Tom Hooper. Canadian Historical Review. Volume 100, Issue 2. June 2019.

On 28 November 2017, Prime Minister Justin Trudeau delivered his apology to lesbian, gay, bisexual, transgender, queer, and two-spirited (LGBTQ2) people in Canada. On the same day, he announced that $770,000 had been granted to Egale Canada Human Rights Trust to celebrate the fiftieth anniversary of the 1969 decriminalization of homosexuality. The funds were directed towards Egale’s Legalizing Love project, a travelling exhibit “which will highlight queer Canadian history with a focus on pre-colonization to legalization.” This funding was also to support the creation of a documentary film “to increase awareness of the people, actions, and struggles that led to the decriminalization of homosexuality.” Egale is not alone. In December 2018, it was revealed that the Canadian Mint will release a special $1 coin to commemorate decriminalization.

The problem is that homosexuality was not decriminalized in 1969. This is a myth. Clause 7 of the Criminal Law Amendment Act (the omnibus bill) dealt with the Criminal Code provisions concerning buggery, bestiality, and gross indecency. It did not remove these offences from the Criminal Code but, rather, added an exception that allowed individuals to commit these crimes under specific circumstances. The acts had to be in private, only two people could be present, and the participants had to be at least twenty-one years old. Scholars of queer history Gary Kinsman and Patrizia Gentile have rebranded this a “partial decriminalization,” which was acknowledged in the prime minister’s apology: “This didn’t end in 1969 with the partial decriminalization of homosexual sex. Up until 1988, a 20-year-old gay man who had sex with another man could still be convicted of a crime.” Despite the limited changes to the Criminal Code, Kinsman and Gentile demonstrate that the national security campaign against queer people in the military and civil service continued unfettered.

I argue that “partial decriminalization” is too generous. Instead, the 1969 omnibus bill should be considered the recriminalization of homosexuality in Canada. There are some who might dismiss this critique, instead viewing the omnibus bill as an imperfect step in the right direction. Yet these reforms enabled the expanded role of the criminal justice system in the everyday lives of queer people. In the popular media, this so-called decriminalization was largely framed by the rhetoric of Prime Minister Pierre Elliott Trudeau’s “Just Society.” His statement in 1967 that “there’s no place for the state in the bedrooms of the nation” became a catchphrase in branding this as a progressive reform towards greater tolerance of homosexuality. The omnibus bill did not change the fundamental ways that queers interacted with the justice system. Even prior to 1969, two adults who had sex in private would not typically be subject to Criminal Code provisions. They went unnoticed. Historian Steven Maynard has argued that the monogamous, respectable homosexual “doesn’t often surface in the court records precisely because he lived a careful, discreet life, never coming to the attention of the police and the law and thus not turning up in the historical records.” As the parliamentary debates over the omnibus bill that are explored in this article demonstrate, members from all political parties reduced this so-called decriminalization to recognizing the obvious; in terms of Criminal Code charges of gross indecency and buggery, the state was not in the bedrooms of the nation.

Scholars are increasingly looking beyond the rhetoric of the “Just Society” as a milestone of progressive freedom. For instance, this so-called decriminalization did not address the differing ways that lesbians have been regulated by the state. According to legal scholar Karen Pearlston, “the legal history of gay men cannot be equated with that of lesbians and lesbianism.” Elsewhere in this “Historical Perspectives,” Shannon Stettner and Katrina Ackerman have questioned the mythology that the omnibus bill legalized abortion. Marcel Martel has similarly argued that the Official Languages Act did not represent a turning point. Like “decriminalization” for homosexuals, the 1969 Statement of the Government of Canada on Indian Policy (White Paper) was presented as a solution to end marginalization and promote equality for Indigenous people. According to Sarah Nickel, however, this perspective is based on a settler-oriented framework of justice. Nickel encourages us to “unsettle” 1969.

