Bostock v. Clayton County (June 15, 2020), a landmark Supreme Court of the United States decision (5-3), ruled that Title VII of the Civil Rights Act of 1964 protects LGBTQ employees from employment discrimination by expanding the definition of “sex” to include sexual orientation or gender identity.
Within the environs of conservative political and religious turf, there is an almost uniform and completely incorrect assumption that the onset of cultural and legal challenges to traditional sex and gender views was the 1960s women’s movement. Those pesky “women’s libbers” rebelled against the cultural and religious norms dictated for women. In turn, this leads to the gay liberation movement, the moral “decay” of society, and an attack on traditional families and Christian marriages.
Sixty years does seem like quite a long time to struggle for civil equality. Yet, you might be surprised to learn that the legal challenges began in the 1860s. Let’s step back into history and discover where and when gender norms and sexual identity were first legally challenged.
I’ve written overviews about the progression of understanding of human sexuality from the late 19th century forward. (Chapters 1 thru 6 of “Walking the Bridgeless Canyon” covers this.) The upcoming book “Forging a Sacred Weapon: How the Bible became Anti-Gay” (working title for late 2020 publication) will go into greater detail to clearly show transformations in thinking about human sexuality from ancient times to the present. Every time a significant medical, legal, cultural, or religious shift happens, I’ll slow down the narrative, typically with a story, and detail how the next step in the progression of understanding sexual orientation or gender took place. Oh, future readers, the stories are so good.
This article is a brief overview of the build-up to and the first legal challenge for LGBTQ civil protections.
In 1844, Heinrich Kaan, a teaching professor at the University of Vienna, Europe’s most prestigious medical institution, wrote a book in Latin called “Psychopathia Sexualis.” Because it was not translated into any language until recently (2016), its contents and the significance of Kaan’s work were hidden in plain sight. In his book, Kaan bridged botanical taxonomy and scientific study of “plant sex” constructed by Carl Linnaeus (mid-1700s) to a new concept, the scientific study of human sexuality. No respectable person, not even a doctor, would have discussed human male or female parts before to the middle of the 19th century.
Studying and discussing plant sex was scandalous enough. In the earlier years, botany texts were kept from girls and women. It was believed that reading them would lead to female sexual excitement. Sex for women had been historically viewed as for reproductive purposes only, not for pleasure. Reading about plant sex was dangerous for women. And, if a young woman were to study plants with a young man, oh, who knows what that could lead to. (Insert some very funny stories here in “Forging a Sacred Weapon.”) Botany eventually became an acceptable pastime for women when female royalty took an open interest in it. It was still quite sexual though. Women became more interested in gardening. Flowers were extravagantly embroidered on dress materials and became over-the-top adornments on stylish hats. How so very coyly sexual!
A century later, the science of botany opened the door to medical experts and doctors branching out to studying human sexuality as a science. Heinrich Kaan initiated that shift when he applied the science of plant sex to the framework of human sex in “Psychopathia Sexualis.”
Why, he wondered, did some people engage in non-procreative sex? (It is important to note that the essential purpose of sex since ancient times had been thought to be baby-making. In the early 20th century, Sigmund Freud introduced the theory that sex was not only necessary for procreation but of equal importance, it was meant for pleasure and played an essential role in human bonding.) Kaan thought the desire to participate in non-procreative sex, though the desire was possibly innate, was still deviance simply because it was not procreative.
Kaan created his simple taxonomy of human sexuality and divided non-procreative sex into six subcategories: masturbation (which was thought to be the root cause of all perversions). This was a relatively “new” concept introduced in 1714 (that’s another really interesting story), love of boys (pederasty), rubbing of one’s genitals on the leg of another person (tribadism but for men and women), sex with cadavers (necrophilia), sex with animals (bestiality), and . . . wait for it . . . lust for and sex with statues (pygmalionism).
Kaan theorized why a person might be drawn to masturbation and resultant other forms of “deviancy.” He largely focused on external forces such as early childhood coddling with too warm clothes, too soft beds, too much chocolate, tree-climbing, horseback riding, too much recreation, not enough recreation, or maybe deviancy was the result of having lustful parents, or even a French nanny or medical student nanny.
