Transgender Life and Persecution under the Nazi State: Gutachten on the Vollbrecht Case

In July 2022, Marie-Luise Vollbrecht, a biology graduate student at Humboldt University in Berlin, got into a debate about history on Twitter. The thirty-two-year-old Vollbrecht had already gained national attention in Germany for her anti-trans, “gender-critical” feminism. She was no stranger to heated exchanges on the social media platform. On this occasion, the debate was about the history of the Holocaust. In a series of tweets, Vollbrecht disputed that the Nazis had persecuted transgender people. To describe trans people as victims of the Nazi state “mocks the true victims of the Nazi crimes,” she wrote.¹

Vollbrecht's opponents on Twitter responded, arguing that this was not the case. The debate escalated. Vollbrecht's critics began to use the hashtag “#MarieLeugnetNS-Verbrechen” (“Marie denies Nazi crimes”). This was a serious accusation. Vollbrecht later asserted that it amounted to saying that she was denying the Holocaust.² She responded by filing a lawsuit, in which she alleged that the use of the hashtag violated her rights.

In fall 2022, I was asked by a transgender NGO to write an expert statement (Gutachten) on this case for the court in Cologne (Landgericht Köln). The NGO is the Deutsche Gesellschaft für Transidentität und Intersexualität e.V. (dgti) (German Society for Trans Identity and Intersexuality), founded in 1998 as a self-support group for and by trans people. Dgti's mission is to promote social acceptance of trans people. A Twitter account that dgti helped to run had used the #MarieLeugnetNS-Verbrechen hashtag, and they were one of the parties that Vollbrecht sued. Other historians also wrote expert opinions in this case. Bodie Ashton of the University of Erfurt wrote on behalf of the dgti. Alexander Zinn of the Fritz Bauer Institute wrote in support of Vollbrecht.³

The crux of the lawsuit was whether it was accurate to say that Vollbrecht lied about Nazi crimes against trans people. That is, were transgender people victims of the Nazi state? As it turned out, historians did not agree. The case thus became one of those rare—and sometimes critically important—lawsuits in which a court ruled on the facts of history.

In November 2022, the court in Cologne ruled against Vollbrecht. To my knowledge, this is the first time that a German court has recognized transgender people as victims of the Nazi state.

What follows is the expert statement I wrote for the case.⁴ I offer it here with some caution—my work is ongoing and my findings are somewhat preliminary. At the same time, the lawsuit is national news in Germany. The public has a right to know what the state of research on this issue is—even more so since the question of whether the Nazis persecuted transgender people is coming up more and more often, on Twitter and elsewhere.

There is a pernicious assumption that sometimes creeps into this debate: that we can only recognize the humanity of trans people if they suffered horribly at the hands of the Nazis. I reject that. Everyone must recognize the humanity of trans people, regardless of this debate. Moreover, we do not commonly base our ethical principles on what the Nazis did or did not do. Nor should we.⁵

At the same time, historians ought to answer the question. At the moment, we have not done so. The peer-reviewed scholarship on transgender people in Nazi Germany is small.⁶ Some of it is fundamentally flawed, as I discuss in the expert statement.

Vollbrecht asserted that to discuss trans victims of Nazism is to “mock” other (that is, cisgender) victims of Nazi violence. She used the term mock, which I take to be a gesture toward the old anti-trans trope of trans people as ridiculous, objects of scornful laughter.⁷ Trans people, Vollbrecht suggested in her tweet, are ridiculous. Thus one cannot speak of them in the context of the Holocaust because we cannot laugh about the Holocaust. Here is the flaw in this argument: trans people are not ridiculous, nor was their suffering under the Nazi state. In order to show that, it seems important to publish the statement I provided to a lawyer in the case.

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Expert statement (Privatgutachten) Dr. Laurie Marhoefer, Jon Bridgman Endowed Professor of History, University of Washington, Seattle, USA. Report on the Situation of Trans People during the Nazi Period. 10 October 2022.

