Brief History and Theories of LGBT Treatment in America
If you have ever believed that the treatment of the LGBTQ+ community was never that big of a deal, or believed that America has always been kind to the LGBTQ+ despite not having equal rights, I think reading this would not only give you knowledge, but insight.
**All quotes and citations have been removed for ease of reading, but can be provided upon request.
It is common knowledge that gays and lesbians are not treated equally with their
heterosexual counterparts. Unlike heterosexuality, the gay community has been subjected
to hateful and demoralizing actions by individuals, local and state governments, and the
federal government. As a result gays have lived in fear of being who they are due to the
ramifications and lack of protections from the constitution, which theoretically, was
created to prevent those injustices.
One possible explanation has been presented how these injustices have been
allowed to occur without redress: the idea of disgust. Many strategies and arguments in
politics have unconsciously used the idea of disgust in anti-gay laws.11 A deeper analysis
produces visualizations like “feces, other bodily fluids, corpses, and animals or insects
that have related properties (slimy, smelly, oozy).”
Historical examples include the Nazi opinions of Jews as slimy or similar to maggots, although we know that is untrue, it worked for Nazi Germany.
Thusly, it is not shocking that gays fall into the idea of disgust for mainstream
society. In gay-male sex visualizations of “contamination-by-penetration,” that is,
semen to feces is produced. Arguably heterosexual sex is no better besides the strong
connection to mortality and reproduction. One key difference however between gay
and heterosexual sex is that in gay sex a male receives the bodily fluids (semen) while in
heterosexual sex the woman is the one who receives those fluids.
These graphic visualizations have a purpose: the idea of disgust has been forced
upon subordinate groups as a way of stigmatizing them as sick and inferior. However,
disgust provides no valid reason for compromising equalities that are constitutionally
required. Nonetheless, this has not stopped society from condemnation of gays to
second class-citizens. The following history accounts of how disgust was projected in
America’s perception on gays.
In 1881, the post-Civil War state of New York passed a bill criminalizing sodomy
but not specifying homosexuals as the intended class. As a result of these kinds of laws
enacted between the 1880’s and 1900’s, male subcultures were born in New York City, San Francisco, St. Louis, Philadelphia, Chicago, Boston, New Orleans, and Washington
D.C. By the early 1900’s, Milwaukee, Denver, Louisville, and Portland (Oregon) were
considered as “homosexual capitals.”
During this period, American doctors considered the cause of this gender-related
detour from mainstream society concluding that this type of gender inversion was a
dangerous sickness. These conclusions in conjuncture with media influence resulted in
defensive action in all states. These included anti-gay societies, civilians assisting
police in arrests of those engaged in sodomy, gender-role inversion of prostitutes and
theatre, and gay establishments.
Until 1921, “social disgust and state action” played out at the municipal, state, and
federal levels aiming at suppression of gender roles and sexual variations. Specifically,
states responded by enforcing felony sodomy statutes with neutral application to male
and females alike.
A shift from concern of homosexuality to a higher societal concern about samesex
eroticism occurred due to the Newport investigation in March 1919,
contemporaneous with World War I. This investigation concerned sailors who crossdressed,
were described as effeminate, solicited and performed oral sex with other men,
and were deemed “morally degenerated.” By Court Marshall, they were dishonorably
discharged and jailed. In response, Congress and the War Department quietly passed an
ex-post facto Articles of War criminalizing the same acts these sailors were imprisoned
for, specifying that the armed forces could forcibly remove or exclude “all suspected
perverts.” Thus, this was the military’s first regulation with legal support screening out
gay male applicants who wanted to enlist.
