North Carolina Governor Pat McGrory is challenging a Justice Department order to scrap its anti-transgender law, which took effect in March, or face a legal action and the loss of federal funds. But as Marc Stein points out in this essay, it’s important to remember that this was not an isolated incident of bias. The state has a long history of antigay and anti-trans animus, contributing to the need for federal intervention.
North Carolina’s new anti-anti-discrimination law—preempting and superseding local anti-discrimination statutes on grounds other than race, religion, color, national origin, age, or biological sex went into effect on April Fool’s Day this year. The new law covers discrimination in employment (for employers with fifteen or more regular workers) and public accommodations. Curiously the law includes “handicap” as a prohibited basis of discrimination in employment but not public accommodations and it overrides local laws that restrict discrimination based on marital or veteran status. The new statute also requires public schools and agencies in the state to designate every multiple occupancy bathroom or changing room as appropriate for use by either males or females, with an individual’s “biological sex” to be determined by the information listed on their birth certificate.
In keeping with the spirit of April Fool’s Day, it might be appropriate to point out that it is now legal everywhere in North Carolina to discriminate against straight people on the basis of their sexual orientation. After all, the local ordinances “trumped” by the new state law did not just prohibit discrimination against sexual minorities; they prohibited discrimination on the basis of sexual orientation. Along similar lines, while the state now bans discrimination against males and females based on their biological sex, it is legal under state law to discriminate against men and women based on their gender identity. As far as state law is concerned, it’s also legal to discriminate against married people on the basis of their marital status.
More seriously, North Carolina has a long and harrowing history of opposition to sexual and gender freedom. In the eighteenth century, North Carolina followed the lead of England and England’s other North American colonies in criminalizing buggery, which was generally understood to refer to anal intercourse; the maximum punishment was death. After the Revolutionary War, most northern states abolished the death penalty for sodomy and buggery, but in 1837 North Carolina reaffirmed its commitment to capital punishment for “the abominable and detestable crime against nature,” which was also understood to refer to anal sex. Three decades later, North Carolina was among the last few states to eliminate capital punishment for this heinous crime. This occurred in 1868, during Reconstruction, when the U.S. federal government forced rebellious southern states to radically restructure their governments and laws. Reforms enacted by North Carolina’s newly multiracial state legislature—controlled by the Republican Party–eliminated the death penalty for a variety of crimes, including the crime against nature. Notwithstanding the significance of this reform, the state’s criminalization of sex remained harshly punitive. The new penalty for crimes against nature was 20-60 years in prison; one year later the minimum was reduced to 5 years, but the maximum remained at 60, one of the most severe punishments for crimes against nature in the nation.
There wasn’t much sexual progress in North Carolina during the Progressive Era. In the 1910s, several cities in the state banned cross-dressing, lewd and indecent dress, indecent behavior, lewd solicitation, obscene publications, and immoral plays; the state enacted a sterilization law for institutionalized individuals whose “moral condition” would improve as a result of the operation. In 1914 and 1917, the North Carolina Supreme Court broadened the scope of the state’s existing crimes against nature law in a set of cases that addressed oral sex. So much for judicial restraint. This was part of a national transformation in the legal regulation of sex in the late nineteenth and early twentieth centuries, when laws against sodomy, buggery, and crimes against nature were revised, reinterpreted, and supplemented to cover a wider range of sexual offenses. Decades later, in 1961, the North Carolina Supreme Court re-affirmed this reinterpretation of the state’s crimes against nature law in the case of a man with cerebral palsy who allegedly had engaged in cross-sex oral sex.
