• nik@yancharlawoffice.com

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

reactions.


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

public.


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

“tomboy” instead.


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

their extinction.


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

Kulterkampf.


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

regulation.


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

1953.


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

research.


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

themselves.


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

attempted liberation.


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

broadly written.


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

stupendously insufficient.

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