The headlines in the media in general, and in the lesbian and gay press in particular, suggest that contemporary law and legal practice in the United Kingdom has a lot to say in general about genital relations between persons of the same sex and in particular about genital relations between men. They point to the significance of same-sex genital relations in the context of the regulation of the workplace, in legal relations concerned with the family, in housing, in pensions rights and interests, in the regulation of communications and the media, in the administration of the law, and in the context of the legal powers of local government. Last but not least, many of the headlines draw attention to the importance of genital relations between men in the criminal law and those laws governing the various institutions that administer the criminal justice system. All in their different ways suggest that the current law has a lot to say about homosexuality.
However, a survey of the legal rules contained in Acts of Parliament and the Common Law rules, made by the judiciary and found in the text of their judgments, gives a very different picture of homosexual(ity) in the law. Neither ‘homosexual’ nor ‘homosexuality’ appears in any law relating to employment matters, family legislation or pensions law. Nor are these terms to be found in laws dealing with the media. Neither the law that regulates prisons nor the law that creates and regulates the administration of justice resorts to them. Even the criminal law, which has for so long and so extensively provided the material for the headlines, still has only one formal reference to homosexual: the Sexual Offences Act 1967.
A search through the law reports, which contain a selection of judicial pronouncements relating to the interpretation of statute law (otherwise silent with respect to homosexual(ity)) and statements of the rules of judge-made law, produces a slightly different picture of the place of homosexual(ity) in the law. These reports provide a richer source of references to homosexual(ity) and in part they can provide an insight into the disjunction between the apparent high profile of the concern with genital relations between persons of the same sex in contemporary law suggested by the lesbian and gay press and the poverty of references to homosexual(ity) in the formal collection of the law.
This chapter seeks to explore this state of affairs. In undertaking this exploration the chapter will also be concerned with a more specific issue: the uses of