In the wake of Florida’s anti-gay gag law, the “don’t say gay” bill, folks have been wondering where this could go. There certainly is cause for alarm, but knowing what to look for can at least give people time to mount a defense. Here are several types of anti-gay laws and their practical impact:
Changes to criminal codes and sodomy laws: incumbent in the discussion of these laws is the most frequently pernicious, the revision of criminal codes and sodomy laws. Finely tuned, they carve out unconstitutional (see Lawrence v. Texas (2003)) but often exploratory provisions that are anti-gay. The prime example of these changes surround the release of the Model Penal Code in 1962, which advocated for the removal of sodomy as a crime while making accosting others for “deviate purposes” a crime itself.
Anti-Solicitation: after the release of the Model Penal Code, multiple states began to work on implementing a less punitive sodomy law but harsher penalties for attempting to chat someone up. In essence, these laws are basically the same, across the board. They criminalize any perception of a queer person hitting on another person, whether or not that person is receptive. Examples of discussion made in the process of implementing the Model Penal Code includes this note from the October 22, 1969 meeting of the Oregon Criminal Law Revision Commission, lays out the underlying concept:
“[T]he legalizing of consensual, adult homosexual activity caused the homosexuals to become much more active in public solicitation.” Roger Wallingford, OCLRC research counsel.
Laws that encourage entrapment by police: one of the more pernicious add-ons to criminal codes in the 1960s and 1970s was numerous routes by which police could entrap anyone who hit on them. Entrapment was the deliberate positioning of police in places where they may be solicited and the attempt to bait queer people into making pleasasnt conversation. Additionally, liquor laws, tavern laws, and other regulations on 18+ gathering places were often crafted in a way that a gay bar could be shut down for a variety of tiny transgressions, essentially removing the four walls of the bar and making it a public, indiscreet place.
Psychiatric confinement and sterilization law: a more complex legal construction, laws that required “sexual deviants,” “deviates,” and other similar people to be confined to psychiatric hospitals or to be sterilized. Throughout the country it became common to confine and castrate or sterilize men and women and to administer various punishments on trans men and women in addition. Sterilization met resistance early on, especially when a strange bedfellowship of the religious and the anti-vaccination began to argue against the various violations inherent to sterilization. This resistance ultimately tapered off and even in Oregon, where voters overturned a 1913 law that would mandate sterilization, similar-to-worse laws were passed in the state.
“Don’t Say Gay”: the idea that queer people are predators and that children can be “turned gay” has been a stalking horse for the religious right since the 1960s and 1970s. In numerous places, local activists began to agitate against any public school or facility mentioning or even acknowledging in some part the lives of queer people. Ultimately, the Save Our Children campaign was successful in forcing cities and counties to ban the “promotion” of homosexuality and queerness. While this effort met resistance in California where voters turned down a statewide effort to suppress coming out and penalize gay people, it nonetheless promoted a snowballing of legislation as numerous cities and states rushed to ban discussion, acknowledgement, teaching, and otherwise allowing queerness to exist in the public sphere.
Ultimately, these laws are oriented toward a reality in which queer people are made invisible. As queer people are present even in conservative circles, however, these laws in current application would almost certainly stop at more harsh penalties like imprisonment except in laughably improbable cases. Still, the above do not mean that there isn’t foul innovation in anti-queer laws and laws of this type often include the following:
Bans on transition for people under 18-21: Texas is the most recent and blatant example of this effort. These laws argue, unscientifically, that allowing kids to transition is abuse. Furthermore, by whipping up fear about the impacts of medical transition through medication and the fear that hordes of teens are being fed puberty blockers and having body parts chopped off. None of these laws engage with the reality of trans healthcare, and yet they are going to be increasingly popular.
Laws that make it harder to change name and identity documentation: At present, there are 25 states that will refuse a name change in cases of people with a criminal record. Additionally, numerous states still require fairly expensive processes to change name and gender markers, such as requiring a court order or surgery.
Administrative rules or structures that violate personal space: it is an unfortunate fact that there are many places in which administrative structures are established in such a way that queer people cannot utilize areas governed by these rules with a guarantee of security. For example, the Transportation Security Agency is more aggressive in patting down trans and gender non-conforming people.
Obviously this isn’t a comprehensive list as there are many more ways queer people can be targeted by the law, but the above examination and below examples illustrate that many of these issues are intersectional and a strong defense mounted by peers and allies is extremely vital, even when the years seem good.
Examples of laws and proposals (an italicized number indicates passage year, if applicable, bold number indicates repeal or overturn year, if applicable):
Oregon, commentary on sodomy law repeal by a criminal code revision official (1975): “Accepting the premise that open and aggressive solicitation by homosexuals may be grossly offensive to other persons availing themselves of public facilities, a legitimate public interest arises in discouraging such conduct aside from the propriety or impropriety of the sexual conduct represented by the solicitation. The section is intended to discourage indiscriminate public seeking for deviate sexual intercourse. It is not intended to reach purely private conversations between persons having an established intimacy, even if conducted in a public place and related to deviate sexual intercourse. There is no requirement that the solicited conduct be for hire.”
Oregon “accosting for deviate purposes” provision (1971, 1981): (1) A person commits the crime of accosting for deviate purposes if while in a public place he invites or requests another person to engage in deviate sexual intercourse. (2) Accosting for deviate purposes is a class C misdemeanor.
Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indians Tribal Code (code last revised 2022): 3-3-38 Accosting for Deviate Purposes
(a) A person commits the violation of accosting for deviate purposes, if, while in a
public place, he invites or requests another person to engage in deviate sexual
intercourse.
(b) For purposes of this section, “deviate sexual intercourse” means sexual conduct
between persons consisting of contact between the sex organs of one person and the
mouth or anus of another.
(c) Violation of this section is a Class C violation
Examples of existing barriers to name and identity document changes: https://www.lgbtmap.org/equality-maps/identity_document_laws
Impacts of Texas’ anti-trans directives: https://www.bu.edu/articles/2022/latest-texas-anti-transgender-directive-explained/