Kaan offers solutions to avoid or curtail deviancy (don’t do the things that led to it) and additionally offers poultice recipes to put on a boy’s penis to help him stop masturbation and its destructive side effects. (In case you are curious, and in need: make a poultice of potassium nitrate, camphor, opium, and sugar, and apply to the penis, or maybe make an elixir of pulverized Peruvian bark, nutmeg, and orange peel and drink it.)
Kaan’s groundbreaking book remained isolated in small academic circles because it was written in Latin. It was far too scandalous to write or translated to his native German.
The next medical professional to investigate same-sex sex was Johann Ludwig Casper in the 1850s. Casper was a forensic doctor and criminologist who was often called as an expert court witness in sex crime cases. He gained significant notoriety when he came into possession of the private journals of Count Alfred von Maltzan-Wedell. The journals were explicit in detailing Maltzan-Wedell’s several decades of engagement in pederasty. Casper was the first to view sodomy, or sexual penetration with a man, as potentially an innate desire or attraction rather than an act of willful perversion resulting from masturbation, boredom with women, moral weakness, or excessive sexual lust.
Next came the star of this article. Karl Ulrichs was raised in a religious Lutheran home in Hanover, Germany in a family with several clergy members. In 1862, he shared with his sister who was married to a minister that he was attracted to men. Though not supportive, the sister and brother-in-law knew Ulrichs to be a “normal” person and thought his traits to likely be inborn. Beginning in 1864, at first under a pseudonym, Ulrichs published twelve pamphlets over the next fifteen years investigating and explaining several social, medical, and legal aspects of those who were same-sex attracted. He was the first to create language around the issue calling same-sex attracted men “urnings” and opposite-attracted men “dionings.”
At the time, Germany was moving through the unification of several individual states to the German Confederation. The laws regarding sodomy varied widely amongst the individual states. For example, Bavaria had abolished their anti-sodomy laws in 1813 and Hanover, where Ulrichs lived had also done away with anti-sodomy laws. That is not to infer that male-male sex was acceptable or encouraged. If a man were of certain higher rank, employment, and status, and engaged in sex with another man of similar status, it was seen as “provoking a public offense.” Ulrichs was of higher status as a public officer; he was an auditor. Though he had not broken any criminal law on sodomy, he was dismissed from public service in 1854 for “provoking a public offense.”
Over the next few years, Ulrichs turned his attention to German nationalism pushing back against a Prussian-led federation. He became a freelance journalist and expressed his anti-large confederation views with his writing. Using the pseudonym Numa Numantius, he also wrote to about the legal plight and needs of urnings. Conservative Prussia not only wanted a unified Germany, but it wanted Prussian criminal law to be the template for all of Germany’s laws.
Ulrichs decided to make his campaign to fight anti-sodomy laws public when a known German shooting instructor and festival leader, Johann Baptist von Schweitzer, was accused of molesting an adolescent. The youth did not come forward to make the accusation directly. He was, however, overheard by two women telling his story to someone. It was the two women who brought the sodomy charges against Schweitzer to the Prussian court. Interestingly, the youth was not identified as the injured party, the women were because they overheard the “vile” information.
Ulrichs regarded this as an unjust accusation. It propelled him into a career in seeking scientific information which he published in pamphlets under his name. He hoped the writings would open public debate that might lead to legal reform to abolish the anti-sodomy statutes.
In 1867, Ulrichs presented his information to a group of over five hundred doctors, lawyers, and legislators debating the anti-sodomy laws. (For this action, he is counted as the first gay rights activist.) Otto von Bismarck, who was the minister of Prussia, was compelled by Ulrichs’ presentation and commissioned a Medical Affairs Board comprised of five doctors to come up with a recommendation on the future of the anti-sodomy laws.
