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As Germany moves to right wrongs of anti-gay policies, Canada lacks plan

Heinz Schmitz dreams of the day he will wake up without a criminal record.

Gordon Welters

For Heinz Schmitz, the worst part of going to jail for being gay was the guards' decision to keep him five metres away from the other prisoners.

"They said, 'Ah, here comes the pig from Freiburg. We must keep him in solitary, so he doesn't molest the other boys,' " Mr. Schmitz said, recalling the cold day in 1962 when he entered a youth penitentiary in southern Germany.

This month, the German government will table a bill to apologize and compensate 50,000 gay men who, like Mr. Schmitz, were convicted of "lewdness with another man" between 1945 and 1969. Canada is set to launch a similar effort, and activists in both countries have been helping each other to seek redress.

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John Ibbitson: Ottawa behind schedule in redressing past persecution of homosexuals

In an interview at his home in Freiburg, Germany, Mr. Schmitz, 73, said he resents his criminal record. For a year, he has used the pseudonym Heinz Schmitz, including in this interview.

His troubles started at 18, when somebody reported seeing him rubbing another man's thigh in a movie theatre. The vice police came to his mother's house and took him to a police station, where a brawny investigator threatened to publicly out Mr. Schmitz if he didn't confess.

He admitted to meeting men in cafés and masturbating with them at home. The court records list their names.

Mr. Schmitz remembers his hands, covered in fingerprint ink, trembling as police took mugshots. A judge sentenced him to three weekends in jail and two months of probation. "I was terrified to even look at another man," he said.

His mother coaxed him into marrying a woman, with whom he raised two daughters. "I felt so alone for so long," said Mr. Schmitz, who kept his sexuality a secret for years.

He met men in parks while walking the dog, and had sex in public bathrooms. "I felt shame; I felt dirty," he said. "At one point I had to hold myself from jumping off the roof."

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Germany enacted a law against men having sex with men in 1871, but the Nazi government made it much harsher. The law remained in West Germany until 1969, and East Germany a year prior. The law never applied to lesbians, because legislators viewed women as less aggressive, and thus less of a threat to society. In 2002, the German parliament cancelled all gay convictions under Nazi rule, but not the 50,000 convictions in the postwar era.

For decades, German activists had pushed to get these convictions overturned. Politicians and academics held back, arguing that it wasn't clear whether parliament had a right to cancel a law from a post-Nazi democracy that courts had upheld.

In May, a months-long legal study funded by Germany's Anti-Discrimination Agency concluded the country can overturn convictions that no longer comply with human-rights codes. That prompted the government to announce it would repeal criminal records for consensual, homosexual acts.

In Canada, the Liberal government is set to formally apologize to Canadians who were imprisoned, fired from their jobs or otherwise persecuted in the past because of their sexuality, following a series of articles in The Globe and Mail. While the criminal charges of gross indecency and buggery largely disappeared by 1969, an effort to exclude sexual minorities from the military and the public service persisted until the early 1990s.

In June, after publishing a report detailing Canada's policies and suggesting remedies, activists with Egale, a national LGBT organization, travelled to Germany. They shared ideas on winning over the public and helping politicians craft a law.

Both countries must navigate records and laws in different regions, and decide how to compensate people decades later. "They're tackling many of the same problems we are," constitutional lawyer Douglas Elliott said.

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Egale paid to have the 114-page German legal study translated into English, to see if a similar legal solution can be found in Germany. That translation has attracted activists from countries like Australia.

"The Canadians were very helpful," said Helmut Metzner, an executive with the Lesbian and Gay Federation in Germany. "As we watch shrinking spaces for LGBTI issues all around the world, we need some solidarity among the Western countries, to promote human rights."

But as Germany moves ahead, Canada still has no detailed plan. In August, Mr. Elliott postponed a second meeting between German and Canadian activists.

"Unfortunately, the federal government still hasn't formally approved our report or formally committed to moving ahead with this. They've given us lots of positive signals, but we had to cancel that proposed meeting," he said.

"I think it would be beneficial for both countries if we worked on these problems together," he said. "The Germans have decided they're not going to wait on us to make up our minds to do something."

According to German Justice Ministry guidelines obtained by The Globe, the country will propose individual financial compensation, and a pool of funding for education and memorial projects on behalf of those who have died. Compensation will apply only to cases where both people were old enough to consent to sexual activity, where no coercion was mentioned.

The compensation effort will be modelled on previous efforts related to people convicted under Nazi laws, where researchers cross-checked witness stories against available documents, and presumed their testimony was true unless they found inconsistencies. The effort should be under way by May, 2017, when parliamentary work shuts down ahead of a national election.

But the government hasn't said whether compensation will be offered only to those who were convicted. Volker Beck, a gay member of parliament with Germany's Green Party, has heard from men who lost their jobs after being charged under the law, despite a court ultimately rejecting their case.

Such dismissals happened in roughly half the cases, according to researchers, meaning an additional 50,000 men were charged but not convicted.

Mr. Beck said in an interiew that he lost his virginity as a teenager with a man who was over 18, which was illegal at the time. He was terrified of his parents learning he was gay if his friend was charged. "In my first sexual experience, I was a victim of a criminal act, according to the law," the 55-year-old man said through watering eyes.

"They have stolen our youth in a certain way, by this legal situation. Because it was not an easy-going thing, even if you were a very strong person."

Men convicted under the law are gradually dying. Some German states have cleared out decades-old criminal records. Like Canada, Germany needs to decide whom to apologize to, how to commemorate their history and how much is adequate compensation.

Mr. Schmitz said he doesn't want money, but he dreams of the day he will wake up without a criminal record. He remembers as a child having his classmates refer to gay people as buggers and "175ers," a reference to the criminal code section under which he was later convicted.

Slowly, after a divorce, fleeting relationships and growing public acceptance, he became comfortable with his sexual identity.

Mr. Schmitz said he has had strangers thank him for talking about his story. But his ex-wife and one of his daughters say they have been harassed and mocked by others since he went public with his story. Hours before meeting with The Globe, Mr. Schmitz's daughter told him to stop calling her.

"If this law gets passed, going public will be worth it," he said in his first interview for non-European media.

"I feel like I missed half my life," he said, his hand waving his 1962 court summons. "It would be like winning the lottery."

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