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’.[1]
Karl Heinrich Ulrichs, 1868
Introduction
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’.[2] 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 legal institutions, 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.[3] In some courts in overseas jurisdictions, in fact, dissenting judgements are prohibited altogether.[4] On the other, many see dissent as an essential part of contemporary democracy - a mechanism to ensure advancements and critical thinking within society.[5]
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.[6] 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.[7] 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 can contribute 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 in various legal systems. The dissenting ideas of these figures, it is argued, remains a testament to the value that dissent holds within the law.
Differing Views on Dissent – An Example
The views of people on dissent can differ wildly. This is exemplified 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%.[8] This was nearly two times the judge with the second highest dissent rate – Ian Callinan at 18.0%.[9] According to Kirby, respectful dissent and disagreements are fundamental to Australia’s legal system.[10] If disagreements amongst 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’.[11] He also views dissenting judgements as having the ability to ‘appeal to the future’.[12] For example, he mentions Isaac Isaacs’ dissenting judgements in early High Court cases, whose textualist understandings of the Australian Constitution now represent mainstream jurisprudence on Australia’s division of powers.[13] Kirby has likewise stated that respectful dissent should not be merely confined to the courts – it should also be protected in broader society.[14]
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%.[15] This was lower than any other High Court judge during this period.[16] She cautions against law students putting too much emphasis on dissenting judgements, instead encouraging a focus on ‘mundane’ majority judgements.[17] According to her, dissenting judgements can serve little purpose other than entertainment.[18] 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.[19] She views such dissents as undermining the integrity of the judiciary.[20] However, on dissent in general, she has stated that judges who disagree with the majority should express that disagreement, albeit briefly.[21]
Theoretically speaking, Kirby and Kiefel’s views are not in direct conflict. That is, both views allow for dissent which is purposeful and respectful. Where they differ, however, is the degree of importance that they attach to it. Kirby appears to encourage dissent, whereas Kiefel appears to problematise it in some regards. Their views arguably illustrate that, in the law more broadly, the level of importance attached to dissent can vary significantly.
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 History of 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-19th centuries, the various German polities which would eventually constitute the German Empire were largely agrarian, with most inhabitants living outside of cities and large towns.[22] 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.[23] 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.[24] 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.[25] On the other hand, various progressive movements such as trade unionism and feminism gained increasing prominence.[26] 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.[27] Through homosexual relationships, it was posited, the masculinity, strength and camaraderie of German males could be fostered free from the supposed inferiority of women.[28] It was argued that these homosexual bonds, particularly in military settings, could unify and strengthen German soldiers against various perceived threats such as communism and Jewish people.[29] Other figures, who are the focus of this post, sought to justify homosexuality on both liberal principles and theories on the innateness of homosexuality.[30] They argued for the liberalisation of laws towards homosexuals on the basis that same-sex attraction is involuntary.[31]
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.[32] Prussia (the largest polity) criminalised homosexual acts under § 143 of its criminal code, punishable with prison sentences of one to four years.[33] 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.[34] He argued for the decriminalisation of homosexual acts on two bases.[35] Firstly, he argued that homosexual men and lesbian women (whom he called Urninge and Urninginnen respectively) were a distinct category of people, whose sexual orientations were indicative of having inborn features of the opposite sex.[36] Secondly, on liberal principles, he argued that criminalising homosexual acts is unjustifiable, being comparable to anti-Semitism and the broader persecution of people based on ethnicity, religion, nationality or birth status.[37] 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 for unrelated reasons.[38] 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.[39] 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.[40] He was forced to leave the stage before he could finish his speech.[41] However, in early 1868 under his own name, he sent a pamphlet to those in attendance at the conference, forewarning that such dissent would not start and end with him.[42] 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’.[43] Despite Ulrichs’ efforts and widespread debate on the matter, homosexuality continued to be criminalised.[44] 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).[45]
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 the Scientific-Humanitarian Committee in 1897.[46] Its primary aim was to petition for the repeal of § 175.[47] Hirschfeld argued that homosexuality is innate, seeing same-sex attraction (alongside transgender identity and intersex variations) as a feature of ‘sexual intermediacy’ – being neither fully male nor fully female.[48] 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.[49] After World War 1, the relatively laissez-faire attitudes of Weimar authorities towards sexuality saw some degree of freedom in German cities.[50] Several gay and lesbian clubs had since opened in Berlin and other cities, and gay and lesbian magazines had since begun to circulate within Germany.[51] After garnering support from the Minister of Internal Affairs of the Weimar Republic, Hirschfeld further established the Institute for Sexual Sciences in Berlin in 1919.[52] This was the first organisation of its kind to research and educate the public on matters of sexuality.[53] Amongst other things, it oversaw the first gender reassignment surgery in history, as well as helping to produce what was possibly the first film to portray homosexuality in a positive light.[54] 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 masculinist homosexuals.[55] 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.[56] Hirschfeld’s German citizenship was later forcibly revoked in 1934.[57] With homosexuals being arrested, imprisoned, killed, castrated and sent to concentration camps under the Third Reich,[58] the First Homosexual Movement had effectively ceased within Germany.
