Part I: Weimar Republic
Part II: Third Reich
The legal position: § 175 of the Prussian legal code, which criminalised male (but not female) homosexuality, had been extended to the whole of Germany following unification in 1870. Cross-dressing (Geschlechtsverkleidung) was not as such illegal, but persons doing so could, at the whim of the arresting officer, be charged with public mischief under § 183 of the German legal code (which could mean six weeks’ imprisonment or a fine of 150 marks). As such the legal situation was not dissimilar to that in England, where the fact that transvesting was not a crime had been definitely established by the 1871 trial of Stella and Fanny. They had been charged with an 'unnatural offence' (that is sodomy) but this was not proved. Other than this, the prosecution was stuck for a crime. Dressing as a woman was not in itself a crime. However arrests of transvesting persons for ‘public mischief’ continued for another century.
Both countries differed from France where The Penal Code of 10 June 1853, Article 471 §15 criminalised transvesting in public spaces and balls.
The idea of a licence to cross-dress is French. It was initiated by the P 7 November 1800 (well before the law of 1853), and continued through into the 20th century.
There is at least one recorded incident - in Austria - of a police permit to wear male clothes that predates the 20th century: that of the Viennese folk singer, .
In , district office of Miesbach, Upper Bavaria, a ‘lady’ named “Rosina Danner” had gone dressed as a man without any permission for 30 years before dying in 1908.
There is no proper account in Magnus Hirschfeld’s two major books on Transvestism, Die Transvestiten, 1910 and Sexualpathologie, volume II, 1919, of his negotiation with the Berlin Polizeiprasidium for the first Transvestitenshein in 1909. It is surely likely though that Hirschfeld, through his contacts with French doctors, and the Berlin Polizeiprasidium, though their contacts with the Paris Préfecture de Police, were aware of the French practice.
Anyway the French licence was called Permission de Travestissement. The German Transvestitenschein is a close translation of Permission de Travestissement - although the German refers to ‘transvestites’ rather than ‘transvestism’. The usage of Transvestitenschein is Hirschfeld’s first use of any Transvest* word, and the most likely assumption is that he took his usage of transvest* words from the French usage.
In 1909 (born 1885), a trans man encountering repeated difficulties in having a female name on his papers, had a run-in with the Berlin police and the referral physician contacted Hirschfeld. Hirschfeld and psychoanalyst (1877-1925) wrote an evaluation using the pseudonym ‘Katharina T’ and referring to him as 'Fräulein'. Working with a lawyer, they obtained first interim oral permission, then also written permission by the police chief Ernst von Stubenrauch. This was the first German Transvestitenschein, a legal acknowledgement of cross-dressing. The request to change his first name was not granted.
1910 Magnus Hirschfeld published Die Transvestiten: eine Untersuchung über den erotischen Verkleidungstrieb mit umfangreichem casuistischem und historischem Material. In this new book, Hirschfeld never uses the word ‘Transvestitismus’. He uses ‘Transvestiten’ only a few times. He mainly uses the established German words for cross-dressing: ‘Verkleidung’, sometimes ‘Geschlechtsverkleidung’. Transvestitenscheins as such are not discussed, although there is an account of Karl Kohnheim/Katharina T.
, who was then 48 and had read Die Transvestiten, contacted Hirschfeld in early September 1911. The Berlin lawyer, Fritz Selten, took the case and submitted the application with a recommendation written by Hirschfeld and Iwan Bloch to the Prussian Police Präsidium, which on 27 September 1911, on the basis of this expert opinion, "granted permission to wear women's clothes”. The same written legitimation was also issued by the Munich police chief. Josefine Meißauer was the first trans woman in Germany to get a Transvestitenschein.
A letter from the Berlin police in 1911 read:
“According to the law and jurisprudence, the wearing of men's clothes by a woman is only punishable if public order is disturbed, for example, by causing a public spectacle, or in a similar way. If you wear men's clothing, you must ensure above all that the wearing of such clothing does not lead to any discord and that public order is not disturbed in any way. Only if unfavourable facts were to become known in the latter respect would you have to be prohibited from wearing men's clothing.”
This was published in the Berliner Tageblatt.
Another letter in 1912 read:
“I inform you that you are not prohibited from wearing female clothing per se. However, you will be liable to prosecution as soon as you cause a disturbance by your behaviour in women's clothing.”
(The documents issued thereafter by the police contained the personal data and the portrait photo - in the target-sex habit - of the person concerned and, stamped by the police headquarters, became a kind of identity card. This did not actually constitute permission to wear clothes of the opposite sex, as was often misunderstood (even by Magnus Hirschfeld), but it did identify the person as a diagnosed transvestite - and thus as a sex-driven repeat offender, and so an arrest could be dispensed with. For the persons concerned, this practice may have been a relief. But it also meant a multiple relationship of dependency: on the one hand on the examining doctor, who had to be paid a fee for the diagnosis, on the other hand on the police headquarters, which issued the certificate, and finally on the goodwill of the police and judicial officers, who could forego an arrest or even a charge if the certificate was presented. In this way, the authorities controlled abrogations of the public dress code.)
