I was astonished to open King’s Bench (“Homosexuality:  The Big Debate”, Vol. 15, Issue 2, p. 26) and see a debate about whether or not the community to which I belong, the lesbian and gay minority, “pose[s] a threat to the human race”. In the United Kingdom?  In 2008?  “Basil Haady” (a King’s student who seems to have recently arrived from 1958, the year after the Wolfenden Report) concluded that I, other gay men, and lesbian women do pose a threat to the heterosexual majority (because we engage in sexual activity without procreative potential), and that scientists should search for a “cure” for our “abnormality”.  He generously provided that we should not be forced to take this “cure”.  Despite its voluntary and non-fatal nature (cf. the British National Party’s “system of voluntary resettlement”:  “immigrants … will be afforded the opportunity to return to their lands of ethnic origin assisted by generous financial incentives”), Mr. Haady’s hypothetical “cure” bears a chilling resemblance to Nazi policy on discrimination:  despised or misunderstood minorities should not enjoy legal protection against discrimination, but instead should be eliminated for the benefit of the majority.  The most horrific example of this policy was the “Final Solution to the Jewish Question”.  Others included the killing of thousands of persons who had disabilities (their lives were deemed “not worth living”), or who were Roma, Jehovah’s Witnesses, or gay (see the “Reich Office for the Combating of Homosexuality and Abortion”).

Mr. Haady might think that he was merely provoking an amusing intellectual debate.  But for millions of openly lesbian women and openly gay men around the world (many of whom fear violence at the hands of heterosexual men, such as those who beat Jody Dobrowski to death on Clapham Common in October 2005, “as if trying to kill an animal”), it is not funny.  Two assumptions run through thousands of years of persecution of men who love men, and women who love women.  The first is that women are inferior to men.  If a man consents to sexual penetration by another man, or otherwise “acts like a woman”, he forfeits his superior male status.  The second is that there is an obligation to procreate, owed by individuals to society as a whole, or to their parents.  The social obligation might have arisen from the anxieties of ancient tribes about their numbers matching those of the neighbours with whom they competed for land.  The family obligation seeks to preserve family honour, provide heirs for property, titles and surnames, and permit parents to experience grandparenting.

These two assumptions (men must “act like men” and must inseminate women) found their way into the Jewish Bible (eg Leviticus 20:13:  “If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death …”), and from there into religious and criminal law in countries with Christian and Muslim majorities.  The death penalty for anal intercourse was not repealed in England and Wales until 1861, and survives today in such countries as Afghanistan, Iran, Nigeria (certain northern states), Pakistan, Saudi Arabia, and Sudan.  For the Nazis, the obligation to procreate was necessary to coerce expansion of the Aryan “master race”.  In Roman Catholic Church doctrine, the obligation is slightly different:  an individual must seek sexual pleasure only through contraception-free sexual activity that might have procreative potential, and only within a different-sex marriage.  Thus, even masturbation is “gravely disordered” and a sin.

Mr. Haady finds support for his argument in a reference to persons with an “incurable tendency” to be lesbian or gay, in Judge Walsh’s dissenting opinion in Dudgeon v. UK (1981).  The European Court of Human Rights rejected Judge Walsh’s reasoning and held, by 15 votes to 4, that the right to respect for private life in Article 8 of the European Convention on Human Rights does not permit governments to criminalise adult, consensual, private, same-sex sexual activity.  Several influential tribunals have agreed:  the United Nations Human Rights Committee (Toonen v. Australia, 1994), the Constitutional Court of South Africa (National Coalition for Gay and Lesbian Equality v. Minister of Justice, 1998), and the Supreme Court of the United States (Lawrence & Garner v. Texas, 2003).

Since Dudgeon, the European Court of Human Rights has decided that lesbian women and gay men cannot be excluded from the armed forces (Smith & Grady v. UK, 1999), cannot be denied custody of their children from prior different-sex marriages because of their sexual orientations (Mouta v. Portugal, 1999), must be treated equally in all aspects of the criminal law (A.D.T. v. UK, 2000, S.L. v. Austria, 2003), must be granted the same rights as unmarried different-sex couples (Karner v. Austria, 2003), and cannot be excluded from the opportunity of adopting children as unmarried individuals (E.B. v. France, 2008).  The Court has yet to rule that same-sex couples must be granted equal access to legal marriage, but has already concluded that “the inability of any couple to conceive or parent a child cannot be regarded as per se removing their right to [marry]” (Christine Goodwin v. UK, 2002).

In addition to his complete ignorance of the post-1981 case law of the European Court of Human Rights, Mr. Haady seems unaware of the UK’s Immigration Rules (which have authorised the immigration of same-sex partners of UK residents since 1997),  Council Directive 2000/78/EC and the Employment Equality (Sexual Orientation) Regulations 2003 (banning sexual orientation discrimination in employment and vocational training), the Sexual Offences (Amendment) Act 2000 (equalising the age of consent), the Sexual Offences Act 2003 (removing all other sexual orientation discrimination from the criminal law), the repeal in 2003 for England and Wales of s. 28 of the Local Government Act 1988 (banning “promotion of homosexuality” by local authorities), the coming into force in December 2005 of the Adoption and Children Act 2002 (allowing same-sex couples to adopt children jointly) and the Civil Partnership Act 2004 (allowing same-sex couples to register civil partnerships and acquire all the rights and obligations attached to legal marriage), and the Equality Act (Sexual Orientation) Regulations 2007 (banning sexual orientation discrimination in access to goods and services, including the services of adoption agencies).  The Human Fertilisation and Embryology Bill will require equal treatment of same-sex and different-sex couples in relation to donor insemination and surrogacy.