The Impact of the First Homosexual Movement
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.[59] 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.[60] These jurisdictions include Denmark (decriminalised in 1933), and Sweden (decriminalised in 1944).[61] 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.[62] 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.[63] It also stated that ‘[i]t is not … the function of the law to intervene in the private lives of citizens’.[64] England and Wales decriminalised homosexual acts 10 years later in 1967,[65] 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.[66] In short, and to use the phrasing of Kirby, the dissent of Ulrichs and Hirschfeld had become ‘vindicated by history'.[67] Whilst heretical 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.[68] 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.
Sources
*Except where stated otherwise, all translations are by the author.
[1] Karl Heinrich Ulrichs, Gladius Furens [Raging Sword] (Kassel, 1868) 1.
[2] Denis de Castro Halis, ‘Dissent and Law’ in Mortimer Sellers and Stephan Kirste (eds), Encyclopedia of the Philosophy of Law and Social Philosophy (Springer, 2023) 762, 767.
[3] Ibid.
[4] See, eg, Diletta Tega, ‘Collegiality Over Personality: The Rejection of Separate Opinions in Italy’ in Vittoria Barsotti et al (eds), Dialogues on Italian Constitutional Justice (Routledge, 2021) 107.
[5] Halis (n 2) 762.
[6] See generally Michael Kirby, ‘Judicial Dissent’ (2005) 12 James Cook University Law Review 4.
[7] See generally Susan Kiefel, ‘Judicial Courage and the Decorum of Dissent’ (Selden Society Lecture, Supreme Court of Queensland, 28 November 2017).
[8] Andrew Lynch, ‘The Gleeson Court on Constitutional Law: An Empirical Analysis of Its First Five Years’ (2003) 26(1) The University of New South Wales Law Journal 32, 47-49.
[9] Ibid.
[10] See generally Kirby (n 6).
[11] Ibid 5, 10.
[12] Michael Kirby, ‘Consensus and Dissent and the Proposal for an Australian Statute of Rights’ (2008) 12(10) Southern Cross University Law Review 129, 137. See also ibid 6.
[13] Kirby (n 6) 6.
[14] Queensland Law Society, ‘Dissent, Democratic Ideals and Delivering Justice: A Conversation with Michael Kirby AC CMG’ (YouTube, 5 December 2024) 00:30:59 – 00:32:20 <https://www.youtube.com/watch?v=BCfMDo9OMI4&t=2016s>.
[15] See Andrew Lynch and George Williams, ‘The High Court on Constitutional Law: The 2017 Statistics’ (2018) 41(4) UNSW Law Journal 1134, 1135-1138, 1146 (‘High Court 2017 Statistics’); Andrew Lynch and George Williams, ‘The High Court on Constitutional Law: The 2018 Statistics’ (2019) 42(4) UNSW Law Journal 1443, 1444, 1449 (‘2018 High Court Statistics’); Andrew Lynch, ‘The High Court on Constitutional Law: The 2019 Statistics’ (2020) 43(4) UNSW Law Journal 1226, 1227-1228, 1233 (‘2019 High Court Statistics’).
[16] Lynch and Williams, ‘High Court 2017 Statistics’ (n 15); Lynch and Williams, ‘2018 High Court Statistics’ (n 15); Lynch, ‘2019 High Court Statistics’ (n 15).
[17] See Kiefel (n 7).
[18] See ibid.
[19] See ibid.
[20] See ibid.
