It’s the 1st of February 1981, Margaret Thatcher has been in office as Prime Minister for almost two years; John Lennon just knocked his own song, Imagine, off the UK number one slot with Woman; Norway was just about to elect its first female Prime Minister, Gro Harlem Brundtland; and Scottish First Minister Nicola Sturgeon was just ten years old.
In Scotland too it was an important date, for men, gay and bisexual men in particular. On the 1st of February 1981 Scotland decriminalised homosexual acts (in private for those over the age of 21).
Much has been made of the 50th anniversary of the partial decriminalisation of homosexuality in the UK, as it rightly should, except for the fact that 2017 is not the 50th anniversary of the partial decriminalisation of homosexuality in the UK. It’s the 50th anniversary of the partial decriminalisation in England and Wales.
This distinction is important and not least because of the differing equality journeys taken in the constituent parts of the UK. It would take Westminster another 14 years before gay men in Scotland (fifteen years, via Strasbourg, before gay men in Northern Ireland) would enjoy the same rights as their English & Welsh counterparts.
Even in Scotland there is some confusion about the date of decriminalisation. Look at many a history website or book and you’ll find the date listed as 1980, the date the law passed. This, sadly, was not the date when gay men were no longer seen as criminals in the eyes of the law. This distinction too is important – after all a change in the law means nothing to those denied their human rights until that denial ends, for those affected, in this case, a no doubt arduous four-month wait.
We know that in the years leading up to decriminalisation there were few prosecutions under the law in Scotland, indeed since the 1967 act in England prosecutions in Scotland were scarce, perhaps even non-existent. When repeal in England and Wales occurred there was an argument made by Scots lawmakers that as it was harder to prosecute homosexuality in Scotland, repeal of the law wasn’t required.
In 1957 a Daily Record poll indicated that 85% of Scots opposed the recommendations of the Wolfenden Report, a Home Office inquiry which recommended the change in the law, while around the same period its sister paper the Daily Mirror, showed a much more even split – 51% opposed. These were just two of the reasons it took another 14 years to implement Wolfenden in Scotland.
Ironically, it would be the lack of prosecutions and the decriminalisation in England and Wales that ultimately turned this argument on its head when it became Scotland’s time to repeal, long overdue and never really defendable.
So why does it all matter now? Well, on Tuesday the Scottish First Minister Nicola Sturgeon make an historic apology in her own words “to those who found themselves unjustly criminalised simply because of who they loved”. The apology coincided with the publication of new legislation, the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill, which will automatically pardon those criminalised by previous laws criminalising same-sex sexual activity which are now legal.
A pardon is important, because many gay and bisexual men, now living, will be able to apply to have records of convictions, for crimes which are no longer criminal, to be expunged. However, many gay and bi men argue that as they never did anything wrong a pardon, the act of ‘forgiving or being forgiven for an error or offence’, isn’t what’s needed. That’s why an apology is important.
Nicola Sturgeon took up that point in the Scottish Parliament, “For people convicted of same sex sexual activity which is now legal, the wrong has been committed by the state, not by the individuals. Those individuals deserve an unqualified apology, as well as a pardon.” It’s a statement that centuries of criminalisation of gay and bisexual men in Scotland was wrong, not their consensual relationships.
The Bill in Scotland will, as is the case with the Act in England, pardon posthumously, but unlike its southern counterpart those who are still living will also receive an automatic pardon for things that are no longer crimes. In the years before decriminalisation prosecutions were uncommon, but there were convictions in Scotland as late as 1991 simply for kissing in the street. The Scottish bill also covers offences that were used in a discriminatory way, for example convictions for “importuning” – simply chatting up other men – will be covered. This is not the case with the UK Act.
Although these laws are long gone, the convictions remain and to this day can affect job and volunteering prospects.
Nicola Sturgeon’s apology addressed the harm done, she said, “Those laws criminalised the act of loving another adult; they deterred people from being honest about their identity to family, friends, neighbours and colleagues; and by sending a message from parliament that homosexuality was wrong, they encouraged rather than deterred homophobia and hate.”
She also looked to the future, “But as all of us know, until we live in a country – in fact, until we live in a world – where no young person suffers hate or fear or discrimination or prejudice, simply because of their sexual orientation or their gender identity, then we have still got work to do.”
Scotland has been on a long, sometimes complicated, journey toward LGBTI equality. Today’s apology, in my view, marks a hugely significant moment, the moment that Scotland is able to look to the past and reject previous discrimination, a moment that Scotland considers LGBTI people, without fear or favour, to be equal citizens who deserve equal respect.
Today as we reflect on our past, while we remember those convicted by unjust laws, we must also remember too those of the Scottish Minorities Group, and its successor organisations, who’s campaigning and threat of ‘going to Europe’, helped make Scotland a better place for all LGBTI people.
So finally, just to clarify:
1st February 1981: decriminalisation of homosexuality in Scotland.
2001: Equalisation of the age of consent.
2017: 50th anniversary of the decriminalisation of homosexuality in England and Wales.
7th November 2017: The day the Scottish Government apologised to gay and bisexual men for unjust criminalisation and Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill published.