A leading set specialising in commercial, construction, insurance and property law
The law and law makers have long struggled with lesbian love and the very existence of lesbians and their relationships.
Male homosexuality and the criminal law has an unambiguously negative history going back to the Buggery Act 1533. The outlawing of male homosexuality culminated in 1885 with the introduction of the offence of gross indecency, which was explicitly focused on sexual acts between men. There is a widespread myth that Queen Victoria intervened to ensure female homosexuality was excluded from the relevant provisions because she did not believe such a thing existed. Queen Victoria’s involvement is a fiction. However, the failure to acknowledge the existence of lesbians and their love is not. There was never any suggestion from Henry Labouchere, who introduced and promoted the Criminal Law Amendment Act of 1885, or anyone else in the legislative process, that such activity between women should or should not be included.
That failure to acknowledge or recognise does not mean the law has not touched the lives and loves of lesbians.
Nearly 100 years ago in 1928, Radclyffe Hall published her seventh novel, The Well of Loneliness. Radclyffe Hall was a lesbian who described herself as a “congenital invert”. Her wealth allowed her to live openly with some of the women she famously had relationships with and to dress in men’s fashions, complete with a monocle and hat.
She had written a short story with lesbian characters, but The Well of Loneliness was her first novel about the love between its two female protagonists. The book was published by Jonathan Cape (who also published Ian Fleming and James Joyce) after three other publishers had turned it down. The literary reviews were mixed, although The Times Literary Supplement described it as, “sincere, courageous, high-minded and beautifully expressed.”
In the early days after publication the book attracted a lot of attention and some sympathy with the moral plea made by Radclyffe Hall to, “Give us also the right to our existence.” Although not sexually explicit, the social isolation and rejection suffered because of the protagonists “inversion” were treated as a natural state of being. The book was seen as a call for recognition and acceptance of lesbians, their lives and relationships.
Three weeks after its publication James Douglas of the Sunday Express began a campaign for the books’ suppression. He argued that the book was not a work of art, but a piece of immoral propaganda and obscene.
Cape sent a copy of the book to the Home Secretary, William Joynson-Hicks, known for having opposed the revised version of The Book of Common Prayer. Cape even offered to withdraw the book from circulation if its publication was viewed as unlawful.
The Home Secretary sought the advice of the DPP on a possible prosecution of Radclyffe Hall for obscene libel. The DPP characterised the book as a, “plea not only for the toleration but for the recognition of sexual perversion amongst women.” The DPP was of the view that the book would tend to corrupt the minds of young persons and its sale was undesirable. The DPP informed the Home Secretary that he had informally consulted the Chief Magistrate, one Chartres Biron, who had confirmed that having read the book he would have no hesitation in granting process to start a prosecution against Radclyffe Hall.
Cape agreed to withdraw the book but secretly arranged for it to be published by Pegasus Press in Paris.
A prosecution followed, but it was not Radclyffe Hall who stood in court. Rather it was the publishers together with the book who were summoned to appear at Bow Street Magistrates to answer why all copies of the novel should not be destroyed on the grounds of obscenity. The trial was presided over by the same Chartres Biron. Radclyffe Hall was not a party, she was not represented and she was not allowed to give evidence. Over 160 well known authors, literary luminaries and scientists were asked to give expert evidence on the question of whether the book was art, or was an obscenity. 57 agreed to be witnesses in support of the book, including Vita Sackville-West and Virginia Woolf. Biron found such evidence to be irrelevant to the issue. He decided the case did not raise a question of censorship. It was simply a question of obscene libel. He rejected an argument that since the book contained no obscene words and contained no description of any physical misconduct between women it could not be said to be obscene. In giving judgment he said,
“The very fact the book is well written can be no answer to these proceedings because otherwise we should be in the preposterous position where the most obscene books would be free from stricture.
