Some Critical Reflections on Brenda Cossman’s “Memorializing LGBTQ2 Histories: Thoughts on Moving Beside Our Debates”
By Gary Kinsman
Introduction
I was surprised to see that Brenda Cossman’s “Memorializing LGBTQ2 Histories”[1] was included in the briefing documents distributed for the evaluation process for the memorialization/monument part of the class action settlement in the national security purge campaigns against homosexuals, lesbians and gay men, queers and gender diverse people. I had already encountered a longer version of this article[2] with its focus on a critique of Anti-69 organizing against the mythologies being mobilized to mischaracterize the 1969 criminal code reform as the legalization or decriminalization of homosexuality.[3]
Cossman’s focus is not on the national security purge campaigns which is what the purge settlement was about. I have also been actively involved in the Anti-69 Network organizing. If I had known that the 1969 criminal code reform was being centrally addressed in one these documents I would have addressed it in my brief statement which did focus on the Canadian War on Queers.[4]
I have a number of concerns about Cossman’s document which I address here. I first summarize these concerns and then elaborate on them in more detail. While Cossman’s document includes valuable information and analysis it is limited by Cossman’s mistaken assumption that the focus of Anti-69 organizing is on opposing the 1969 reform itself and not on opposing the state mythologies constructed around it.[5] It has been our clearly stated goal to be “Against the mythologies of the 1969 criminal code reform.” Many of us have clearly pointed out that the 1969 reform — and the public/private and adult/youth policing strategy it was based on — established an important part of the terrain for queer activism after 69. In my view there is also in Cossman’s article an overemphasis on legal regulation that gets trapped within the social form of law[6] meaning that the impacts of the Stonewall rebellion, the emergence of gay liberation and lesbian feminism, and LGBT+ community formation are not given adequate weight as also being central to the emergence of queer subjects and in her argument that legal regulation establishes gay subject positions neglecting queer agency and resistance.
The Anti -69 Network includes not only LGBTQ2S+ activists but also reproductive justice and sex worker activists. Unfortunately Cossman seems unable to put the 69 reform in its broader social and historical context that includes the 1969 White Paper and the attempted annihilation of Indigenous sovereignty, the re-organization of state racism, Anti-Black racism and the attacks on the Quebec sovereignty movement.[7] Regarding the 1969 reform she does not note that the debates and the 69 strategy of regulation was also part of putting in place that ‘privatized’ gays/lesbians were sick or mentally ill and not always criminals and therefore some of us should be under the ‘care’ of psychiatrists, counsellors, and doctors. This was part of the extension of ‘homosexuality’ as a mental illness and the extension of professional regulation over some of our lives.
Opposition and Antagonism: Either/Or as Ideological Framing
Cossman begins her document, as in the longer version in the article it is taken from, with the release of the LGBTQ2S “equality loonie” by the Canadian Mint. Here she claims that many in the LGBT community welcomed the coin but only cites Helen Kennedy from EGALE as the stand in for this ‘many.’ She then writes “But others have denounced it.” Not critiqued or criticized it but denounced it – using an escalation of language. Then immediately she links gay historian of the Toronto bath raids Tom Hooper[8], who is active in the Anti-69 Network, to this. The misrepresentation of Anti-69 in the document is especially unfair to Hooper who did much of the media work for the Anti-69 Network on the “equality loonie” pointing out that no equality for LGBTQ2S+ people took place in 1969 and has still yet to be achieved in 2019. This included a critique of the mythologies regarding the 69 reform including that it ‘decriminalized homosexuality.’
Cossman then uses the Anti-69 position as an example of “a familiar pattern of opposition and antagonism within LGBT communities” associating Hooper and Anti-69 with “opposition and antagonism.” She associates Hooper and Anti-69 with some sort of “critical left” position that critiques supporters of rights strategies as “hopelessly naïve, placing faith and power in a capitalist, homonationalist, white settler state.” She does not cite anyone who actually argues this. In other words she inscribes actual Anti-69 organizing into her own ideological[9] schema of ‘critical left’ versus ‘reformist’ organizing. She is the one who imposes either/or perspectives onto this critique of the Anti-69 Network.
In the next paragraph she basically agrees with the Anti-69 position (“the critics are of course right …”) even though she associates us with “antagonism.” Associating us with arguing an “either/or” type of position she argues that we declare that “One is either for or against the 1969 reform and all that they stand for. One is either a liberal reformist or a critical leftist.” Nowhere does the Anti-69 Network use this language. Here she seriously mischaracterizes our work since our central basis of unity is being against the mythologies surrounding the 69 criminal code reform ie the way state agencies and some mainstream LGBT groups have argued it was the legalization or entire decriminalization of ‘homosexualty.’ As mentioned our focus has always been on the limitations of the 69 reform and how it allowed for an extension of the criminalization of ‘homosexuality’ in the 1970s and 1980s. We are not time travellers in 1969 and do not argue for or against the reform. I suspect that if I had been able to be active in 69 that I personally would have had some very critical support position for the 69 reform critiquing the age of consent at 21, that it was limited to only 2 people and the narrow definition of ‘private.’ But we are not in 69 and the debate is instead a battle over memory and history.
