William N Eskridge Jr. Encyclopedia of Lesbian, Gay, Bisexual, and Transgendered History in America. Editor: Marc Stein. Volume 1. Detroit: Charles Scribner’s Sons, 2004.
In the United States, most government policies relating to sexual and gender minorities have been debated and established by state and local governments. The federal government’s interest in sexual and gender minorities has largely been limited to matters within its distinctive constitutional roles: movement of materials in the U. S. mail service and from abroad; immigration and citizenship; military and civilian employment; income tax rules and exemptions; and the expenditure of federal monies, especially on the arts and education. Before World War II, federal policy episodically suppressed discourse about sexual variation and excluded sexual minorities. After the war, the government engaged in a much more aggressive campaign to expose and persecute (as well as exclude) LGBT people as a predatory and dangerous group. After LGBT people openly resisted their persecution, most federal anti-LGBT policies collapsed, and later the U. S. Supreme Court started to protect these minorities against oppressive state laws. But just as sodomy laws and open censorship of sexual expression were being suppressed, new forms of anti-LGBT legislation, including “don’t ask, don’t tell” in the military and “no promo homo” laws such as the federal Defense of Marriage Act, took their place.
Federal Suppression of Sexual “Degeneracy” and “Inversion,” 1875-1945
Before World War II, there was no federal regulation of “homosexuality” or “homosexuals,” as we understand the terms. But there were national rules insisting on gender and sexual conformity within arenas subject to federal jurisdiction. The purpose of the rules was to purge the body politic of any seductive discourse regarding nontraditional genders and sexualities.
Censorship of Sexual Materials
There was no general federal obscenity statute, but several laws sought to regulate obscene materials pursuant to national authority over the mails and commerce. The Comstock Act of 1872-73 prohibited the Post Office from mailing “[e]very obscene, lewd, lascivious, indecent, filthy, or vile article.” The Tariff Acts of 1922 and 1930 prohibited the Customs Service from allowing “obscene” materials from coming into the United States from another country. These statutes had little if any effect on LGBT publications before World War I, as they were applied mainly against birth control materials. After World War I, homosexual and feminist themes became more common in Anglo-American literature and federal censors acted episodically to keep them out of the country. Although such important literary works as Marcel Proust’s A la recherche du temps perdu (1913-1926) and Virginia Woolf’s Orlando (1928), circulated in the United States without a federal peep, the authorities did seize other gay-friendly books, including Charles Henri Ford and Parker Tyler’s The Young and Evil (1933), a campy depiction of “gay” life in Greenwich Village; Sir Richard Burton’s 1886 edition of The Arabian Nights, with its sexually suggestive closing essay; and The Memoirs of Fanny Hill, an eighteenth-century novel filled with episodes of sexual nonconformity. The Customs Service also suppressed importation of Radclyffe Hall’s lesbian novel, The Well of Loneliness, when it was published in 1928 but later relented and allowed its importation (local authorities then seized the threatening novel). The Customs Service’s censorship of ribald literature eventually came under fire as inconsistent with the First Amendment and Congress limited its authority in 1930, but this did not mark the end of Customs Service censorship of LGBT materials.
From the beginning, national standards for immigration excluded sexual and gender nonconformists. The 1891 immigration law barred from entering the country prostitutes and their procurers; “persons suffering from a loathsome or a dangerous contagious disease”; and “persons who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude.” As the Commissioner-General of Immigration put it in 1909, “[n]othing can be more important than to keep out of the country the anarchistically and criminally inclined and the degenerate in sexual morality.” The Immigration Act of 1917 carried over all prior exclusions and created a new one, for people suffering from “constitutional psychopathic inferiority.” Congress added this category “to prevent the introduction into the country of strains of mental defect that may continue and multiply through succeeding generations,” but the medical experts in the Public Health Service charged with enforcing the exclusion saw it as an instrument to exclude “sexual perverts” and others who “because of eccentric behavior, defective judgment, or abnormal impulses are in repeated conflict with social customs and constituted authorities.”
In 1917, a Navy investigation of enlisted men at the Newport Naval Station exposed a sub-culture of “so-called moral degenerates whose pastime and pleasure is given to lewd purposes,” including cross-dressing and oral sex with townspeople as well as one another. The men were prosecuted because they were “inverts,” people who were “morally degenerated.” In the wake of this scandal, Congress and the War Department quietly updated the Articles of War in 1920-21 to criminalize the oral sex the sailors had been imprisoned for committing. (Only “attempted sodomy” had been a military crime in 1917, and the armed forces then defined sodomy as anal sex.) A subcommittee of the Senate Naval Affairs Committee in 1921 recommended “arbitrary and wholesale discharge” of any and all “suspected perverts.”
