Some Reflections on Watching “Sex, Sin and 69”
By Gary Kinsman
“Sex Sin and 69” produced and directed by Sarah Fodey and Sandbay Entertainment, June 2019.
- If you have not seen this film yet there are ‘spoilers’ here and I point out my reflections are based on seeing the film once.
I was among close to 70 people watching the premiere of Sarah Fodey’s new film “Sex, Sin and 69” at Harbourfront in Toronto on the evening of June 27th. This date was the 50th anniversary of royal assent being given to the 69 criminal code omnibus legislation that included what the government of Canada describes as the “decriminalization of homosexuality.” The film and the accompanying exhibit were paid for in part through the $770,000 grant from Commemorate Canada to EGALE (a major LGBT rights group in Canada) to commemorate the 69 reform.
Sarah Fodey its producer and director in introducing the film said that we need to think critically and that she learned from working on the film that “progressive legislation is not equality and inclusion.”
The 80 minute film was both better and worse than I expected. Helen Kennedy, the executive director of EGALE, suggests at the beginning that “all we want is what everyone else has” in a very limited view of what queer and trans rights and liberation is all about. The film is at its strongest in its coverage of trans and intersex history and struggles with important interviews with Aaron Devor of the Transgender Archives and Morgan Holmes, an intersex activist and scholar. .This points to the importance of challenging the policing of gender non-conformity and challenging the gender binary. Line Chamberland provides important lesbian content including how ‘gross indecency’ charges were used as threats against lesbians and sex workers, including leading to forced gynecological exams. There are also important contributions from El-Farouk Khaki on racism and gay Muslims and Kim Katrin Milan on developing a politics of intersectionality that moves beyond identity to vulnerabilities and social power. It is unfortunately in its actual engagement with the 69 criminal code reform that the film is also at its weakest. I return to this.
The film is in some ways substantial regarding Two-Spirit people including critiques of colonialism and the role of Christian churches and includes the start of Two Spirit organizing in 1990 but not noticed is that the 69 criminal code reform went forward at the same time as the infamous White Paper attempting to annihilate Indigenous sovereignty. While Pierre Elliot Trudeau’s notion of the “Just Society” is mentioned forgotten is the centrality of the destruction of Indigenous sovereignty to this project. While the “Just Society” supported liberal individual rights it did not support social or collective rights including the rights of Indigenous people, workers and the poor, and the Quebecois.
Doug Elliot, a lawyer associated with EGALE and with the class action suit for those purged from the military and public service, is relied on throughout the film to provide both historical and legal analysis. He is neither a historian or a criminal lawyer. Elliot recounts the history of legal developments with the shift from legislation from England to Canada. As in the film “The Fruit Machine” (also by Sarah Fodey) the Cold War “red scare” in Canada is portrayed as starting with the Gouzenko defection making the national security campaigns seem like a response to Soviet espionage rather than being a much broader attack on the left, unions, immigrants, women’s and feminist groups, Indigenous and Black Power groups, that also included the Canadian war on queers. This was in no way separate from the “red scare” as queers were portrayed as ‘fellow travellers’ of communists.
There is only brief coverage of the homophile organizing for popular education and law reform in the 1960s with mention of the Association for Social Knowledge formed in Vancouver in 1964. But there is no mention of other homophile organizations and law reform efforts in the 60s that helped to open up the space for law reform. There is no mention that with homophile support NDP MP Arnold Peters put forward the first homosexual law reform bill as a private members bill in 1964. A bit later early activist Jim Egan is mentioned including in the important 1964 Maclean’s article “The Homosexual Next Door” by Sydney Katz.
The important Klippert case is mentioned but largely only in relation to the Supreme Court majority decision upholding his conviction as a ‘dangerous sexual offender.’ His earlier history and convictions for ‘gross indecency’ are not really brought into view. This Supreme Court decision leads up to Trudeau’s remark that “there is no place for the state in the bedrooms of the nation.” But like in most accounts the conclusion of the quote is not included where he states “when it becomes public, this is a different matter” which significantly alters the meaning of the quote. That Trudeau based the moral reform law efforts on the 1957 English Wolfenden report is not mentioned. It is this report that developed the strategy of public/private and adult/youth distinctions in the regulation of homosexual sex and sex workers.
Ed Jackson points out that the House of Commons debate on the 69 reform is one of the most significant documents of state homophobia in Canadian history. The film does point out that many of those in the House of Commons supporting reform argued that homosexuality was a pathology, that we were mentally ill or sick but not always criminal. There is only a brief mention by Jackson of the abortion section of the 69 reform and in general the broader social and historical context of the 69 reform is not addressed including its important relation to limiting access to abortion services which provoked the feminist abortion caravan in 1970, also not mentioned in the film. What was going on in relation to the reconstruction of racism in immigration policy and the early emergence of ‘multiculturalism’ during these years is also not mentioned. The struggles against Anti-Black racism at Sr. George Williams University earlier in 69 are not mentioned.
Jackson also describes how the 69 reform left major forms of the criminalization of homosexuality in place and that in no way was it any endorsement of homosexuality. Brent Hawkes in contrast points to the important impact on homosexuals of the reform and Doug Elliot tells us it made things better for homosexuals. He suggests that organizing was illegal before 69 despite the existence of homophile groups in a number of centres prior to 69. In the USA and other places around the world queer people stated to organize groups many years prior to any moves towards the decriminalization of queer sex practices. Elliot implies that the 69 reform made organizing as homosexuals legal and that is why groups emerged after it rather than this being the impact of the 1969 Stonewall riots and the emergence of gay liberation and lesbian feminism.