Recriminalization is not simply found in a rejection of the myth of reform in 1969. It also refers to the mass mobilization in the policing of queer sexualities in the decades following the passage of the omnibus bill. The second half of Trudeau’s 1967 catchphrase, which is often omitted in popular reproductions, stated that “what’s done in private between adults doesn’t concern the Criminal Code, when it becomes public that’s a different matter.” By emphasizing the regulation of “public” sexuality, methods of sexual policing were remobilized during an era of queer liberation. This included not only an increase in charges of gross indecency but also the expanded use of other Criminal Code provisions untouched by the omnibus bill, including those related to indecent acts, vagrancy, immoral theatrical performance, nudity, obscenity, and bawdy houses. From 1968 to 2004, more than 1,300 men were charged under the bawdy-house law for being in gay bars and bathhouses. In 1981, during the height of these raids, the queer magazine The Body Politic posed the question: “Recriminalization?” The short editorial began by stating that “in 1969 Parliament decriminalized gay and lesbian sex. Or so we thought.”

The analysis here is inspired by the ideas of sociologist and gay activist George Smith, who concluded that the relationship between queer people and the justice system is textually mediated by the provisions contained within the Criminal Code. The purpose of Smith’s study was to find a sociology “not of gay people, but for them.” This modelled the work of his doctoral supervisor, Dorothy Smith, and her theories of institutional ethnography and a sociology for women. Under this method of analysis, the perspective of those with privilege and power is replaced with the everyday world experiences of those who are marginalized. The question of decriminalization must be viewed from the standpoint of queers and their interactions with the justice system. In 1982, George Smith articulated his criticism of the “decriminalization” thesis in his appearance before the Standing Committee on Justice and Legal Affairs: “The assumption is that the four walls of a person’s bedroom mark the boundary of his/her privacy … what this means is that what is ‘public’, and again illegal as far as sex is concerned, is very broadly defined.” Of the omnibus bill, he concluded “ironically, the legalization of homosexuality in Canada between consenting adults in private has led to the largest mass arrests of gay men in the country’s history.”

The general historical narrative of decriminalization does not begin from the standpoint of queers but, rather, with the United Kingdom. After a series of high-profile scandals, the 1957 report of the Committee on Homosexual Offences and Prostitution (Wolfenden report) recommended “that homosexual behaviour between consenting adults in private be no longer a criminal offence.” Ten years later, the uk Parliament passed the Sexual Offenses Act 1967, which allowed for “homosexual acts” to take place in private, between two people, who were at least twenty-one years old. The same year, the Supreme Court of Canada issued its decision against Everett George Klippert, a man convicted on four counts of gross indecency who was subsequently declared a dangerous sexual offender. Gary Kinsman has argued that the response in the media and by politicians to the Klippert decision was to push “toward reform organized through the Wolfenden strategic framework.” The link between the Klippert case and law reform reveals a fundamental gap; the changes described in the Wolfenden report and then subsequently implemented into law did not entirely cover the acts for which Klippert was convicted. His sexual partners were sometimes under twenty-one years of age, and, in many cases, the acts did not take place in private, but in his vehicle. The widespread news coverage of the Klippert case, and the example of reform set by the United Kingdom, prompted the government of Pierre Trudeau to introduce its own bill. However, unlike the uk Sexual Offenses Act, which focused solely on homosexuality, the changes in Canada were incorporated into the larger omnibus bill, which included reforms to the law respecting abortion, lotteries, guns, and other matters.

In several studies of the debates that occurred in 1969, academics and activists have concentrated their analysis on the morally charged statements made by various members of parliament (MP). For instance, Stuart Chambers analyzes the “natural law bias” expressed by some MP’s versus Liberals who defended these reforms by separating legalism from moralism. This secular view of the law was combined with a disease model approach to homosexuality. Tom Warner focuses on the “common ground” between various conservative political groups, including members of the Progressive Conservative (PC), Social Credit, and the Ralliement créditiste (RC) parties. Warner contends that, in their opposition, they “cited moral, religious, or other reasons, decrying the decline of society and decency that would ensue.” Although these conservative sentiments are revealing about anti-homosexual discourse during the late 1960s, they do not speak to the technical changes contained in the omnibus bill. Instead, these debates must be read considering George Smith’s analysis that the relationship between queer people and the justice system is textually mediated by the contents of the Criminal Code. Under this method of inquiry, the broad statements of morality are not as relevant as other statements that shed light on the ways in which the omnibus bill would alter the everyday experiences of queer people.