Thus encouraged, the Army determined not only to discharge sodomites and inverts, but also, for the first time in its history, adopted a mechanism for screening them out in the first place. Army Regulation 40-105 (1921) announced that Army recruits would be examined and could be rejected for evidence of medical defects or diseases, including “degeneration” and “sexual perversion.” The regulation also excluded recruits who showed signs of a “constitutional psychopathic state,” including “sexual psychopathy,” which made them “incapable of attaining a satisfactory adjustment to the average environment of civilized society.” For a variety of reasons, few men were excluded from the armed forces under this rule. In 1940, when the United States reinstituted the draft, issues of exclusion reemerged. Psychiatrists persuaded the Selective Service to screen inductees for psychiatric as well as physical problems and, then, to include “homosexual proclivities” on the list of disqualifying “deviations.” Largely because of manpower needs, however, of the millions of Americans inducted into the Army during the war, only four thousand to five thousand were explicitly rejected for “homosexuality.”
As a large number of LGBT people were not detected by the porous gatekeepers, the armed forces developed policies for dealing with same-sex intimacy among soldiers. War Department Circular No. 3 (1944) directed separation but not court-martial for the “true or confirmed homosexual not deemed reclaimable.” For the “reclaimable” homosexual whose misconduct was not aggravated by independent offenses such as rape, the policy was hospitalization and treatment. According to Allan Bérubé, more than four thousand sailors and five thousand soldiers were hospitalized and dismissed from service as “homosexuals” between 1941 and 1945. The new medical focus also established a basis for investigating and excluding lesbians. In the first modern “witchhunt,” the War Department in 1944 purged the WAC training camp at Fort Oglethorpe of women who cross-dressed and displayed affection for other women.
The Federal Anti-Homosexual Drive, 1946-61
By the end of World War II, the “homosexual” was an object of episodic federal concern. Within a few years, he (and occasionally she) had become a national obsession. Official federal policy remained essentially unchanged from the earlier period: “homosexuals and sex perverts,” in the argot of the era, were not welcome to enter this country, work as civil servants or soldiers, or express themselves publicly. In the half-generation after the war, however, the federal government invested unprecedented resources to investigate, expose, and purge the body politic of such minorities.
The Civil Service Witchhunts
Responding to Republican charges that the civil service was filled with sexual as well as political subversives, the Democratic Truman administration between January 1947 and April 1950 investigated 192 cases of “sex perversion” in the federal civil service; most of the accused were discharged or resigned. In 1950, a subcommittee chaired by North Carolina U.S. Senator Clyde Hoey issued a report that made the case against having “homosexuals and other sex perverts” in the government. “The social stigma attached to sex perversion is so great that many perverts go to great lengths to conceal their perverted tendencies,” making them easy prey for “gangs of blackmailers.” According to the Hoey Subcommittee, “those who engage in overt acts of perversion lack the emotional stability of normal persons,” and “indulgence in acts of sex perversion weakens the moral fiber of an individual to a degree that he is not suitable for a position of responsibility.” Finally, “perverts will frequently attempt to entice normal individuals to engage in perverted practices. This is particularly true in the case of young and impressionable people who might come under the influence of a pervert … One homosexual can pollutean entire office.” This anti-homosexual fervor motivated federal agencies to adopt more explicitly anti-LGBT policies. The Civil Service Commission, for example, reinterpreted its regulation barring from federal employment people who engage in “immoral conduct” to include “homosexuality and other types of sex perversion” as “sufficient grounds for denying appointment to a Government position or for the removal of a person from the Federal service.” In April 1953, President Eisenhower issued Executive Order 10405, which officially added “sexual perversion” as an official criterion for investigation and dismissal under the federal loyalty-security program. Thousands of alleged “homosexuals” were separated from the civil service under this rule—and many of those lost not only their jobs but also private employment opportunities because the Eisenhower administration denied security clearances to private as well as public employees who engaged in “immoral” conduct or “sex perversion.”
