b, ST TES CIVIL SERVICE COMMISSION mm twist? ZGMS REFERENCE February 25, 1955 The Mattachine Society of Washington P.O. Box 1032 Iashington, D. C. 20013 Gentlemen: Pursuant to your request of August 15, 1965, Commission representa- tives met with representatives of the Society on September 8, 1965, to enable the Society to present its views regarding the Government policy on the suitability for Federal employment, of persons who are shown to have engaged in homosexual acts. The Society was extended 30 days to submit a written memorandum in support of the positions set forth at these discussions to ensure that full consideration could be given to its contentions and supporting data by the Con ?ssion-ere. 0:1 December 13, 1965, the Society filed five docmzents? which, along with the substance of the September discussions, have been considered by the Commissioners. The core of the Society's position and its recommendations is that private, consensual, out-of-I-Iorking hours homosexual conduct on the part of adults, cease to be a bar to Federal enploymnt. In the alter- native it is asked that the Commission activate continuing discussions with representatives of the Society to take a "progressive, idealistic, hummus, forward-looking, courageous role" to elicit the holding of objective hearings leading to the adoption of the Society's recommen? dation. 553.13qu 10 ?13.1qu ulyosnuew all] J0 suogoa?og) up [(10.13 CI-I AGAIE-JST OF dated February 28, 1963, by the Society, OF CAPITOL ?331. CIVIL LIBERTIES UZIICN CH OF dated ingest 7, 196A, "a OF by the Council on Religion and the Horn sexual, Inc., San Francisco, California, June 1965, TEE U. S. CIVIL SERVICE June 26, 1965, by the Society, and EMPLODEIT OF HER-ICSEDCUAL November 15, 1965, by the Society. THE GOOD INVESTMENT 3N GOOD GOVERNMENT $33.13qu JO ?13.1ng 1d 3 TI ?Fz. Humour-3W1} ~m v?w?lgl The Commission's policy for determining suitability is stated as follows: "Persons about whom.there is evidence that they have engaged in or solicited others to engage in homosexual or sexually perverted acts with them, without evidence of rehabilitation, are not suitable for Federal employ- ment. In acting on such cases the Commission will con- sider arrest records, court records, or records of con? viction for some form of homosexual conduct or sexual perversion; or medical evidence, admissions, or other credible information that the in ividual has engaged in or solicited others to engage in such acts with him. Evidence showing that a person has homosexual tendencies, standing alone, is insufficient to support a rating of unsuitability on the ground of immoral conduct." we have Carefully?weighed the contentions and recomxendations of the Society, and perceive a fundamental misconception by the Society of our policy stemming from a basic cleavage in the parapective by which this subject is viewed. We do not subscribe to the view, which indeed is the rock upon which the Hattachine Society is foun ed, that "hono? sexual" is a proper metonym for an individual. Rather we consider the term "homosexual" to be preperly used as an adjective to describe the nature of overt sexual relations or conduct. Consistent with this usage pertinent considerations encompass the types of deviate sexual behavior engaged in, whether isolated, intermittent, or continuing acts, the age of the particular participants, the extent of premis- cuity, the aggressive or passive character of the individual's partic- ipation, the recency of the incidents, the presence of physical, mental, emotional, or nervous causes, the influence of drugs, alcohol or other contributing factors, the public or pri?ate character of the acts, the incidence of arrests, convictions, or of public offense, nuisance or breach of the peace related to the acts, the notoriety, if any, of the participants, the extent or effect of rehabilitative efforts, if any, and the admitted acceptance of, or preference for homosexual relations. Suitability determinations also comprehend the total impact of the applicant upon the job. Pertinent considerations here are the revulsion of other enployees by homosexual conduct an the consequent disruption of service efficiency, the apprehension caused other employees of horosexual advances, solicitations or assaults, the unavoidable subjection of the sexual deviate to erotic stimulation through on-the-job use of common toilet, shower, an living facilities, the offense to members of the public who are re- quired to deal :ith a known or admitted sexual deviate to transact Government business, the hazard that the prestige and authority of a Government position will be used to foster homosexual activity, par- ticularly among the youth, and the use of Government funds and author- ity in furtherance of conduct offensive both to the mores and the law of our society. In the light of these pervading requirements it is upon overt conduct that the Commission's policy operates, not upon spurious classification of individuals. The Society apparently represents an effort by certain individuals to classify themselves as "homosexuals" and thence on the basis of asserted discrimination to seek, uith the help of others, either complete social acceptance of aberrant sexual conduct or advance absolve? ment of any consequences for homosexual acts Which come to the attention of the public authority. Homosexual conduct, including that between con- senting adults in private, is a cr'xe in every jurisdiction, -xcept under specified conditions, in Illinois. Such conduct is also considered in- moral under the prevailing mores of our society. we are not unaware of the numerous studies, reports and recornendations pertaining to the criminal aspects of aberrant sexual conduct and the unequal and anomalous impact of the criminal laws an their enforcement upon individuals, who for whatever cause, engage in homosexual conduct.