Lesbians and the law: the Wolfenden Report and same-sex desire between women

Our final blog for LGBTQ+ History Month comes from Dr Caroline Derry, who has recently published a book on lesbianism and the criminal law. Here, Caroline will explore the significance of the report of the Committee on Homosexual Offences and Prostitution to the legal and parliamentary status of lesbian sexuality…

In 1958, Harford Montgomery Hyde MP asked the House of Commons, ‘If homosexual conduct between consenting adults in private is to continue to be an offence, is homosexual conduct between consenting female adults in private also to continue not to be an offence?’ [emphasis added]. His question marked an important shift in Parliament’s understanding of lesbianism.

The previous year, the Wolfenden Report had recommended partial decriminalisation of sexual activity between men. It would take a decade of parliamentary discussion for that recommendation to become law thanks to the Sexual Offences Act 1967. This process transformed Parliament’s approach to sexual activity between men – and also between women. For men, acts now legally labelled ‘homosexual’ were, in very limited circumstances, no longer a crime. For sex between women, now named as ‘female homosexuality’ or ‘lesbianism’, the changes were significant but subtle. While the law was unchanged, the terms in which lesbianism was understood and debated were transformed.

The Committee on Homosexual Offences and Prostitution had been appointed in 1954 and chaired by John Wolfenden. The Home Secretary Sir David Maxwell Fyfe included homosexuality in its remit because of a recent growth in both convictions and press coverage. While Sir David was concerned only with male homosexuality, the Committee’s terms of reference referred to ‘persons’ convicted of ’homosexual offences’. Among the offences considered was indecent assault of a female (contrary to section 14, Sexual Offences Act 1956) which could be committed by women.

There was no female equivalent to the offence of gross indecency between males (section 11, Criminal Law Amendment Act 1885) which had notoriously led to the imprisonment of Oscar Wilde in 1895. Most Victorian parliamentarians had assumed that women’s sexuality (passive, if it existed at all) was very different from men’s (actively desiring). Male homosexuality was considered a deviant form of the natural masculine sexual impulse. Female homosexuality made little cultural sense – how could two undesiring creatures instigate sexual activity between themselves? Parliamentarians preferred to act as if it were not found among respectable women and discreetly ignore it. While an offence of gross indecency between females had been proposed in 1921, it was a spoiling amendment designed to stop a bill passing rather than a serious proposal. Both that amendment and the parent bill failed, and the issue was not debated in Parliament again.

The silence on this issue in the Houses of Parliament did not mean that lesbianism was unknown to lawmakers. The Wolfenden Committee read and heard extensive witness evidence during its three-year inquiry. This evidence included frequent mentions of lesbianism. However, the Committee was aware that legislators were not ready for the full equality that comparison of men’s and women’s legal positions could suggest. When witnesses criticised legal inequality, committee members pointed out that the alternative could be criminalisation for women rather than decriminalisation for men.

The final Report made recommendations intended to keep homosexuality out of public view. It dealt with sex between women very briefly; convictions for indecent assault by women, it asserted, lacked ‘the libidinous features that characterise sexual acts between males.’ The Report did go on to explain that this was because most women had been convicted of aiding and abetting, rather than committing, assaults. However, it reinforced the impression of lesbianism as essentially sexless.

The Wolfenden Report was introduced to the House of Commons in 1958 under a different Home Secretary, Rab Butler. In the subsequent debates, lesbianism was sometimes used as a comparison. Reformers such as Montgomery Hyde advocated extending the toleration of lesbianism ‘between consenting adults in private’ to gay men. In other words, women behaved themselves in public without explicit criminalisation so men should be trusted to do the same. Unprosecuted, their behaviour would not be publicised in the press. Male homosexuality, the Earl of Arran suggested, could then take ‘its dreary place side by side with lesbianism’. Opponents of law reform argued that male and female homosexuality were different, and required distinct treatment, although some struggled to explain why. Frederick Bellenger MP, for example, took refuge in ignorance of lesbianism; he felt he knew something of gay male sexuality from his wartime military service.

Despite the novel comparison of lesbians to gay men, Parliament did not accord them equal status. Women were considered relevant to the debates only as a counterpoint to men, not in their own right. Once the debates turned to whether the age of consent should be higher for male homosexual acts, it would not have been politically expedient to remind those who favoured cautious and limited reform that there was an equal age of consent for sex between women. With the comparison no longer useful, lesbians disappeared from the discussion. The result was that the Sexual Offences Act 1967 introduced the ‘homosexual’ into law as male: the lesbian was obscured, if not quite invisible. She had become a recognised point of comparison for her male counterpart, but she was not an equal.

The treatment of male and female same-sex activity as parallel to each other is a feature of more recent legislation. In statutes such as the Equality Act 2010 and the Marriage (Same-Sex Couples) Act 2013, it is taken for granted that they should be treated in the same way. However, the events of 1957 to 1967 are a reminder that the comparison was not always obvious and was never gender-neutral: the homosexual of statute law came into being as male. The supposedly less troublesome, less libidinous lesbian remained firmly in his shadow.

Further reading:

  • Caroline Derry, Lesbianism and the Criminal Law: Three centuries of regulation in England and Wales (2020, Palgrave Macmillan), chapter 6
  • Rebecca Jennings, A Lesbian History of Britain: Love and Sex Between Women since 1500 (Greenwood World Publishing, 2007), chapter 9
  • Brian Lewis, Wolfenden’s Witnesses: Homosexuality in Postwar Britain (2016, Palgrave Macmillan)

For more blogs about Parliament and LGBTQ+ History click here.

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