Paragraph 175 An Overview

Dear Moviegoers,

At the turn of the century, TEDDY recognized the importance of remembrance and praised Rob Epstein and Jeffrey Friedman’s “Paragraph 175”, an outstanding documentary about the dreadful German law criminalizing homosexuality. Almost two decades later, historians have shown how homosexuals suffered under National Socialism and many have fought for the memory of the victims. Lesser known is the fate of countless homosexuals after the war, the appalling story of the continuities of such an injustice into the success story of the Federal Republic.

This year’s focus is on the struggle of the members of our community who made it through these dark times, but also on the injustice of such a crime, still lingering like an open wound in German history. TEDDY is seizing the momentum of the present discussions on rehabilitation and reparations for the survivors and victims of §175. Our focus is on the unjust and unrighteous treatment of homosexuality in Germany after the war until the complete repeal of the law in the 1990s.

Scene #1: The origins

The German prosecution of masculine homosexuality originates, like many other things, in Prussia. Actually, the 19th century had seen some degree of laxity toward same-sex sexuality. Bavaria, namely, was back then the first territory to exempt almost every form of eroticism between two men from prosecution. On the other hand, several other German-speaking states were still impeaching sexuality between consenting men, chiefly Prussia, Saxony, Bremen and Hamburg. It is also interesting to note that Austria was the only German-speaking state to punish sexuality between women. These distinctions would however come to an end as Prussia took steps forward to standardize and “homogenize” the various penal codes of the newly formed North German Confederation. Notably, Bismarck ordered his ministry of justice to form a commission to study the laws against sodomy. The Prussian penal code was then used as a template for the revision of a unified set of laws.

In May 1870, appealing to the “people’s sense of rights and wrong” (Rechtsbewusstsein des Volkes) §175 cemented the future of homosexuality throughout the confederation and condoned persecution of same-sex sexuality between men. Ironically, the Federal Constitutional Court of the newly founded Federal Republic of Germany argued in the same direction in 1957, and cited the irremediable difference between men and women, a sense of morality and a presumed social sense of right and wrong to consider the discrimination of homosexual men as constitutional.

The application of §175 during the subsequent Weimar era has been a contentious subject among historians. Portrayed by many as a new epoch of sexual permissiveness and thought-provoking new research, the Republic of Weimar was still a time of uncertainty for many homosexual men or people suspected of homosexuality. Blackmailed, surveyed, and followed, these men were able to create a certain small community in the broader sense of the term, while evolving in the loopholes of a system that had not changed its stance on homosexuality since the fall of the Emperor.

Scene # 2: National Socialism

Although § 175 definitely precedes National Socialism, the NSDAP’s victory remains unequivocally a milestone in the history of the persecution of various forms of homosexualities in Germany. For the Nazis, same-sex relationships were on the same level of venereal diseases. Consequently, it also meant that the Volksgemeinschaft needed to be protected from the dangers of such an infection. From brothels established by the Schutzstaffel (SS) to protect German soldiers from the “delinquency” of same-sex desires, to the castration of “recidivists”, the Nazis unleashed an impressive witch-hunt against homosexuals or those considered homosexuals.

Determined to eradicate the “affliction”, National Socialist officials provided modification to the text of the law in June 1935. Not only did they change the phrasing of the law, but they also added two subparagraphs to the existing one: §§175a and 175b.

The minor alteration of the first paragraph is important to understand how the persecution of homosexuality reached its paroxysm after 1935. The new reinforced law considered an attack on the general sense of shame or the intention of debauchery as an act of felony. This understanding of the law widely broadened the possibilities of persecution, as the second paragraph, §175a, created a new category of heavy cases of profanities, usually: male prostitution, relationship with a subordinate or sexual relationship with a man under the age of 21. Men accused under §175a usually ended in concentration camps where they were branded as “Pink Triangles” and did not score high in the camp hierarchies. Historians know that the fate of these men in concentrations camps like Sachsenhausen was horrendous. Branded as “perverts” they were subjects to the violence of the guards, but also of other prisoners.

If much has been written on the fate of these men before and during the war, historians have shown how their persecution did not end with the chance and opportunity of Liberation. Indeed, the 1935 version of §175 and subsequent paragraphs were not abrogated by the Allies or by the first governments of the Federal Republic. The historian of religion and anti-§175 activist Hans Joachim Schoeps once provocatively said: “for homosexuals, the Third Reich actually only ended in 1969”.

Scene #3: Years of anxiety

Fast-forward half a decade after the war. The rushed aspects of denazification had much implication for those who were convicted under § 175 and § 175a, as they could be facing once again their torturers after Liberation or be accused under evidence combined following national socialist ideology. Additionally, the persecuted also seemed well aware of the continuities with the difficult years behind them.

Even if many Nazi laws and decrees were abolished during the first months of the Allies’ Occupation, many others remained. 175 and §175a were only reformed in 1969, as they were not perceived as being National Socialist in their core aspect. In fact, because male homosexuality was considered a crime before the NSDAP took power, the survivors who had been sent to the camps because of their sexuality or perceived sexuality were denied the status of victim of fascism. Some of them were even condemned again under §175, because they didn’t serve their complete sentence.