During the era of World War I, psychoanalyst Sigmund Freud published his
opinion on sexual orientation presenting a different perspective. He believed that
sexual orientation was “a crucial part of a person’s identity, distinct from biological sex
or gender character.” He argued that all human beings were innately bisexual, and in
his opinion, declared homosexuality more culturally learned then biological. When
discussing possible “conversion therapies,” he argued they were unrealistic by comparing
the idea that you cannot convert a homosexual to heterosexual with any more ease as you
could doing the opposite. His theory, along with a society going through a sexual
transformation with gender roles and sexuality, made society uncomfortable causing
One example of a reaction happened in an Ohio case where a judge deemed
homosexuals “sexual perverts [who] were ferocious animals who engaged in a degenerate
sexual commerce with little boys or little girls.” This decision became the groundwork
for a state like Ohio to create state interests in controlling and punishing the supposed
psychopathic homosexual, drive any expression of it underground, and protect the
Post World War I had a massive influx of gay subculture and the government
worked harder on publically suppressing it. In order for the state to curtail youth from
being attracted to this subculture, it restricted positive role models as a deterrent.
The government suppressed gay association by police departments being made
aware of popular gay hangouts and organizing teams posing as decoys to attract
solicitations, raiding gay bars, baths, and other spaces.
Revocation of a liquor license as a method of control by the state, requiring “good
character” and preventing the premises from being a “resort of disreputable persons.” If
a violation occurred, their liquor license would be suspended or revoked.
Books with homosexual themes or conduct were censored and removed from
bookshelves. However, uncensored literary works depicting homophobia and work of
sexologists were not censored.
In filmography, censorship was effortlessly used on homosexual depictions by a
Supreme Court exemption of movies from First Amendment protections. Thus,
Hollywood adopted the Production Code in 1930 preventing any mention of
homosexuality in movies or on Broadway, but could be replaced by “sissy” and
In 1940, America instituted the mandatory draft and the Newport event
resurfaced. Except this time the military instituted a screening process that intrusively
asked new recruits their sexual orientation upon enlisting, men and women alike.
However when they asked women their orientation, it ended up beginning the next big
homophobic investigation by the government since Newport. This time it happened at the
Women’s Army Corps (hereinafter “W.A.C.”) training camp in the spring of 1944.
Triggered by a letter from a mother suggesting that there were a bunch of sex maniacs
and homosexuals at W.A.C., she specifically stated that one alleged “maniac” had
molested her daughter. The time between the Newport and WAC investigations reflects
the transition from the focus of “immorality” to the state wanting to regulate specific
intimacy, regardless if it was consensual.
This next time period started the recognition that social and intellectual
developments strongly influenced law. Those who realized they fell into this
disfavored category internalized the shame and assumed a “mask,” remaining silent about
their individuality and trying to correct the imbalance that supposedly occurred within
them. The law supported this pressure by normalizing sex based on heterosexual
procreation and giving power to those who wanted to control the homosexual. If a
person would be strong-willed enough to protest against this, it fell on deaf ears since
they had no legal remedy.
Being forced underground, the gay culture mutated into a double-life conundrum:
gay behind closed doors, and claiming to be heterosexually “normal” to the world. The
law potentially is the literal cause of this mutation: one could attack gays without
accountability by teaching that they were subhuman. In reality, gays had only two
options: lie and commit to a never-ending masquerade of heterosexuality, or tell the truth
and face ruin, jail, or asylum.
II. Legal Bias
“The Court has mistaken a Kulturkampf for a fit of spite.” This was the first line in
the dissent of Romer v. Evans by Justice Antonin Scalia. A Kulturkampf literally
means “culture battle,” and this author will address this line in more detail below.
However, the relevance at this point in historical evaluation is appropriate, as it is
obvious that Justice Scalia did not believe such a culture war existed in that case—or
ever. Conversely, quite the opposite is proven through the next few years of history
creating the highest point of entanglement between disgust toward gays and an attempt at
World War II transformed the gender roles of America: sending women from the
traditional kitchen-esque female duties to work, while the heterosexual men (or those
“masked”) fought overseas. Sadly this was short-lived, as once the war was over
relaxation of gender roles were diminished again forcing gays back underground—aka
“the closet.” However, this posed a threat to many Americans comparable to the Red
Scare. As a result, America began forcibly removing gays from the closet: an American
In 1947 Herbert Hoover, former FBI director, announced that the highest increasing
crime was that of sex offending and that such people, comparable to animals, were
allowed to roam freely in America. Of course it didn’t take long for the press to inflate
this claim, which not only re-gassed the fires of the child-molestation-homosexual
correlation, but targeted the group responsible: homosexuals.
