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LGBTQ rights in Germany

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LGBTQ rights in Germany
Location of Germany (dark green)

– in Europe (light green & dark grey)
– in the European Union (light green)  –  [Legend]

StatusLegal since
1968 (East Germany),
1969 (West Germany)
Age of consent equalized and full legalization in
1994
Gender identityTranssexual persons allowed to change legal sex without required sterilization.[1]
MilitaryGays and lesbians allowed to serve
Discrimination protectionsSexual orientation and gender identity protection nationwide; some protections vary by region (see below)
Family rights
Recognition of relationshipsRegistered partnerships since 2001
AdoptionPartner may adopt partner's adopted or biological child.

Lesbian, gay, bisexual and transgender (LGBT) rights in Germany have evolved significantly over the course of the last decades. During the 1920s, LGBT people in Berlin were generally tolerated by society and many bars and clubs specifically pertaining to gay men were opened.[2] Although same-sex sexual activity between men was already made illegal under Paragraph 175 by the German Empire in 1871, Nazi Germany extended these laws during World War II, which resulted in the persecution and deaths of thousands of homosexual citizens. The Nazi extensions were repealed in 1950 and same-sex sexual activity between men was decriminalized in both East and West Germany in 1968 and 1969. The age of consent was equalized in unified Germany in 1994.

Although same-sex marriage is not legal in Germany, registered partnerships for same-sex couples have been legal since 2001, which provides most of the same rights as opposite-sex married couples receive. Same-sex step adoption has also been legal since 2005 and was expanded in 2013 to allow someone in a same-sex relationship to adopt a child already adopted by their partner;[3] however, joint adoption has not yet been legislated. Discrimination protections on the basis of sexual orientation and gender identity vary across Germany, but discrimination in employment and the provision of goods and services is in principle banned countrywide. Transsexuals have been allowed to change their legal gender since 1980, although more controversially, as recently as 2011, law still required transsexuals to undergo surgical alteration of their genitals in order to have key identity documents changed. This has since been declared unconstitutional.[4] Germany has become the first country in Europe to enact a law that allows German citizens to choose to neither identify as male or female on their birth certificate, which has been said to specifically benefit hermaphrodites and intersex persons.[5]

Despite two of the three political parties in the German Government being socially conservative on the issues of LGBT rights, Germany has frequently been seen as one of the most gay friendly countries in the world.[6][7] Recent polls have indicated that a majority of Germans support same-sex marriage.[8][9] Another poll in 2013 indicated that 87% of Germans viewed that homosexuality should be accepted by society, which was the second highest in the world following Spain (88%).[10] Berlin has been referred to by publications as one of the most gay friendly cities in the world.[11] The former mayor of Berlin, Klaus Wowereit, is one of the most famous openly gay men in Germany, next to the former mayor of Hamburg, Ole von Beust, the Secretary of State of Finances, Jens Spahn and the deceased former Minister for Foreign Affairs, Guido Westerwelle.

History of laws regarding same-sex sexual activity

Further information: LGBT history in Germany
See also: Paragraph 175

Homosexuality was punishable by death in the Holy Roman Empire from 1532 until its dissolution and in Prussia from 1620 to 1794. The influence of the Napoleonic Code in the early 1800s sparked decriminalizations in much of Germany outside of Prussia. However, in 1871, the year the federal German Empire was formed, Paragraph 175 of the new penal code recriminalized homosexual acts. The law was extended under Nazi rule, and convictions multiplied by a factor of ten to about 8,000 per year. Penalties were severe, and 5,000 – 15,000 suspected offenders were interned in concentration camps, where most of them died.

The Nazi additions were repealed in East Germany in 1950, but homosexual relations between men remained a crime until 1968. West Germany kept the more repressive version of the law, legalizing male homosexual activity one year after East Germany, in 1969. The age of consent was equalized in East Germany through a 1987 court ruling, with West Germany following suit in 1989; it is now 14 years (16/18 in some circumstances) for female-female, male-male and female-male activity.