Many of these developments escaped national notice, but in the 1960s North Carolina’s strident opposition to gender and sexual freedom suddenly came to broader public attention. By this time the state’s maximum penalty for a crime against nature, which was still 60 years, was among the most severe in the nation. In 1962, Maxine Doyle Perkins, who was referred to in the court and media as a “homosexual,” a “transvestite,” a “female impersonator,” and a man (“Max”) who dressed like a woman, was arrested and convicted for engaging in oral sex with Robert McCorkle in Charlotte. (Perkins apparently had an extensive record of arrests for assault, disorderly conduct, drunkenness, solicitation, and prostitution.) Having pleaded not guilty to the charges in 1962, Perkins was sentenced to 20-30 years in prison, while McCorkle, who did not contest the charges, was sentenced to 5-7 years and released after 17 months. Two years later, federal district judge James Craven (who later served on the Fourth Circuit Court of Appeals) ruled that Perkins had not received a fair trial and ordered the state to release “him” or grant a new trial. Citing the U.S. Supreme Court’s decision in Powell v. Alabama (the “Scottsboro Boys” case), Craven argued that the lawyer appointed by the court for Perkins had not been given sufficient time to interview witnesses or prepare for trial. He’d been assigned to Perkins at 4:00 p.m. and the trial had begun at 9:00 a.m. the next day, leaving him insufficient time to interview witnesses or prepare a strong defense.
Judge Craven’s ruling prodded North Carolina legislators by asking, “Is it not time to redraft a criminal statute first enacted in 1533?” He specifically referenced a recent proposal by the American Law Institute to “punish only those ‘deviate sexual relations’ which involve force, imposition, or corruption of the young.” The ruling in favor of Perkins, however, was not exactly a shining example of gender or sexual enlightenment. After noting that “putting Perkins into the North Carolina prison system is a little like throwing Brer Rabbit into the briarpatch” since the “prison environment…provides an outlet for the gratification of sexually-deviate desires,” Craven asked, “cannot the criminal law draftsman be helped by those better informed on the subject—medical doctors—in attempting to classify offenders?”
Perkins’s case and Craven’s ruling received significant coverage in local newspapers such as the Charlotte Observer and the Carolina Israelite, national magazines such as TIME and the New Republic, and gay periodicals such as Drum, Eastern Mattachine Magazine, and the Mattachine Society of New York Newsletter. In subsequent decades the case and ruling have been researched by New York historian Martin Duberman, Greensboro lawyer John Boddie, and Charlotte journalist Bruce Henderson. In 1965, influenced by the unfavorable local and national attention, North Carolina reduced its penalty for crimes against nature to a minimum of 4 months and a maximum of 10 years. Over the next few decades more North Carolinians were arrested, charged, convicted, and imprisoned for consensual crimes against nature (same-sex and cross-sex). Although there were a significant number of court challenges, the state’s law remained valid until 2003, when the Supreme Court overturned sodomy laws in Lawrence v. Texas.
As for Perkins, she was acquitted in a new trial, though only after doing her best to dress, look, and act like a man in court. This must have been difficult to do for a person who had spent so many years fiercely defying society’s gender and sexual conventions. Perhaps she took solace (if she was not bothered by the pronouns) in an editorial published in Drum, the country’s most popular gay movement magazine in the 1960s, which declared, “Max Doyle…is not the kind of client lawyers prize as ‘good case’ material. Not only is he a queen, but he is a drag queen to boot. And not only is he a drag queen, but he has served time for being a hooker. When, three years ago, he was convicted for giving it away, the town heaved a sigh of relief and the trial judge awarded him 20-30 years in the hoose-gow. Whereupon his counsel appealed and Maxie is now, as it were, walking the streets of North Carolina again. Doyle’s case brings home the need for appeals of sodomy convictions as one of the most effective methods for bringing our legal chaos to an abrupt end.”
Fifty years later, North Carolina is once again making national news for its strident opposition to gender and sexual freedom. Once again the state is receiving extensive negative media attention for violating basic principles of equality and justice. And once again brave and courageous individuals, assisted by progressive legal and political advocates, are going to court to defend their rights and ours.
Read more at the History News Network.
Marc Stein is the Jamie and Phyllis Pasker Professor of History at San Francisco State University and the author of Sexual Injustice: Supreme Court Decisions from Griswold to Roe.