In Parliament, members from every political party expressed scepticism about whether these changes amounted to decriminalization. While Progressive Conservative mp Eldon Woolliams voiced moral outrage by suggesting that the omnibus bill would legalize acts of bestiality, he also outlined a different argument related to homosexual acts: “If we did not have this permission de jure we had it de facto because two consenting adults, or two people who are married, are not going to go out and report what they do in private to the law officers.” Ralliement créditiste mp Bernard Dumont also raised this issue, saying “in the field of homosexuality it must be kept in mind that even today, when two homosexuals want to commit such acts privately, nobody will denounce them and no sentence will be passed on them.” He later added: “I cannot see why we are being led to believe that this bill is going to change anything.”

The difficulty for MPs was that the definition of private was restrictive to the point that the legal change had no practical effect. Prior to the reform in 1969, two people who engaged in consensual sex would only face criminal sanction if they were observed by a third party; clause 7 of the omnibus bill maintained this reality. Liberal MP Gilles Marceau acknowledged this by stating: “I think that in dealing with homosexuality, it was not mentioned that in spite of the amendments, gross indecency is still a criminal act which may be punishable by five years in jail. And the amendment which will enable consenting adults to do certain acts in private, only confirms the inviolability of private life.” Minister of Justice John Turner echoed this idea: “I resent very much the argument of some members of the opposition that this legalizes homosexuality. It surely does nothing of the kind. The clause does not endorse such acts. It does not promote such acts. It does not advocate such acts. It does not popularize such acts. It does not even legalize this kind of conduct.”

From the standpoint of queers in 1969, their interactions with the justice system did not occur while they were having sex in private with one other adult. New Democratic Party MP David Orlikow raised this issue in his contributions to the debate. He cited a 1968 study by Alex K. Gigeroff, Sexual Deviations in Criminal Law, which found a total of eighty-two charges of gross indecency in Toronto courts from November 1961 to October 1962. Thirty were for sex acts between adult men. Twenty-nine of these were for sex in a park, car, or other public place, and the remaining case took place in a jail cell. Based on these data, Orlikow concluded: “I do not believe this change in the Criminal Code will really do very much.” None of these convictions were the result of sex between two adults inside a private place, and, thus, the omnibus bill would have no effect.

This conclusion is consistent with the findings of scholars who have researched the early history of policing queer sex. Maynard has examined cases of gross indecency in Toronto parks, laneways, and lavatories in the early twentieth century. He has linked these to “broader historical processes, such as the development of modern policing or the definitional contests over what constituted ‘public’ space.” Similarly, John Grube has reviewed the use of streets, parks, and ravines by men seeking sex with men in postwar Toronto. These homosexual subcultures were complex. According to Ross Higgins, while some husbands and fathers occasionally used urban parks strictly for sex, other men “found in the sexual arena a point of entry to the hidden worlds of bars and private gay sociability in the pre-Stonewall era.” The 1969 omnibus bill did not alter these early contests over the use of public space. Instead, it reconstituted a rigid definition of private that had serious consequences for queer people.

By the early 1970s, it was obvious to queer activists that the reforms in the omnibus bill failed to address the problem of criminalization. Miriam Smith does not challenge the decriminalization myth, but she emphasizes factors other than legal reform, including the role of the women’s and youth movements of the 1960s, as precursors to gay liberation. These influences were apparent when, on 28 August 1971, several new gay and lesbian organizations collaborated on a day of protest. Activists marched to the steps of Parliament Hill to proclaim a ten-point platform for change, entitled “We Demand.” According to historian David Churchill, “what galvanized these specific protests was a critical response to the passage of the Omnibus Bill.” Brian Waite and Cheri DiNovo coauthored a preamble to the list of demands that stated that the 1969 Criminal Code amendment “was widely misunderstood as ‘legalizing’ homosexuality and thus putting homosexuals on an equal basis with other Canadians. In fact, this amendment was merely a recognition of the non-enforceable nature of the Criminal Code as it existed.” The first demand was to repeal the gross indecency and indecent acts provisions from the Criminal Code because charges under these continued. After the “We Demand” protest, activist Jearld Moldenhauer and a small group in Toronto formed The Body Politic, Canada’s gay liberation news magazine. Editors Ed Jackson and Stan Persky remember that “The Body Politic began as a radical tabloid born of political conviction and a hunger for change.” These activists and journalists tracked the continued criminalization of queer people through the 1970s and 1980s.

