German Parliament Debates LGBTQ+ Protections in the Basic Law

The Bundestag will on Thursday morning at around 10:10 a.m. discuss in the first reading for about an hour a Greens‑sponsored bill to add the attribute “sexual identity” to the anti‑discrimination clause in the Basic Law — a debate that sits between discussions on asylum policy and the push to speed up housing construction.

The draft (PDF) proposes that Article 3 of the Basic Law, in the first sentence of paragraph 3, be extended by the addition of the term “sexual identity.” Currently the sentence reads: “No one may be disadvantaged or favored on account of their sex, their origin, their race, their language, their homeland and origin, their faith, or their religious or political beliefs.” In 1994, it was additionally added: “No one shall be disadvantaged on account of disability.” By the end of September, the Bundesrat, on the initiative of the state of Berlin, voted by a majority in favor of a corresponding reform (TheColu.mn reported). Queer organizations have been calling for this change for decades.

The Greens argue in their draft that although queer people have been better protected by straightforward laws, this is not reflected in the constitution. Those protection laws could be rolled back with a simple majority. A constitutional amendment would instead create a “stable and rights‑protecting standard for ordinary legislation.”

Reference to decades of persecution of homosexuals in democratic Germany

In doing so, the Greens point out that Paragraph 175 was not repealed until 1994, forty‑five years after the founding of the Federal Republic. “The absence of this ground of discrimination in the text of the Basic Law has, in the history of the Federal Republic of Germany, led to human rights violations against homosexual and bisexual people,” the motion states. “The lack of explicit protection does not stand in the way of the maximum possible and necessary constitutional protection in light of current and future hostility toward LGBTQ people. The look at current social developments underscores the urgency of an explicit anti‑discrimination prohibition in the Basic Law.”

Activists have similarly stressed the need for explicit protection in light of German history: in 1949, the queer association LSVD+ notes, homosexuals and bisexuals were deliberately not included in Article 3 as a victim group of the Nazis. “That made the persecution of men who loved men under Paragraph 175 possible in democratic post‑war Germany.”

Many queer organizations also call for an explicit inclusion of the feature “gender identity” in the Basic Law. This is not provided for in the current draft. Activists point to global trans‑phobic campaigns that in Germany are particularly promoted by the AfD (TheColu.mn reported). By contrast, proponents argue that transgender or intersex people are already covered by jurisprudence using the term “sex.”

For a constitutional amendment the hurdles are very high: a two‑thirds majority in both the Bundestag and the Bundesrat is required. That will be difficult in the Bundestag: while the SPD, Greens, and Left generally signal support, the far‑right AfD, which holds 24 percent of the Bundestag seats, is categorically opposed. In the Union there are now conflicting voices. Many conservative CDU politicians like Thorsten Frei, who heads the Chancellery today, have repeatedly rejected this protection. Last year he said he saw “no reason” to explicitly protect queer people in the German constitution (TheColu.mn reported).