The French Senate has adopted a Private Member’s Bill (proposition de loi) that recognises the discrimination towards individuals prosecuted or convicted under laws criminalizing same-sex activity between 1945 and 1982.
During this 40-year period, as many as 50,000 people were convicted under two criminal offences, which penalised ‘outrages to public decency’ and criminalised consensual homosexual sex with or between minors (then defined as individuals under the age of 21). According to research cited in the Senate Committee hearings on the Bill, as many as 93% of those convicted on homosexual morals charges were sentenced to prison. Many had their names published in local newspapers, lost their livelihoods and were publicly ostracised and shamed. These offences were repealed respectively in 1980 and 1982.
The Bill, as initially tabled, sought to create an express right to financial compensation for convicted persons (arts. 1 & 3). Applications were to be heard by a special commission, composed of judges, parliamentarians, academics and members of civil society (art. 4). The compensation under the proposed scheme included a fixed payment of 10 000 EUR, plus per diem compensation for those who served prison time, although the Bill’s proponents conceded that the number of eligible persons was difficult to estimate. An express right to compensation was ultimately abandoned during debates in the Senate Committee, on the grounds that victims had already been granted an amnesty in 1982 and that limitation of action periods now prevented further financial claims for wrongful conviction. Instead, the Senate Committee proposes simply to “recognize […] that these [legal] provisions have been a source of suffering and trauma for people convicted, in a discriminatory manner, on their basis.”
In removing these provisions from the Bill, the Senate Committee suggested that victims seeking compensation for past convictions could still do so if they obtained “recognition of the criminalization of homosexuality as a crime against humanity, making the damage suffered imprescriptible and enabling … [further] litigation.”
Frankly, it is difficult to see this a serious legal alternative. A successful application for compensation on those grounds would require victims to prove that the criminalisation homosexuality constituted a widespread or systematic attack directed against the civilian population recognised as a crime under art. 7(1) of the Rome Statute of the International Criminal Court (ICC). In practice, although the ICC theoretically recognises that LGBTQI+ groups may be targets of ‘gender persecution’ under art. 7(1)(h) of the Rome Statute, that bar is very unlikely to be met. To date, there have been no successful prosecutions by the ICC on the grounds of LGBTQI+ motivated gender persecution. The French courts – or any other national superior court to our knowledge – have never been invited to consider whether legal persecution of LGBTQI+ persons amounts to a crime against humanity. Even assuming that a French court were prepared to hold that the social and legal norms of 1940s violated international law, it is unclear that the imprescriptibly of that offence would give necessarily give rise to a right to compensation, where victims convicted have already been retroactively pardoned.
In a second link to international criminal law, the Bill also proposed to create a new criminal offence penalising the denial of the deportation of LGBTIQ+ people from France during the Second World War (along the lines of similar provisions in various jurisdictions criminalising ‘holocaust denial’). This proposal was also abandoned by the Senate. Article 24bis of the Law of 29 July 1881 on the freedom of the press already criminalises any form of denial of crimes against humanity under the statute of the Nuremberg Tribunal and the Rome Statute. The systematic persecution of LGBTIQ+ people by the Nazi regime, which included deportation, torture murder, forced sterilisation and medical experimentation, is already well recognised by several authoritative sources as a crime against humanity. The French Courts may well have an opportunity to apply this theory in the context of an ongoing criminal complaint against a far-right politician for stating that the deportation of LGBTIQ+ persons from France was a “myth”. Estimates of the number of LGBTIQ+ individuals deported to death camps from France vary widely, but at least 60 and possibly as many as several hundred people have credibly been established to have been arrested and deported from occupied France on the grounds of homosexual activity. The Senate considered – rightly in our view – that the introduction of a new specific criminal offence targeting the denial of deportation of LGBTQ+ people could paradoxically diminish the force of the existing law, which already covers all crimes against humanity (including those crimes whose contours might evolve with the jurisprudence of the ICC) and could make active cases more difficult to prosecute.
The revised Bill was adopted unanimously by the Senate on 22 November 2023. It will now be debated in the National Assembly (Lower House), after consideration in the House Committee on Constitutional Law, Legislation and the General Administration. While the Bill has been generally welcomed by LGBT+ community groups and activists, many will be disappointed by the purely symbolic direction of the Bill, which fails to create a direct right of compensation. Many may also see this Bill as a distraction from more pressing legal issues for the LGBTQI+ community in France, such as the legal recognition of intersex and non-binary genders, discrimination in legal access to reproductive healthcare, international action against foreign States criminalising homosexuality, and a concerning rise in bi-, trans- and homophobic hate crimes, which remain under reported and under prosecuted.
Co-authored by Aurélie Lopez