The Value of Dissent: Lessons from the First Homosexual Movement
/By Thomas Dutton
‘Until my death, I will count it a credit to myself that on August 29, 1867, in Munich, I found the courage to stand eye to eye against a thousand-year-old, many-thousand-headed, furious-eyed hydra …Yes, I am proud that I found the strength to deliver the first thrust of a lance into the hydra of public contempt’.
Karl Heinrich Ulrichs, 1868
Dissent is a word often heard by law students. At its core, the word refers to the manifestation of ideas, acts and omissions ‘that are alternative to existing or proposed ones’. Not merely confined to judges, dissent can be found in all facets of the law. Within parliament, for example, Members of Parliament and Senators have been seen to cross the floor, going against their own party’s policies. It is also apparent outside of legalinstitutions, such as when people protest on the streets for unpopular causes. To this day, the value of dissent in the law remains controversial. On the one hand, many see dissent as an unnecessary hindrance to unified action. In some courts in overseas jurisdictions, in fact, dissenting judgements areprohibited altogether. On the other, many see dissent as an essential part of contemporary democracy - a mechanism to ensure advancements and critical thinking within society.
This post argues for the latter view. To contextualise the ways in which dissent is viewed, it firstly outlines two separate views on dissent. The first view is by Michael Kirby - a former High Court Justice from 1996-2009 - who argues that dissent is essential for transparency and democracy. The second view is by Susan Kiefel - the former Chief Justice of the High Court from 2017-2023 - who argues that judicial dissent can harm the integrity of courts. It then looks at the First Homosexual Movement in late 19th and early 20th century Germany to illustrate the idea that dissent within the law cancontribute towards significant change. At a time in which homosexual acts carried prison sentences, a new group of gay emancipation figures had given rise to a reconceptualization of homosexuality which has since found widespread favour invarious legal systems. The dissenting ideas of these figures, it is argued, remains a testament to the value that dissent holds within the law.
Views on Dissent – Michael Kirby and Susan Kiefel
The views of people on dissent can differ wildly. This isexemplified by the differing views of judges in the High Court. At one end of the spectrum is Michael Kirby. Of all High Court judgements reported in the Australian Law Review between 22 May 1998 and 10 February 2003(excluding cases with only one or two judges), Kirby had a dissent rate of 34.0%. This was nearly two times the judgewith the second highest dissent rate – Ian Callinan at 18.0%.According to Kirby, respectful dissent and disagreements arefundamental to Australia’s legal system. If disagreementsamongst judges were hidden from public view, he argues, the courts would lack transparency, denying ‘the ultimate sovereign, the people, the right to evaluate, and criticise, judicial choices’. He also views dissenting judgements as having the ability to ‘appeal to the future’. For example, he mentions Isaac Isaacs’ dissenting judgements in early High Court cases, whose textualist understandings of the Australian Constitution now represent mainstream jurisprudence onAustralia’s division of powers. Kirby has likewise stated that respectful dissent should not be merely confined to the courts– it should also be protected in broader society.
Further to the other end of the spectrum is Susan Kiefel. Out of Kiefel’s decisions on AustLII’s High Court database from 2017-2019 (excluding single judge decisions), Kiefel had a dissent rate of only 2.21%. This was lower than any other High Court judge during this period. She cautions against law students putting too much emphasis on dissenting judgements, instead encouraging a focus on ‘mundane’ majority judgements. According to her, dissenting judgements canserve little purpose other than entertainment. She draws attention not to the existence of dissent itself, but rather the way it is often delivered – often with ‘extravagant language’, mockery of other judges’ reasoning, and a perhaps ‘self-indulgent’ desire to entertain the reader of the judgement. She views such dissents as undermining the integrity of the judiciary. However, on dissent in general, she has stated that judges who disagree with the majority should express that disagreement, albeit briefly.
Germany underwent several societal shifts in the late 19th and early 20th centuries. Left: A poster for women’s suffrage from 1907. Right: An image of an entertainment complex in Berlin in 1932.
The First Homosexual Movement
The late 19th and early 20th centuries were a time of significant change in what is now Germany. Prior to the mid-19thcenturies, the various German polities which would eventually constitute the German Empire were largely agrarian, with most inhabitants living outside of cities and large towns.However, from around the mid-19th century, there was a significant increase in heavy industry (most notably coal and metal production), as well as a large-scale migration to German cities. With this came great social change.Urbanisation and the possibilities of new, reformed social orders saw newly formed subcultures and political groups advocate for a variety of social and political causes. On the one hand, some figures resented the industrialisation and social change that arose. A broad movement termed the völkisch movement saw writers, aristocrats and ordinary people alike reject modernisation as a cause of societal degradation, instead harkening back to an idealised past based on German ethnic identity. On the other hand, various progressive movements such as trade unionism and feminism gained increasing prominence. In both the former and latter category were two broad movements for the advancement of the rights of homosexuals. Overlooking the question of lesbian attraction, several figures attempted to associate male homosexuality with a supposedly ancient tradition of Männerbund – leagues of male warriors. Through homosexualrelationships, it was posited, the masculinity, strength and camaraderie of German males could be fostered free from the supposed inferiority of women. It was argued that these homosexual bonds, particularly in military settings, could unify and strengthen German soldiers against variousperceived threats such as communism and Jewish people.Other figures, who are the focus of this post, sought to justify homosexuality on both liberal principles and theories on the innateness of homosexuality. They argued for the liberalisation of laws towards homosexuals on the basis that same-sex attraction was involuntary.