1912 (1891 - 1981) obtained a Transvestitenschein from the Berlin police, with an expert opinion from Hirschfeld and the neurologist Ernst Burchard .
acquired a Transvestitenschein in nearby , and when called for military recruitment in 1913, she appeared as Gerda, and was deemed ineligible.
Louis Sch. successfully applied for a Transvestitenschein supported by Hirschfeld and Ernst Burchard, was allowed to change his first name to Louis, and as a man married his girlfriend.
Emilie Kellner, a retired police officer, gained a Transvestitenschein with the aid of Hirschfeld and Ernst Burchard, but was refused a name change to Emilie.
1914 Trans man “”, who was taken to be a man in women’s clothes, was suspected of being a Serbian spy and severely beaten on the street. That was the first time that he begged the police for a Transvestitenschein so that he could legally wear male clothing. He was held for six days, at first examined by a police surgeon, and then by a psychiatrist. But he was not given a Transvestitenschein.
1915 Gerda von Zobeltitz lost her Transvestitenschein after a grand uncle's denunciatory intervention.
1915 Ernst, raised as female, registered with the military authority several times with an urgent request to be taken on as a soldier. The garrison doctor raised concerns as to whether there might be an erroneous gender determination . He was therefore referred to an expert, who found that male sex characteristics predominated. Ernst applied to the Potsdam government for a name change and a Transvestitenschein.
1917 Emilie Kellner had moved to Charlottenburg but descended to impoverishment because of the male name on his papers. The case was referred to the Ministry of the Interior, and was supported by the mayor of Charlottenburg. An expert opinion from the Royal Medical College disagreed with the Hirschfeld-Burchard report, and her application was denied.
1918 Berthold Buttgereit moved to Cologne and obtained a Transvestitenschein from the police there.
1919 Foundation of the Institut für Sexualwissenschaft
Alex Starke moved to Berlin, where he worked as a dentist and, with expert evidence from Magnus Hirschfeld, he applied for a Transvestitenschein In September.
3 November 1919: a new regulation for the change of the family name within the jurisdiction of the district courts.
1920 The first official authorisation to wear women's clothes issued in Switzerland.
21 April: a decree of the Prussian Minister of Justice whereby the district courts were authorised to change the first name also. Walther Niemann, a lawyer with close ties to the Scientific-Humanitarian Committee (WhK), campaigned for name changes for trans persons. The local court declared itself not competent despite this instruction. Niemann consulted the Ministry of Justice and found out that it wanted to decide about transvestites on a case-by-case basis. Initially, trans persons were only authorised to bear a first name that was not gender-specific, such as Alex, Toni or Gerd, and only later was this regulation extended to clearly female or male names.
September. successfully petitioned a local court in downtown Berlin to change his legal name to Alex, and in November the civil register in Erfurt was accordingly changed.
1921 Trans man “Elsa B” came to Emil Gutheil at the University of Vienna for therapy so that he could obtain a Transvestitenschein. B did attend 33 sessions with Gutheil, during which the psychoanalyst continued to refer to him as ‘she’ and as a ‘woman’.
1922 The Berlin Criminal Police published a statement in which they forbade arrest solely on the basis of wearing gender-atypical clothing, stating:
“Apart from male prostitution, transvestism in general has no criminal significance. The widespread public opinion that the disguised individuals are generally criminals in disguise (pickpockets, spies, pimps, etc.) is obsolete. With regard to the male transvestites, recent experience shows that even the view, formerly taken-for-granted, that men in women’s clothing are all homosexuals is no longer tenable. . . . On the basis of this insight emerges a duty of gentle treatment [schonenden Behandlung] of transvestites, as long as they are not engaged in male prostitution."
By 1924 the Institut für Sexualwissenschaft fee for arranging a Transvestitenschein was 150 Reichmarks.
1927 Toni F. (not the same person as Toni Ebel) attempted to change her birth certificate from male to female. Toni's application was denied on the grounds she was biologically male although she wore female clothing, looked completely female and thought of herself as female.
In the summer of 1927 several Viennese women applied to the police and the magistrate in Vienna to be allowed to wear men's clothes permanently, but this was rejected on the grounds that what was not forbidden could not be approved. The Berlin queer publication Die Freundin in September ran the headline: "Viennese women are allowed to wear men's clothes!"
1928 Olga Ebel died. Ebel became Toni again, Charlotte Charlaque introduced Toni to Magnus Hirschfeld. She obtained a Transvestitenschein.
1928 Gert Katter (1910-1995) had decided that he wanted to live as a man, and obtained a Transvestitenschein.
1929 Toni Simon, dressed female, appeared in court in Essen charged with gross mischief for appearing in public in female clothing. While the judge did fine her 100 marks, he otherwise dismissed the case saying that if the police issued Transvestitenscheins then the court should follow suit.
1930 Toni Ebel had her application to change her first name granted.
1931 A Swiss person having requested and received castration, then threatened suicide if not allowed a name change to Martha. This was approved by the government council of the canton in October.
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