I can add nothing to Richard Harmer’s skilful demonstration, in his reply to Mr. Haady, of the absurdity of a 21st-century obligation to procreate on our overcrowded planet (however sensible it might have seemed to ancient tribes with poor human rights records).  But I must comment on Mr. Haady’s hypothetical Barry, who is happily married to a woman, but suddenly finds himself more attracted to his friend Paul than his wife.  In countries such as China, India, Egypt and Nigeria, it is probably true that the vast majority of men who love men, and women who love women, are living in different-sex marriages, or are facing huge parental pressure to enter such marriages.  But they are often desperately unhappy (see “Brokeback Mountain”), and feel trapped between the social and family obligation to procreate only in a different-sex marriage, and their true feelings (which they often follow on the side).  Most men in Barry’s position, and women facing the same dilemma, do not need “a magic pill” to “make them heterosexual”.  What they need is a legal system and social climate in which (at least) they never feel obliged to enter a different-sex marriage that is not right for them (and end up hurting their spouses), and in which (ideally) they can contract a same-sex marriage with the person they love.

Should the editors of King’s Bench have published Mr. Haady’s article?  The Criminal Justice and Immigration Act  2008 (Part 7, clause 126, Schedule 26), makes it an offence to incite hatred on the grounds of sexual orientation.  Once this provision comes into force, an article like Mr. Haady’s could attract the attention of the police.  I do not think it should, especially because (were it politically feasible) I would prefer to see existing UK laws prohibiting incitement to hatred based on race or religion repealed rather than extended, as the 2008 Act repeals the common-law offence of blasphemy.  On the justifiability of these interferences with freedom of expression, I exceptionally prefer the position of the US Supreme Court (which does not permit laws banning “hate speech” or blasphemy) to that of the European Court of Human Rights (which permits both types of law).

Assuming that the new UK offence will be interpreted as continuing to permit an article like Mr. Haady’s, should King’s Bench have allowed him to spread his views?  Although the right to freedom of expression might include the right to offend a minority, or insult one’s neighbour, it does not have to be exercised.  All human rights should be employed responsibly and sensitively.  On the one hand, Mr. Haady’s views are highly offensive to lesbian and gay students and staff in the School of Law at King’s, as offensive as telling Hindu, Jewish or Sikh students and staff that they “pose a threat” to the Christian majority in the UK.  I doubt that King’s Bench will follow up this debate with one on whether “we should aim to find cures for non-whiteness and belief in Islam”, or (as a gay student suggested to me) on whether “the Holocaust was a good thing”.  On the other hand, one could argue that the editors have done a public service by exposing the ugliness of Mr. Haady’s prejudice against lesbian women and gay men (cf. Jersild v. Denmark, 1994).

On balance, I do not think that King’s Bench should have published Mr. Haady’s article, any more than one arguing that women are inferior to men, and should not be allowed to vote, attend university, or qualify as solicitors or barristers.  Excavating a “dinosaur” point of view (in the UK) and placing it beside a modern point of view (in the UK) is not a proper debate.  Instead, the “Big Debate” should have addressed a live issue in Asia, Africa and the Caribbean (repeal of the laws criminalising sexual activity between men, often a legacy of the British Empire, in such countries as India, Pakistan, Bangladesh, Sri Lanka, Malaysia, Singapore, Nigeria, Zimbabwe, Mauritius and Jamaica), or a live issue in the UK, such as:  (i) the opening up of legal marriage to same-sex couples, and the repeal of the Civil Partnership Act 2004 (or its extension to different-sex couples);  (ii) exemptions for religious organisations from laws prohibiting discrimination based on sexual orientation in employment and access to goods and services (should there be a blanket exemption, or no exemptions, or do the current exemptions draw the line in the right place?); or (iii) the repeal of laws prohibiting incitement to hatred based on race or religion, or their extension to sexual orientation and other grounds.  At the very least, King’s Bench should not have enhanced Mr. Haady’s text with captions and photographs that supported his extremely intolerant message, such as those on pp. 28-29 (“… annual gay pride convention:  fun over family? Two men choose homosexuality over their partners.  A gay couple offer a public display of affection – what are the effects on society?”).

Returning to Mr. Haady’s proposal (which is effectively that scientists should search for a voluntary, non-fatal, “Final Solution to the Lesbian and Gay Question”), I am grateful that the recent, rapid growth of anti-discrimination law in many countries seeks to value human diversity, rather than eliminate differences and minorities.  If precious resources for scientific research should be devoted to the search for a “cure”, I would suggest that it should be a “cure” for prejudice against lesbian women and gay men, and other forms of intolerance.  If and when this “cure” is developed, I would be delighted to present the very first “magic pill” to Mr. Haady.