The first scholarly publications on transgender people under National Socialism argued that they were not persecuted. To be more specific, one foundational essay argued that they were not persecuted, and another argued that some trans women were, but only insofar as officials mistakenly believed them to be cisgender gay men.⁸ This, however, is not accurate. Newer research shows a more complex and more violent situation. The newer scholarship also makes the case that racial status and other factors mattered when trans people ran into trouble with the Nazi state. Trans people were at risk. The risks they ran varied according to other things in their lives. Not all trans people suffered violence. Yet there is a pattern of state hostility and police harassment of trans people, particularly trans women. In some cases, it ended in murder. This change in the literature is due to the growing number of scholars working on the topic, to changes in how we conceptualize Nazi violence more broadly, and to changes in how scholars conceptualize transgender people. It also owes to the digitization of archival records, which has made police files easier to find.

I am at present engaged in a large research project on transgender people under the Nazi state, part of a broader project on sex and gender “crimes,” funded by the Stroum Center for Jewish Studies at the University of Washington and the Holocaust Education Foundation at Northwestern University. From my years of research and from the published literature, I have knowledge of about twenty-seven cases of transgender men and women in the Nazi period.⁹ To my knowledge this is the largest number of cases ever discussed at once. Most scholarship deals with a much smaller number.

Often when one sees the term “persecution (Verfolgung)” in the context of the Nazi state, one thinks foremost of the persecution of Jewish Europeans. The Nazi state systematically rounded up whole communities of Jews and Roma—gay as well as straight, cisgender as well as transgender—deported them, and murdered them.¹⁰ This did not happen to “Aryans.” It did not happen to “Aryans” even if they were accused of “crimes” having to do with sex and gender, such as male-male sex (§175) or “public indecency (Erregung öffentlichen Ärgernisses)” (§183), a charge made against trans people. Without ever losing sight of the Holocaust, we should, however, allow that a group could be “persecuted” even if its members did not face highly organized violence like what Jews and Roma faced. So, for example, we correctly recognize gay men (regardless of racial designation) as a persecuted group. We do so despite the fact that Nazi authorities treated “Aryan” gay men and Jewish gay men in very different ways. “Aryan” men accused of breaking §175 could usually retain a lawyer. They often had a trial before a judge. They were not always found guilty. Most men convicted under §175 served their sentences in prisons, not concentration camps. Some were murdered in the camp system. Some were sent to the camps without trial. That did not happen in all cases. The majority of the approximately 50,000 men convicted under §175 in the Nazi period were “Aryans” who survived the Nazi regime. Alexander Zinn writes in his 2017 book on gay men under the Nazi state:

It is time for a paradigm shift. The reduction of the situation of homosexuals in the “Third Reich” to a history of victims, the focus on an allegedly all-powerful apparatus of persecution and a supposedly deeply homophobic population that used denunciation to help the state exclude homosexual men from the “Volksgemeinschaft”—all of this obstructs one's view of the considerably more complex picture that emerges when one reads the sources against the grain.¹¹

Zinn also argues that “in practice, the National Socialist persecution of homosexuals was certainly considerably less consistent and goal-oriented” than a lot of people believe.¹² Indeed, it is very possible that only a minority of the cisgender men who had sex with men in Nazi Germany ran into trouble with the police, though doubtless all feared the police.¹³ Many decades ago, people who opposed recognizing gay victims might have asserted that gay men simply had to stop going to bars or having relationships and that then they would be safe, so long as they were “Aryan.” A gay man in Nazi Germany who wanted to be absolutely safe from the police would, indeed, be well advised to avoid bars and relationships. But to move from that reality to a claim that gay men were not victims is nonsensical because we recognize being gay as a fundamental part of a person, one denied only at an unacceptable cost. The same is true of gender identity.

Like “Aryan” gay men, if trans people had “Aryan” status, they were not subjected to a systematic round-up such as what the Nazi state carried out against German Jews. They did, however, face state hostility, harassment, and violence because they were transgender.

Nazi officials generally had negative views of transgender people. In what may be the only Nazi-era book on the topic, the 1938 Ein Beitrag zum Problem des Transvestitismus (Marburg: Hermann Bauer), Hermann Ferdinand Voss writes: “Their asocial mindset, which is often paired with criminal activity, justifies draconian measures by the state.”¹⁴ Prior to the Nazi “seizure of power,” not enough could be done about trans people, he wrote, but happily now, “There is the possibility of putting the people in question in protective custody or possibly having them castrated or, via temporary ‘appropriate detention (entsprechende Internierung)’ to impress upon them that they must put their inclination on hold.”¹⁵ In 1933, Hamburg officials wrote, “Police officials are requested to observe the transvestites, in particular, and as required to send them to concentration camps.”¹⁶ (Historians now recognize that the category “transvestite” corresponded very closely to our modern concept of “transgender.”)

