Laws prescribing the death penalty existed in France up to the French Revolution, in England until the early 1860's and in Scotland until the 1880's. The Enlightenment brought about some liberalisation, i.e., decriminalisation, of homosexuality in France and some of the German states. In the early nineteenth century Germany was a loose confederation of individual separate states, and homosexuality was legal in all of them except the kingdom of Bavaria.

Following the Franco-Prussian War, when King Wilhelm established the First Reich in 1871 he adopted the harsh Bavarian code for the entire nation. The anti-gay law in question is Paragraph 175, which outlawed "lewd and unnatural behavior," prescribing prison sentences ranging from one day to five years. The Reich Criminal Code expressly prohibited "unnatural sex acts", including sex acts "committed between persons of male sex or by humans with animals." Such behaviours were "punishable by imprisonment; the loss of civil rights" might also be imposed. Paragraph 175 of the Reich Criminal Code reads:

1. A male who indulges in criminally indecent behaviour with another male, or who allows himself to participate in such activity, will be punished with imprisonment.
2. If one of the participants is under the age of twenty-one, and if the offence has not been grave, the court may dispense with the sentence of imprisonment.

These prohibitions, strict by modern definitions, nonetheless represent significant liberalisation in comparison to medieval standards. Throughout the late 1800's homosexuals were subject to surveillance, arrest and imprisonment. Existing laws made homosexuals particularly vulnerable to blackmail by threat of public exposure. Despite the laws and the resulting harassment, an identifiable homosexual community emerged in Germany, particularly in urban areas, which afforded individuals with a subcultural framework in which they could express their sexual preferences with some degree of anonymity and safety.

The adoption of this code was a major setback to the work of the world's first gay rights activist, Karl Heinrich Ulrichs (1825-95). He had been arguing the case in humerous pamphlets that homosexuality was as natural as left-handedness, and that gays were entitled to full civil rights including marriage. In 1871 he was forced to stop publishing his pamphlets; eventually he went into exile to L'Aquila (Italy) in the Southern Appenines, where he died in 1895. [See or Book Karl Heinrich Ulrichs]

Around the turn of the century there was a fairly significant gay rights movement in Germany. Ulrichs' fight was taken up by men such as Adolf Brand, who in 1891 published the first gay magazine, Der Eigene, which ran continuously until 1929, and by Magnus Hirschfeld, who published Sappho und Socrates in 1891. Brand, Hirschfeld and Max Spohr got together in 1897 to establish the first gay rights organization, the Wissenschaftlich-humanitäaut;res Komittee (Scientific Humanitarian Committee). Though it had only 70 members by 1900, it nevertheless had managed to publish 23 books on homosexuality in its education efforts, and eventually it managed to collect several thousand signatures of prominent people on a petition to repeal Paragraph 175.

The German gay world was thriving, in spite of the fact that between 200-300 men a year were imprisoned for violating Paragraph 175. Berlin in 1895, with a population of 212 million, had 40 gay bars, and, according to the police, nearly 2000 hustlers. Drag balls were openly advertised in the straight media. In 1905 alone there were 320 publications on homosexuality. Groups such as the Social Democratic Workingmen's Party - founded on the principles of Marx and Engels - publicly supported gay rights.

A severe blow fell in 1907, when Prince Philip zu Eulenburg and other prominent men in government circles were involved in a homosexual scandal which the newspapers sensationalized into an anti-gay witch hunt. There were trials, libel suits, suicides, and a dramatic fall in the membership of gay organizations. This was partly because Hirschfeld, much to his discredit, was persuaded to give testimony identifying one of the gay men on trial as having "typical identifiable homosexual characteristics.".

In 1910 the government proposed outlawing lesbian acts. The bill failed to pass, and the controversy strengthened ties between gays and the women's movement, such as the League for the Protection of Mothers and Sexual Reform. Despite the Eulenberg scandals, the gay movement received much support. In 1917 the Soviet Union abolished all anti-gay legislation, and the German Communists supported Hirschfeld's Law Reform Proposal of 1927.

In the 1930's, Magnus Hirschfield (1868-1935), a Jewish homosexual physician and internationally known sexologist, and his colleagues endevoured to educate the state that Homosexuals had a right to exist like everyone else. Though his feelings were that Homosexuality was confused in theory, the state had no right to interfere. His logic has been presently proven wrong. But at least he had the insight to try to move a society from ignorance to knowledge, thus displacing the ignorant fear the world at large had at that time.