The fatal flaw of the decriminalization myth is that arrests for acts of consensual queer sex actually increased in the period after the passage of the omnibus bill. At their annual meeting in September 1968, the Canadian Association of Chiefs of Police had voted to oppose the reform. Toronto Chief James Mackey was reported as saying: “Families have been brought heartbreak and sadness because of children affected by coming into contact with homosexuals.” L.R. Hobbs, the director of the Montreal Port Police, further elaborated on their opposition: “The search by homosexuals for partners often leads to assault, theft, male prostitution and murder.” These attitudes did not change after 1969, and police agencies continued to use the Criminal Code provisions that remained to lay charges against individuals for having queer sex. From the standpoint of queer people, the everyday world interactions with the criminal justice system worsened in the period after 1969. The police increasingly mobilized to surveil spaces that facilitated queer sex.

The policing of park sex was part of The Body Politic‘s first issue. On a summer night in 1971, two men were “jumped from behind” by undercover police agents in Philosopher’s Walk, a pathway near the University of Toronto. Both men were arrested for gross indecency. A volunteer with the Community Homophile Association of Toronto (chat) formed the Civilian Park Patrol, a short-lived group designed to warn men cruising in parks about potential undercover police activity. In 1972, chat created a court worker program that provided free legal assistance to anyone charged for having queer sex. Activist George Hislop used The Body Politic to advertise this new service to the community, and he warned about escalating charges of gross indecency, indecent acts, and vagrancy.

According to Gigeroff, the offence of indecent acts was initially phrased as “indecent exposure of the person” and was typically used in cases involving “a deliberate exposure of the genitals to an unsuspecting female person.” This specific language was abandoned in 1892; the provision in the new Criminal Code was phrased “indecent acts.” Some MPs at the time objected that this was too closely related to the crime of gross indecency and “that the phrase ‘indecent act’ left a large discretion in the hands of the court.” Gigeroff agreed with this central criticism of indecent acts – namely, that it “does not sufficiently distinguish between acts of exhibitionism and other acts of public indecency.” The narrow definition of private and the broad definition of public reiterated by the Wolfenden report and implemented under clause 7 of the omnibus bill further conflated the two offences. In 1973, The Body Politic reported that men charged with gross indecency in Toronto parks were simultaneously charged with committing indecent acts. The intent was to lure men to plead guilty to indecent acts, a summary offence, in an effort to avoid the more serious indictable offence of gross indecency. In the early 1980s, volunteers with a group called the Right to Privacy Committee (RtPC) began collecting statistics for these types of arrests. From July 1982 to October 1983, they found ninety-two cases of gross indecency involving men for having queer sex in Toronto. Astonishingly, during the same sixteen-month period, they tracked 577 charges of indecent acts.

The legal definition of indecency was linked with the crime of obscenity, which was used to censor queer publications, erotic literature, and pornography with increasing frequency after 1969. While The Body Politic was raided by police in 1977 and 1982, its editorial collective was ultimately acquitted of obscenity. However, legal scholar Brenda Cossman has argued that other queer establishments have been forced to engage in seemingly endless and futile court battles over the seizure and destruction of books and periodicals. For example, in 1992, an Ontario court ruled against Glad Day Bookstore, the court upheld the seizure of gay material by Canada Customs agents. Glad Day eventually won in a different case brought to court in 2004; however, the challenge cost more than $100,000. Little Sister’s Bookstore in Vancouver also battled with Canada Customs over censorship. In 2000, the Supreme Court of Canada heard their case but upheld the law as constitutional. While the Supreme Court agreed that Canada Customs targeted gay and lesbian content, they offered no remedy in their ruling.