At the time, many countries had anti-cross-dressing laws. Often, these were written to cover other “crimes” as well and used language about “public decency” or similar. They were, however, always intended to police cross-dressing. Between 1848 and the First World War, forty-four American cities passed such laws.¹⁷ So although the Nazi-era penal code does not explicitly refer to “cross-dressing,” it contained two laws that we can now see were intended to suppress it. Police and prosecutors used §183 and, less often, §360 (public nuisance, grober Unfug) against persons who wore clothing that did not correspond to their birth-assigned sex.¹⁸ For example, in the winter of 1944, a Berlin court tried Bruno Erfurth under §183 because Erfurth allegedly went out in public in a woman's blouse and an “artificial lady's bust” as well as other pieces of women's clothing and thereby “caused a public outcry.” There was no allegation of homosexuality recorded in this file. It was purely a cross-dressing case. (Erfurth was found not guilty.)¹⁹

The Nazi state made transgender lives difficult in another way: by revoking the limited gains won under the Weimar Republic. Even under the Kaiser's regime before 1914, some police jurisdictions gave permits to “cross-dress” known as “transvestite passports” or more accurately “transvestite certificates” (“Transvestitenscheine”). In the Weimar period (1918-1933) some transgender people legally changed their names. Also in the Weimar period, a very small but vibrant transgender public sphere grew.²⁰ Transgender people had their own magazines and organizations. Magnus Hirschfeld and his Institute for Sexual Science helped transgender people with legal name changes and police permits and medical treatments. Much of this was destroyed by the Nazis. Hirschfeld was driven into exile and his Institute for Sexual Science was dismantled. Transvestite magazines were shut, as were nightclubs like the Eldorado (Berlin) that showcased trans performers. Because the transvestite certificates had always been locally administered, what to do about them after 1933 seems largely to have been a decision for local officials. Overwhelmingly, police did not honor them after 1933. Not infrequently, they explicitly revoked them, such as in the case of “R” of Berlin, who was directed to stop living as woman, though she had done so for years.²¹

There are a very few known cases where transvestite certificates were reissued under the Nazi state or where a person was allowed a legal name change. They are the exception rather than the rule. By chance, some of these cases came to the attention of historians early on, leading to conclusions that I now question. More and more, historians who work on other aspects of the Nazi state are noticing inconsistencies, even in Nazi racial policy—indeed, as Nunn cogently points out, inconsistency is a feature of modern states.²² As Zinn notes in the previous quotation, we see complexity in cases of cisgender gay men, too. Indeed, inconsistency in policing, as well as police and prosecutor discretion in enforcing law, are features of modern states. Moreover, even in these cases where trans people got certificates reissued or changed their names under the Nazi state, there are signs of violence. For example, a trans man in Berlin had his permit renewed, but only after he spent months in a concentration camp.²³ Perhaps most importantly, these cases do not tell the whole story. In the large majority of the cases I have seen, permits were revoked and police forced people to stop living as their self-confirmed sex. This caused trans people extreme distress. At least one person seems to have been driven to suicide.²⁴ In her comments on Twitter, Vollbrecht pointed to the “transvestite certificates” as evidence that trans people were not persecuted by the Nazi state.²⁵ Looking at the historical record, however, the frequent revocation of these certificates helps to show us the pattern of anti-trans state actions, though that pattern also displays some inconsistencies.

It is the case that some transgender men and women were able to escape violence. For example, in one case, a police search of a person's apartment found an “artificial lady's bust.” The accused person said they only wore women's clothing at home, never in public. Police let this person go but made the person promise to stop wearing the garments in private.²⁶ In another case that Jane Caplan first brought to light, that of Gerd Kubbe of Berlin, police at first reacted harshly but later showed surprising leniency. Kubbe's transvestite permit was revoked in 1933. Accused of wearing men's clothing in public, he was sent to a concentration camp in 1938. Some months later, however, he was released and granted permission to wear men's clothing and to use the first name “Gerd.”²⁷ I referred to this case previously as one that demonstrates both violence and state accommodation of transness. It is difficult to know what to make of it. I am not sure that I do yet. I can say, however, that it is unusual. It was, unfortunately, one of the first cases to be published and set a flawed paradigm.