At the same time federal legislators and administrators were studying ways to purge homosexuals inside the government, the U.S. Senate Judiciary Committee was drafting a broader law to keep more homosexuals out of the country. Senator Patrick McCarran redrafted the immigration law in 1950-52. A major goal of his bill was to exclude communists, anarchists, and other subversives. Reflecting fears that homosexuals were subversive, the McCarran bill excluded all “persons afflicted with psychopathic personality, or who are homosexuals or sex perverts.” Upon the assurance of the Public Health Service that the term “psychopathic personality” was broad enough to “specify such types of pathologic behavior as homosexuality or sexual perversion,” the Senate as well as House Judiciary Committees settled for an exclusion simply of “persons afflicted with psychopathic personality.” The immigration service read the exclusion as targeting persons with records of consensual homosexual offenses.
The Military Witchhunts
During the same period, thousands of personnel were separated from the military. Departing from the War Department’s earlier policy, the discharges were generally less-than-honorable “blue” discharges, thereby depriving these personnel of veterans benefits promised in the G.I. Bill of Rights and exposing them to discrimination in the private sector when the nature of the discharge was leaked by local boards. A 1949 Defense Department memorandum made mandatory the prompt separation of all “known homosexuals.” They fell into three groups: Class I homosexuals, who engaged in coercive sex or sex with minors, were to be court-martialed; Class II homosexuals, who engaged in “one or more homosexual acts” or proposals or attempts “to perform an act of homosexuality,” were to be court-martialed or allowed to resign under less-than-honorable (blue) conditions; Class III homosexuals, who “only exhibit, profess, or admit homosexual tendencies” but had not engaged in forbidden conduct, were to be retained or discharged (honorably or generally) depending upon the recommendation of a personnel board. Military policy directed not only that confirmed homosexuals be separated, but that they be sought out as well. Personnel were repeatedly questioned for clues to roust them from their closets, and undercover investigators sought out soldiers in homosexual bars, known male cruising areas, and women’s softball teams. If military investigators had evidence (or just accusations) against one soldier, they often threatened that person with court-martial and unfavorable publicity unless he or she reported other names. All told, it is estimated that between two thousand to three thousand personnel were separated each year for that period, at a rate of one person separated each year for each one thousand serving in the armed forces and with a significantly higher rate of discharge for women than for men. These figures strongly understate the effect of the policy, as many personnel left the armed forces upon the slightest pressure, or even before investigators got to them.
Anti-Homosexual Surveillance and Harassment
In the 1930s, Federal Bureau of Investigation Director J. Edgar Hoover maintained files documenting the homosexuality of prominent federal officials. More extensive lists of suspected homosexuals were compiled by the armed forces and local police forces. The Hoey Subcommittee charged the FBI to serve as a clearinghouse for all of this information and to channel it to the Civil Service Commission. The Bureau expanded its charge to include surveillance of homosexuals and their organizations and political activities, as well as investigations of people associating with known homosexuals. Once its agents had gathered the information, the FBI used it in various ways, including leaks to local officials and employers and interrogation to pry out the names of other homosexuals. Hoover’s FBI was even more interested in homophile groups such as the Mattachine Society, One, Inc., and the Daughters of Bilitis (DOB). The FBI initiated an internal security investigation into the Mattachine Society in 1953 and started a more open-ended file on the Daughters of Bilitis in 1959. Although the FBI early on recognized that both Mattachine and the DOB were completely “law-abiding,” FBI agents infiltrated both organizations, archived their declarations and publications, reported their meetings and activities, recruited informants, compiled lists of members whom they could identify, and speculated on their influence and future activities. On several occasions, FBI agents directly harassed and threatened Mattachine members because of their criticisms of Director Hoover.
During the same period, the U.S. Customs Service and Post Office were devoting unprecedented resources to monitoring and confiscating materials that were considered examples of “sexual perversion.” Some of the materials were clearly literary in nature. The most famous, and resistant, example was Allen Ginsberg’s raucously homoerotic poem Howl. Its second printing was confiscated at San Francisco’s port as obscene. Although the publisher then came out with a domestic edition, hundreds of other LGBT-oriented materials were seized by Customs officials each year. The Post Office seized thousands of male physique magazines and other homo-erotic materials that traveled domestically through the mail service. The Post Office and the Department of Justice also went after gay pen pal clubs and, in their most bizarre escapade, the exceedingly tame One.