Thus, between 1946 and 1961 criminal prosecutions on that premise resulted in
approximately one million gays being incarcerated for simple things such as consensual
adult intercourse, dancing, kissing, or holding hands.
In 1948 the nation’s capital passed its first sodomy law with sentencing
enhancements deeming all homosexuals as “sexual psychopaths.” In 1953, Congress
changed the law to allow police to peer into the private lives. Naturally, states
piggybacked enacting similar statutes themselves. This was when the flushing of the
proverbial closet reached full swirl.
Imploring the same tactics as pre-World War I, police again became highly intrusive
into the private lives of gays. Spying on gays often meant spending hours perched above
public toilets, peeking into parked cars, and even following them and peering through
their bedroom doors. The Kulturkampf rooted in disgust didn’t end here, but continued
and while getting progressively worse.
A. Nazi-Germany and Pre and Post-World War II on anti-homosexual
In 1933, Adolf Hitler declared all homosexuals an enemy of the state as a threat to
German youth, their morals, and reproduction. Congress enacted a similar statute 1950
but added national security risks to the list, which was reaffirmed by Eisenhower in
In 1935, German sodomy law was expanded to include any sexual contact between
two men, with higher penalties for sex with a minor, but never mentioned woman. In
1948, Congress adopted the same type of law with harsher penalties.
In 1936, German criminal police established special units for detecting homosexuals
and used raids to achieve group arrests; while by 1950 many states had similar squads in
place and gay raids resulting in group arrests. In this same year—1936—the Reich
Office for Combatting Homosexuality and Abortion was created as a clearinghouse for
information about homosexuals; comparable to 1937 when the FBI collected similar
information for dissemination to agencies and employers.
In 1937, the Reich sentenced homosexual offenders to concentration camps and
subjected them to medical experiments and treatments like castration. America’s
equivalent was after 1946, by sentencing gays to hospitals or special wards and subjected
them to the same as the Reich, but the more common American experiments were
electrical and pharmacological shock treatments and lobotomies.
From 1942 to 1944, Wehrmacht High Command issued guidelines regarding
homosexuality in the armed forces, and America did the same during the same period.
However, American post-war guidelines increased the penalties for those caught as
homosexual in the armed forces that were higher penalties then Wehrmacht had.
The similarities are disturbing, and while America never conducted execution of
homosexuals simply for being labeled such, it did conduct experiments. Terminology
presents one key difference between Nazi Germany and America’s treatment of gays:
Nazi’s goal was genocide, while America’s was a Kulturkampf by attempting erasure.
B. Scientific influence on anti-homosexual regulation.
In 1948, Alfred Kinsey published his report77 on sexual behavior in the human male,
followed by a similar report78 on sexual behavior in the human female in 1953.79
Regarding his report on the human male, he recognized the social significance of
homosexuality is “considerably emphasized by the fact that both Jewish and Christian
churches have considered this aspect of human sexuality to be abnormal and immoral.”
He acknowledged that “[s]ocial custom[s] and . . . law are sometimes very severe in
penalizing one who is discovered to have had homosexual relations.”81 Punishments for
being labeled gay in society caused him to analyze the aspect of homosexuality as a cause
and effect hypothesis.