In terms of assessing how often trans people escaped violence, we are at a bit of a loss because the bulk of our evidence is police files. We know about people who ran into trouble with police but have a more limited ability to examine cases where people did not run into trouble with police. Police and prosecutors were ready to resort to violence with relatively little provocation in enough cases that I am comfortable asserting that trans people ran a general risk and were well advised to avoid police.

The Nazi state reserved its worst violence for trans women. In particular, women who came to the attention of police as they continued to live publicly as women after 1933 were in danger. So were transgender women who sold sex. These trans women kept living as women because the alternative—being forced to live as a man—was unbearable, something Nunn shows in R.'s case.²⁸ One such woman was H. Bode of Hamburg, who often went out in public dressed as a woman, dated men, and had previously held a transvestite certificate. Over the Nazi period, she racked up convictions under §360 and §175. Hamburg officials finally sent her to Buchenwald, where she died in 1943.²⁹ (I believe Dr. Zinn refers to this case in his Gutachten. Bode was arrested after a night out in Hamburg with her aunt. I want to note that Dr. Zinn does not report the outcome. Bode was murdered. It is clear from the file that her “transvestitism” played a large role in that murder. On this see also Herrn, who reports her death.³⁰)

In 1933, Essen police withdrew Toni Simon's permit and told her to stop wearing women's clothing. She fled town. Later, she came back, and repeatedly got into trouble—insulting police officers, cavorting with known homosexuals, and breaking a law against anti-regime statements (the Heimtückegesetz), for which she served a year in prison. The final document in her file recommends sending her to a concentration camp. Though police had many reasons to deem Simon a threat to Nazi society, the fact that she was a “pronounced transvestite” was among the central ones.³¹

Liddy Bacroff of Hamburg got a transvestite pass in 1928. She made her living selling sex to male clients. They understood her to be a woman. After 1933, she repeatedly ran into trouble with police. According to what police wrote in her file, she was “fundamentally a transvestite.” That, along with sex work, made her a “morals criminal of the worst sort” who “must therefore be ausgeschaltet (eliminated) from the Volksgemeinschaft (people's community).”³² Bacroff was sent to Mauthausten and died there in 1943.

If I may address one final point—some earlier histories asserted that people like H. Bode, Toni Simon, and Liddy Bacroff were only sent to concentration camps because police believed they were gay men. It is the case that Nazi officials denied the gender identification of transgender people. For example, they claimed that Liddy Bacroff was a man even though she lived as a woman and many people whose words are recorded in her file thought she was a woman (including men who had sex with her). Police referred to her as a man although she told them, “My sense of my gender is fully and completely that of a woman.”³³ When trans people gave true accounts of their gender, Nazi police refused to listen. We should not. Trans people were a distinct community of people. They are distinguished by their quests to live as their self-confirmed sex. Determining whether they suffered persecution has nothing to do with the question of why Nazi officials believed they ought to be persecuted.

Moreover, Nazi officials did not simply think trans women were gay men. They recognized trans women as different from gay men in ways that mattered. Nazi officials had a concept of “transvestitism” as distinct from, though related to, homosexuality. To quote Voss's 1938 book: “By transvestites we generally mean those persons who have the wish to primarily wear the clothing of the other sex and to act more or less as the opposite sex.”³⁴ In all of the cases I have examined, state officials refer to the accused people as “transvestites,” even when they also identified them as homosexual (which they did not always do). Officials often claimed that transvestitism was an aggravating factor, something that made the case more dire, the accused person more deserving of a heavier sentence. In general, transgender people who could distance themselves from homosexuality were more likely to get off with a warning from police. Yet I have seen cases in which transgender people whom police deemed “heterosexual” nevertheless suffered. One such case is R.'s —police forced her to detransition and she spent time in a concentration camp.³⁵

To conclude: though there is a bit of variation and disorganization, and race matters, we see a pattern of state violence and oppression here, motivated by a hostility specific to transgender people.