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The U.S. Can’t Move Forward on LGBTQ Rights Without Reparations

9 minute read
Encarnación is Professor of Political Studies at Bard College, where he teaches comparative politics and Latin American and Iberian studies. His new book is The Case for Gay Reparations

It is generally hard to know when a social revolution has achieved its goals. In the case of the American gay rights revolution, however, it appears that this is an easy one to call. At least as far as the national media is concerned, the view that gay rights have been decisively won has become conventional wisdom. Victory: The Triumphant Gay Revolution is one of the best-known journalistic accounts of the struggle for gay rights in the U.S. That book’s premise is pointedly echoed by a 2019 article in The Atlantic titled “The Struggle for Gay Rights is Over.” But America’s gay rights revolution seems unfinished or incomplete in the absence of a national reckoning with the country’s shameful history of systemic discrimination and violence towards the LGBTQ community. The absence of this reckoning makes the U.S. an outlier among Western democracies with a history of repression of homosexuality.

In recent years, the idea of “gay reparations,” broadly understood as policies intended to make amends for the legacies of systemic gay discrimination and violence, has become something of a global phenomenon. In 2017, the British Parliament enacted Turing Law, a legislation that conveyed an apology and a posthumous pardon to those convicted of “gross indecency,” a criminal charge intimately associated in British history with the persecution of gay men since the Victorian era. It honors Alan Turing, the famed computer scientist credited with breaking German military codes during World War II. In 1952, Turing was convicted of gross indecency, after confessing to a homosexual relationship with another man, and forced to undergo chemical castration. Britain’s example has been emulated by Ireland, Canada, and New Zealand. Germany has offered financial compensation to those who faced prosecution under Paragraph 175, the infamous portion of the German Penal Code that criminalized same-sex attraction dating to 1871; it also built a national monument to the victims of the so-called “Gay Holocaust,” the unknown number of gay males who perished in Nazi concentration camps. As part of a policy of “moral rehabilitation,” Spain has pledged to wipe clean the criminal records of some 5,000 gays and lesbians imprisoned under the homophobic laws of the Franco regime.

Given the variety of gay reparations available, which one should the U.S. embrace? For the Mattachine Society of Washington, D.C., the most prominent American organization demanding gay reparations, the United States should emulate the British example. In particular, the “Mattachines,” whose name references a pre-Stonewall gay rights organization that fought for acceptance of homosexuality within the legal and medical establishments, want an acknowledgement and an apology from the US Congress for the Lavender Scare, the witch-hunt of homosexuals triggered by President Dwight Eisenhower’s 1953 executive order banning “perverts” from working in the federal government. That order occasioned the firing of thousands of federal employees on the suspicion of being homosexuals and forced many to undergo lobotomies, insulin-induced comas, and gay conversion therapy with the aim of changing their sexual orientation at federal institutions such as Washington, D.C’s St. Elizabeths Hospital. An acknowledgment and apology, the Mattachines contend, will be a giant step toward realizing “full citizenship” for gay people, a type of ethical citizenship that is not only concerned with rights and responsibilities but also with repairing indignity and degradation.

It’s hard to disagree with the Mattachines’ demand for an apology not only for the Lavender Scare, but also for the many other indignities and degradations that the American gay community has endured at the hands of the government, such as “don’t ask, don’t tell.” That notorious 1993 policy forced gays and lesbians to keep their homosexuality a secret if they wished to remain in the military. By the time it was lifted in 2011, some 13,000 service men and women had been dismissed from their jobs for their unwillingness to comply with the policy. As suggested by the Western European experience, an apology to the LGBTQ community is often a gateway for other reparations, including rehabilitation and compensation. Moreover, an apology would be grounded in historical precedent, an important point since it would lend legitimacy to the apology. Past apologies in American history include the Acknowledgement and Apology for Mistreatment of Native Hawaiians (1993); the Acknowledgement and Regret for the Chinese Exclusion Laws (2012); the apology given to Japanese Americans sent to internment camps during World War II (1988); and the apologies for the institution of slavery and Jim Crow laws issued by the House of Representatives (2008) and the Senate (2009).