The genesis of the First Homosexual Movement predates the unification of the German Empire. Following the fall of the Holy Roman Empire, the land now known as Germany was under the control of a loose array of free cities, principalities, kingdoms and other polities. Prussia (the largest polity) criminalised homosexual acts under § 143 of its criminalcode, punishable with prison sentences of one to four years.Seeking to challenge Prussia’s anti-homosexual law just prior to unification, a lawyer by the name of Karl Heinrich Ulrichs had begun publishing a series of pamphlets from 1864. He argued for the decriminalisation of homosexual acts on twobases. Firstly, he argued that homosexual men and lesbian women (whom he called Urninge and Urninginnenrespectively) were a distinct category of people, whose sexual orientations were indicative of having inborn features of the opposite sex. Secondly, on liberal principles, he argued thatcriminalising homosexual acts is unjustifiable, being comparable to anti-Semitism and the broader persecution ofpeople based on ethnicity, religion, nationality or birth status.He originally wrote his pamphlets under the penname of Numa Numantius, though his identity was discovered in April 1867 when his house was raided by Prussian authorities forunrelated reasons. As a result of the raid, his identity was leaked to the press by police, he was detained for just over two months, and was subsequently banished from the province he was then residing in. This seemingly only served to increase his efforts, however. In August 1867, he stood before a crowd of around 500 judges, parliamentarians and lawyers to argue his cause, drawing heavy condemnation from the audience. He was forced to leave the stage before he could finish his speech. However, in early 1868 under his ownname, he sent a pamphlet to those in attendance at the conference, forewarning that such dissent would not start and end with him. He wrote, ‘[a]s long as this love publicly exists in the penal code, as long as state prosecutors and the courts emphasize the fact, lovers of this kind may open public channels in their behalf to come before the forum and to enter their protest and to establish their petition of rights’. Despite Ulrichs’ efforts and widespread debate on the matter, homosexuality continued to be criminalised. As Germany unified, it was criminalised under § 152 of the North German Confederation’s penal code (passed in 1870), and then § 175 of the German Empire’s criminal code (passed in 1871).
Left: An image of a couple dancing at a famous Weimar-era Berlin club called Eldorado. Right: An image of the inside of the Institute for Sexual Sciences in Berlin.
Towards the end of the 19th century, the First Homosexual Movement began to take an institutional form. Alongside several homosexual emancipation figures, a prominent sexologist by the name of Magnus Hirschfeld founded theScientific-Humanitarian Committee in 1897. Its primary aim was to petition for the repeal of § 175. Hirschfeld argued that homosexuality was innate, seeing same-sex attraction(alongside transgender identity and intersex variations) as a feature of ‘sexual intermediacy’ – being neither fully male nor fully female. Aside from this theory, he also employed a number of liberal arguments, such as, inter alia, the idea that governments have no place in interfering with consensual sexual relations, and that laws should not penalise natural phenomena. After World War 1, the relatively laissez-faire attitudes of Weimar authorities towards sexuality saw some degree of freedom in German cities. Several gay and lesbianclubs had since opened in Berlin and other cities, and gay and lesbian magazines had since begun to circulate within Germany. After garnering support from the Minister of Internal Affairs of the Weimar Republic, Hirschfeld furtherestablished the Institute for Sexual Sciences in Berlin in 1919.This was the first organisation of its kind to research and educate the public on matters of sexuality. Amongst other things, it oversaw the first gender reassignment surgery in history, as well as helping to produce what was possibly thefirst film to portray homosexuality in a positive light. Despite Hirschfeld and his colleagues’ work being admirable to some, such efforts were met with severe condemnation. Hirschfeld himself was fined DM200 for obscenity in 1903, beaten by völkisch activists on two occasions in 1920 and 1923, and was frequently vilified in local media and by masculinisthomosexuals. Once the National Socialists gained power in 1933, the Institute for Sexual Sciences was raided and dissolved, its publications were destroyed, and a crackdown on homosexual clubs and organisations more generally began.Hirschfeld’s German citizenship was later forcibly revoked in 1934. With homosexuals being arrested, imprisoned, killed, castrated and sent to concentration camps under the Third Reich, the First Homosexual Movement had effectively ceased within Germany.