In April 1954, Senator Alexander Wiley wrote the Postmaster General protesting the willingness of the Post Office to carry One, a magazine “devoted to the achievement of sexual perversion.” In response, the Los Angeles Postmaster sent a copy of each issue of One to the central Post Office for evaluation under the Comstock Act. The Post Office determined that the October 1954 issue was obscene and lewd, based upon a poem, an advertisement, and an article, “Sappho Remembered,” whose depiction of a lesbian’s affection for a twenty-year-old “girl” was considered obscene because it was “lustfully stimulating to the average homosexual reader.” Upon these findings, the Post Office determined the issue to be nonmailable and returned 600 copies to the sender. In One, Inc. v. Olesen (1958), the U.S. Supreme Court summarily invalidated this censorship as a violation of the First Amendment. The Court ruled in Manual Enterprises v. Day (1962) that the Post Office could not censor male physique magazines either. Notwithstanding these rulings, the Post Office, Customs Service, and FBI episodically seized LGBT erotica throughout the 1960s and 1970s and on occasion bullied gay publishers into self-censorship or even closing down their operations.
Erosion of the Old Federal Exclusions and the Creation of New Ones, 1961-2003
Beginning with the early years of the homophile movement and increasingly after Frank Kameny’s founding of the Mattachine Society of Washington (MSW) in 1961, LGBT people resisted their second-class status under federal law and policy. Most federal anti-LGBT exclusions were abandoned after LGBT people became politically mobilized in the wake of the Stonewall Riots (1969). But others (most notably the exclusion from the armed forces) have survived and remain the focus of struggles between LGBT rights activists and their opponents. The U.S. Supreme Court has recently become more protective of the rights of LGBT people, striking down a sweeping anti-LGBT state initiative in Romer v. Evans (1996) and consensual sodomy laws in Lawrence v. Texas (2003). At the same time, the other branches of the federal government have been relatively inactive in protecting LGBT people against violence and discrimination; this remains the province of state and local governments, whose protections have been uneven. Indeed, Congress and the President have pioneered new forms of anti-LGBT legislation, including a sweeping disavowal of same-sex marriages and other “no promo homo” laws.
Demise of the Federal Civil Service and Immigration Exclusions
The MSW’s primary agenda was to end the exclusion of LGBT people from the civil service. Its strategy was to publicize the irrationality of the policy through protests and lawsuits. In 1966, the Civil Service Commission (CSC) explained its policy for the first time, indicating that it did not exclude “homosexuals” per se—only people who engaged in “overt” homosexual conduct that became public through an arrest or general knowledge. In Norton v. Macy (1969), Chief Judge David Bazelon of the D.C. Circuit overturned the discharge of a gay NASA budget analyst and admonished the agency to show a “nexus” between homosexual conduct and the requirements of the federal job. Decided the same week as the Stonewall Riots, Norton encouraged the LGBT movement to move aggressively against the federal government. In 1973, the Society for Individual Rights in San Francisco brought a class-action lawsuit against the Commission and won an injunction against the anti-LGBT exclusion. On December 21, 1973, the CSC notified federal agencies that they could “not find a person unsuitable for Federal employment merely because that person is a homosexual or has engaged in homosexual acts” and could only dismiss such an employee where his “homosexual conduct affects job fitness—excluding from such consideration, however, unsubstantiated conclusions concerning possible embarrassment to the Federal service.” In 1975, this instruction was formally codified in the Commission’s rules for disqualification, which also dropped “immoral conduct” from the list of disqualifying conditions. Guidelines for “Infamous or Notoriously Disgraceful Conduct” were revised to the same effect, and the civil service statute was amended in 1978 to prohibit discrimination “on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others.” In 1998, President Clinton issued Executive Order 13,087, adding sexual orientation to the list of prohibited basis for discrimination in federal employment.
At the same time the federal employment exclusion was falling, the Immigration and Naturalization Service (INS) was abandoning some of its anti-LGBT rules. Pressed by LGBT rights claims, medical experts, and adverse court rulings, the INS in 1976 announced that homosexuality was not a basis for denying citizenship. At the same time, however, the INS maintained that LGBT immigrants could be barred from entering (or deported after entering) the United States, because the Supreme Court had authoritatively construed the 1952 immigration law to that effect and the INS had no authority to craft a different policy. In 1979, however, the Public Health Service (PHS) announced that it would no longer certify LGBT people as afflicted with “psychopathic personality” or “sexual deviation” (terminology Congress added in 1965). Although PHS certification was technically required by statute before the INS could bar LGBT people from entry, the immigration authorities pretty much abandoned enforcement of the law after 1979, except in the rare case where immigrants announced their homosexuality. In 1990, Congress dropped the anti-LGBT exclusions when it redrafted the nation’s immigration law.