The major goals of the movement were to educate the public and to bring about the repeal of Paragraph 175. At the close of World War I, there was a somewhat more liberal climate in Germany and in the Weimar Republic, while the existing law was not repealed, it was enforced with the same zeal as in the First Reich. There was a proliferation of homosexual meeting places, books, articles and films and homosexuality was considerably more open and more openly discussed. Still, there was an average of 500 arrests annually under Paragraph 175 in the decades prior to World War I.

Magnus Hirschfeld was born in Kolobrzeg (Poland), which was Kolberg (Prussia) at that time. In 1897 he co-founded the first gay right organisation, the Scientific Humanitarian Committee, to advocate civil rights for Germany's homosexuals. For more than 30 years, Hirschfeld wrote articles, published journals, and gave public lectures in an effort to explain homosexuality and eliminate Paragraph 175. He died in Nice, France. German director Rosa von Praunheim made a film about his life: Der Einstein des Sex (1999). [See Magnus Hirschfeld in our "Famous GLTB" pages]

In 1919 Hirschfeld co-founded the" Institute for Sexual Science in Berlin", which soon had 20,000 volumes on its shelves, and a large staff to counsel gays and to educate society. It sponsored research and discussion on marital problems, sexually transmitted diseases, and laws relating to sexual offenses, abortion, and homosexuality. The author of many works, Hirschfeld, himself a homosexual, led efforts for three decades to reform laws criminalizing homosexuality. Other gay organizations were quickly established, including a gay community center and a committee to coordinate their law reform efforts.

But fascism was in the air, and we should not forget that Hirscfeld was Jewish as well as gay. As early as 1920, in Munich, he was attacked by anti-Semites, who bragged in a newspaper report that they so badly disfigured his mouth that he "could never again be kissed by one of his disciples." Later the same year he was attacked by the Nazis, this time left on the pavement with a fractured skull.

A gay couple in Posen. Germany, date uncertain. © Schwules Museum United States Holocaust Memorial Museum #01663

A gay couple. Berlin, Germany, ca. 1930. © Schwules Museum United States Holocaust Memorial Museum #01670

In the mid-1920's the government reacted to these developments by attempting to enforce the laws more vigorously and to pass more restrictive legislation. Showings of Hirschfeld's first pro-gay film Different from the Others (featuring Conrad Veidt, star of The Cabinet of Dr Caligari) were regularly disrupted by the fascists. In one such incident in Vienna in 1923 they shot and wounded several members of the audience. The National Socialist Party issued their official view of homosexuals on May 14, 1928:

"It is not necessary that you and I live, but it is necessary that the German people live. And it can live if it can fight, for life means fighting. [The] German nation... can only fight if it maintains its masculinity. It can only maintain its masculinity if it exercises discipline, especially in matters of love. Free love and deviance are undisciplined. Therefore, we reject you, as we reject anything which hurts our people. Anyone who even thinks of homosexual love is our enemy. We reject anything which emasculates our people and makes them a plaything for our enemies.... We therefore reject any form of unnatural sexuality, above all homosexuality, because it robs us of our last chance to liberate our people from the chains of slavery under which they now suffer."

The voice of authority in heterosexual ideology and ethics was Professor Max von Gruber of Munich University, an arrogant heterosexualist. His book Sexual Hygiene - the textbook of the Nazis - first appeared in 1927 in an edition of 325,000 copies. It condemned homosexuality and masturbation, and preached that:

"Sexual intercourse takes place within wedlock. ... The purpose of marriage is the procreation of children and their upbringing. National growth requires marriage to produce at least four offspring."

In October 1929, largely due to the lobbying efforts of Hirschfeld and his organization, the Criminal Code Committee of the Reichstag recommended to the full body that §175 be repealed and that consenting adults be granted exemption from legal restriction and punishment regarding homosexual relations. The Reichstag Committee, by a vote of 15 to 13, approved the Penal Reform Bill which abolished all homosexual crimes.

The Nazi Party, however, issued a vitriolic counter-argument in their official party publication, the Völkischer Beobachter. Combining anti-Semitism with homophobia, they directed their response at Hirschfeld:

"We congratulate you, Mr. Hirschfeld, on the victory in committee. But don't think that we Germans will allow these [new] laws to stand for a single day after we come to power. ... Among the many evil instincts that characterize the Jewish race, one that is especially pernicious has to do with sexual relationships. The Jews are forever trying to propagandize sexual relations between siblings, men and animals, and men and men. We National Socialists will soon unmask and condemn them by law. These efforts are nothing but vulgar, perverted crimes and we will punish them by banishment or hanging."

Two friends in Berlin. Germany, 1926. © Schwules Museum United States Holocaust Memorial Museum #01671

Friends at an outing in Berlin. Germany, 1930. © Schwules Museum United States Holocaust Memorial Museum #01665