Box Turtle Bulletin

Today In History, 1871: Germany Enacts Paragraph 175

Gay men wearing the pink triangle as convicts under §175 during the Nazi era.

Germany’s history has been, much more often than not, a history of several separate countries and kingdoms. It had only existed as a unified country for 75 years before it was divided again in the aftermath of World War II. It remained divided until the 1990 reunification, which means that Germany has experienced only a little bit more than a century’s worth of unity. The history of Paragraph 175, the part of the German legal code which criminalized homosexual acts between men, in many ways mirrors Germany’s history of unification and division.

In the early 1800s, what we now know as Germany was actually a fractured realm of some 300 smaller political entities which were, more or less, content to fight or cooperate with each other, as interests and politics dictated. But Napoleon’s invasion of Europe brought about a rising feeling of “Germanness” among the German-speaking people of central Europe. After France’s withdrawal, much of the rest of Germany’s history was marked by increasing competition between the two largest powers, Austria and Prussia, a contest which was finally decided in 1866 when Prussia emerged victorious in the Austro-Prussian war. With Austria sidelined, Prussia formed the North German Confederation with Hanover, Hesse-Kassel, Nassau, and the city of Frankfurt. Baden, Württemberg, and Bavaria formed alliances with Prussia which brought them into its sphere of influence.

The Proclamation of the German Empire at Versailles. Painting by Anton von Werner, 1885.

Now it was France’s turn, as the newest threat to the German states, to play a critical role in Germany’s unification. As France sought to increase its influence in the region, the German states which were still independent became increasingly reliant on Prussia for protection. When tensions finally exploded in the Franco-Prussian War of 1870-1871, France experience something of a nineteenth-century version of the Blitzkrieg. Prussia, whose armies were much more mobile, quickly overwhelmed the disorganized French. Prussia quickly captured an entire French arming, along with Paris and Emperor Napoleon III. On January 18, 1871, the German princes gathered in the Hall of Mirrors at the Palace of Versailles to proclaim King Wilhelm I of Prussia the first German Kaiser.

This new Germany, comprised of what had been four kingdoms, six grand duchies, five duchies, seven principalities, three free cities and the imperial territory of Alsace-Lorraine, each with their own systems of law. Prussia had already begun a process of systematically codifying its laws, and its penal code served as the basis for the penal code of the North German Confederation, which in turn became the basis of the united Germany’s penal code. On May 15, 1871, Paragraph 175 was adopted straight from the Prussia’s Paragraph 143, which read simply:

§ 175 Unnatural fornication

Unnatural fornication, whether between persons of the male sex or of humans with beasts, is to be punished by imprisonment; a sentence of loss of civil rights may also be passed.

§175: The Disgrace of the Century!, 1922, by Kurt Hiller (see Aug 17).

A notable feature of §175 was that lesbians weren’t criminalized under the law. In fact, sexual relations between women were never expressly prohibited. As for the men convicted under §175, they were subject to prison sentences ranging from one to four years. Prussia’s legal code proved a disappointment in some of the more liberal German states, where privacy rights were held in higher regard, and efforts to repeal §175 began almost immediately (May 6, Aug 17, Aug 28.) By the turn of the century, about 350 prosecutions per year for homosexuality were taking place, with a similar number of prosecutions for bestiality. It was about this time that Magnus Hirschfeld (see May 14) co-founded the Wissenschaftlich-humanitäre Komitee (Scientific-Humanitarian Committee) whose first priority was §175’s repeal.

It might seem that the Weimar Republic years, between 1919 and 1930, would have been the best time to bring §175 to its rightful end. After all, the Weimar years are often regarded as the high water mark for homosexual rights advocacy and culture in the early twentieth century. That was especially true in Berlin during the so-called “golden era” of 1923 to 1929. Berlin’s legendary cabarets, theaters and salons saw an explosion of creativity, and dozens of clubs catered almost exclusively to the newly visible gay and transgender communities. But such liberal attitudes weren’t so prevalent outside of Berlin. Criminal charges for homosexuality rose from a little over 200 for 1920 to a peak of more than twelve hundred in 1925 and eleven hundred in 1926.

Arrests and convictions fell by 1929 to about eight hundred, which is when Hirschfeld’s committee almost succeded in its goal. The Reichstag’s Commission for Law Reform voted 15 to 13 in favor of a resolution to repeal it (see Oct 16). But two weeks later, stock markets crashed around the world and Germany was soon overtaken with political instability. The Nazis came to power in 1933 and expanded §175 to punish a broader range of “lewd and lascivious” behavior between men. This broader measure, which no longer required evidence of “fornication,” resulted in over 8,000 convictions annually by 1937. Many of those were sent to concentration camps, marked with a pink triangle.

Down with §175″: A 1973 gay rights poster.

Germany was defeated and Nazism vanquished, but §175 remained in place. While allied armies liberated Jews, Poles and other prisoners from the ghastly concentration camps, gay men were sent to German prisons to serve out the remainder of their sentences. In West Germany, arrests and convictions under the Nazi-era §175 continued apace, averaging between 2,000 and 3,000 each year. In 1969, West Germany modified the code to exempt anyone over the age of 21, although, oddly, those between the ages of eighteen and twenty-one were still subject to up to five years imprisonment. In 1973, the age of consent was lowered to eighteen, leaving §175 only punishing sex with minors of the same gender, although at a different standard than similar convictions for heterosexual acts with minors. Meanwhile East Germany informally reverted its practice back to the original pre-1935 version of §175 in 1950, although the Nazi revision remained officially on the books until 1968 when homosexuality was officially decriminalized between adults.

Germany’s 1871 unification brought §175 into existence. Germany’s 1990 reunification set the stage for finally killing it off for good. The reunited Bundestag finally repealed §175 altogether in 1994 as part of the process of harmonizing the penal codes of East and West Germany. Last Wednesday, the German government announced that it would introducing legislation to overturn thousands of convictions and allow for financial compensation to the men who suffered. Justice minister, Heiko Maas said, “We will never be able to eliminate completely these outrages by the state, but we want to rehabilitate the victims. The homosexual men who were convicted should no longer have to live with the taint of conviction.”