Even leftist organizations and organizations of survivors, like the “Union of the Persecuted of the Nazi Regime” (VVN), refused association with homosexuality. The reaction of officials wasn’t better if not worse. For example, as the London Sunday Express interviewed the then mayor of Dachau, he declared that: “you must remember that many criminals and homosexuals were in Dachau. Do you want a memorial for such people?”[1]

When Adenauer and the CDU/CSU took power, backed by the Allied Forces, the situation changed, but the horror continued. The creation of the 1953 Family Ministry opened the door to a unified governmental sexual and mores politics based on moral and religious grounds. Commentators from the time period didn’t seem to have problems to use the works of known National Socialists. This tainted corpus influenced most of the studies in the Adenauer era and eventually climaxed in 1957 when the Federal Constitutional Court of the FRG declared the discrimination of male homosexuals to be legal. This decision was rendered on the basis that such “perversion” went against the “normal” distinction between men and women and therefore was a menace to the newly formed country.

This decision gave new legal reasons to the different police organs to survey and record the movements of homosexuals across the Republic. The police effectively used the pre-existent lists from the Weimar and Nazi eras, but also received a new pretext to monitor known cruising spots where homosexuals would meet: i.e. clubs, ballrooms and the Tiergarten in Berlin

All in all, homosexuals were handled as enemies of the state way into the first decade of the Federal Republic. The nature of the sentences in post-war Germany isn’t comparable to the methods used by the Nazis during their time in power, but the nature of the offense remained the same. A brief overview of the numbers of sentenced alleged homosexuals confirms the continuity between both regimes: 5.320 men in 1936 and 3.530 in 1959.

In 1969, the paragraph was finally reformed when the Union was forced to make some concession to the SPD, but about 100 000 men had been indicted and about 50 000 had been sentenced to prison. However, the pernicious association with perversion and paedophilia remained. The 1970s, ultimately saw another reform of the paragraph, rephrasing it to only considerer sex with minors to be an issue and lowering the age of consensual same-sex to 18. When the Green Party tried to get rid of the paragraph all together at the end of the 1980s (in order to lower the age of consent to 14 for both homosexual and heterosexual sex) it met swift opposition from the Union, the SPD and the FDP.

Scene #4: Dealing with the past

Like many other aspects of German history, the unification of the FRG with the GDR brought the issue back to the table. Indeed, the newly formed Bundestag had to decide the future of §175 like they had to decide the future of countless other laws. The GDR had actually removed all references to homosexuality from criminal Law in 1989 and had reformed §175 in 1968. Finally, in 1994, the German government decided to get rid of the paragraph altogether, citing the profound societal changes and the existence of laws criminalizing non-consensual sex.

In 2002, despite opposition by the CDU/CSU and FDP, the Bundestag amended the Act of Abolition of National Socialism and vacated Nazi convictions of homosexual men. Nonetheless, this amendment left the convictions under §175 untouched until 1969 untouched, even though the law remained infamously connected to the NSDAP reform of 1935. This attracted numerous criticisms from gay and lesbian pressure or activist groups.

15 years have passed and justice still hasn’t been made! Germany’s present Federal Minister of Justice, Heiko Maas (SPD) announced in May 2016 2016a project to pardon all men convicted under §175. The project was confirmed in October 2016 2016. A mere €30 million will be set aside by the government for compensations. The projected law will also offer pardon for individuals and consider the collective harms done to countless of homosexual men. For example, the minister advanced the idea of a fund that could be created and administered by a federal foundation. It would have the important mission of educating the future generations about the damages done and the ills of homophobia.

However, 2017 is an election year and a fast settlement or resolution on any form of compensation remains unsure. Many voices from the CDU/CSU persist in their opposition to the project. For example, some MPs expressed their concern that such law would pardon men convicted for child-abuse! Some judges have also expressed their hostility to the project, appealing to the so-called impossibility to amend for something that was committed under the legal rule of Law. They say it would set a dangerous precedent.

Members of the LGBTQI communities have also articulated critiques to Maas’ endeavour. In fact, many consider the law to come too late and by such, a deliberated focus on individual compensation let a bitter taste of injustice in the mouths of many. The focus on trialled cases also ignored the many consequences of §175: the lost of jobs, the destruction of family, the anxiety, the impossibilities of sexual freedom and the general trauma suffered by many innocents.

Scene #5: Responsibility. Taking a stand!

The German situation is one of many arcs connected to an international story of persecutions. The Lavender scare in the United States, the decriminalization debates in the UK and the systemic discrimination of homosexuals in Canada in the long post-war era are many other examples in the Western Hemisphere. This on-going debate on reparation is just another facet of the problem. In the same vein, the rise of new discriminatory measures against trans individuals remind us that for many, the time is not for reparation, but still an constant fight to survive. The same can be said about the discrimination and criminalization of homosexualities on all continents where people are forced into hiding.

TEDDY opens a window on the positive and negative realities all around the world. We see a connection between the fight for reparation and justice in the Federal Republic and the LGBTQI fight for survival in Uganda. We see another one between the discrimination of trans people and gender non-conforming individuals in the Americas and in Western Europe. The question is neither to identify the main enemy nor to find the perfect victim.

This year’s poster reflects a new decade for TEDDY, a decade where we will still be loud and clear, hand in hand, together. As we have done in the past, we are proud to present you a variety of films, celebrating the joys and expressing the disquiet of the LGBTQI communities. The act of showing these films is still political. This year TEDDY remembers that much needs to be done, in Germany and elsewhere. As Queer Nation used to chant on the streets in the United States:

“We’re here! We’re Queer! Get used to it!”

[1]Micheler, “”…Und Verbleibt Weiter in Sicherungsverwahrung” Kontinuitäten Der Verfolgung Männer Begehrender Männer in Hamburg 1945-1949″.”p.61