Finally, as the most popular and least controversial form of gay reparation, an apology is unlikely to trigger a backlash from the traditional foes of the LGBTQ community. The Christian Right has met every gay rights breakthrough in American history with a vigorous pushback. After the 1969 Stonewall Riots, the touchstone of the contemporary gay rights movement, moral crusaders like Phyllis Schlafly, Anita Bryant, and Jerry Falwell declared war on homosexuality. Lawrence v. Texas, the 2003 Supreme Court decision that struck down all remaining sodomy laws across the US, launched a wave of state constitutional amendments banning gay marriage and an unsuccessful attempt to ban gay marriage in the US Constitution. Obergefell v. Hodges, the Supreme Court decision that legalized gay marriage, triggered the claim that marriage equality would undermine the civil rights of Christians. This claim, in turn, gave rise to “religious freedom restoration laws” intended to address “Christian victimization.” These laws allow for discrimination against LGBTQ people as long as this discrimination is rooted in sincerely held religious beliefs.

All of this said, gay reparations in the U.S. should not begin and end with an apology. Any apology or act of remorse should be supplemented with a truth commission tasked with chronicling the systemic discrimination that the LGBTQ community has endured over the course of American history. Truth commissions are nonjudicial bodies entrusted with the task of investigating a particular event or history, usually one involving human rights abuses, premised on the view that shedding light on the truth is critical to overcoming trauma, to say nothing of avoiding history repeating itself. In some cases, a truth commission is a means to an end, as was the case of the truth commission that investigated Argentina’s infamous Dirty War. The commission’s final report, Nunca Más (Never Again), opened the way for the successful prosecution of the top brass of the Argentine military on human rights charges. But in other cases, as in South Africa’s Truth and Reconciliation providing an unvarnished chronicle of the truth (usually from the victims’ perspective) is an end in itself.

Brazil and Canada provide contrasting examples of how a truth commission can be employed to make amends to the gay community. In 2011, the Brazilian Congress created a truth commission to examine the human rights abuses committed by the military regime in place between 1964 and 1985. Due to the insistence of activists, the Commission became the first one in the world to incorporate LGBTQ repression. Presented in 2014 to President Dilma Rousseff (herself a victim of the military regime), the final report found that: “Although there was no formalized and coherent state policy to exterminate homosexuals, the state’s ideology of national security clearly contained a homophobic perspective that represented homosexuality as harmful, dangerous, and contrary to the family. This view legitimized direct violence against gay people, violations of their rights and of their way of living and socializing.”

Canada’s gay reparation policies were set into motion by “Grossly Indecent: The Just Society Report,” an accounting of the repression of sexual minorities in Canadian history released in 2017 by the Egale Human Rights Trust, Canada’s leading LGBTQ organization. At the heart of the report was the so-called “gay purge,” a policy of government-sanctioned discrimination that lasted until the 1990s, and that caused thousands to lose their government jobs and face prosecution because of their sexual orientation and gender identity. The report demanded that Prime Minister Justin Trudeau apologize to the LGBTQ community and make reparations to the victims of anti-gay discrimination. In November 2017, Trudeau expressed “shame and sorrow and deep regret for the things we have done that I stand here today and say we were wrong. We apologize. I am sorry. We are sorry.” The apology came with a payout of $85 million to the victims of those purged from the government because of their homosexuality. According to Canadian media reports, the payout represents “the largest financial commitment by any national government for past wrongs committed against sexual minorities.”

Despite the seemingly uncontroversial nature of an apology to the American LGBTQ community and a truth commission to document systemic anti-gay discrimination and violence, no one should expect smooth sailing for either proposal. Reparations are inherently difficult, stemming from their perception as exclusionary and divisive. Those making the case for reparations invariably uphold themselves as a historically repressed minority deserving of reparations. Inevitably, this victimization invites others to wonder whether they, too, are deserving of reparations. In the case of the United States, discussions about gay reparations are made more difficult by the unaddressed legacy of slavery and Jim Crow laws.

None of this, however, should deter American gay activists from demanding some form of reparation. Indeed, it behooves American LGBTQ rights organizations like Human Rights Campaign and others to capitalize upon this moment of national reckoning with racial injustice to remind the public of the painful legacy of anti-gay laws, policies and practices and how this legacy intersects with other forms of oppression in American history. LGBTQ people of color are more likely to be victims of discrimination and police violence than the wider LGBTQ population. The impressive gay rights advances of recent decades–especially the legalization of same-sex marriage in 2015 and the extension of anti-LGBTQ discrimination protection under the 1964 Civil Rights Act in 2020 (all victories won at the Supreme Court) are something to celebrate and take pride in. But these victories cannot remove the stain that the history of anti-gay discrimination and violence has left on American democracy. The removal of this stain can only come from a formal reckoning with this history.


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