Debate continues among German lawmakers over a proposal to amend the country's 1949 Constitution to explicitly prohibit discrimination against LGBTQ+ individuals based on sexual orientation or identity. This amendment would address a historical oversight dating back to the post-World War II era, when the new constitution deliberately excluded homosexuals from specific protections.
The Nazi regime of Adolf Hitler notoriously persecuted homosexuals alongside various other groups. However, unlike others, homosexuals were not afforded specific protections in the post-war constitution. Notably, Section 175 of the German Penal Code, which criminalized homosexuality and was used by the Nazis to target homosexuals, was not repealed until 1994.
In 2021, Germany's governing coalition – comprising the center-left Social Democratic Party (SPD), the Greens, and the neoliberal Free Democratic Party (FDP) – expressed interest in revising Article 3 of the constitution to ensure the rights of LGBTQ individuals are expressly protected. Article 3 currently states: “No person shall be favored or disfavored because of gender, parentage, race, language, homeland and origin, faith or religious or political opinions.” However, it does not mention sexual orientation or identity.
However, the path to amendment is fraught with challenges. Changing the German Constitution requires a two-thirds majority in both the Bundestag, the lower house, and the Bundesrat, the federal council representing the states. This means obtaining support from the more conservative parties, namely the Christian Democratic Union (CDU) and the Christian Social Union (CSU).
Thorsten Frei, parliamentary secretary for the CDU/CSU group in the Bundestag, expressed skepticism regarding the need for an amendment. “Changing the list of basic rights, in other words, the heart of our constitution, should only be done for very special reasons,” Frei told Redaktionsnetzwerk Deutschland. “But I also don’t see any reason to amend the constitution since protection against discrimination on the basis of gender is already enshrined in Article 3.”
As discussions continue, the prospect of formally enshrining protections for LGBTQ individuals in the constitution remains uncertain. The outcome of this legislative effort will depend heavily on cross-party negotiations and the willingness of conservative factions to endorse the amendment.