He concluded that homosexuality was something imbedded deep in a person’s
personality. He further acknowledged that humans forget that they are part of the animal
kingdom and this required recognizing that having only two classifications for human
males is an improper categorization. This report played no role in the scientific
community’s opinion however, as the religious and legal influences superseded his
In 1952, the first Diagnostic Statistic and Mental Disorders Manual83 (hereinafter
“DSM”) listed a number of diseases for diagnosis and treatment, and deemed
homosexuality as a “psychopathology.” It was here where the legal and medical
community’s almost seemed to merge, allowing “correction” therapies for
homosexuality. Whether voluntary or involuntary, gays were legally powerless to protect
Not surprisingly the legal and religious influence on DSM classifications worked its
way into the case law in support for cases involving homosexuality. Such a case was
Boutilier v. Immigration Services, a 6-3 decision, which deported a bisexual Canadian
immigrant because homosexuality was deemed a “psychopathic personality.” This
decision ignored the dissent’s argument86 using Kinsey’s report conveying that it was
impossible to define a person as a homosexual.
This classification stayed in the DSM until the second re-printing of the DSM-II88 in
1973 where homosexuality was downgraded from a mental disorder to a sexual variant
only. In a position statement written by Robert L. Spitzer, who was involved in
nomenclature and statistics of the DSM, stated that by not removing the variant of
homosexuality as an illness would be “misused by some people outside of our profession
who wish to deny civil rights to homosexuals.” However, he warned that changing the
variant will not recognize, medically speaking, that homosexuality would be as normal as
heterosexuality. Specifically, he criticized that if we maintained homosexuality as a
disease then we “have to add . . . celibacy, revolutionary behavior, religious fanaticism,
racism, vegetarianism, and male chauvinism.”
In a follow up Psychiatry Journal written by Spitzer on DSM-II, he recognized it was
“inconsistent for homosexuality to be singled out as a mental disorder merely because of
negative societal attitudes.” He acknowledged that a common trait in homosexuals—as
a possible counter-argument for inclusion in the DSM—was “subjective distress or . . .
associated with generalized impairment in social effectiveness of functioning.” This
was mitigated by the fact that “homosexuality is not associated with distress . . .
[although] many claim that if there were no societal discrimination against homosexuality
and no societal expectation of heterosexuality, homosexuals would never be distressed by
their sexual orientation.”
In the DSM-III, published in 1980, the definition changed again marking
homosexuality as “ego-dystonic,” that is, classifying it as “other sexual disorders”
including “distress about one’s sexual orientation.” The criticism against this diagnosis
was (1) no comparable equal to a heterosexual distress disorder; and (2) consequences of
being labeling homosexuality as an illness. Certainly, heterosexuals are frequently distressed by some aspects of their sexuality . . . there is not a single case . . .that describes an individual with a sustained pattern of heterosexual arousal who was distressed by being
heterosexually aroused and wished to acquire homosexual arousal in order to initiate or maintain homosexual relationships . . . the inability of most heterosexuals to
function homosexually puts them at no disadvantage except in extraordinary situations . . . [o]n the other hand, inability to function heterosexually has the built-in consequence of
preventing, or at least interfering with, the ability to procreate—a matter that some judge to be not inconsequential.
Although the illness/psychopathic disorder definition was removed from the DSM,
this did not detour many from still classifying it as a problem. In the 1978 case of
Ratchford v. Gay Lib, Certiorari was denied where the University of Missouri denied
recognition to Gay Lib because it would spread homosexuality, holding such denial
unconstitutional. Justice Rehnquist in a dissenting opinion, concurred by Justice
Blackmun, proposed that Certiorari should have been granted and classified the issue at
hand as: "[T]he question is more akin to whether those suffering from measles have a constitutional right, in violation of quarantine regulations, to associate together and with others who do not presently have measles, in order to urge repeal of a state law providing that measle[sic] sufferers be quarantined."
This misappropriation has been interpreted to mean “[g]ays were not citizens who could
assemble with others to persuade them of their cause. They were lepers who would infect
all they touched.”
Additionally, the same Immigration and Naturalization Service that excluded
Boutilier did not until 1990—17 years after the removal by the DSM—surrender the
power to exclude homosexuals as psychopaths.
