Why Gay German Men Are Seeking Reparations for a Homophobic Nazi Law

Remembering Paragraph 175, the outrageous law which persecuted German gay men long after the fall of Nazi rule.

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Aug 19 2016, 7:54pm

Ernst Röhm—the gay German paramilitary commander executed in the Night of Long Knives—alongside Nazi leaders Heinrich Himmler and Kurt Daluege in 1933. Photo via Wikimedia, courtesy Bundesarchiv (German Federal Archives)

It is no secret that gay men faced violent oppression in Nazi Germany, but few people realize that the German persecution of gay men continued far after the Nazis' defeat in 1945, or that more gay men were convicted under Paragraph (§) 175, Germany's former anti-sodomy statute, in the first two and a half decades of the Cold War than ever were under Nazi rule.

Though Germany repealed the law in 1994, it has never atoned for this "monstrous disgrace," as Germany's Green Party representatives Katja Keul and Volker Beck called §175 two weeks ago in a demand for reparations on behalf of the over fifty thousand men convicted under the provision. And it wasn't until this May—more than 20 years since the law was repealed—that Justice Minister Heiko Maas introduced the idea of expunging those convictions, which ruined the lives of many gay German men, and stifled the development of what could have been a thriving national queer culture.

Understanding West Germany's extraordinary persecution of gay men first requires revisiting exactly how homosexuals were treated under Nazi rule. When the party came to power in 1933, gay men were among the first victims targeted—Nazi brown-shirts closed gay bars, stormed Berlin's famed Institute for Sexology, and burned gay texts, effectively stamping out Weimar Germany's renowned gay community. Gay elements within the Party, including Ernst Röhm, the commander of its Sturmabteilung (SA) paramilitary force, were purged in the 1934 Night of Long Knives, opening the way for more homophobic policies championed by, among others, Schutzstaffel (SS) chief Heinrich Himmler.

On June 28, 1935, Hitler's government introduced a new, bleaker version of §175, which had previously prohibited only penetrative intercourse—something difficult to prove in court. Under the new Nazi statute, any act construed to be homosexual was criminalized—a wrong glance could land a man in prison. This looser definition caused convictions to skyrocket from a few hundred per year to over eight thousand. A horror-house of punishments awaited those found guilty, from heavy prison sentences to concentration camps and castration.

Between 1935 and 1943, around 46,000 men were convicted under the provision. Of those, between 5,000 and 15,000 were sent to concentration camps, where their clothing bore pink triangles, now a ubiquitous symbol of gay liberation. Fewer than half survived.

When the Allied Powers occupied Germany in 1945, they repealed particularly egregious Nazi laws, such as the infamous Nuremberg Laws that banned intercourse and marriage between Jews and those defined as Aryans. But the occupiers remained silent on the question of which version of §175 would stand—the harsher law passed in 1935, or the milder provision it had replaced. While East German courts quickly decided the 1935 version was an illegitimate Nazi law, West Germany continued to enforce it.

In 1950, a new wave of persecutions began in West Germany. In a mass action, the state's attorney in Frankfurt rounded up hundreds of men on the testimony of young male prostitutes, and charged at least 140 under the 1935 version of §175.

Most faced jail sentences; at least seven committed suicide. One nineteen-year-old man jumped from Frankfurt's Goethe Tower, while another poisoned himself in a movie theater. The president of the American Civil Liberties Union, Roger Baldwin, visiting Frankfurt at the time, protested it was "incomprehensible that such treatment of innocent, adult persons was still possible in the 20th century," as reported in Der Spiegel.

At least seventeen hundred men were sentenced in 1950. Convictions peaked in 1959, when West German courts found almost four thousand men guilty under §175. Between 1950 and 1969, when §175 was finally reformed, West Germany would convict more men of sodomy than the Nazis had.

Throughout this period, an increasing number of legal and medical scholars insisted that §175 was inconsistent with democratic rule, but it took until 1956 for Germany's Federal Constitutional Court to weigh in on the constitutionality of §175, when it accepted appeals from two men convicted in Hamburg. The men's argument—that the law was a Nazi fossil that violated Germany's constitutional guarantees of "free development of personality" and equality between the sexes (§175 famously did not criminalize female homosexuality)—failed spectacularly.

The court declared that "congenital homosexuality is so rare, that it can be ignored for practical purposes"—an outrageous assertion from a democratic court that came a half-century before Iranian President Ahmadinejad's infamous claim that "we don't have homosexuals." The case settled the question of §175's legitimacy, ensuring that WestGermany would continue to pursue the most draconian persecution of gay men of any postwar democratic state.

As the 1960s progressed, sexual mores loosened across Europe, and conservative West Germany was no exception. In 1966, the ruling Christian Democratic Union entered a so-called grand coalition with the Social Democratic Party, bringing socialists into the government for the first time since 1930. In particular, the left-leaning justice minister, Gustav Heinemann, began to push for reform of the criminal code. In 1969, the government finally decriminalized homosexuality between consenting adults.

The memory of over thirty years of violent oppression has helped gay Germans—in Berlin, Hamburg, and Cologne in particular—develop one of the most vital gay scenes in the world today.

Homophobia remained ingrained in the German criminal code nonetheless. As part of the reform, the government had created a bizarre loophole, closed five years later, which criminalized any sexual acts between a man over eighteen with another under twenty-one; in other words, if two 19-year-old men slept together, they could still be prosecuted under §175. When that loophole was closed in 1973, the age of consent for gay sex still remained higher than that for heterosexual acts. Until the law was fully repealed in 1994, approximately 180 men would be convicted under §175 every year.

The damage inflicted upon Germany's gay community, though difficult to quantify, was great. It undoubtedly stunted Germany's gay rights movement, which only got off the ground in the early 1970s, after repressive censorship and aggressive policing shuttered earlier postwar attempts at organization and visibility.

Postwar Germany never developed the same vibrant, queer literary culture that came to characterize postwar Anglo-American letters. For every Tony Kushner or Alan Hollinghurst in the Atlantic world, there is a deafening silence in Germany. And, of course, Germany remains one of the few major Western countries where gay men and lesbians do not enjoy the right of marriage.

At the same time, the memory of over 30 years of violent oppression has helped gay Germans—in Berlin, Hamburg, and Cologne in particular—develop one of the most vital gay scenes in the world today. The sheer exuberance of the gay rights movements that burst forth after the 1969 reform helped create the uniquely permissive and experimental gay culture that persists today—which The New Yorker in 2014 called Berlin's "most essential and distinguishing element."

The memory of those early postwar decades still weighs heavily on Germany and its queer communities. It is a persistent reminder that even modern democracies can exercise the most brutal repressions, and that free elections are no guarantee of minority rights.

Samuel Clowes Huneke is a doctoral candidate in Stanford University's department of history whose dissertation focuses on homosexuality in postwar Germany. Follow him on Twitter.

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