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SOC323H5 (91)
Lecture 6

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Nicole Myers

SOC323 – Making of legal subjects: lesbian and gay rights Clip 1: gay rights versus Bible = another stepping stone towards immorality and judgment of God  sounds a lot like racist arguments made by white preachers in 1950s Clip 2: anti-gay slur on Jays‟ player‟s face resulted in severe reaction (3 days game suspension with no pay & sensitivity training + must donate)  apologized & claims he has gay friends; homophobia has been a problem in pro sports but recently players have begun to speak out HOWEVER no player has come as “gay” while in the game - Foucault’s History of Sexuality • Foucault drew a distinction between governing sexuality through acts vs. the homosexual identity. • Act-based vs. Identity- based regulation Relatively new construct that is talked about Talked about in a discriminatory way despite not explicitly stated in Charter Act-based governance: actual action, not person - Governing sexual actions = target of law or religious injunctions - Being a sin in Catholicism – action is wrong, nothing to do with person - Any person could commit an act - Not regulating someone‟s lifestyle, character, or identity but discreet action associated with character or identity - Historically concerned with crime, 1900s shifted to identity of delinquency  decline due to expert knowledge: criminal actions to medical or psychological models, who can diagnose you as suffering from homosexuality Identity-based: embodiment of an identity or how you look at your self - Identity developed of being homosexual is governed - This identity underlies particular actions although it does not rely on them – people may be classified as homosexual even though don‟t engage in sexual activity o Coming out of a closet – felt was different from when was young o Identity that was there was independent of a homosexual action - Category of homosexuality was developed by physicians, psychologists – experts o Occurred around psychiatry disorders of hysteria, etc. o Originated in psychological field but a medical problem o With therapy or medications could be cured – get the gay out of you - Identity has been embraced by movement and elevated We have shifted in how we regulate actions and/or identity Criminal Code of Canada – old version (these sections, one no longer exists and others have changed) • Section 147: “everyone who commits buggery or bestiality is guilty of an indictable offence and is liable to imprisonment for 14 years” • Section 149: “everyone who commits an act of gross indecency with another person is guilty of an indictable offence and is liable to imprisonment for 5 years” - Practice of homosexuality was criminal prior to 1969 (s.147) - Law made gay sex criminal whether it was conducted in public or private - This was all pre-Charter - Any form of unnatural sex, oral sex, or anal sex was illegal, but homosexual men were predominantly targeted (than homosexual women) by laws and were actively enforced by police - Derived from religious law – medieval church: clear distinction b/w natural and unnatural sex – anything that did not lead to procreation was unnatural - Buggery (anal sex): Louis VIII, came into law – moving out from church just regulating it - Extended to masturbation and sex with animals - 1885: s.149 was incorporated into the law, does not require penetration so kissing or holding hands between homosexuals was enough - Laws from England were basis for laws formed in Canada - Did not specify homosexuals but targeted them - Church: being gay is not a sin as long as you remain celibate and do not act upon it - Law stigmatizes people who commit „unnatural‟ actions and adults in private engaging in such actions is criminal Homosexual Identity Emerges in the 1940s; advanced by medical profession: seen as part of medical model; homosexuality regulated as a mental health problem (category in the DSM): psychiatry professions turn to research on homosexuality and were responsible for putting the idea of homosexuality forward as well as moving away from church and labeling it a mental disorder – equated with a pathology & then tried to treat it: extreme medications, shock treatment, therapy History of Legal Regulation • 1948 Criminal Code Amendment regarding sexual psychopaths • 1950 Immigration Act Amendments • 1954 Dangerous Sexual Offenders • 1957 Wolfenden Report (Britain) • 1960s Everett George Klippert case • 1969 Criminal Code Amendments • 1970s/1980s Rise of gay rights movement - Recognition of such thing as a sexual psychopath in time of war and social ills – allowed for indefinite preventative detention: put you in jail until someone decides to release you (can be there for your whole life) – lack of power to control sexual impulses, likely to reflect loss, pain, injury or other evil on others due to impulses  gays put in b/c lacked control - Prohibition of immigration of anybody who was homosexual - Ability to categorize someone as a dangerous sexual offender - Royal commission conducted investigation: drew distinction b/w common sex offenders and dangerous ones – homos seen as dangerous - Wolfrenden and Klippert occurred around same time - Klippert: resident of NW territories convicted of 18 counts of s.149, 5 years later pled guilty to 4 more charges, all parties consented and no one was a minor and it was all in private, Aug. 1965: sentenced him to 3 years for each charge served concurrently; 6 months in, territorial court declared him dangerous and sentenced him to indefinite detention (kept in custody forever) – appealed ruling, heard by Supreme Court: lost appeal – Justice Batoe: majority - Klippert lacked to control impulses even though never did injury or evil on anyone; 2 dissented b/c every man indulged in this act could be sentenced to incarceration for life; Globe and Mail supported minority; debate in media - House: maybe establish commission to investigate - Britain - Wolfendran: homosexuality = social & psychiatry problem rather than criminal problem; called from decriminalization of acts between adults; criminal law should concerned with social harm; committee adopted medicalized approach to question homosexuality, which could be due to experimenting but recognized some people can‟t help it; identity developing; progressive and lightened approach with a modern rationale; distinction b/w what happens in private and in public  Trudeau (whatever you do behind closed doors is not the state‟s business, cannot criminalize) o HOMOSEXUALITY medicalized and put in private sphere Charter of Rights and Freedoms • 15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular,
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