LGBTQ+ rights in Germany: Protected in the constitution?

In July, hundreds of thousands of people marched in Berlin on Christopher Street Day in support of recognizing the rights of LGBTQ+ people. The abbreviation LGBTQ+ stands for lesbian, gay, and queer people, but also includes those with other identities, such as people who are intersex, asexual, bisexual or transgender.

Among them is Wanja Kiber. Originally from Kazakhstan, he spoke with DW during the CSD about his life story.

"We came to Germany, and I came out pretty quickly. And my parents' first reaction was to take tranquilizers, say nothing, cry and avoid talking about it. How did that feel, to not be able to tell anyone about it, to feel I was not right? To be considered a criminal, a sick person? To not exist at all?"

Protection of sexual and gender identity

But meanwhile, added Kiber, his father is not only proud of him but has become an advocate for LGBTQ+ rights himself. For him, it's a small success story — but not everyone is as resilient and as lucky. This is another reason for one of the key demands at Christopher Street Day: the ban on discrimination because of sexual orientation must be expressly written into the German constitution.

Well-known German pop singer Herbert Grönemeyer spoke at Christopher Street Day, saying that article 3 of the German constitution should be amended to read "that no one can be discriminated against because of their gender or sexual identity." We must persevere and continue to have courage, the singer shouted into the crowd.

Amendment only possible with a two-thirds majority

Currently, article 3 of the German constitution states: "No person shall be favored or disfavored because of gender, parentage, race, language, homeland and origin, faith or religious or political opinions." Sexual identity is, therefore, not explicitly mentioned.

The agreement signed in December 2021 by the governing coalition partners the center-left Social Democratic Party (SPD), the Greens and the neoliberal Free Democratic Party (FDP) indicated their intention to change the wording. The problem is that any change to the constitution requires a two-thirds majority in both the Bundestag, the lower house of parliament, and the Bundesrat, which represents the federal states.

However, the three governing parties do not hold two-thirds of the seats in parliament, meaning they need the support of the largest opposition parties, the conservative Christian Democratic Union (CDU)and Christian Social Union (CSU). And these parties don't think much of the idea.

Conservative CDU doesn't 'see any reason to amend the constitution'

"Changing the list of basic rights, in other words, the heart of our constitution, should only be done for very special reasons," Thorsten Frei, parliamentary secretary for the CDU/CSU group in the Bundestag, told media outlet 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."

Dirk Wiese, the deputy leader of the SPD parliamentary group, was not satisfied with Frei's response. "Unfortunately, the CDU/CSU group in the Bundestag has refused to enter into talks on this issue. We therefore applaud those CDU politicians from the federal states who have taken a different position," he said.

Wiese was referring specifically to Berlin Mayor Kai Wegner, of the CDU. Under his leadership, the Berlin Senate already announced in 2023 a Bundesrat initiative to amend article 3. At Christopher Street Day in 2023, Wegner said: "We want to amend article 3 of the constitution. Sexual identity must be included. That is my promise."

However, since then nothing has happened.

Following opposition from the CDU, numerous coalition representatives have nevertheless made efforts to once again push for a constitutional amendment. A constitutional amendment would be "an important sign of political and social acceptance," lawmaker Konstantin Kuhle told RND on behalf of the FDP party. 

"A constitutional amendment is long overdue at this point," he added.

Inclusion would be an important step for social acceptance, say advocates

The Lesbian and Gay Association of Germany (LSVD)has also pointed out for years that an amendment could put an end to the decades of discrimination that homosexuals and bisexuals have faced in postwar Germany.

In 1949, when the constitution was first drafted and ratified, homosexuals and bisexuals were the only victims of National Socialism to be deliberately excluded from the constitution. Homosexuals were persecuted under section 175 of the German Penal Code, a section that was only fully scrapped in 1994.

Internationally, much has been done to protect the rights of LGBTQ+ communities. In Europe, for example, 22 countries recognize same-sex marriage, compared to 16 outside of Europe. Same-sex marriages became possible in Germany on October 1, 2017, after years of heated debate.

Only 20 countries worldwide have gender self-determination laws in place.  And the sad reality is that LGBTQ+ people face legal discrimination in a third of countries worldwide.

This article was originally written in German.

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