Progression in East Germany (1949–1990)

East Germany inherited the law Paragraph 175. Communist gay activist Rudolf Klimmer, modeling himself on Magnus Hirschfeld and his Scientific-Humanitarian Committee, campaigned to have the law repealed, but was unsuccessful. However, the law was reverted to the version found in the 1925 criminal code, which was considerably milder than the version adopted in 1935 under Nazi rule.

In the five years following the Uprising of 1953 in East Germany, the GDR government instituted a program of "moral reform" to build a solid foundation for the new socialist republic, in which masculinity and the traditional family were championed while homosexuality, seen to contravene "healthy mores of the working people", continued to be prosecuted under Paragraph 175. Same sex activity was "alternatively viewed as a remnant of bourgeois decadence, a sign of moral weakness, and a threat to the social and political health of the nation."[1]

In East Germany, Paragraph 175 ceased to be enforced in 1957 but remained on the books until 1968. According to historian Heidi Minning, attempts by lesbians and gays in East Germany to establish a visible community were "thwarted at every turn by the G.D.R. government and SED party."[2] She writes:

Police force was used on numerous occasions to break up or prevent public gay and lesbian events. Centralized censorship prevented the presentation of homosexuality in print and electronic media, as well as the import of such materials.

Ironically, the Protestant church provided more support than the state, allowing meeting spaces and printing facilities.

Towards the end of the 1980s however, just before the collapse of the iron curtain, the East German government opened a state-owned gay disco in Berlin. On 11 August 1987, the East German Supreme Court affirmed that "homosexuality, just like heterosexuality, represents a variant of sexual behavior. Homosexual people do therefore not stand outside socialist society, and the civil rights are warranted to them exactly as to all other citizens."

In 1989, the German film titled "Coming Out" directed by Heiner Carow was exhibited on the night that the Berlin wall came down, and tells a story of an East German man coming to accept his own homosexuality, with much of it shot in the local gay bars. This was the only East German gay rights film.

Jürgen Lemke (often spelt "Jurgen Lemke" in the English-speaking world) is considered one of the most prominent East German gay rights activists and has published a book on the subject (Gay Voices from East Germany, English edition published in 1991). Lemke advocates the belief that the gay community was far more united in the GDR than it was in the West.

West Germany (1949–1990)

West Germany inherited the law Paragraph 175 which remained on the books until 1969. However, as opposed to East Germany, the churches' influence in West Germany was very strong. Fundamentalist Protestants and the Roman Catholic Church were staunchly opposed to LGBT rights legislation.

As a result of these strong socially conservative influences, the German Christian Democratic Union, the dominant political force in post-war West Germany, tended to ignore or oppose most Gay rights issues. While their frequent coalition partners, The Free Democratic Party tended to have a stronger belief in civil liberties, they were, as a smaller party, less likely to alienate the more socially conservative elements in the larger Christian Democratic Union.

During the Cold War era, support for Gay rights in Germany was generally restricted to the Free Democratic Party, the Social Democratic Party and, later in the 1980s, the Green Party. At the national level, advancements in Gay rights did not begin to happen until the end of the Cold War and the electoral success of the Social Democratic Party.

For example, in 1990, the law was changed so that in the Bundeswehr, homosexuality or bisexuality was no longer grounds for being discriminated against in the military.

In 1986, the popular soap opera Lindenstraße showed the first gay kiss on German TV. From then on, many other television shows followed this example. Especially the creation of private TV stations in 1984 resulted in a stronger same-sex presence in the media by the end of the decade. The station RTL in particular was very gay-friendly and some TV stars had come out by then.

Annulment of convictions

In 2002, the German Government decided to overturn any convictions made during the Nazi period.[12]

In May 2016, Justice Minister Heiko Maas announced that gay and bi men who were convicted of same-sex sexual activity after World War II would have their convictions overturned.[12] Mr Maas said the following in a statement:

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.

