French Senate debates compensation for gay men jailed under homophobic laws

An estimated 60,000 gay men were convicted by French courts between 1942 and 1982 under homophobic laws that were repealed just four decades ago. On Wednesday, French senators will discuss a bill acknowledging France’s role in the persecution of homosexuals and offering compensation to those still alive, mirroring steps taken elsewhere in Europe. 

The proposal put forward by Socialist Senator Hussein Bourgi tackles a little-known subject in French history, shedding light on the judicial repression of homosexuals carried out by the French state both in wartime and after the country’s Liberation from Nazi rule. 

France became the first country to decriminalise homosexuality during the Revolution of 1789, only to resume the persecution of gay men under subsequent regimes, through both judicial and extrajudicial means. 

Bourgi’s text focuses on a 40-year period following the introduction of legislation that specifically targeted homosexuals under the Nazi-allied Vichy regime. The 1942 law, which was not repealed after the liberation of France, introduced a discriminatory distinction in the age of consent for heterosexual and homosexual sex, setting the former at 13 (raised to 15 at the Liberation) and the latter at 21.

Some 10,000 people – almost exclusively men, most of them working-class – were convicted under the law until its repeal in 1982, according to research by sociologists Régis Schlagdenhauffen and Jérémie Gauthier. More than 90% were sentenced to jail. An estimated 50,000 more were convicted under a separate “public indecency” law that was amended in 1960 to introduce an aggravating factor for homosexuals and double the penalty. 

“People tend to think France was protective of gay people compared to, say, Germany or the UK. But when you look at the figures you get a very different picture,” said Schlagdenhaufen, who teaches at the EHESS institute in Paris. 

“France was not this cradle of human rights we like to think of,” he added. “The Revolution tried to decriminalise homosexuality, but subsequent regimes found other stratagems to repress gay people. This repression was enshrined in law in 1942 and even more so in 1960.” 

Spain leads the way 

The bill put before the Senate on Wednesday calls for a formal recognition of the French state’s responsibility in the criminalisation and persecution of homosexuals. Mirroring steps taken in other Western countries, it proposes the establishment of a mechanism to compensate the victims of the French state’s homophobic laws, offering them a lump sum of €10,000, coupled with an allowance of €150 for each day spent in jail, and the reimbursement of fines. 

Most of those victims are likely to have died already, giving Bourgi’s proposal a largely symbolic value. If it is approved, the bill would also create a specific offence for denying the deportation of homosexuals during World War II, as there is for Holocaust denial. 

Schlagdenhaufen said France has a poor record when it comes to acknowledging some of the darker chapters in its history. He pointed to the belated recognition, in 1995, of the Vichy regime’s active role in the deportation of tens of thousands of French Jews to Nazi death camps during World War II. 

“Recognition and reparation of historical wrongs are an important part of a country’s stance on the protection of LGBT rights,” he said. “If this law is approved, it will bring France more in line with European standards.” 

In 2007, Spain’s Socialist government passed pioneering legislation acknowledging the persecution of homosexuals under Franco’s regime and offering compensation to those who were jailed or tortured in “correction camps” because of their sexual orientation. The move was part of a raft of laws that have turned the country from one of Europe’s worst offenders to a world leader on sexual minority rights. 

A decade later, Germany’s parliament voted to quash the convictions of 50,000 gay men sentenced for homosexuality under a Nazi-era law that remained in force after the war – and offer compensation. Earlier this month, Austria’s government announced it had set aside millions of euros to compensate thousands of gay people who faced prosecution until the turn of the century. 

“This financial compensation can never, never make up for the suffering and injustice that happened,” Austria’s Justice Minister Alma Zadic told reporters as she detailed the plan, flanked by two LGBT flags. “But it is of immense importance that we (…) finally take responsibility for this part of our history.” 

Extrajudicial persecution 

Austria’s compensation fund will apply to people who suffered from the country’s discriminatory laws in terms of their health, their finances and their professional lives, whether or not they were eventually convicted. Its scope makes it significantly more ambitious than the proposal put before the French Senate on Wednesday. 

While welcoming Bourgi’s text, some experts have called for a more wide-ranging proposal, noting that the focus on Vichy-era legislation conceals a longer history of repression of homosexuality carried out by republican regimes as well. 

In an op-ed published by Le Monde last year, when Bourgi first presented his bill, sociologist Antoine Idier lamented the “timidity” of a proposal that falls significantly short of acknowledging the full scope of state-sponsored homophobia, which, he argued, extends well beyond the judicial sphere. 

“State homophobia (…) encompasses all the processes by which state policies have contributed (and contribute) to supporting the domination and inferiorisation of sexual minorities,” Idier wrote, adding that even a more restrictive view of state repression would find the Senate proposal deficient in its scope. 

“State repression of homosexuality dates back to long before 1942,” the sociologist explained, highlighting the extrajudicial persecution of gay people carried out by police throughout the 19th century – “a daily routine of mockery, humiliation, control and harassment”.  He pointed to the abusive use of “public indecency” charges, instituted under Napoleon in 1810 and instrumentalised to persecute homosexuals in the private sphere, long before the introduction of an aggravating factor in 1960. 

Failure to widen the scope of the bill, he added, “would mean turning a blind eye to a large part of the persecution of homosexuals and exonerating France of a large part of its responsibility”. 

Senate obstacle? 

Schlagdenhaufen said he hoped the senator’s text would set the foundation for further action. 

“We have to start somewhere,” he said. “And the legislation enacted in 1942 and 1960, with its direct focus on homosexuals, is a good place to start.” 

The bill’s passage into law is far from certain, Schlagdenhaufen cautioned, pointing to the composition of the Senate. France’s upper chamber of parliament is dominated by the conservative Les Républicains party, whose members overwhelmingly rejected same-sex marriage a decade ago, when the party was known as the UMP. 

“The Senate has a conservative, right-wing majority, which is traditionally reluctant to acknowledge the state’s responsibility in past repression,” he said, adding: “It is not particularly favourable to LGBT rights either.” 

Ahead of Wednesday’s debate, a Senate committee expressed a number of reservations about the proposed text. It called for a “clear, strong and unambiguous recognition of the discriminatory nature of laws” targeting homosexuals but cited “legal obstacles” to financial reparations. The committee also argued that denying the wartime deportation of homosexuals is already punishable under French law, making part of Bourgi’s text redundant. 

The latter assertion will soon be put to the test at the latest, high-profile trial involving far-right TV pundit and former presidential candidate Eric Zemmour, who faces a lawsuit from several gay rights groups for arguing that a fellow politician was right to brand the World War II roundup and deportation of French homosexuals a “myth”. 

“It will be interesting to see what laws are cited when the court hands down its ruling,” Schlagdenhaufen observed. “We will have first-hand evidence of whether the Senate proposal really is ‘redundant’.” 

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