Gay Rights and Law Reform

The essence of the case for law reform is remarkable for its simplicity. The law can punish as criminal offences homosexual acts between consenting adults in private if the adults are male but not if they are female. In this respect the law is discriminatory. Whether or not a certain kind of behaviour should be a crime cannot sensibly turn solely on whether the agent is a man or a woman. This is something with which the Human Rights Commission, to its discredit, has not yet come to grips. Discrimination before the law on grounds of gender is now unequivocally illegal in New Zealand - and yet the anomaly remains.

But what about discrimination on grounds of sexual orientation? Heterosexual activities may take such forms or occur in such circumstances that many members of society would disapprove of the acts in question - adultery and premarital intercourse are obvious examples. But, in spite of such moral condemnation, neither adultery nor premarital intercourse are criminal offences. In other words, there is tacit recognition that some activities, in particular some sexual activities, are best regulated in ways which do not involve a criminal ban even where there is quite wide-spread moral disapproval of them.

But, it will be retorted by some, you have not allowed for the difference in sexual orientation. So let me do so. If you compare homo- and hetero-sexual conditions, the obvious difference lies in the typical choice of sexual partner. And this difference is so striking that little or no attempt is made to consider similarities between the orientations. For example in both cases we have only very limited knowledge of how the orientation is acquired; in both cases the orientation has a pervasive influence upon the emotional life and all the relationships of the individual concerned - far beyond the overtly sexual; in both cases substantial dangers confront the attempt to 'convert' an individual from the one to the other; in both cases the individual's sexual nature is associated with the capacity to give and receive affection, a capacity which naturally and inevitably seeks expression in sexual exchange.

Now, if we take account of these and other similarities, we end up with different social arguments (including laws) from those which at present obtain, arrangement under which hetero- and homosexual are treated alike as being in relevantly similar situations But suppose someone objects that being a homosexual is a relevant difference. Homosexual men may molest young boys; homosexual offences may undermine the moral fibre of the nation; homosexual behaviour may disrupt the institutions of marriage and family life. Such considerations all find some measure of support and touch upon matters we do and should take seriously, morally speaking. But we can, it we are patient, show that hetero sexuals may molest young girls - and boys for that matter, and that hetoerosexual offences may undermine the moral fibre of the nation; that heterosexual behaviour can disrupt the institutions of marriage and family life. In short, the situations of homo- and hetero-sexual are not relevantly different Whatever steps we take legally, morally, socially, to protect the young, to encourage positive moral standards, to support social institutions, will apply irrespective of sexual orientation.

The injustice of the male homosexual's treatment in law, does not merely consist in his being subject to certain penalties from which his lesbian counterpart is exempt. That piece of discrimination rubs in a more pervasive insult, namely that sexual self-determination is the exclusive prerogative of the heterosexual. That is why the argument which has recently found some favour within tin movement, that the effects of the law as presently enforced are not too bad, so that we should forget about reform page 13[unclear: trate] on more pressing issues is, [unclear: foundly] mistaken. A gay rights [unclear: hich] did not strive for legal [unclear: oh-he] right to sexual self-[unclear: detcrmi-][unclear: mong] other things, reform of [unclear: act] would be a movement at [unclear: s own] aims. In fact, of course, [unclear: ontinues] to hold its place [unclear: wi-][unclear: der] spectrum of gay rights [unclear: ac-]