Recognition of same-sex relationships

Main article: Recognition of same-sex unions in Germany

There is legal recognition of same-sex couples. Registered life partnerships (effectively, a form of civil union) have been instituted since 2001, giving same-sex couples rights and obligations in areas such as inheritance, alimony, health insurance, immigration, hospital and jail visitations, and name change. In 2004, this act was amended, effective 1 January 2005, to also give registered same-sex couples adoption rights (stepchild adoption only), as well as reform previously cumbersome dissolution procedures with regard to division of property and alimony. In 2013, Germany's highest court ruled that if one partner in a same-sex relationship has adopted a child, the other partner has the right to become the adoptive mother or father of that child as well, in what is known as "successive adoptions." [13]

In 2004, the Social-Democrats (SPD) and The Greens proposed allowing same-sex marriage. Since June 2013, registered partnerships do enjoy the same tax benefits as marriages. The Constitutional Court has repeatedly ruled in favor of same-sex couples on a case by case basis relating to specific tax laws. These rulings have led to many small, incremental changes of the registered partnership law since its inception.

There is no legal right to assisted reproduction procedures for lesbian couples, such as artificial insemination and in vitro fertilization, but they are not explicitly banned either. The German Medical Association is against explicit legalization and directs its members to not perform such procedures. Because this directive is not legally binding, sperm banks and doctors may work with lesbian clients if they wish. This makes it harder for German lesbian couples to have children than in some other countries, but it is becoming increasingly popular.

The European Court of Justice has ruled that refusing a widow's pension to the same-sex partner of a deceased person is direct discrimination if the partnership was comparable to marriage (see same-sex unions in the European Union).[14]

Even though a majority of the political parties in the Bundestag supports legalising same-sex marriage, attempts to achieve this have been blocked by CDU/CSU, the largest party in the Bundestag and the dominant party in the government coalitions since 2005.

Military service

See also: Sexual orientation and military service

Gays and lesbians are not banned from military service.

The Bundeswehr maintained a "glass ceiling" policy that effectively banned homosexuals from becoming officers until 2000. First Lieutenant Winfried Stecher, an army officer demoted for his homosexuality, had filed a lawsuit against former Defense Minister Rudolf Scharping. Scharping vowed to fight the claim in court, claiming that homosexuality "raises serious doubts about suitability and excludes employment in all functions pertaining to leadership." However, before the case went to trial, the Defense Ministry reversed the policy. While the German government declined to issue an official explanation for the reversal, it is widely believed that Scharping was overruled by former Chancellor Gerhard Schröder and former Vice-Chancellor Joschka Fischer. Nowadays, according to general military orders given in the year 2000, tolerance towards all sexual orientations is considered to be part of the duty of military personnel. Sexual relationships and acts amongst soldiers outside service times, regardless of the sexual orientation, are defined to be "irrelevant", regardless of the rank and function of the soldier(s) involved, while harassment or the abuse of functions is considered a transgression, as well as the performance of sexual acts in active service.[15]

Discrimination protections

In the field of employment, discrimination on the basis of sexual orientation or gender identity is illegal throughout Germany.

Some states have anti-discrimination laws, including the constitutions of Berlin (since 1995), Brandenburg (since 1992) and Thuringia (since 1993), and Saxony-Anhalt in the public sector since 1997. Germany is the first country in the world to include "gender identity" nationally in anti-discrimination laws.

As a signatory to the Treaty of Amsterdam, Germany was required to amend its national anti-discrimination laws to include, among others, sexual orientation. It failed to do so for six years, due to discussions about the scope of the proposed laws. Some of the proposals were debated because they actually surpassed the requirements of the Treaty of Amsterdam (namely extending discrimination protection for all grounds of discrimination to provision of goods and services); the final version of the law, however, has been criticized as not fully complying with some parts of the Treaty, especially with respect to the specifications about the termination of work contracts through labor courts.[3] The Federal Diet, or Bundestag, finally passed the Equal Treatment Act on 29 June 2006. The Bundesrat (Eng.: Federal Council) voted on it without discussion on 7 July 2006. Having come into force on 18 August 2006, the law bans discrimination in employment and provision of most goods and services.

