THE DEPARTMENT OF Justice was afraid in the 1970s that removing Ireland’s criminal ban on sexual relationships between men would lead to “public displays of homosexual relationships”.
The department recently released decades-old files to the National Archives that document Ireland’s journey to decriminalising homosexuality in 1993, years behind many other countries in western Europe, where same-sex activity was legal in most cases since the 1960s and 1970s.
The change in legislation that removed the ban came about as a result of legal action by now-Senator David Norris, who challenged the ban in Irish courts and then in Europe, where the European Court of Human Rights found it violated the European Convention on Human Rights.
The LGBT+ community in Ireland had been campaigning for years for legal and social equality, including calls for the ban to be lifted.
However, the documents newly released to the National Archive show that various agents of the State were averse to removing the ban to try to prevent LGBT+ people from making further gains toward equality.
In November 1977, the same year that Norris first brought his case within the Irish court system, a Department of Justice memo addressed to then-Minister Gerry Collins warned that decriminalising homosexuality would be interpreted as an “act of acceptance” – which, the memo made clear, was not the State’s position at that time.
The memo, marked confidential, said: “If homosexual acts in private between consenting adults were not already contrary to the law very few people in this country (now or for some considerable time past) would be in favour of declaring them to be so now. But to legalise such homosexual acts at this stage – to remove an existing prohibition – could do considerably more than remove a remote threat of prosecution.”
It continued: “It could be (or become) a symbol of society’s acceptance of homosexual practices, not just as something that ought to be outside the scope of the law but as something acceptable and “normal”, and there can be no serious doubt that efforts would be made to have it interpreted as a positive act of acceptance.”
The memo told the minister that campaigning by the gay rights movement was not only about decriminalisation but also that it wanted “to establish that homosexual practices are ‘normal’ and ‘natural’ and they make no bones about it”.
“It is obvious then that the real aim is the removal of the social stigma attaching to homosexual practices rather than the threat of prosecution,” the memo said.
The memo went as far as to claim that “pressure would continue for a redefinition of the word ‘adult’” and went on to invoke the homophobic trope of trying to connect the LGBT+ community with paedophilia, which persists in homophobic attacks today.
The DOJ memo said that “there would be likely to be a ‘flaunting’ of the newly-won ‘liberty’”.
“Overtly homosexual magazines etc would be likely to be tested on the market and public displays of homosexual affection would be likely,” it said.
“How far and how fast the process would go is impossible to predict. But the homosexual “scene’ in some European cities is a ‘far-out’ and shameless one indeed.”
Years later in August 1985, by which point Norris had taken his case to Europe, an official in the Office of the Attorney General expressed similar views in resistance to campaigning for social equality.
A record of meeting minutes shows that the official “referred at one point to the likelihood that the demands of the homosexual groups will not be limited to the repeal of the particular statutory provisions in question in the Strasbourg case but that they will go on to try to seek, as a group, a more prominent role legally (eg in relation to family and succession rights) and indeed politically”.
Additionally, a senior member of An Garda Síochána told the Department of Justice that he did not believe the ban on homosexuality should be lifted.
In the course of communication between gardaí and the Department of Justice in 1984, a Garda Deputy Commissioner said: “I would not be in favour of any change in the law regarding homosexuality.”
He added, however, that “it is suggested that offences of this nature might be statute barred after a period of, say three years, to protect the potential victims of blackmail”.
The Journal previously revealed that the state’s legal team wanted to use the HIV/AIDS crisis to argue its case in Europe.
It initially discounted the idea of arguing that a ban on homosexuality was necessary on health grounds, deciding that there was no evidence on which it could build that argument, but the matter was raised again two years later in the context of HIV/AIDS.
However, Government ministers ultimately decided not to give the legal team authorisation to use AIDS as a defence.
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