Trudeau's apology to LGBT public servants is straightforward. Expunging criminal convictions is not

Prime Minister Justin Trudeau will stand up in the House of Commons Tuesday and apologize for the federal government's long history of discrimination against LGBTQ Canadians in the public service. Many people, especially those who've felt firsthand the sting of the government's discriminatory policies, have waited a long time for this day.

As a historian of sexuality, I regularly teach students about the odious means the government used in the postwar period to purge LGBTQ people from the public service: the spies, the paid informants, the infamous fruit machine. So I can get behind the apology part.

But as part of the reconciliation process, the prime minister has promised to clear the historical criminal convictions of those found guilty of same-sex offences, though the process by which the government will go about assessing each case is yet unclear.

Digging through the archives

It should go without saying that criminal convictions for consenting adults engaged in same-sex activities should be expunged. The problem is, the historical records do not easily lend themselves to the type of analysis that will be necessary to properly understand what happened in each case.

For nearly three decades, I've been in the archives, digging through boxes of dusty, decaying dossiers on sexual offences between men (sexual relations between women were not marked out in the law before the 1950s). I've turned up close to 400 cases of gross indecency and buggery for the period 1880-1940, mainly from Toronto.

The records reveal that the queer past, just like the straight past, is littered with cases in which men forced themselves on others. The difficulty is, it's often impossible in these frustratingly fragmentary historical documents to disentangle coercion and consent. In the eagerness to apologize, there's been too little thought on the part of the federal government given to the patchiness of the surviving historical records and what they can and can't reveal.

The working premise for expunging records is that same-sex convictions will be cleared if the activity engaged in would have been legal at the time had the participants been a man and a woman. Sounds fair. But is it?

My research has turned up many cases that involved sex in public places. That's because for much of the queer past, the luxury of privacy remained out of reach. A few men of means could afford to entertain in their apartments, but many others lived in crowded households or in boarding houses under the watchful eyes of landladies. By necessity, sexual privacy had to be carved out of public space. Not surprisingly, many men got caught literally with their pants down.

Sex in public was technically illegal for heterosexual couples, too, although of course their sexual options were not nearly as limited. But the point is, how is it fair to apply the same legal standards of straight sexual behaviour to the queer past?

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Then, there's the problem of sex between men and male youths, which, like public sex, surfaces frequently in the historical records. Perhaps the most famous case is that of Everett Klippert, whose conviction for engaging in homosexual acts prompted Pierre Trudeau to partially decriminalize homosexuality.

In John Ibbitson's profile of Klippert for the Globe and Mail in February 2016, Klippert is described as "no saint." He had sex with teenagers, often offering free bus rides, money and liquor in exchange for their sexual favours. But by the end of Ibbitson's piece, Klippert becomes "just a man who sought out other men for sex." In this and many other portrayals of Klippert, teenagers and the exchange of sex for money or perks recede from view or disappear from the story altogether. Why? I suspect as a way to make Klippert look respectable for his pardon, which Trudeau's office announced last year would be issued posthumously.

Straightening up the past

The writer L. P. Hartley famously wrote, "the past is a foreign country: they do things differently there." Too much of the gay apology seems to be about trying to straighten up the queer past, to erase its differences and to make it presentable for its appearance on the national stage of apology. In the process, much of what is both distinctive and sometimes distressing about the queer past gets lost.

I doubt much of this will make it into the prime minister's speech. Instead, we'll hear, as we should, about the historical injustice and about the need to reconcile with the past in order to move forward. The trouble is, the queer past resists easy reconciliation. It's complicated and messy and no amount of apologizing or pardoning can change that.

This column is part of CBC's Opinion section. For more information about this section, please read this editor's blog and our FAQ.