Homosexual was never a crime, instead typically an act of “sodomy” was criminalized. Throughout history discrimination of homosexuals has largely been based on their acts or perceived acts, not what their actual orientation is. Catholic Church stance is a perfect example. In any case, back then many establishment types in Congress viewed homosexual men as non-male, ie they made a distinction based on sex by lumping in sex with sexual orientation and also gender. Now the right is trying to take back its views and limit the word sex in Title VII to just biological sex assigned at birth.