Does the 1969 Reform Constitute the ‘Canadian Gay Activist Subject’?
Cossman argues that “the 1969 reforms constitute the discursive terrain of the modern era of gay rights. The reform, I argue, helped constitute the modern Canadian gay activist.” Here she emphasizes the importance of legal discourse but does not address the other practices that led to gay activism which included movement building, gay liberation and lesbian feminist organizing including the impact of the Stonewall rebellions, and the expansion of LGBT community formation. In other words while legal discourse is emphasized as constitutive, self-organization and movement building in response to oppression are minimized. This leads to a kind of legal discourse determinism in her analysis.
She goes on that the 69 reform “created a small liminal space within which homosexuality was not criminal, and within which advocacy becomes possible; it was a small space within which the modern gay political subject could come into being …” This is not rooted in the history of rights organizing which includes the homophile organizing I document in The Regulation of Desire and “Wolfenden In Canada” which predates the 69 reform. This includes the work of the Association for Social Knowledge, Doug Sanders, Gary Nichols, The Committeee on Social Hygiene, the Canadian Council on Religion and the Homosexual, Arnold Peters, the North American Conference of Homophile Organizations, and more. It seems this early space for advocacy and organizing already existed. The 69 reform made it easier to organize but organizing starts earlier. The other problem with organizing after the 69 reform since it is public in character is that it also calls down the attention of the police mandated by the 69 reform including through the national security campaigns. Here there is a direct connection with the purge campaigns of the Canadian War on Queers and the surveillance of early movement organizing efforts.
Cossman seems to assume without any foundation that the Anti-69 perspective leads us to deny the contradictory legacy of the 69 reforms as a terrain of struggle. She thinks that our perspective leads to “struggles against these reforms” rather than struggles against their limitations, and to make visible their contradictions – contradictions that were opened up and extended through our public movement and community formation in the 1970s and 1980s where we refused the 69 reform strategy of privatizing our sexualities. She argues that we do not understand that these are “political struggles produced in and through the 1969 reforms, and as reflecting the constitutive and contradictory nature of law reform.” But political struggles were not simply produced internally through the 69 reforms themselves. Here Cossman again does not see the other sources of our struggles which cannot be seen as entirely produced through the legal discourse of the 69 reform. Cossman’s analysis tends to focus only on the moment of struggle within legal discourse and not the moments of struggle against the limitations of these legal regulations, and those that push beyond these modes of regulation. Cossman here tends to get trapped within state legal regulation and is unable to see that queer activists also struggled against and beyond[10] the 1969 reform.
Cossman suggests that the 69 reform produced a legal homosexual subject. There are two problems here. Firstly the actual content of the reform was about buggery and gross indecency and not about ‘homosexuality’ so it could not in and of itself produce a homosexual subject. Secondly, this again suggests that law produces subjects not examining the other practices that produce social subjects and social agency. Again there is a legal discourse determinism, or at least an overemphasis on legal discourse.
The Resistance to the bath raids in Toronto: Within, Against and Beyond the 69 Reform Strategy.
It is very useful that Cossman brings in the important experience of the Right to Privacy Committee (RTPC) organizing against the Toronto bath raids in the late 70s and early 80s in which I was actively involved. Despite her referring to the important work of gay activist George Smith[11] that “The discourse of privacy of the 1969 amendments was being used to resist the narrow conception of privacy contained therein” this transformative use of right to privacy developed in the RTPC following the 1981 bath raids is about starting within but quickly moving against and beyond the strategy of sexual policing put in place in the 69 reform.
Right to privacy can be mobilized in very restricted forms where it basically supports strategies of privatization to more transformative notions like that developed by George Smith and the RTPC where the focus on the social practices of constructing intimacy and privacy leads to defying state defined designations of the ‘public.’ While this starts within state discourses and practices of privacy it also moves against and beyond them. It is these moments that Cossman tends to minimize.
The RTPC did not simply accept the 69 reform as the terrain of struggle. It struggled within, against and also beyond the limitations of the 69 reform developing an alternative that included the social practices of people producing social relations of privacy and intimacy in state defined ‘public’ places. This was a transformative approach that refused to be trapped within the limitations of the 69 reform. Cossman unfortunately tends to get trapped within these ruling forms of legal discourse. The actual practice of the RTPC provides a transformative alternative to the limitations of Cossman’s briefing document and in a number of major ways subverts her argument.
Concluding Remarks
In summary regarding Cossman’s briefing document the 69 reform was also an attempt to privatize queer sexualities. The 69 reform itself did not bring into being a new legal subject, a gay subject who could engage in consensual gay sex. This was a broader social and political struggle and the 69 reform only allowed for buggery and gross indecency in a very narrow private realm involving 2 people aged 21 and over. Legal discourse and practice is an important site of social struggle but not always the most important one and again Cossman gets trapped within the social form of law. Again she avoids the actual context of Anti-69 which was against the mythologies of the 69 criminal code. And finally the 69 reform in itself was not constitutive of the gay rights subject and the gay rights movement.
At the same time regarding the important work of memorialization and monuments I invite people to read my contribution to this discussion. [12]
References List .
