Source: US Global Legal Monitor
On April 6, 2022, German Minister of the Interior Nancy Faeser issued a special decree allowing the public flying of pride flags in front of federal government buildings. This was the first time that such permission had been granted.
Accordingly, on the Day Against Homophobia, which is celebrated on May 17, the pride flag was raised for the first time in front of federal government buildings in Berlin.
Content of the Decree
According to the decree, the pride flag may be flown on flagpoles of official buildings of federal authorities and agencies, as well as of buildings of public corporations, institutions, and foundations that are subject to federal supervision, to commemorate specific occasions, such as Christopher Street Day or “Pride Week.” Flying the pride flag is not possible on “regular general flagging days” or on days for which special flagging has been ordered.
The general flagging decree of the federal government defines the regular general flagging days and special flagging days, and specifies on which days what type of flagging must take place. On regular general flagging days — for example, the Day of Remembrance of the Victims of National Socialism on January 27, Labor Day on May 1, German Unity Day on October 3, and days that federal or European elections take place — flags are flown without special order. (Flagging decree sec. II.) On special flagging days, such as in times of mourning, the federal Ministry of the Interior issues a specific flagging order. (Sec. III.) Flags used are the German national flag, the flag of the European Union, the flags of the federal states and municipalities for regional and local occasions, and, with special permission, flags of international organizations or foreign states. (Sec. IV.)
Background to the Decision to Allow the Flying of Pride Flags
According to the German Federal Constitutional Court and article 22, paragraph 2 of the German Basic Law, the country’s constitution, the federal flag represents a state symbol. The federal flag and the federal colors black-red-gold represent unity, freedom, and democracy. The federal government stated in the special decree that “ensuring state neutrality is necessary to maintain the acceptance of state symbols among the population” and that, for this reason, permission to fly flags on federal buildings without a national or federal reference has not been granted previously. However, with regard to pride flags, the government’s point of view has always been controversial, especially in the LGBT community. According to LGBT activists, the flying of pride flags is an important symbol to promote LGBT acceptance.
Promoting awareness of and protecting sexual diversity is one of the priorities of the new German federal government, as stated in the coalition agreement of the governing parties (Sozialdemokratische Partei Deutschlands (SPD), Bündnis 90/Die Grünen, and Freie Demokraten (FDP)). The agreement sets out the priorities of the government for the legislative period from 2021 to 2025, and is titled “Seeking Progress – An Alliance for Freedom, Justice and Sustainability.” With regard to queer life, the coalition parties pledged to end existing discrimination against people on the basis of their sexual identity. (Coalition Agreement at 95.)
Regarding the decision to allow flying pride flags, the minister of the interior stated that “[Germany is] a modern and diverse country. It’s about time that we also show this more clearly as state institutions. We want to end discrimination against people on the basis of their sexual identity in all areas of society. We want to show solidarity with all those who are still forced to experience exclusion. The rainbow flag is such a worldwide-known symbol.”
Prepared by Karen Ungerer, Law Library intern, under the supervision of Jenny Gesley, Foreign Law Specialist