Positions of political parties

The conservative parties Christian Democratic Union and Christian Social Union (CDU/CSU) are opposed to full LGBT rights, yet opposing discrimination. All other major parties, the Social Democratic Party (SPD), The Left, Alliance '90/The Greens and the liberal Free Democratic Party (FDP) support LGBT rights, including same-sex marriage.

However, CDU/CSU has been the senior coalition party in government since 2005. During the second Merkel cabinet (2009–2013), it formed a coalition with FDP. In the first Merkel cabinet (2005–2009) and the third Merkel cabinet (2013–present), they formed a coalition with SPD. During these terms, CDU/CSU blocked advances proposed by the other parties.

Blood donation

Bone marrow donation has been allowed since December 2014.[16]

In June 2016, German health ministers announced that the ban on gay and bi men donating blood is to be lifted, replacing it with a one year deferral period. The proposal was championed by Monika Bachmann, Saarland's Health Minister.[17]

Openly gay politicians

There are several prominent German politicians who are openly gay. Among them are Berlin's former mayor Klaus Wowereit (from the Social Democratic Party, having outed himself with the famous words "Ich bin schwul – und das ist auch gut so!" [English: "I am gay – and that's a good thing!"]), Volker Beck, Kai Gehring, Ulle Schauws, Gerhard Schick (from the Green Party), Johannes Kahrs (from the Social Democratic Party), Jens Spahn and Stefan Kaufmann (from the Christian Democratic Union), Bernd Fabritius (from Christian Social Union), Michael Kauch and Guido Westerwelle, former federal Foreign Minister and former head of the liberal Free Democratic Party. In addition, Hamburg's former mayor Ole von Beust (Christian Democratic Union) didn't deny anything when his father outed him but considered it private matter. After leaving office he began talking about his homosexuality. In July 2007, Karin Wolff, then Minister of Education for Hesse, came out as a lesbian.[18] In December 2013, Barbara Hendricks (SPD), Federal Minister for the Environment in the third Merkel cabinet, came out as lesbian.

Summary table

Same-sex sexual activity legal Yes (Male since 1968 in East Germany, 1969 in West Germany)
Equal age of consent Yes (Since 1994)
Anti-discrimination laws in employment Yes (Since 2006)[19]
Anti-discrimination laws in the provision of goods and services Yes (Since 2006)[19]
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech) No[20]
Same-sex marriage(s) No (Proposed)
Recognition of same-sex couples (e.g. life partnership) Yes (Since 2001)
Step-child adoption by same-sex couples Yes (Since 2005; step-child adoption of an adopted child since 2013)
Joint adoption by same-sex couples No (Proposed)
Gay men and women allowed to serve openly in the military Yes (Since 2000)
Right to change legal gender Yes (Since 1981; without sterilization since 2011)[21]
"Third gender" on birth certificates Yes (Since 2013, as first European country, Germany allows intersex babies to be registered without a gender marker at birth)
Access to IVF for lesbians Yes (Not legally binding, but doctors and sperm banks may work with lesbian couples if they wish)
Commercial surrogacy for gay male couples No (Commercial surrogacy is illegal for all couples regardless of sexual orientation; however, case law allows a foreign judicial decision establishing legal parenthood of the genetic father and his life partner to be recognized under certain conditions in case of surrogacy abroad [4])
MSMs allowed to donate blood No (Pending)
Conversion therapy banned for minors No

