Visibility Brings Legal Peril

By the 1920s, certain sexual offenses between women were criminalized, but not the generic “gross indecency”. “Female husband” disappeared from the record with respect to sexual offenses, but the case of Victor/Valerie Barker signals a new direction of medicalized approaches, combined with anxiety over single women in the wake of World War I and the glimmerings of visibility brought by the obscenity lawsuit over The Well of Loneliness. This was a short-lived visibility ended by a rejection of sexological arguments for acceptance.

After two relationships with men, Valerie Barker left her second, violent partner to live as a man, explaining her motivations later as work-related and for personal safety. She began a relationship with Elfrida Haward, who had been a friend before Barker’s transition. Haward’s parents pressured them to marry and the couple’s stories later diverged, with Haward claiming it was a “normal marriage” and Barker alleging it was a platonic friendship. They separated later, and Barker became the subject of rumors about his sex, as well as being involved in various encounters with the law. In the course of a prison medical exam, Barker’s physical sex was identified, which then led to two charges of perjury relating to how Barker identified himself in legal records. [Note: Compare the “perjury” charge with previous “fraud” approaches for female husbands.]

With respect to the marriage, the prosecutor focused on the fact that it had been performed in church rather than a registry office. [Note: Compare to the charge of “profaning the sacrament” in the case of Anne/Jean-Baptiste Grandjean where the question of sex in the relationship was not brought up.] The judge, who had favored the proposed “female gross indecency” statute, brought the question of sex acts into the case, despite there being no legal context. He created court procedures that prevented Barker’s testimony from being available to the public.

English legal discourse was not significantly influenced by sexology. Legal discourse supported historic views of “female husbands” unproblematically as women, whereas sexology leaned more towards a concept blending lesbianism and trans identities. Sexology promoted a “born this way” view that argued against criminality. That didn’t mean it supported positive acceptance. Sexology had a strong streak of eugenics, which framed appropriate sexual behavior as crucial to the health of the state.

The effects of World War I, the influenza epidemic, and a pre-existing decline in birth-rate sparked concerns about any condition that turned women away from motherhood. This intersection meant that sexological writings by e.g., Havelock Ellis put a focus on the conjunction of lesbianism and criminality, with both aspects of being ascribed to inherent “masculinity,” especially as reflected in physiology.

Women’s social independence (from men) was viewed as inherently leading toward criminality. All of this concern focused only on women seen as “butch”. Sexology viewed butch and femme as entirely separate categories with femme lesbians capable of being “reformed.” [Note that the position that lesbianism and criminality had similar features and causes is different from assigning criminality to the state of being a lesbian, although this may be a rather subtle difference.]

Just as lesbianism was linked to feminism, it could also be linked to other movements considered antisocial, such as miscegenation.

There is a discussion of the broader social impact of sexological theories. Sexology did not have equivalent consequences for men and women. In general, it argued for greater acceptance of male homosexuals while essentially inventing homophobia against female ones.

The publicity around the obscenity trial of Radclyffe Hall’s The Well of Loneliness also helped spread awareness of lesbianism in a specific version (i.e., upper-class “mannish” presentation).

One significant difference between previous female husband cases and some of the prominent cases of lesbianism that intersected with the law in the 1920s is that of class. Female husbands were, in general, working class, while the new generation of “inverts” came from the middle and upper class.

Cases of working class cross-dressing can still be found in legal records of the 1920s, but the cross-dressing is not connected to the offense. When there was no suspicion of lesbianism in the case, judges were willing to state categorically that cross-dressing was not illegal. Even when the popular press framed someone as a female husband, the law carefully avoided bringing that into the public record, with charges typically being the nebulous “breach of the peace.”

With the secularization of marriage, the technical offense that could be brought for a female husband shifted from “fraud” to “perjury.” The “wife” continues to be left out of the legal equation. [Note: successful gender masquerade continues to be quite possible, with failure tending to come from unusual circumstances or personal stupidity.]

Despite the flurry of lesbian visibility in the 1920s, it sank back into official silence, especially among the working class, for several decades.