Despite a severe disruption of momentum under the Third Reich, the kind of dissenting ideas brought forth by figures like Ulrichs and Hirschfeld have since found favour across several jurisdictions. Some facets of their theories, most notably the idea that homosexuals are a sort of ‘third sex’, have not been widely accepted. The degree to which the First Homosexual Movement influenced later gay rights movements is also yet to be researched in depth. At the very least, however, the work of figures like Ulrichs and Hirschfeld nudged various legal systems towards greater rights for homosexuals. Whilst homosexual acts were previously conceived as the product of upbringing, choice, diseases, culture or other external factors, the First Homosexual Movement saw homosexuality start to be redefined in a radically new light – as an innate and immutable characteristic. In several European jurisdictions which had decriminalised homosexual acts in the 1930s and 1940s, law reformers had drawn directly upon Hirschfeld’s work in arguing their cause. These jurisdictions include Denmark (decriminalised in 1933), and Sweden (decriminalised in 1944). In England and Wales, the Wolfenden Report of 1957 recommended that consensual homosexual acts in private between people over the age of 21 years be decriminalised.Similarly to the ideas that Ulrichs and Hirschfeld had expressed decades earlier, the report stated that homosexuality is not a disease and is unlikely to be changeable. It also statedthat ‘[i]t is not … the function of the law to intervene in the private lives of citizens’. England and Wales decriminalised homosexual acts 10 years later in 1967, with much of the English-speaking world gradually following. As of 2025, less than one third of all countries globally retain laws against consensual homosexual acts in private. In short,and to use the phrasing of Kirby, the dissent of Ulrichs and Hirschfeld had become ‘vindicated by history'. Whilstheretical at the time, their view that homosexuality is not a criminal matter has since become the norm in various legal systems across the world.
An image of the Memorial to the First Homosexual Emancipation Movement in Berlin.
Conclusion
Dissent within the law can be risky. Whilst people like Kirby had often dissented and view dissent as being vital, other people such as Kiefel seemingly attach less esteem to it. Of course, dissenting ideas are not always beneficial. As Kiefel seems to rightfully suggest, dissent simply for the sake of dissent may be amusing, but does not advance the law.Nonetheless, the First Homosexual Movement illustrates that dissent should not be written off as meaningless. Whilst early homosexual rights figures were fined, interned and beaten for their efforts, their ideas ultimately foresaw a future in which the absence of laws targeting homosexuals is the norm. As a law student, your ideas may be seen as too liberal, too conservative, unorthodox, or just plainly disagreeable. Without dissent, however, our legal system would be nothing more than an echo chamber.
Images (In Order of Appearance)
Glass Panel with Yellow Splash Paints (Image, Jr Korpa, Unsplash, 18 September 2019) <https://unsplash.com/photos/glass-panel-with-yellow-splash-paints-6YPthISMBZY>.
Broschuere Deutscher Verband für Frauenstimmrecht 1907 [Brochure German Association for Women's Suffrage 1907] (Photograph, Horst Ziegenfusz, Wikimedia Commons, 2018)<https://commons.wikimedia.org/wiki/File:Broschuere_Deutscher_Verband_f%C3%BCr_Frauenstimmrecht_1907.jpg>.
Berlin, Stresemannstraße bei Nacht [Berlin, Stresemannstraße at Night] (Photograph, Wikimedia Commons, 1932) <https://commons.wikimedia.org/wiki/File:Bundesarchiv_Bild_102-13681,_Berlin,_Stresemannstra%C3%9Fe_bei_Nacht.jpg>. Under CC BY-SA 3.0 DE Licence. Kept by the German Federal Archives.
A Couple Dances at the Eldorado Nightclub (Photograph, United States Holocaust Memorial Museum, 1929) <https://encyclopedia.ushmm.org/content/en/photo/a-couple-dances-at-the-eldorado-nightclub>.
Albani Antinous. Institut für Sexualwissenschaft [Albani Antinous, Institute for Sexual Sciences] (Photograph, Wikimedia Commons, circa 1920) <https://commons.wikimedia.org/wiki/File:Albani_Antinous._Institut_f%C3%BCr_Sexualwissenschaft.jpg>.
Denkmal für die erste homosexuelle Emanzipationsbewegung bei Nacht [Memorial to the First Homosexual Emancipation Movement at Night] (Photograph, Alorin, Wikimedia Commons, 24 April 2018)<https://commons.wikimedia.org/wiki/File:Denkmal_f%C3%BCr_die_erste_homosexuelle_Emanzipationsbewegung_bei_Nacht.jpg>. Under CC BY 4.0 Licence.