The bawdy-house law was likewise used by police to criminalize consensual queer sex with increasing frequency in the years after the passage of the omnibus bill. This offence was originally intended to criminalize spaces of sex work, but an amendment in 1917 designed to prevent sex transactions in massage parlours added “acts of indecency” to the definition of a bawdy-house. One of the first raids using this law against gay bathhouses occurred on 28 October 1968 at the International Steam Baths in Toronto. Thirty men were charged with offences including gross indecency as well as keeping and being found in a common bawdy-house. Police used this provision in a series of raids against bathhouses in Ottawa and Montreal in the months leading up to the 1976 Olympic games. Patrizia Gentile has argued that raids using the bawdy-house law brought “the attack on gay bars in Montreal to a new level.” However, the organized community response provided a vehicle through which activists could resist police repression and surveillance. According to Michael E. Graydon, gays and lesbians in Ottawa faced unique surveillance and scrutiny by local police and the Royal Canadian Mounted Police (RCMP), even after reforms in 1969. Gays of Ottawa, a group formed weeks after the 1971 “We Demand” protest, was integral to resisting the Olympics “cleanup.” Graydon argues that the strategy of public engagement used by activists in Gays of Ottawa created a new community.

The model for this community response was fully articulated in the aftermath of the October 1977 raid on the Truxx bar in Montreal. Wearing bulletproof vests and carrying machine guns, fifty officers entered the bar and charged 146 men as found-ins, and the owner was charged with keeping a bawdy-house. A group called l’Association pour les droits des gais du Québec (ASGQ) organized protests and established a defence fund for those charged. This event is credited with being the catalyst for adding sexual orientation to the Quebec Charter of Human Rights and Freedoms, which occurred shortly after the raid. However, bawdy-house raids in Montreal continued, and the owner of the Truxx was convicted of being a keeper in April 1980. The largest of these raids occurred in Toronto on 5 February 1981. Two hundred police officers stormed four bathhouses and arrested 306 men. Using the example set by the ASGQ, the RTPC organized protests and encouraged those charged to resist in court. By the early 2000s, these raids became infrequent. The 2005 Supreme Court of Canada decision in R. v Labaye established a harm-based test under the bawdy-house law, rendering it inapplicable to bathhouses and swingers’ clubs.

Despite this evidence, the idea that homosexuality was decriminalized in 1969 remains prominent. As noted above, the myth can be traced to Pierre Trudeau’s statement about the bedrooms of the nation, but the phrase did not come from his reading of a proposed legislative reform. Rather, it originated in an editorial written by Martin O’Malley in the Globe and Mail. When the omnibus bill came into effect in August 1969, an article on the front page of the same newspaper proclaimed that “adult homosexual acts” had been legalized. However, not every news story was keen to promote this as decriminalization. Rae Corelli, a staff writer with the Toronto Daily Star, reviewed the changes to gross indecency that would permit “homosexual acts between consenting adults in private,” but he retorted along the same lines as many MPs: “The odd thing is that, in practice if not in law, we always did.” Corelli interviewed a Toronto police morality squad detective who in eighteen years of experience “could not recall a single prosecution … of two adults for homosexual acts in private.”

Experts were important in developing the decriminalization myth. In their analysis of homosexual security vetting during the Cold War, Daniel Robinson and David Kimmell characterize the policy debate among government officials as “liberal-versus-hardliner disagreement.” However, they note that both moderates and hardliners supported the security projects of the Department of National Defence and the RCMP, including the “fruit machine” homosexual detection device. They further view the 1969 reforms as part of a broader shift “of homosexuality from a legal-criminal paradigm to a medical-scientific one.” Fellow historian Elise Chenier has examined the role of sexologists in shaping approaches to deviant sexual behaviour in the postwar period. While most psychiatrists advocated measures of decriminalization, they still advised treatment, which according to Chenier, illustrates “that psychiatrists were not simply seeking to liberate but were competing to regulate.” However, Chenier also demonstrates that the influence of experts was limited. For example, the 1958 Report of the Royal Commission on the Criminal Law Relating to Criminal Sexual Psychopaths “rejected psychiatrists’ arguments for the decriminalization of homosexuality” and avoided dealing with issues contained in the Wolfenden report published the year before.

