21st Century Developments in Lesbian Law

I realize it seems a bit backwards to attach my overall thoughts on this book to this last post. But I was posting earlier chapters before I'd finished reading the whole book.

Derry follows two main themes in this book. One is simply a chronology and catalog of English legal cases that illustrate the evolution of how English law approached lesbianism (broadly defined). The second is putting forth a thesis that, despite the absence of any laws specifically targeting lesbianism, courts nevertheless took female same-sex relations into account when prosecuting and sentencing women for other offences. And despite this legal awareness, there was a concerted policy and practice of suppressing mention and knowledge of lesbianism, both within the courts and in society in general.

This second aspect is an important point for understanding the relationship of English lesbians to the law. As all marginalized people are quite aware, just because you haven’t done anything illegal doesn’t mean the law can’t touch you if it considers you undesirable. The “benign legal neglect” that Derry works to refute was highly variable depending not only on the specific era, but even more on the social standing and circumstances of the women involved.

But regarding the first theme, I would argue that Derry somewhat overstates the extent to which her work addresses the legal context of “lesbianism” in general, because up until the 20th century examples (which are out of scope for this blog), the legal cases cited cover a very narrow and specific set of “offenses” which are all related to the motif of the “female husband.” That is, legal concern was specifically focused on cases where an assigned-female person was living in society as male, and in that context entered into a marriage or marriage-like arrangement with an assigned-female person living in society as a woman. Further, the legal concern was solely for the person who was transing gender.

Cross-dressing or gender-crossing by itself, though certainly not condoned, was rarely a target of the law in the last three centuries. (Though consider earlier legal cases cited in Benbow & Hawkyard 1994, and in Bennett & McSheffrey 2014.) None of the English cases Derry cites from the 18th and 19th centuries targeted women engaging in sex together with no element of gender passing. I don’t count the Louise Mourey case in Chapter 3 on the basis that the activity falls more in the category of a non-consensual medical exam than sexual activity.

That doesn’t mean that social condemnation of lesbian activity couldn’t have significant consequences. The Pirie & Woods case (which technically is Scottish, where laws were different) involved femme-femme sexual activity, but the legal concern was slander and the charge was brought by the women alleged to be having sex. While there’s some detailed evidence in the case of how the legal establishment worked hard to exclude acknowledgement of lesbianism from the public record, it remains that it’s not a case of women being prosecuted for lesbianism.

The potential non-legal consequences were not trivial. Pirie & Woods lost their livelihood. An unknown number of women in the 19th century were relegated to mental institutions or subject to surgical interventions to address their “condition” and one suspects some might have preferred a simple prison term. But even in those cases, lesbianism as such was not distinguished from other sexual challenges to male supremacy and authority.

To sum up the chronology of Derry’s cases:

• Multiple 18th century cases of “female husbands” being prosecuted, usually for “fraud” (i.e., marrying under false pretenses for financial gain) or more rarely for “vagrancy.” The cases primarily involve economically marginal people. Often (though not always) they initially came to the attention of the law for criminal activity. In this era prosecutions were typically brought by the “victim” and in cases where the wife declined to pursue the case it might be dropped. But there are rare cases where legal authorities pursued a prosecution even with no complainant. The possibility of sexual relations between the couple was a matter of public curiosity (especially in the press) but not an element of the legal charges. Punishment, when applied, was generally whipping or the pillory, but might be mitigated if either the legal authories or the general public considered the defendant sympathetic. Toward the end of the century, press reports began to suppress speculation about sexual aspects of the marriages.
• In the 19th century, mentions of “female husbands” become less common and were of far less legal concern. When gender-passing is mentioned in legal cases, it is treated as a side matter, even when marriage-like relationships are involved. There are no prosecutions of “female husbands” specifically for that status after the 1830s, even though similar relationships are referenced well into the 20th century.
• Women of the middle and upper classes in the 19th century might be victimized by the medicalization of homosexuality, enabled by patriarchal control over their lives, but they were not subject to legal prosecution for lesbian relations.
• The first legal recognition of a crime involving sex acts between women came in 1880 when an age of sexual consent was established and in one case was explicitly applied to non-consensual genital contact by a woman on a female child (though the context was a virginity exam).

It wasn’t until the 20th century that English law began seriously debating (and making movements toward establishing) laws addressing female homosexual behavior.

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