As part of the research for the new book I am crafting out of parts of the one that didn’t garner much interest, I have been researching government persecution of queer people in the postwar era. In so doing, I came across a rather dramatic fact that led me down a statistical rabbit-hole as I hunted the source of a seemingly dramatic fact that turned out not be what it seemed.
A couple of years ago, historian Eric Cervini’s The Deviant’s War (2020), about an astronomer’s involvement in the midcentury gay rights movement, was nominated for a Pulitzer Prize and won a bunch of awards. Cervini, who bills himself online as “author / historian / homosexual,” is now the executive producer of The Book of Queer, a Discovery Plus documentary series about queer history premiering in a few weeks. I’m not too thrilled with the show since it is extremely campy and overtly conflates sexual orientation with camp culture and gender-nonconforming self-presentation, neither of which is particularly helpful in raising queer issues above the level of a nonthreatening, candy-colored theatrical performance for straight people. It also does nothing to help young queer people who would benefit from learning about queer history but don’t identify with twentieth-century-style urban camp culture.
Anyway, on the first page of Cervini’s book (well—the first screen of the digital edition), he makes a rather dramatic claim: “After World War II, homosexual arrests—including those for sodomy, dancing, kissing, or holding hands—occurred at the rate of one every ten minutes, each hour, each day, for fifteen years. In sum, one million citizens found themselves persecuted by the American state for sexual deviation.”
That’s an impressively horrific statistic—but I discovered that nobody actually knows if it’s true. And most writers don’t care.
One million gay people persecuted over fifteen years would mean that, by the best data about sexual orientation in midcentury America calculated against the 1950 U.S. population of 151 million, somewhere between one in five and one in three Americans who acted on their queer desires had been arrested for gay sex. (Obviously, many queer people in those days were closeted and never acted on their desires.)
I don’t believe that. American policing was never that efficient.
Now, even the numbers I just cited are a little squishy. In the 1950s, the media estimated—wrongly—that there were 15 million lesbians and 15 million gay men in America, totaling 20% of the U.S. population. One magazine ludicrously claimed more than one-third of Americans were homosexuals. These numbers derived from a misreading of Alfred Kinsey’s famous report on male sexuality, which found that 37% of men had had a same-sex experience at least once in their lives and 13% lived as homosexuals for 3 years or more. And even those numbers tell us little because Kinsey defined a homosexual experience strictly as genital stimulation to orgasm. Kissing alone, for example, wouldn’t count. Better estimates suggested that somewhere between 1% and 5% of Americans actively engaged in same-sex relations, though the number who never acted on their desires, and never told researchers about them, is unknowable.
Incidentally, the 1950s media estimates stuck in the popular mind, despite being wildly wrong. According to Gallup, even today Americans wrongly believe than 20% or more of American are lesbian, gay, or bisexual. (Gallup blamed it on there being too many queers on TV, despite their own data showing that the false estimate has held true since the days when virtually no queer characters were on primetime TV.)
Most estimates of past behavior attempt to model it from modern population data, but modern self-reports have shifted dramatically over the past twenty years, suggesting how difficult it is to estimate actual behavior vs. what people are willing to admit to in surveys. Today, for example, one in five young adults today identifies as queer, but much of this is definitional, since the majority of those young people say they have not been in same-sex relationships and primarily seek opposite-sex partners. In past times, they would typically have identified as straight.
With so much uncertainty about numbers, I was necessarily concerned about Cervini’s claim that a queer person was arrested every ten minutes for fifteen years. (And why stop at 15 years? Mass arrests continued into the 1970s, and occasionally down to the 1990s, notably the sodomy arrest in 1998 that led to the 2003 Supreme Court decision decriminalizing gay sex.) So, I checked out his end notes, which pointed me to his source, Yale law professor William Eskridge’s 1996 book Gaylaw. There, on page 60, Eskridge provides this claim: “The state between 1946 and 1961 imposed criminal punishments on as many as a million lesbians and gay men engaged in consensual adult intercourse, dancing, kissing, or holding hands.”