Queer voices also repeated the myth, even while criticizing it. Doug Sanders offered one of the few queer perspectives in 1969. He was a member of the Vancouver-based Association for Social Knowledge, one of Canada’s earliest gay and lesbian groups. Sanders expressed doubts about the effect of the omnibus bill, arguing that it “takes the gay issue and describes it in non-homosexual terms … unfortunately, legalization occurs in a way in which the issue is never joined. The debate never occurs. And so homosexuals are no more real after the reform than before.” In March 1969, Sanders appeared on a Canadian Broadcasting Corporation radio program, Soundings, where he interviewed several gay and lesbian individuals for their perspective on the omnibus bill. When asked what effect the proposed changes would have for their lives, a gay man replied: “None whatsoever. . . there are homosexuals in many of the areas of business, in banking, in law, in politics, doctors, and it’s not going to make the slightest bit of difference to any of these people, because I don’t think any of these people really accepted their homosexuality as a problem.” Others were less critical, including a lesbian who said: “I think it’s going to change our way of life a little bit, we’ll be able to be a lot freer I think, publicly.”

Gary Kinsman has argued that activists, including Sanders, used texts such as the Wolfenden report to mobilize reform “from below.” Yet Kinsman also warns that this can have unintended consequences; professional and state agencies mobilize these texts from above “to attempt to contain this process of social transformation within a much narrower legal shift in regulatory practice.” While these queer voices cast doubt on the effects of “decriminalization,” they nonetheless accepted the idea that it had, in fact, occurred. The idea of decriminalization continued to be repeated by queer activists through the 1970s and beyond. In June 1982, as a response to the bathhouse raids, the RtPC purchased a full-page advertisement in the Globe and Mail that proclaimed: “In 1969 Parliament acted upon the principle that ‘the state has no business in the bedrooms of the nation.’ The Criminal Code was amended to decriminalize sexual acts between consenting adults in private.” The ad detailed the various ways queer people have been criminalized after the reform, including through the bawdy-house law. In their attempt to mobilize Pierre Trudeau’s 1967 phrase for their own purposes, activists reiterated the erroneous idea that acts of queer sex had been decriminalized.

The recriminalization of homosexuality and the decriminalization myth raise important questions for future research by historians, including in the field of transnational and comparative histories. For example, Miriam Smith argues that “Canada’s 1969 law reforms form a critical juncture in comparison with the failure of U.S. states to decriminalize sodomy, which had important repercussions through policy debates on lesbian and gay rights.” Historian David Carter confirms that the omnibus bill had a transnational effect as it fuelled some of the anger during the June 1969 Stonewall riots in New York City. Carter states that, “while New York’s homosexuals read of how U.S. allies, including Canada, were legalizing homosexual sex, they themselves were being fired, blackmailed, beaten, knifed, shot, strangled, thrown into the Hudson, and killed.” Carter’s analysis speaks to the formation of activist groups and resistance movements, but it does not speak to criminalization and the everyday experiences of queers with the justice system. Dismantling the decriminalization myth may inform what David Churchill describes as “a transatlantic conversation around law reform and the very real limitations of that reform.” Historian Scott de Groot argues that “a large assemblage” of morality laws has been used against queers by various countries and that “regardless of specific and partial decriminalizations, an oppressive legal apparatus similarly faced gay liberationists across the Anglo-American world.”

The recriminalization of homosexuality through gross indecency, indecent acts, obscenity, and the bawdy-house law makes visible the connections between the policing of queers and sex workers. In his examination of gross indecency cases in Toronto, Gigeroff found a few instances where men and women had been charged with this offence during police investigations of sex workers. In the RTPC’s 1982-3 arrest statistics, court volunteers found 307 charges of gross indecency for acts of heterosexual sex in Toronto, involving 142 men and 165 women. Activist Dennis Findlay told a meeting of the RTPC that many of these arrests were due to “a sharp increase in prostitution-related arrests.” In her study of the regulation of sex work, sociologist Deborah Brock noted of the omnibus bill that “an accomplishment of the legalization of homosexual activity between consenting adults in private was the intensified police persecution of gay men in public spaces.” Likewise, the public/private distinction in the Wolfenden report provided “a very limited private space” for sex work, while punishing “the visible prostitution-related activities of women.” More research is required on the historical links between the criminalization of queer people, sex workers, and trans communities.

