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. 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 The Nazi extensions were repealed in 1950 and same-sex sexual activity between men was decriminalized in both East and West Germany in 1968 and 1969.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; 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. Transgender people have been allowed to change their legal gender since 1980. The law initially required them to undergo surgical alteration of their genitals in order to have key identity documents changed. This has since been declared unconstitutional. Germany became 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.
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. Recent polls have indicated that a majority of Germans support same-sex marriage. 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 (only 39 countries were polled) following Spain (88%). Berlin has been referred to by publications as one of the most gay friendly cities in the world. 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.
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History of laws regarding same-sex sexual activity
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.
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.
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. 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.
In October 2016, the German Government announced the introduction of a draft law to pardon around 50,000 men for the prosecutions they endured due to their sexual orientation.
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Recognition of same-sex relationships
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."
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).
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
LGBT people 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. Transgender persons may also serve openly in the German Armed Forces.
Discrimination protections
In the field of employment and goods and services, discrimination on the basis of sexual orientation or gender identity is illegal throughout Germany.
Some states have anti-discrimination laws (that include sexual orientation and gender identity), including the constitutions of Berlin (since 1995), Brandenburg (since 1992), Bremen (since 2001), Saarland (since 2011) and Thuringia (since 1993), and Saxony-Anhalt in the public sector since 1997.
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 based on sexual orientation, gender identity and sex characteristics in employment and the provision of goods and services.
Hate speeches on the basis of sexual orientation and gender identity are not banned nationwide in Germany. Some states have laws banning all forms of discrimination in their constitutions. (Berlin, Brandenburg, Bremen, Saarland and Thuringia) In those states, hate speeches based on both sexual orientation and gender identity are prohibited.
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.
Gender identity and expression
Since 1980, the Gesetz über die Änderung der Vornamen und die Feststellung der Geschlechtszugehörigkeit in besonderen Fällen states that transgender persons may change their legal sex following sex reassignment surgery and sterilization. In January 2011, the German Constitutional Court ruled that these two requirements were unconstitutional.
Third gender
Since 2013, German law has allowed children born with atypical sexual anatomy to have their gender left blank instead of being categorized as male or female. The Swiss activist group Zwischengeschlecht criticized this law, arguing that "if a child's anatomy does not, in the view of physicians, conform to the category of male or the category of female, there is no option but to withhold the male or female labels given to all other children." The German Ethics Council and the Swiss National Advisory Commission also criticized the law, saying that "instead of individuals deciding for themselves at maturity, decisions concerning sex assignment are made in infancy by physicians and parents."
In June 2016, Germany's High Court ruled that German law would not allow entry of a third option of "inter" or "diverse" in the birth registry. The High Court said it found no violation of the plaintiff's basic rights since intersex people have been able since 2013 to leave the gender entry in German birth registries blank.
Blood donation
Bone marrow donation has been allowed since December 2014.
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 to lift the ban was championed by Monika Bachmann, Saarland's Health Minister.
Openly gay and lesbian 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, Anja Hajduk (from the Green Party), Harald Petzold (The Left), 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 a 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. In December 2013, Barbara Hendricks (SPD), the Federal Minister for the Environment in the third Merkel cabinet, came out as lesbian. In 2012, Michael Ebling (SPD) became the mayor of Mainz. In 2013 and 2015, Sven Gerich and Thomas Kufen became the openly gay mayors of Wiesbaden and Essen, respectively.
Public opinion
A 2013 Pew Research Center poll indicated that 87% of Germans viewed that homosexuality should be accepted by society, which was the second highest in the world (only 39 countries were polled) following Spain (88%).
In May 2015, PlanetRomeo, a LGBT social network, published its first Gay Happiness Index (GHI). Gay men from over 120 countries were asked about how they feel about society's view on homosexuality, how do they experience the way they are treated by other people and how satisfied are they with their lives. Germany was ranked 14th with a GHI score of 68.
The 2015 Eurobarometer found that 66% of Germans thought that same-sex marriage should be allowed throughout Europe, 29% were against.
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