The more palatable the poison the more insidious. The substantial question before me is the contention that this book as a whole, does not define unnatural practices between women and does not glorify them. The unnatural acts which are the subject of this book involve acts which between men would be criminal and would involve acts of the horrible, unnatural and disgusting obscenity.
The whole note of the book is a passionate and almost hysterical plea for toleration and recognition of these people.”
When Radclyffe Hall protested from the public gallery Biron silenced her with the threat of removal. He then ordered the book be destroyed.
Virginia Woolf later wrote to E.M. Forster that, “Novelists in England are now forbidden to mention [lesbianism]. Although forbidden as a main theme, may it be alluded to or ascribed to subsidiary characters?” In 2003 previously unpublished notes and drafts of Woolf’s writing revealed the edits she made to conceal her sexuality from censors and critics.
60 years on books once again ignited moral outrage. In 1988, Clause 28, a piece of legislation which compounded the sense of not being recognised or acknowledged more widely, affecting lesbians and gay men alike, was enacted in 1988 by the Government of the day. Clause 28 banned the “promotion” of homosexuality by local authorities. The book which caused such offense was a school book depicting the domestic life of a girl and her two fathers.
The Department of Education stated that, “Clause 28 did not affect the objective discussion of homosexuality in the classroom nor the counselling of pupils concerned about their sexuality”. However, the legislators’ response to a book that had nothing more than a family with two same-sex adults was taken by most to mean any discussion regarding homosexuality as normal would be deemed as “promotion”. Whatever their own sexuality, many teachers felt they had no choice but to remain silent or stay in the closet.
For me, the most striking image of peaceful outraged civil disobedience took place in respect to Clause 28. In February 1988 the House of Lords voted Clause 28 through on its second reading by a majority of 55. Immediately after the vote was concluded 3 lesbians, who had been watching from the public gallery, abseiled down onto the floor of the House. Indeed, many would say that the introduction of Clause 28 fuelled the LGBT+ community and its allies to fight for recognition and freedom under the law in the following decades (as well as the introduction of metal grilles to the public gallery).
Things did not change quickly. In February 2000 an attempt by the Government to repeal Clause 28 was defeated in the House of Lords as a result of a campaign led by Baroness Young. In 2003, even after amendments to ensure the emphasis on family values in education were made the attempt at repeat was again defeated in the House of Lords. Not until November that year, on the third attempt,, did the Lords voted in favour of repealing Clause 28.
In 2013 Baroness Barker created another key moment for lesbians in the House of Lords. She had by then been a Liberal Democrat Peer in the House for nearly 14 years. She stood up to make a speech in favour of same sex marriage and started by declaring an interest and came out as having been in a long-term lesbian relationship.
On 16 October 2019 Baroness Ruth Hunt of Bethnal Green was introduced to the House of Lords. Former CEO of Stonewall, Ruth Hunt is one of the most widely known and visible lesbians instrumental in winning many of the recent gains in equality for LGBT+. Her introduction was confirmation that times have moved on hugely. Her presence in that particular law-making institution, proudly wearing her sharp tweed suits is a striking contrast to the experience and tale of Radclyffe Hall.
The introduction of Baroness Wilcox of Newport also in 2019 brought the number of women on the LGBT List of Members of the House of Lords to four as she joined Baroness’ Barker, Hilton and Hunt.
On a personal level I remember the exact moment I felt law in my country finally recognised and accepted my lesbian relationship. That moment was early in the morning on 5 December 2005 on a smallish boat in the South Atlantic Ocean. The moment I woke up and looked at the person I love most in the world, I remembered that the law which would allow us to have a Civil Partnership had come into effect. I was overwhelmed and tearful with a sense of peace and joy at that shift. We were of course “civilised” later the following year.
This content is provided free of charge for information purposes only. It does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.
Please note that we do not give legal advice on individual cases which may relate to this content other than by way of formal instruction of a member of Hardwicke. However if you have any other queries about this content please contact: