed before. It should also be borne in mind that to present Parliament with an opportunity to recognise lesbian sexuality could be naïvely optimistic of politicans' 'goodwill'. Besides,
"We forget how fundamentally threatening it is to the patriarchy to have lust in the air without a single willy in sight... They [the Government] have locked us firmly in the legal closet."1
The move could well back-fire if Parliament were to go for a compromise vote to set an age of consent for all homosexuals and heterosexuals at say 18, thus criminalising lesbians and giving a sweetened concession to gay men, although commentators such as Anna-Marie Smith believe that:
"The cost of invisibility is so great that this risk is more than worth taking."2
It is easy to contend that a lesbian age of consent would be the first positive step towards greater awareness of our identity, but why should we allow the Government to criminalise something which the law ignores? The principle of an age limit was borne of the necessity to contain male sexuality and establish exactly when a woman was available for marriage and child-bearing. In the case of gay male consent, the limit is raised in order to steer young men towards the path of heterosexuality for as long as possible. Lesbian sexuality develops and is expressed differently to male-orientated sexuality: many lesbians would probably report entirely different attitudes to definitions of intercourse and virginity - lesbian sex cannot be so easily defined using the 'traditional' language. Further, they may prefer to keep such personalised facets of their sexuality away from the cold and clinical syntax of the law.
Nil recognition by law could almost certainly be labelled as lesbophobic because of the refusal to accept that sex can occur without a male participant, and further that women can have successful lives without direct male influence. However, an age of consent would definitely be a negative step. It certainly wouldn't enable lesbians a "higher profile in mixed organisations and publications and in the issues they prioritise"3 nor will it stop lesbian issues slipping from the agenda.
Surely it would be far better to seek affirmation and recognition in law for of partnerships and non-conventional family relationships? Lesbians will benefit far more through enjoying the protection and security equivalent to that afforded 'real' relationships. Perhaps though, it would take a far more seismic shift in societal values before such equality becomes a reality.
If you believed that lesbians felt disengaged in discussions on the age of consent, how about employment rights? Most of us do not work in primarily gay or gay-positive environments and are vulnerable in the absence of protection against discrimination in law. Currently in Britain, it is not illegal for an employer to treat a lesbian or gay man less favourably than heterosexual employees, nor is it illegal for employers to dismiss lesbian or gay workers. The dominant inference behind this omission is that there is nothing wrong with discriminating against lesbians and gay men. Even more insidiously, this means that employers are permitted to reserve the right not to associate with lesbians or gays (although recent trends to secure advertising space in gay magazines proves this to be a hypocritical stand). If there is any doubt over this engineered concession to prejudice, notice how the issue of protection at work for lesbians and gay men is regularly ridiculed and minimised as 'irrelevant' or as insulting to 'genuine' victims of discrimination - by both legislators and news editors. It's just one example of a perfectly valid area of concern to both gay men and lesbians, but the aspect of many campaigns around it are homocentric.
One possible move forward could come with the Sexual Orientation Discrimination (SOD) Bill, sponsored by Baroness Turner and the focus of a campaign by Stonewall. At the time of writing, the private members' bill is only in its early reading stages. It is a long overdue attempt, given that Stonewall's own survey shows some 48% of workers are harassed, and 37% faced discrimination. No wonder then that 68% stay firmly in the closet.4
Housing is also an area for concern, but a much more difficult one to solve. Recent changes in the law now enable residents to report bigotry or violence, with the result that offenders will be asked to leave estates, but it is yet to be seen whether it would benefit any lesbian or gay men who faces taunts, threats or physical violence.
It is important that lesbians should make their voices heard. In a society where women earn two-thirds of the average wage paid to males, lesbians are among some of the lowest paid workers. We are stymied by a system that refuses to recognise our rights in education, employment, partnerships and reproductive rights, health care, housing, tax and welfare. Political pressue must be brought to bear on all the major parties and this should not be achieved by having to beg for equal rights based on the gay male agenda.
As heterosexuals postpone, reject and desert marriage, lesbians and gay men seem keen to embrace this austere institution. Due to a widened state of social options, lesbians and gay men are also mobilizing within that strata, including visibily venturing into what has been previously an exclusive heterosexual terrority - partnerships, exented families, children.
Variations on a theme of the reconstructed family was not a newly considered option for lesbians. Having markedly fewer, and longer term, relationships than gay men has always meant strong possibilities of taking on children from previous relationships or constructing the types of partnerships where conception of children becomes a consideration. Lesbians probably benefited from invisibility in the respect of being able to fashion their own lifestyles and families during the 1970s. At least, this was the case until the point when significant breakthroughs in artificial insemination and fertilisation techniques brought the quiet growth in 'alternative parenting' into the spotlight.
Around 1978, the media discovered that not only doctors and other officially sanctioned medical researchers had lent a hand in reproduction. One newspaper - the 'Evening News' - uncovered evidence to suggest that lesbians had been conspiring to exclude men from this process to whatever degree suited them. This posed a provocative affront to the common belief that motherhood was the 'natural function of women' as the result of heterosexual intercourse within the traditional family set-up. As an insult to the established values of a moralistic patriarchy, it enraged the gutter press by thwarting their tried and trusted negative lesbian stereotypes:
"If child-bearing stands as a sign of gender fulfilled, the mark of maturity and becoming a 'real woman', how can it co-exist with a category like 'butch', popularly understood as a woman who desires to be a man?"5
Simultaneously, the papers pointed out to their readers that there was little that could be about this diabolical undermining of a child's 'right' to a 'normal' family environment because technically the lesbian who was often the recipient of A.I.D. (Artificial Insemination by Donor) were not recognised in civil law. The standing of a lesbian mother was no different to that of any other 'single mother' - another demographically expanding group which has been hounded by this 'moral panic'.
Lesbians had not until then been a target for the press as distinct from gay men: all were subsumed under generalised homophobia. To the casual reader of the popular press, lesbians and gay men were a group attached to the wider subversive counter-culture. Lesbians had not been usually been associated with children unless the women had abandoned their husbands in the rush towards the Women's Movement. To most people's minds the concept of 'lesbians with children' was a mutually exclusive one, while gay men were associated with children in an extremely negative light which cast them as 'latent abusers' and corrupters. Now it was seen that (female) homosexuals could 'get to' children by exercising one of their rights as women. The 'Evening News' left its readers in no doubt that here was a loophole that had to be closed: a banner headline of January 1978 demanded legislative action to 'Ban These Babies'. A closer reading of the newpaper's ethic reveals a gravely fascistic undertone that calls for the Government to ban 'these women' (lesbians) from having children.
By the mid-1980s, the proximity of children to lesbians and gay men had become a political hot potato. The tabloids used alleged 'promotions' of homosexuality by 'some local Labour authorities' as a stick with which to beat the Party's grass roots reputation. Further they managed to link the 'homosexual danger to children' with the new 'danger from AIDS'. Armed with this shining sword of moral guardianship (assumed in response to AIDS and other symptoms of a permissive society gone 'too far') the opinion makers created the appropriate arena for repressive Government legislation. Lesbians and gay men became the sacrificial lambs on the altar of a moral crackdown by a Government that had to 'do something about this decline.' Thus lesbians and gay men were faced with knee jerk responses to the acquired freedom of openness, most notoriously Sections 28 and 25 and Paragraph 16.
The next move on the part of the Goverment was to target specific dissident groups and acts. Lesbian families encountered the logical conclusion of Section 28's proscription of 'pretended families' in the form of the Human Fertilisation and Embryology Act (1990):
"A woman shall not be provided with [artificial insemination] treatment services unless account has been taken of the welfare of any child who may be born as a result of the treatment (including the need of that child for a father)."6
Lesbians would be excluded from receiving A.I.D. through the Health Service, so the defenders of 'family values' had won their case. Those authorised to dispense assistance to women wishing to have children were to actively identify the sexual credentials of clients and filter them out of the A.I.D. system. This intended policy appears on the Statue books in the far-less overt terms of disallowing 'single women' from infertility and other treatments. The legislation ostensibly forms part of the push to discourage single motherhood. This is an integral policy of the Conservative Party. A lesbian mother only counts as a 'single mother' no matter how she chooses to define her parenting partnership or family ties. Cleverly, the law makers do not have to field accusations of outright lesbophobia as now (even with a discriminative law now in place against them) lesbians are not accorded recognition as a named entity in the law books.
This has one strange consequence as it benefits those lesbians who wish to avoid attention and live what some would consider 'absolutely closeted' lives. Here's the reasoning. If the 'lifestyle' is not named, action cannot be taken to restrict womens' self-defining freedoms. Here's the problem. Neither can a parity with legitimate heterosexual rights of guardianship and inheritance be claimed.
1 Backbite by Lynn Sutcliffe , Diva, Issue 4 Oct-Nov 1994, publ by Millivres
2 Resisting the Erasure of Lesbian Sexuality: A Challenge for Queer Activism by Anna-Marie Smith, from Modern Homosexualities (p210), ed. Ken Plummer, publ by Routledge 1992
3 Backbite by Anya Palmer, see note 1
4 Source: Less Equal Than Others, publ Stonewall 1993
5 Parenting In The Age Of AIDS by Kath Weston from Sisters, Sexperts and Queers (p163), publ by Plume 1993
6 Human Fertilisation and Embryology Act (1990)
Since this article was written, recent changes have been made in law, although an attempt to level the age of consent at 16 for all has failed twice in the Lords. Lesbians however, are still being denied equal rights in employment law, as witnessed in the refusal of the European Court of Human Rights to uphold a claim that two lesbians were being treated unfairly by the company one of them worked for.
©Megan Radclyffe 1995