It is incredulous that the legal community was not influenced by the trend of the
medical progression on the opinion of homosexuality. However much the degree of
influence, it bears acknowledging that this time period as a whole created a Kulturkampf
that is still alive and well in today’s society.
III. Gay is Good: Stonewall Riots of 1969 and the beginning of the rebellion and
On June 27, 1969, at Stonewall Inn in Greenwich Village located in New York City, a
gay bar was visited by police officers with a warrant to—for all purposes—kick out the
gays from the bar. In the beginning, they all complied, applauding and cheering for
each other as they were forcibly removed from the bar. However, when drag queens
and a lesbian were forced into a paddy wagon, it resulted in a riot. The crowd started
throwing beer cans, bottles, and rocks at the police forcing them to take refuge in the
same bar they just emptied. Inside they were subjected to cobblestones and trashcans
filled with burning paper thrown into the Inn, and ultimately the Inn was set on fire.
Gays around the country were tired of being treated worse than animals and the
country took notice. Stonewall did not only open the preverbal closet door but started a
national coming out of the closet event. “After Stonewall, lesbian and gay college groups
grew like weeds in a vacant lot,” and “hundreds of new organizations formed, most
notably GLF (Gay Liberation Front) and its successor GAA (Gay Activists Alliance)”.
In the area of literary censorship, new publications emerged, “many of these new
publications were radical, advocating positions such as lesbian separatism (The Furies),
free love (Gay), and gay political militancy (Gay Power). Community-centered
newspapers, such as The Gay Blade in Washington, D.C., and the Bay Area Reporter in
San Francisco, were established in this period identifying political points of contest.”
Almost as a direct cause-and-effect, Hollywood’s censorship on movies was lifted,
mostly noting their increased awareness of their gay audiences.
Gays started to enter into politics, most notably with the story of Harvey Milk who
moved from New York in 1972 to Castro Street in San Francisco. Initially opening a
camera shop, he ran a total of three times for city supervisor, losing the first two attempts
but winning the third in 1977. Unfortunately, his public office tenancy was cut short
when he was assassinated in 1978. Not surprisingly, anti-homosexual campaigns
surfaced alongside the now more vocal and open gays of society.
One notoriously known anti-gay activist was Anita Bryant who zealously campaigned
against the homosexual agenda for equal rights in Florida. With her “Save Our Children”
campaign, she believed she was correctly rooted for protest through a power that God
gave her in claiming homosexuality a sin and using a role model argument that was
ultimately successful. Her successful influence swept across other states115 using the
same belief system to pass similar laws.
In 1986, the first gay rights case hit the Supreme Court, Bowers v. Hardwick.
Michael Bowers was charged with consenting same-sex sodomy—a felony—when police
entered his private bedroom on a call for an alleged robbery. He was charged and
sentenced where on appeal to the Supreme Court they held with a plurality that the
charge and sentence would stand since no fundamental right was violated. The dissent
argued that the decision should not have been issued for four principles: the right to be let
alone, violation of Equal Protection and cruel and unusual punishment, invasion of
privacy under the Fourth Amendment, and that the religious purpose behind the law was
not a valid state purpose.The dissent specified that the Court even had an almost
“obsessive focus on homosexual activity” in the case, even though the statute was
It was not until years later in 2003, in Lawrence v. Texas, did the Bowers decision
get overturned creating a fundamental right to sexual intimacy in the privacy of one’s
home, between two consenting adults. Although the decision does not discuss
homosexuality specifically—discussed in more detail below—this does not mitigate the
fact that homosexuals in America have been subjected to torturous, harassing,
demeaning, offensive, animal-like, second-class citizenship treatment by the government.
As was seen throughout the history presented, it is analogous to a bell that once it is
rung the sound waves cannot be stopped. The federal government and Supreme Court
has yet to rule that those discriminated based on sexual orientation are deserving of any
more Equal Protection of the laws then Rational Basis. However when analyzing the
treatment of the gay community through the history of America, it bears little argument
that at a minimum the lowest standard under Equal Protection of Rational Basis is