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Kertbeny 200

German unity – harmonization of law, the beginnings of gay activism

Emperor Napoleon I, painted by Jacques-Louis David, 1812

First page of the 1810 penal code, original edition, Paris

Legal context

Until the 19th century, same-sex love was referred to using the biblical words sodomy and sodomite across Europe. From the 16th century, so-called sodomy laws punished relationships deemed unnatural, primarily sexual relationships between men, with many countries enforcing the death penalty (the Holy Roman Empire criminalized homosexuality in 1532, punishable by death, this was upheld until 1794, when the death penalty was repealed in Prussia).

It was during the French revolution that sodomy laws were completely revoked for the first time: it was not included in the 1791 penal code and Napoleon’s 1810 Code Pénal did not criminalize homosexuality either.

Otto von Bismarck, Prussian prime minister (1862-1873), German chancellor (1871-1890)

German unity, harmonization of law

The unification of nearly 30 small and disparate German states (kingdoms, grand duchies, principalities, city-states, etc.), with the exclusion of Austria, brought about the Lesser German solution. This process was orchestrated by Prussia, led by chancellor Otto von Bismarck (1815-1898) between 1864 and 1871. 

Prussia acquired Schleswig and Holstein in 1864, which was followed by the establishment of the North German Confederation in 1866. The German states in the South remained independent, only joining the confederation after the 1870 Franco-Prussian War.

The German Empire was officially proclaimed on January 18, 1871, in the Hall of Mirrors of the Palace of Versailles.

Map of the German Empire (Putzger – Historischer Weltatlas, 1965)

Part of the process of German unity was also to determine which elements of the legal systems of the former German states would be incorporated into the unified German Empire.  In Prussia and some other German states sodomy was a punishable offence, however, in a few others – mainly those that had been occupied by Napoleon (Hanover, Württemberg, Bavaria) – sodomy laws had previously been repealed. Due to Prussian pressure, the penal code of the North German Confederation, formed in 1866-67, took over paragraph 143 of the Prussian penal code as paragraph 152, which punished relations between men. 

Portrait of Karl Heinrich Ulrichs, Jahrbuch für sexuelle Zwischenstufen, 1899

Ulrichs’ essay collection (Memnon. Die Belchlechtsnatur des mannliebenden Urnings), Switzerland, 1868

Appearance of first gay activists

It was during the debate around legal harmonization that gay activists first asserted themselves, speaking up against the persecution of same-sex love.

German lawyer Karl Heinrich Ulrichs (1825-95) started publishing in the 1860s, first under the pseudonym Numa Numantius, later under his real name. In his essay collection from 1864-65, Studies on the Riddle of Male-Male Love, Ulrichs presented his theory that men who loved men were representatives of a third gender, women born into men’s bodies. He referred to them as Urnings.

Ulrichs was the first person in the world to publicly proclaim their own sexuality at a lawyers’ congress in Munich on August 29, 1867, referring to his own involvement in the issue at hand (however, he was not able to finish his speech due to the audience’s shouts). 

During the 1860s Ulrichs and Kertbeny exchanged letters in which they debated their respective stance on same-sex love, both arguing against criminalization. In 1869, Kertbeny published two pamphlets on the subject.
In 1869 the Prussian justice minister asked a committee of doctors to provide a professional opinion about same-sex relationships, with a view to provide a basis for lawmakers. The doctors could not provide a scientific base, stating that it is not a medical matter. As such, German politicians decided to cite “sound public opinion” as the reason for upholding criminalization.

The text of the infamous paragraph 175: “Unnatural perversions committed between two men or man and animal must be punished by imprisonment; the loss of political rights is also possible”.

Kurt Hiller: Paragraph 175: The disgrace of the century! (1922), cover picture

The afterlife of paragraph 175

The penal code of the unified German Empire took effect on January 1, 1872. Paragraph 175 punished “immoral and unnatural acts” with a prison sentence of up to five years. The law only punished acts between men, not women. Originally its remit only pertained to anal sex but was later expanded by appeal courts to include “acts similar to intercourse”.

The paragraph survived several regimes. The idea of repealing it was considered many times, for instance in 1898 and 1909. This cause was fought for by many, including the Scientific-Humanitarian Committee (Wissenschaftlich-humanitäres Komitee), led by Marcus Hirschfeld and Adolf Brand’s Community of Free Spirits (Gemeinschaft der Eigenen). Reports from the time, however, state that the law wasn’t enforced stringently. 

In 1935 the Nazi Party strengthened paragraph 175 and until 1945 the number of prosecutions and convictions increased tenfold, with 665 convictions in 1931, 2016 in 1935, and 8562 in 1938. From 1938 those convicted of homosexuality were taken to concentration camps (close to 15 thousand people). 

Paragraph 175 was still in force after 1945. In the German Democratic Republic the law was changed to its pre-1935 status, and in 1968 it was reformed, only penalizing sex between a man under 18 and a man over 18. In West Germany, however, restrictive laws were held in place, and only repealed after the 1994 reunification.