LGBT Politics in Germany: Unification as a Catalyst for Change

Abstract

The two and a half decades since unification brought about significant paradigm changes in German social policies towards lesbian, gay, bisexual, and transgender (LGBT) citizens including, inter alia, the legalisation of same-sex partnerships, an expansion of the rights granted to these same sex couples, and reforms allowing individuals to change their legal gender without divorcing or undergoing irrevocable surgeries. This article investigates developments that led the government of the Federal Republic, long dominated by socially conservative Christian Democrats, to extend greater rights to sexual minorities in the years following unification. The explanation lies in LGBT activists’ use of what van der Vleuten refers to as ‘pincer’ tactics, working not only at the national level but also at the European level to pressure reluctant domestic actors. Unification proved a critical juncture on both fronts, leading to the creation of a politically influential, pan-German LGBT organisation at the domestic level and to institutional changes conducive to LGBT activism at the European Union level. In the language of the introduction to this volume, unification had an indirect effect on LGBT rights, leading to a gradual increase in rights for sexual minorities, driven by a combination of activism from the ‘outside in’ and the ‘inside out’. This article ‘brings in’ the study of gender and sexuality to the literature on post-communist transformations.

ACKNOWLEDGEMENTS

Thanks to Philip Ayoub, Joyce Mushaben, and Claire Timperley for their helpful comments.

DISCLOSURE STATEMENT

No potential conflict of interest was reported by the author.

ABOUT THE AUTHOR

Louise K. Davidson-Schmich is Professor of Political Science at the University of Miami in Coral Gables, FL, USA. She is the author of Gender Quotas and Democratic Participation: Recruiting Candidates for Elective Offices in Germany (University of Michigan Press, 2016) and Becoming Party Politicians: Eastern German State Legislators in the Decade Following Democratization (University of Notre Dame Press, 2006), and is the editor of Gender, Intersections, and Institutions: Intersectional Groups Building Alliances and Gaining Voice in Germany”(University of Michigan Press, 2017).

Notes

1 This diffusion even extended to Bavaria whose laws prior to German unification in 1871 had not included a sodomy clause.

2 For full texts of all the laws, see online: https://de.wikipedia.org/wiki/%C2%A7_175.

3 See, for example: http://www.spiegel.de/einestages/schwulenparagraf-175-zeitzeuge-klaus-born-musste-ins-gefaengnis-a-971970.html.

4 BVerfG, Urteil vom 10. Mai 1957, Az. 1 BvR 550/52, BVerfGE 6, 389. These cases also failed in the European Court of Human Rights (Helfer and Voeten 2014).

5 Some LGBT organisations from civil law countries were also involved.

6 Intersex activists have also successfully used the UN ‘pincer’ to pressure the German government. See von Wahl (2017) for more details.

7 The descriptions of LSVD activities included in the following are drawn from this source.

8 Although this development occurred in 1999 I use the new acronym as of unification for ease of presentation.

9 The official committee report of this hearing (12/7035) does not include the speakers’ actual remarks; see Aichele-Froelich (2013) for the LSVD's account.

10 All references made here to bills, committee hearings, and Bundestag plenary debates use the Bundestag's classification numbers and where relevant the page number; these documents are available online at: www.parlamentsspiegel.de.

11 This ultimately occurred in 2001.

12 Despite these advances, the revised law failed to extend all of the benefits married couples enjoyed, including equal inheritance rights, equal spousal employment benefits for civil servants, and access to the marriage tax bonus (Ehegattensplittung). It also ignored other types of adoption and aspects of family formation such as artificial insemination.

13 All major German political parties have intra-party organisations (or affiliated groups) for LGBT party members and these bodies have undertaken extensive activities to convince their parties to adopt LGBT-friendly platforms. For more on these efforts and their results, see Davidson-Schmich (2017).

14 These cases included 1BvR155/05, 2BvR855/06, 2BvR1830/06, 2BvR909/06, 1981/06, 288/07, 1BvR1164/07, 1BvR611/07, 2464/07, and 2BvR1397/09; subsequent court decisions will also be cited using the Constitutional Court's abbreviations. Details about all cases cited here can be found online: www.bundesverfassungsgericht.de.

15 The Constitutional Court refused to hear an additional foster parent adoption case on a technicality but encouraged those filing the case to re-file it on different grounds, suggesting that they would approve a properly framed request to allow life partners to jointly adopt foster children.

16 The Green party's draft laws include 16/3423, 16/5596, and 18/577 (see also 18/842), the Left Party’s motions are 16/5184 and 17/2023, and the FDP's bills – submitted only when they were in the opposition – consist of 16/565 and 6/8875.

17 For details of the law, see 1 BvR 3295/07.