[21] Susan Kiefel, ‘The Individual Judge’ (2014) 88(8) Australian Law Journal 554, 558.
[22] Douglas Pretsell, Urning: Queer Identity in the German Nineteenth Century (University of Toronto Press, 2024) 5-7.
[23] Ibid 7; Peter N Stearns, The Industrial Revolution in World History (Routledge, 5th ed, 2020) 60-2.
[24] Pretsell (n 22) 7, 9.
[25] See ibid.
[26] Pretsell (n 22) 9.
[27] See Ulrike Brunotte, ‘Queering Judaism and Masculinist Inventions: German Homonationalism Around 1900’ in Marko Derks and Mariecke Van Den Berg (eds), Public Discourses About Homosexuality and Religion in Europe and Beyond (Palgrave MacMillan, 2020) 125, 130-2, 135-6, 138-9.
[28] Jason Crouthamel, ‘Homosexuality and Comradeship: Destabilizing the Hegemonic Masculine Ideal in Nazi Germany’ (2018) 51(3) Central European History 419, 422-6. See also Claudia Bruns, ‘The Politics of Masculinity in the (Homo-)Sexual Discourse (1880 to 1920)’ (2005) 23(3) German History 306.
[29] Crouthamel (n 28).
[30] See Clayton Whisnant, Queer Identities and Politics in Germany: A History, 1880–1945 (Harrington Park Press, 2016) 16-22.
[31] Ibid.
[32] Pretsell (n 22) 25.
[33] Ibid 6, 25.
[34] Ibid 27-8.
[35] See ibid 28.
[36] See generally Hubert C Kennedy, ‘The ‘Third Sex’ Theory of Karl Heinrich Ulrichs’ (1981) 6(1-2) Journal of Homosexuality 103.
[37] Pretsell (n 22) 28; Robert Deam Tobin, Peripheral Desires: The German Discovery of Sex (University of Pennsylvania Press, 2015) 89-92.
[38] Pretsell (n 22) 28-29.
[39] Ibid.
[40] Ibid 29.
[41] Ibid.
[42] Ibid 30.
[43] Ulrichs (n 1) 15-16 [tr Michael Lombardi Nash], cited in ibid.
[44] See Thomas Vormbaum, A Modern History of German Criminal Law, ed Michael Bohlander, tr Margaret Hiley (Springer, 2014) 78-9, 132; Pretsell (n 22) 50-1, 64-6; Tobin (n 37) 9-10.
[45] See Vormbaum (n 44); Pretsell (n 22) 50-1, 64-6; Tobin (n 37) 9-10.
[46] Elena Mancini, Magnus Hirschfeld and the Quest for Sexual Freedom: A History of the First International Sexual Freedom Movement (Palgrave Macmillan, 2010) 91.
[47] Ibid.
[48] See Ralf Dose, Magnus Hirschfeld: The Origins of the Gay Liberation Movement (Monthly Review Press, 2014) 68-73.
[49] Mancini (n 46) 52-4.
[50] See Whisnant (n 30) 83-4, 92-8, 100-3, 112-20.
[51] Ibid.
[52] Mancini (n 46) 114-5.
[53] Ibid 115.
[54] Ibid 115-6, 118.
[55] Ibid 93, 100, 105, 116, 122.
[56] Ibid 140-1; Whisnant (n 30) 209.
[57] Mancini (n 46) 140.
[58] Whisnant (n 30) 214-8.
[59] See eg, Kennedy (n 36) 109-110.
[60] Dagmar Herzog, Sexuality in Europe: A Twentieth-Century History (Cambridge University Press, 2011) 77-82.
[61] Ibid.
[62] See generally Home Office (UK), Report of the Committee on Homosexual Offences and Prostitution (Cmnd 247, 1957) (‘Wolfenden Report’). See also Laura A Belmonte, The International LGBT Rights Movement: A History (Bloomsbury Academic, 2021) 93-4.
[63] Wolfenden Report (n 62) 126-7.
[64] Ibid 21.
[65] Belmonte (n 62) 114.
[66] Lucas Ramón Mendos, Laws on Us: A Global Overview of Legal Progress and Backtracking on Sexual Orientation, Gender Identity, Gender Expression, and Sex Characteristics (Report, 1st ed, May 2024) 29-30.
[67] Kirby (n 6) 10.
[68] See Kiefel (n 7).
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.