See also

References

  1. ^ Prerequisites for the statutory recognition of transsexuals according to § 8.1 nos. 3 and 4 of the Transsexuals Act are unconstitutional
  2. ^ Ginn, H. Lucas (12 October 1995). "Gay Culture Flourished In Pre-Nazi Germany". Update, Southern California's gay and lesbian weekly newspaper. Retrieved 26 May 2015.
  3. ^ German court expands adoption rights of gay couples
  4. ^ "ERT Notes Steps Taken Around the World Recognising the Gender Identity of Gender Variant Persons". Equal Rights Trust. 14 December 2011. Retrieved 26 May 2015.
  5. ^ "Generation 'X': Germany to allow third 'blank gender' for birth certificates". LifeSiteNews.com. 22 August 2013. Retrieved 26 May 2015. Instead of "M" or "F," parents may list their children's sex as "X."
  6. ^ Rebecca Baird-Remba (23 March 2013). "World's Most Gay Friendly Countries". Business Insider. Retrieved 2 November 2013.
  7. ^ "The 20 most and least gay-friendly countries in the world". GlobalPost. 26 June 2013. Retrieved 2 November 2013.
  8. ^ "Enquête sur la droitisation des opinions publiques européennes" (PDF). IFOP Département Opinion et Stratégies d'Entreprise (in French). Institut français d'opinion publique. Retrieved 26 May 2015. {{cite web}}: Unknown parameter |trans_title= ignored (|trans-title= suggested) (help)
  9. ^ Same-Sex Marriage Citizens in 16 Countries Assess Their Views on Same-Sex Marriage for a Total Global Perspective
  10. ^ View all 219 comments Leave a comment. "The Most Gay-Friendly Country in the World is... - Spain, followed by Germany, Czech Republic, and Canada, new study finds". Newser.com. Retrieved 2 November 2013.{{cite news}}: CS1 maint: numeric names: authors list (link)
  11. ^ "The ten best places in the world to be gay". The Independent. 17 September 2008. Retrieved 26 May 2015. Berlin. It may have taken 75 years, but the German capital once again enjoys the kind of open gay scene that Christopher Isherwood described so evocatively in his 1939 memoir Goodbye to Berlin. Perhaps the painful period of Nazi rule and division makes the city even more attractive to people with alternative lifestyles - you have to be unconventional to want to live here. The magnificently restored 19th-century buildings, the grand boulevards and the famous park and woodlands make the perfect backdrop for queer culture. A former mayor of Berlin is gay, the Kit Kat club still exists, and Europe's first exclusively gay old people's home - the Asta Nielsen Haus - opened in the city this year.
  12. ^ a b Germany anti-gay law: Plan to rehabilitate convicted men
  13. ^ "Germany strengthens gay adoption rights | Germany | DW.DE | 20.02.2013". DW.DE. 28 October 2013. Retrieved 2 November 2013.
  14. ^ EU backs gay man's pension rights BBC News 1 April 2008 (accessed 13 July 2008)
  15. ^ Cf. two orders of 2000: German Military Forces (Bundeswehr) (2000). "Anlage B 173 zu ZDv 14/3" (PDF) (in German). Working Group 'Homosexuals in the Bundeswehr'. Retrieved 24 December 2008.[dead link] ; and Inspector General of the German Military Forces (Bundeswehr) (2000). "Führungshilfe für Vorgesetzte – Sexualität" (PDF) (in German). Working Group 'Homosexuals in the Bundeswehr'. Archived from the original (PDF) on 6 February 2009. Retrieved 24 December 2008. {{cite web}}: Unknown parameter |deadurl= ignored (|url-status= suggested) (help)
  16. ^ DKMS FAQ
  17. ^ Germany's health ministers demand gay blood ban be lifted
  18. ^ "CDU-Ministerin liebt eine Heilpraktikerin". Bild (in German). 3 July 2007. Retrieved 26 May 2015. {{cite news}}: Unknown parameter |trans_title= ignored (|trans-title= suggested) (help)
  19. ^ a b "Antidiskriminierungsstelle - Publikationen - AGG in englischer Sprache". antidiskriminierungsstelle.de.
  20. ^ Rainbow Europe; Germany
  21. ^ "Bundesverfassungsgericht". bundesverfassungsgericht.de.
  • ^ German Wikipedia on the Equal Treatment Act (website version as of 6 November 2006)
  • ^ Jennifer V. Evans. The moral state: Men, mining, and masculinity in the early GDR, German History, 23 (2005) 3, 355–370
  • ^ Heidi Minning. Who is the 'I' in "I love you"?: The negotiation of gay and lesbian identities in former East Berlin, Germany. Anthropology of East Europe Review, Volume 18, Number 2, Autumn 2000
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