Aside from sex workers, women were not generally affected by these Criminal Code reforms. Although initially it only applied to men, Gigeroff has noted that gross indecency was made gender-neutral in amendments to the Criminal Code in 1954. At the time of his study in 1968, there were “no reported cases of lesbian behaviour either charged or convicted of this offence.” Historical sociologist Becki Ross has shown that “lesbians have been much less directly managed by the Criminal Code and police activity through obscenity and gross indecency statutes.” However, there are examples of lesbians who faced these charges after 1969. For instance, in May 1981, Elaine Kuresh was charged in Edmonton with contributing to the delinquency of a minor and gross indecency. The charges related to her relationship with a teenage girl; a story that was sensationalized by the local media. The evening following being charged, Kuresh committed suicide. Despite this case, the celebration of 1969 as the year of decriminalization promotes a narrative in which the struggles of gay men are centred to the exclusion of lesbians and other queers who are marginalized in different ways. For example, legal scholar Karen Pearlston has argued that “women who had sex with other women were regulated not by the changes to the gross indecency provisions in the Criminal Code, but rather by the inclusion of the homosexual act ground for divorce in the Divorce Act, 1968.” This led the courts to interrogate the sexual acts of married women with other women in divorce proceedings.

The definition of private contained in clause 7 of the omnibus bill also reinforced hegemonic values concerning monogamy. As a result, recriminalization can be viewed as an effort of containment to bring queer sex into closer alignment with heteronormative sexual morality. Historians Adele Perry and Sarah Carter have demonstrated the deeper links between monogamy and the construction of law and order in Canada’s various projects of colonialism. According to Carter, the marriage “fortress” and ideals of monogamy have historically “been part of the national agenda in Canada.” The decriminalization myth first establishes that homosexuality is permitted only between two people in private. With sex properly sequestered inside the bedroom, the narrative extends to the official recognition of that couple within marriage. This fits into what scholar and activist Mariana Valverde has described as “a new entity” that Canadian jurisprudence helped to create: the respectable same-sex couple.

This process was actually predicted during debates over the omnibus bill. Progressive Conservative MP Erik Nielsen stated: “The basis of this legislation is the Prime Minister’s belief that homosexuals will behave like gentlemen … let me tell the Prime Minister and Minister of Justice that if homosexuals behaved like gentlemen they would not be homosexuals.” Ralliement créditiste MP Gilbert Rondeau decried that “before long, like some other countries that proceeded the way we are doing tonight, we will have to legalize homosexuality, and soon afterwards, we will also have to pass a legislation in order to legalize marriage between homosexuals. (Laughs).” Although he intended it as a cautionary tale and despite the derision of his peers, Rondeau proved prescient. The values of monogamy instilled by the omnibus bill were directly linked to Pierre Trudeau’s idea of individual citizenship in the “Just Society.”

Future study of the recriminalization of homosexuality must work to decolonize the history of the omnibus bill and locate it among other state policies and institutions used in assimilation projects. According to his biographer John English, the “Just Society” was outlined by Trudeau in 1968 as “freeing an individual so he will be rid of his shackles … without being bound up by standards of morality which have nothing to do with law and order but which have to do with prejudice and religious superstition.” The 1969 White Paper was also part of this “Just Society.” Indigenous scholar Glen Coulthard submits that the White Paper was part of a series of policies that “sought to marginalize Indigenous people and communities with the ultimate goal being our elimination, if not physically, then as cultural, political, and legal peoples distinguishable from the rest of Canadian society.” According to Coulthard, the White Paper was shelved on 17 March 1971 due to the “sheer magnitude of First Nations’ resistance.” John English argues that with the failure of the White Paper, Pierre Trudeau “largely ignored the Aboriginal question,” revealing his discomfort with the idea of collective rights. Sarah Nickel argues that we must unsettle 1969, the White Paper, and its responses by evaluating these in broader political contexts. In doing so, “we make room for viewing this era not just as a reactive moment against a settler colonial policy, but continued resistance towards colonialism that was built on a strong foundation of unity.”