* It is significant to note, however, that the renowned wolfenden Report, which recommended that consensual homosexual conduct, in private between persons over 21 years of age, be excluded as an offense under the criminal law of England, nevertheless recognized that such conduct may be a valid ground for exclusion from certain forms of employment. id p. 22. Whether the criminal laws represent an appropriate societal to such con- duct is a matter properly addressed to the state legislatures and the Congress. It is beyond the province of this Conr'ssion. we reject categorically the assertion that the Commission price into the private sex life of those seeking Federal enployment, or that it discrims inates in ferreting out homosexual conduct. The standard against criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct is ur?? formly applied and suitability investigations underlying its observance are objectively pursued. We know of no means, consistent with.Anerican notions of privacy and fairness, and limitations on governmental authority, which could ascertain the nature of individual private sexual behavior between consenting adults. is long as it remains truly private, that is, it remains undisclosed to all but the participants, it is not the subject of an inquiry. Where, however, due to arrest records, or public disclosure or notoriety, an applicant's sexual behavior, be it heterosexral or home- sexual, becomes a matter of public knowledge, an inquiry may be warranted. Criminal or licentious heterosexual conduct may equally be disqualifying, and like homosexual conduct, may become the subject of legitimate cancer. in a suitability investigation. In all instances the individual is apprised of the matter being investigated and afforded an opportunity to rebut, explain, supplement or verify the information. ssamuog 10 qug'] sq; JO suogaauog all) word paanpmdau se.g. 55X Ceonard, Cagnon, Pomeroy, Institute of Sex Research (1965); SEXUAL Bar VIGR AND THE LAW, Samuel G. Kling, Random House (1965); HOMOSEXUALITY AND CITIZENSHIP IN FLCRIDA, Legislative Investigation Commit- tee Report (l96b); THE AHERICAN LAW INSTITUTE, EODEL PENAL CODE, Propose Official Draft (1962); PRIVATE CCNSEESUAL BEHAVICR: THE CRIEE AND ITS EDIFCRCEE-ENT, Yale Law Journal, 623 (Kat-ch 1961),- 0F TIE cox- MITTEE CN HCHOSEXUAL OFFENSES AND PROSTITUTICN BY THE SECRETARY OF SEATE FOR THE HWE Duplex-mu mm THE SECRETARY OF 3001mm (Helm-mm REPORT) 19 A PSYCIIEATRIC 7 CN OF LENS ICE .TT lo a. 1a i 273 (Spring Egoga?glsmu DEVIETIEN Judiciary Committee, Subcommittee on Sex Research (1952). ,1 559.13qu ?10 5.13.1ng ?uogspuga dessnuew all; J0 suoycanog sq; [no.1 To be sure if an individual applicant were to publicly proclaim that he engages in homosexual conduct, that he prefers such relationships, that he is not sick, or emotionally disturbed, and that he simply has different sexual preferences, as some members of the Mattachine Society openly avcw, the Commission would be required to find such an individual unsuitable for Federal employment. The same would be true of an avowed adulterer, or one who engages in incest, illegal fornication, prostitus tion, or other sexual acts which are criminal and offensive to our mores and our general sense of propriety. The self-revelation by announcement Hence it is apparent that the Commission's policy must be judged by its impact in the individual case in the light of all the circumstances, including the individual's overt conduct. Before any determination is' reached the matter is carefully reviewed by a panel of three high level, mature, experienced employees, and all factors thoroughly considered. The fairness of this result, in the light of the investigative evidence including the applicant's statements, is subject to administrative re- view and may also be judicially reviewed. Hence there are safeguards against error and injustice. we can neither, consistent with our obligations under the law, absolve individuals of the consequences of their conduct, nor do we prepose by attribution of sexual preferences based on such conduct, to create an insidious classification of individuals. we see no third sex, no oppressed minority or secret society, but only individuals; and we judge their suitability for Federal employment in the light of their overt conduct. we must attribute to overt acts whether homosexual or heterosexual, the character ascribed by the laws and mores of our society. Our authority and our duty permit no other course. By direction of the Commission: Sincerely yours, We Macy, 0 Chairman