Two years later, the Board presented their findings to the cultural ministers’ who would make the final decision about the anti-sodomy laws. They found: the relationships of homosexuals (the “urnings” language began to be replaced by Karl Kertbeny’s use of “heterosexual” and “homosexual,” introduced in 1868) was no more injurious than heterosexual relationships, illicit sexual conduct of adultery and fornication were not penalized therefore neither should homosexual acts be penalized, and finally, they recommended against the establishment or continuance of anti-sodomy laws.
Timing is everything. In the case of the cultural ministers’ final decision about the sodomy laws, the bad timing was disastrous.
As the cultural ministers’ debates and as Ulrichs wrote and advocated for the abolition of anti-sodomy laws, a high-profile case caught the full attention of the public. A five-year-old boy had been abducted and anally raped by Carl von Zastrow. The massive media coverage caused a new verb to be created, zastrieren, which meant to anally rape.
Three doctors testified at the Zastrow hearing. Each had a different opinion: Zastrow was mentally unstable, or he was clinically insane, or he was a pederast. The word “homosexual,” a scientific term, had begun to shift away from association with deviant actions. During the public debate of the Zastrow case, the medical and scientific word “homosexual” began to merge with devIancy, disease, rape, sexual mutilation, and pederasty.
Ulrichs’ plan for legal reform was derailed.
One week after the Zastrow case ended, Heinrich von Mühler, the Prussian cultural minister, overrode the five-person Medical Board’s advice to abolish the anti-sodomy laws and instead, included an anti-sodomy statute in the proposed revised law. Sodomy was defined as anal penetration of a man by another man or anal penetration of a beast.
The statute was debated over several months during 1870. Ulrichs petitioned the court to exclude sexual acts involving those with innate sexual drives to the same sex from the proposed anti-sodomy statute. Ulrichs’ input, along with that of the Medical Board, was ignored. Paragraph 175, the anti-sodomy statute, was proposed and became part of German law in May 1870.
It is not known exactly why Mühler overrode his appointed five-person Medical Board’s advice to abolish the anti-sodomy laws. Public pressure from the Zastrow case certainly led in part to the decision. Some historians believe that Mühler’s wife, a staunch conservative, influenced him.
When the German Empire was unified in January 1871, the Prussian king, William I, lead the way for Prussian laws to dominate the legal system across all the German states, including Bavaria which had rid themselves of anti-sodomy laws almost fifty years prior.
Ulrichs wrote his twelfth and final pamphlet requesting more research and study in 1879. He then moved to Italy to live among a growing community of German and English homosexuals until he died in 1895.
Ulrichs’ goal for the reform of German anti-sodomy laws never came to fruition. Yet, his life work included several significant groundbreaking accomplishments. He was the first to create language about homosexuality (urnings); he helped other homosexuals/urnings to understand themselves; he educated through his academic pamphlets; through friendship and writing, he shaped Richard von Krafft-Ebing’s influential thinking and popular books about homosexuality; his work led to the creation of the Scientific Humanitarian Committee in Berlin two years after his death. The Scientific Humanitarian Committee is recognized as the first LGBTQ rights organization. The organization housed a collection of over thirty thousand interviews with non-heteronormative people along with over ten thousand books, articles, and research records at the Institute for Sexual Science. The contents of the Institute were destroyed by the Nazi party in 1933.
Those pesky feminists of the 1960s who handed me a better world as a young woman entering high school in 1970 and college in 1974, were certainly part of the long journey to LGBTQ equality.
But there is a bigger story with a long quest for justice.
The century and a half journey from Germany in 1870 to the legal battles for LGBTQ equality in the American court system is filled with medical research, public opinion, military input, religious influence, stories of people and events that caused shifts in thinking, others who slowed progress down, and most importantly, the courage of LGBTQ people who have rightfully strived for legal equality.
NEXT MONTH’S POST and NEWSLETTER: The destruction of the Institute for Sexual Science, or maybe, an interesting history of the “dangers” of masturbation. Both are fascinating stories.
If you would like to make sure you follow the progress of “Forging a Sacred Weapon: How the Bible became Anti-Gay” and get interesting stories each month along with occasional book reviews (you will find several dozen reviews of anti-LGBTQ books written by Christian authors HERE) send a request to firstname.lastname@example.org