The omnibus bill must be examined using an intersection of both queer theory and Indigenous studies. Andrea Smith has noted that Indigenous scholarship “has frequently intersected more with LGBT studies than with queer theory in that it has tended to focus on the status of ‘two spirit’ peoples within Native communities.” For Smith, Indigenous studies “has more to contribute to queer studies by unsettling settler colonialism.” Indigenous and Two-Spirit scholar Qwo-Li Driskill similarly contends that “for Native Two-Spirit/GLBTQ people and our allies, part of imagining our futures is through creating theories and activism that weave together Native and GLBTQ critiques that speak to our present colonial realities.” Driskill documents the use of “Two-Spirit,” coming out of a 1990 conference in Winnipeg, as “a word that resists colonial definitions of who we are.” Future studies on the recriminalization of homosexuality must include the perspectives of Two-Spirit peoples and their experiences with the criminal justice system, but researchers must also examine the broader ways in which approaches to queer history can be decolonized.

Finally, the omnibus bill must be situated within the emerging scholarship of neoliberalism and homonationalism. Queer activist Tim McCaskell notes that despite the success of gay rights movements “beyond its early strategists’ wildest dreams,” queer progress “hadn’t affected us all in the same way. Some parts of our community were just as disenfranchised as ever, while others had become identified with the status quo.” McCaskell’s reflections begin in 1974 with his coming out “in a Keynesian world” and finish in 2014 “in a neo-liberal one.” Such work inspires historians to search beyond the 1960s and to examine the changes and continuities of broader social forces from the 1970s onward. Gary Kinsman critiques the developing “neoliberal queer history” in which the narrative line begins with the 1969 reform, follows with the Canadian Charter of Rights and Freedoms, and concludes with the passage of same-sex marriage rights. Further study is required to interrogate the links between the classical liberal approaches to privacy and individual morality in the omnibus bill and the dismantling of the Keynesian state and the alliance of neoliberalism with resurgent moral conservatism in the 1970s.

Steven Maynard argues that the prime minister’s apology to LGBTQ2 people in 2017 reflects “these homonational times.” The apology was not the result of calls by activists for change; rather, it came from above and relied on a demobilized and depoliticized gay culture to celebrate it, similar to the processes of homo-nationalism outlined by Jasbir Puar. As Maynard contends, “the agenda is not being set by Egale or ‘the movement.’ It is the government’s agenda that is being advanced with Egale positioned in the role of collaborator.” Egale has similarly played this role in the celebration of the fiftieth anniversary of “decriminalization,” which serves to erase the struggles of queer people both before and after 1969. Instead, this anniversary should inspire a new generation of histories aimed at revealing the continued use of state power to regulate and colonize the genders and sexualities of people in Canada.

Was 1969 a turning point? Some have and will continue to argue that the omnibus bill was a partial step towards a more progressive society. They may suggest that, while it only enabled queer sex in limited situations, it symbolized a growing tolerance towards homosexuality and emboldened a future generation of activists. The symbolic power of this reform should not be underestimated. But this does not speak to decriminalization. The feelings and expectations crafted in the Just Society does not match the actual legal reform. The decriminalization of buggery and gross indecency in private between only two adults merely recognized the obvious; the state could not access the bedrooms of the nation using these provisions. At the same time, police forces across the country mobilized to charge queer people not only with gross indecency but also under other sections of the Criminal Code untouched by the omnibus bill, including indecent acts, vagrancy, and the bawdy-house law. When viewed from the perspective of queers and their interactions with the justice system, 1969 was a turning point, but not towards a more progressive society. Instead, it facilitated the recriminalization of homosexuality in Canada.