Now, that is quite the claim, specifying “criminal punishments” and asserting that such punishments were in part for “kissing,” “holding hands,” etc.
Imagine my surprise that Eskridge does not cite a source for the number nor explain it.
I did, therefore, what I always do, and I tried to find the source. I read through the articles and books Eskridge cited in the surrounding paragraphs. Nothing. I won’t belabor the point too much. The fact is that there were no national statistics kept for arrests related to homosexual conduct, or even for the more general categories of lewd conduct or “sexual perversion.” Indeed, “perversion” wasn’t specifically a crime in many locations until the late 1940s. The closest data I could find cited anywhere were the published annual reports of police departments in major American cities, which reported the number of lewd conduct or perversion arrests made each year. For example, in 1947, the Los Angeles Police Department made 1,656 “perversion” arrests, and the number rose 86.5% by 1950. In the same period, the Philadelphia police department reported 200 monthly perversion arrests (~2,400 annually), while Washington, D.C. bragged of 1,000 per year. These cities, with their large gay populations and virulently anti-gay police forces were, however, the most extreme.
But the numbers the local cops reported don’t translate easily into data about gay persecution. There are a number of problems. First, arrests for “lewd conduct” or “sexual perversion” do not necessarily overlap 100% with homosexual persecution. The categories also include heterosexual misconduct, for example. Beyond this, abstracting from these numbers data on persecution is equally problematic because some of the people arrested actually committed real crimes we would still consider crimes today, including child molestation, sexual assault, indecent exposure, public sex acts, etc. Because the data do not allow us to discriminate between what for convenience I’ll term “real” crimes and what were merely efforts to drive out queers, we can’t just add up the arrests.*
[* Update: Since writing this, I found that in Los Angeles at least, crime statistics broke out sodomy, sex perversion, and lewdness separately from other sex crimes, so we can reasonably assume most of those arrests were for homosexuality and gender-nonconforming behavior.]
Third, arrests are not convictions, so it isn’t necessarily correct to use any of this data to claim “criminal punishments,” unless you are defining an arrest as a “criminal” punishment in and of itself. They certainly can be—and were—used punitively as a form of harassment, but it isn’t usually how the term is meant. Finally, the raw data on arrests do not account for repeat offenders. Many men who were arrested for gay sex acts became habitual offenders. Some were arrested regularly. Consider, for example, “Big Bill” Tilden, the middle-aged professional tennis player who was arrested and convicted on three separate occasions during this period of, to be indelicate, giving hand jobs to underage teen boys. (Modern writers, grossly, characterize Tilden as the “confused” “victim” of “zealous” police and blame the boys for orchestrating their own abuse.) In the raw data, Tilden would count as three arrests and thus three people despite being one pedophile.
Of course, these statistics also fail to capture the use of parking tickets, noise violations, health code violations, and myriad other laws to harass and penalize queer people and the businesses that catered to them.
Unable to find any statistical information that would let me calculate a total number of “punishments” meted out to queer people, particularly involving hand-holding, kissing, and dancing, I contacted Eskridge to see if he could direct me to his source.
There was no source.
This weekend, he told me that the number was his “extrapolation” from the types of data I cited above, but did not represent a formal statistical analysis. There was no numerical data he could provide to support his estimate.
It’s not a wholly unreasonable estimate, of course. It would translate to 67,000 “punishments” per year, which is less than 1,400 per state at a time when a few major cities were arresting people by the thousand. But without solid data to discriminate between real crimes and persecution, or to prove that the numbers in a few urban centers translated nationwide, the 1 million “punishments” number isn’t a fact but a feeling. It feels true, but we don’t have the statistical support to assert that it is. I may not be a Pulitzer Prize nominee or a Yale professor, but I’m not going to put a number in my book that I can’t back up with primary sources.
I am an author and researcher focusing on pop culture, science, and history. Bylines: New Republic, Esquire, Slate, etc. There's more about me in the About Jason tab.
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