Patrizia Gentile, Gary Kinsman, and L. Pauline Rankin, eds. We Still Demand! Redefining Resistance in Sex and Gender Struggles, Vancouver: UBC Press, 2017.
John Holloway, How to Change the World Without Taking Power: The Meaning of Revolution Today ,London: Pluto Press, 2005.
John Holloway, In, Against and Beyond Capitalism, The San Francisco Lectures, Oakland, California: PM Press, 2016.
Tom Hooper, “‘More Than Two Is a Crowd’: Mononormativity and Gross Indecency in the Criminal Code, 1981–1982,” Journal of Canadian Studies/Revue d’études canadiennes 48, 1 (2014): 53–81
Tom Hooper “‘Enough is Enough’: The Right to Privacy Committee and Bathhouse Raids in Toronto, 1978–1983” (PhD diss., York University, December 2016).
Tom Hooper, “Queering ’69: The Recriminalization of Homosexuality,” The Canadian Historical Review 100, 2 (June 2019): 257–73.
Gary Kinsman, The Regulation of Desire, Homo and Hetero Sexualities, Montreal: Black Rose, 1996.
Gary Kinsman, “Wolfenden in Canada: Within and Beyond Official Discourse in Law Reform Struggles,” in Corinne Lennox and Matthew Waites, eds., Human Rights, Sexual Orientation and Gender Identity in the Commonwealth: Struggles for Decriminalisation and Change, London: School of Advanced Study, University of London, 2013, 183–205
Gary Kinsman, “Queer Resistance and Regulation in the 1970s, From Liberation to Rights,” in Patrizia Gentile, Gary Kinsman, and L. Pauline Rankin, eds. We Still Demand! Redefining Resistance in Sex and Gender Struggles, Vancouver: UBC Press, 2017, 139-162.
Gary Kinsman, “Forgetting National Security in ‘Canada’: Towards Pedagogies of Resistance,” in Aziz Choudry, ed., Activists and the Surveillance State: Learning from Repression London, UK/Toronto: Pluto/Between the Lines, 2019, 129–152.
Gary Kinsman and Patrizia Gentile, The Canadian War on Queers: National Security as Sexual Regulation, (Vancouver: UBC Press, 2010).
Tim McCaskell, Queer Progress, From Homophobia to Homonationalism, Toronto: Between the Lines, 2016.
Dorothy Smith, The Conceptual Practices of Power: A Feminist Sociology of Knowledge Toronto: University of Toronto Press, 1990.
Dorothy Smith, Texts, Facts, and Femininity: Exploring the Relations of Ruling, London and New York: Routledge, 1990.
Dorothy Smith, Writing the Social: Critique, Theory, and Investigations Toronto: University of Toronto Press, 1999.
George Smith, “In Defence of Privacy or Bluntly Put No More Shit,” Action! (Publication of the Right to Privacy Committee Toronto) 3, 1 (1983).
George Smith, “Policing the Gay Community: An Inquiry into Textually-Mediated Social Relations,” International Journal of the Sociology of Law 16 (1988): 163–83.
George Smith, “Political Activist as Ethnographer,” in Caelie Frampton, Gary Kinsman, AK Thompson, and Kate Tilleczek, eds., Sociology for Changing the World: Social Movements/Social Research, Halifax: Fernwood Publishing, 2006, 44–70.
Endnotes
[1] https://lgbtpurgefund.com/wp-content/uploads/2020/01/Monument-Briefing-Documents-EN-Brenda-Cossman.pdf
[2]. Brenda Cossman, “The 1969 Criminal Amendments: Constituting the Terms of Gay Resistance” (June 1, 2019). University of Toronto Law Journal, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3437306
[3] See https://anti-69.ca/
.
[4] https://lgbtpurgefund.com/wp-content/uploads/2020/01/Monument-Briefing-Documents-EN-Gary-Kinsman.pdf
[5] See https://anti-69.ca/faq/
[6] Law always has a social and historical character. It is not natural or essential and shifts and changes historically. It is also bound up with class, race, gender, state and other social relations. On the social form of law see Bob Fine, Democracy and the Rule of Law, Liberal Ideas and Marxist Critiques, London: Pluto Press, 1984; Philip Corrigan and Sayer, “How The Law Rules?, Variations on Some Themes in Karl Marx,” in B. Fryer ed., Law, Society and State, London: Croom Helm, 1981, 21-53 and E. Pashukanis, Law and Marxism., London: Pluto Press, 1983. .
[7] See https://anti-69.ca/justsociety/
[8] On Tom Hooper’s work see the references list.
[9] On this use of ideological see the work of feminist sociologist Dorothy E. Smith who draws upon Marx’s critique of ideology as a critique of ungrounded social knowledge that is not rooted in actual social practices. See the reference list.
[10] Here I draw on John Holloway’s work where resistance to oppression needs to take place simultaneously within, against and beyond ruling relations. See the reference list.
[11] On the important work of George Smith see the reference list.
[12] https://lgbtpurgefund.com/wp-content/uploads/2020/01/Monument-Briefing-Documents-EN-Gary-Kinsman.pdf