It is unfortunate that the views of the homophile and gay activists who organized for law reform in the 60s are not included. They got the North American Conference of Homophile Organizations to write to Trudeau in 1968 criticizing the reforms discriminatory age of consent for homo acts being set at 21. Doug Sanders who was involved in the Association for Social Knowledge said the 69 reform : “takes the gay issue and describes it in non-homosexual terms. [Decriminalization] 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 … I felt that an issue had been stolen from us.”
It is only Jackson who speaks about the Black civil rights movements, the anti-Vietnam war movement, the feminist movements and other social change movements that created the context for the emergence of gay liberation. The August 1971 rally and demonstration are included including a section of Charlie Hill’s speech but that this first cross-country action was explicitly directed against the limitations of the 69 reform is not addressed. This demonstration was also under RCMP surveillance since it challenged the national security policies of the Canadian state. Elliot goes so far as to suggest that it was the 69 reform that allowed for people to organize this demonstration but does not let us know that it was directed against the shortcomings of the 69 reform.
Jackson points out that after what has come to be called the We Demand demo that we needed “our own newspaper” which led to The Body Politic. The later criminal charges against TBP are also covered. This was very important but as with the accompanying exhibit none of the other gay and lesbian publications produced during these years get mentioned.
The pre-Olympic clampdown in 75-76, and the Truxx bar raid and the raid on Le Mystique in Montreal are covered as are the 1981 bath raids in Toronto. What is not drawn out is how the 69 reform with its focus on policing homosexual sex in a very broad ‘public’ realm mandated these kinds of raids and arrests and how criminal charges escalated after the supposed ‘decriminalization’ of 69. The widespread RCMP surveillance of gay and lesbian groups on national security grounds in the 70s is also not mentioned.
The film goes onto address the AIDS crisis, the growing visibility in the media of trans people, and the medical management of intersexed infants which Holmes tell us tries to re-assert the gender binary and eliminate the possibility of homosexuality. Kennedy also tells us about the young queer and trans people who get kicked out of their homes and end up on the streets. The struggle for same sex marriage is also brought in as the film tends to loose any focus on the 69 reform and its aftermath.
In the discussion of how many countries still criminalize homosexual acts there is no mention of the continuing criminalization of consensual queer sex in the Canadian context. On this question and on queer refugees (who still face major problems) a certain homonationalism gets generated in the film that ‘Canada’ is better than other countries around the world. There is no mention of the blood bans, HIV criminalization and the continuing criminalization of sex workers that directly affects many trans and queer people.
Jackson mentions that there are important “differences among ourselves” that we have to work through. It is here that the March Anti-69 Forum in Ottawa is mentioned and it is suggested that rather than the state simply granting us rights we have fought for these rights. Jackson also talks about white privilege and the need to challenge it and there is footage of the powerful Black Lives Matter protest at the 2016 Toronto Pride parade.
Moving towards the conclusion Elliot defends the 69 reform arguing that this was the standard reform of the time, that nothing more could have been expected and that if 69 had not happened our struggles would have been set back. He argues that the 69 reform allowed adults to live their lives as they wanted. This is despite the sexual policing against sex in the broad ‘public’ realm and involving young people that the 69 reform mandated and facilitated and the major forms of oppression faced after the reform. .
The ghost that haunts the film is Anti-69 organizing against the mythologies of the 1969 criminal code reform. As pointed out above Anti-69 is briefly mentioned towards the end of the film and at the end of the film just before the credits there is a statement along the lines of how a number of activists, scholars and historians declined to be interviewed for the film since they do not believe that the decriminalization of homosexuality took place in 1969. Personally I declined to be interviewed since the film was not adopting a critical approach to the 69 reform and because it was not autonomous from EGALE. Many of the people who I know who have done research and writing on the 69 reform, as well as many other topics the film addresses declined to be interviewed because of concerns over the state funding and the politics of EGALE. This absence both limits but as mentioned haunts the film.
Despite my criticisms I urge people to see Sex, Sin and 69. There are important perspectives and issues raised and it can get viewers thinking about our historical pasts and presents. At the same time it needs to be watched critically so viewers can move beyond its limitations. Rather than celebrating the 69 reform and ‘Canada’ we can come to see the importance of remaking radical queer and trans liberation movements that are also anti-colonialist, anti-racist, support sex workers, and are critical of state policies of containment and regulation.
Some references:
Tom Hooper, Gary Kinsman and Karen Pearlston, “Anti-69, Frequently Asked Questions,” https://anti-69.ca/faq/
Tom Hooper, “Queering ’69: The Recrminalization of Homosexuality in Canada,” The Canadian Historical Review, Volume 100 Issue 2, June 2019, pp. 257-273, https://utpjournals.press/doi/10.3138/chr.2018-0082-4
Gary Kinsman, The Regulation of Desire, Homo and Hetero Sexualities, (Montreal: Black Rose, 1996).
Gary Kinsman and Patrizia Gentile, The Canadian War on Queers: National Security as Sexual Regulation, (Vancouver: UBC Press, 2010).
Karen Pearlston, “Avoiding the Vulva: Judicial Interpretations of Lesbian Sex Under the Divorce Act, 1968,” Canadian Journal of Law and Society / Revue Canadienne Droit et Société, 2017,Volume 32, no. 1, pp. 37–53. https://www.cambridge.org/core/services/aop-cambridge-core/content/view/41FA1A399204F3FEF1E9C6BDCFA75518/S0829320117000047a.pdf/avoiding_the_vulva_judicial_interpretations_of_lesbian_sex_under_the_divorce_act_1968.pdf