“Gay paragraph” 175: “wound of our constitutional state”.

Thousands of victims of the Nazi paragraph, which was valid until 1969, are to be rehabilitated. This is what a legal opinion of the Federal Anti-Discrimination Agency says.

Many victims of the Nazi paragraph are still considered to have criminal records today Photo: imago/Westend61

The topic itself has long been present in jurisprudential discussion, and it has now seeped into mainstream political debate: the rehabilitation of victims of Paragraph 175 of the Criminal Code in the Federal Republic between 19.

The Federal Anti-Discrimination Agency commissioned Martin Burgi, a law professor at Ludwig Maximilian University in Munich, to write the study. It has now been published. Christine Luders, head of the Anti-Discrimination Agency, writes in her foreword: "This is an open wound of our constitutional state that absolutely must be healed."

What exactly is at stake? First, about politically intended human tragedies in the post-National Socialist years with the founding of the FRG in 1949. And second, about a jurisprudential principle: rulings of the Constitutional Court cannot be overturned, nor can anything be declared unpunishable in retrospect that was not legal at the time of the acts.

In concrete terms, it is true that the Allied liberators in West Germany were required to cancel all laws that had specifically National Socialist content. The death penalty, for example, had to be abolished. In the case of the persecution of gay men, however, the new parties with the CDU/CSU at their head insisted that it be maintained. In the Weimar Republic, after all, there had also been a penal paragraph against homosexual men.

However, the delimiting version of the paragraph, which had been tightened by the Nazi state, remained in force in the Federal Republic. The "warm brothers" were considered unnatural and harmful to young people. Until the legalization of male homosexuality – female homosexuality was never illegal in the FRG – in 1969, just as many gay men were reported, accused, convicted and imprisoned as between 19: the intensity of persecution – apart from concentration camp imprisonment – had not diminished in comparison with the Nazi state.

Compensation claim is being worked out

From a constitutional point of view, rehabilitation is admittedly difficult – essays by scholars such as Thomas Henne (University of Lucerne) and Rudiger Lautmann (Berlin) have underscored this in recent years. An initiative by the left-wing parliamentary group in the Bundestag in 2008 stimulated the debate once again. But the problem remained: What was once illegal cannot actually be legalized in retrospect for the past period. And: A constitutional decision like the one in the fifties, which rejects reparations for injustice suffered during the Nazi era because gays had not suffered any specific injustice, cannot be overturned.

Martin Burgi now reports on the history of ยง 175 on more than 100 pages and proposes to cancel all sentences because the victims of this penal provision were persecuted on the basis of Nazi law. This, he says, is a violation of human rights.

"The federal government and the Bundestag now have legal certainty to be able to act," comments Jorg Litwinschuh, board member of the Federal Magnus Hirschfeld Foundation, on the study he co-initiated. It shows "that there is virtually constitutional legitimacy for the annulment of the sentences passed up to 1969."

In a statement Wednesday, German Justice Minister Heiko Maas (SPD) announced the government would now draft legislation to overturn Section 175 convictions and a resulting compensation claim. "We will never be able to completely eradicate these outrages of the rule of law, but we want to rehabilitate the victims."

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