Military Exclusion: Standing Firm. The armed forces’ episodically enforced exclusion of LGBT people came under increasing fire in the 1960s and 1970s. Upholding the claims of openly gay Sergeant Leonard Matlovich and Ensign Vernon Berg, the D.C. Circuit in 1976 held that the discretionary-dismissal approach followed by the Air Force and Navy could not be invoked without giving reasons why certain personnel were being dismissed but not others. As in Norton, the court was requiring that there be a nexus between the disapproved conduct and legitimate state needs. In the wake of these decisions, more service personnel came out of their closets and successfully challenged their exclusion. The Carter Administration addressed the Matlovich/Berg problem by promulgating new regulations in 1980 that removed official discretion to allow openly LGBT personnel to serve in the armed forces. Immediately afterward, the Ninth Circuit in Bellerv. Middendorf (1980) deferred to the executive department’s judgment that the presence of sodomites or openly LGBT personnel would be disruptive of morale and unity cohesion. The Reagan administration enforced the new policy vigorously, through episodic witchhunts reminiscent of those in the 1950s. Nonetheless, LGBT personnel continued to come out of their military closets and bring constitutional lawsuits, some of which were successful, most not. In 1993, President Clinton announced that he intended to revoke the executive order embodying the anti-LGBT rules. Opposed by his own Joint Chiefs of Staff and U.S. Senator Sam Nunn, Clinton backed away from that announcement and instead supported a statute that barred from military service anyone who was openly LGBT or who engaged in a “homosexual act.” Hundreds of women and men have been separated from the armed forces each year on the basis of this policy. Lawsuits seeking its invalidation have been unsuccessful, as of 2003. The Supreme Court’s decision invalidating state sodomy laws in Lawrence v. Texas (2003) may require the federal government to revisit its criminalization of consensual sodomy in the Uniform Code of Military Justice (UCMJ). If the UCMJ’s sodomy bar were revoked or invalidated, the 1993 statute excluding openly LGBT people from the armed forces would be more vulnerable, because a key defense of its exclusion is that LGBT people are presumptive “sodomites” and therefore violators of the UCMJ.
New Federal Anti-LGBT Laws and Policies
At the same time the federal government was abandoning most of its official anti-LGBT policies, state and local governments were adopting new laws affirmatively protecting LGBT people against private as well as public discrimination. On 14 May 1974, U. S. Representative Bella Abzug introduced a bill that would have protected against sexual-orientation discrimination in public and private workplaces, public accommodations, and housing. Although similar bills were introduced in every Congress after 1974, none even received a congressional hearing until the proposed Employment Non-Discrimination Act (ENDA) did in 1994. No bill even came to a vote on the floor of the House or Senate until the Senate considered ENDA in 1996. The only reason the Senate leadership agreed to bring ENDA up for a vote was to smooth the passage of the Defense of Marriage Act (DOMA). ENDA failed by one vote in the Senate, while DOMA sailed through both chambers by lopsided majorities. DOMA is the most anti-LGBT federal statute in American history, and by a wide margin. It authorizes states to refuse recognition to valid same-sex marriages and amends the U.S. Code to provide that the more than 1,000 provisions of federal law relating to “marriage” and “spouse” never be construed to apply to same-sex marriages and spouses. A dissenting opinion in the Supreme Court’s decision in Lawrence v. Texas (2003) argued that the Court’s LGB-friendly jurisprudence spelled the end of same-sex marriage bans in the United States. Like many dissenting opinions, this one overstated the effect of the majority’s action, but in the event that a state recognizes same-sex marriage through its own legislative or judicial action, the constitutionality of DOMA would come into question. The most relevant authority would be Romer v. Evans (1996), where the Supreme Court ruled that a sweeping anti-LGBT initiative apparently motivated by animus against LGBT people violated the Equal Protection Clause. Similar arguments could be made against DOMA, although even pro-LGBT commentators caution that the Supreme Court would proceed cautiously in the arena of marriage.
As of 2003, there is no federal statute providing explicit protection for LGBT people against violence or discrimination. In 1990, Congress adopted a law requiring collection of data on hate crimes, including those against LGBT people, but the statute also provided that the law should not be applied to encourage or promote “homosexuality.” This has been the newest face of anti-LGBT policies at the federal level. In addition to excluding openly LGBT people from the badge of citizenship represented by military service and the institution of marriage, federal policymakers express disrespect for homosexuality and transgenderism. LGBT people object that this represents a prejudice-based form of second-class citizenship. Traditionalists respond that this reflects a policy of “tolerance”: Viewing homosexuality and transgenderism as an unfortunate condition, they maintain that LGBT people should be allowed most freedoms and job opportunities, but not given the full privileges of citizenship reserved for heterosexual and gender-normative Americans.