In 1902, the Storting passed a new section, § 213, in the Penal Code:

“If immoral Intercourse Takes Place between Persons of the Male Sex, those who are found guilty, or those who contribute to it, will be sentenced to Prison for up to one year. The same Punishment will befall anyone who engages in Immoral Intercourse with Animals, or who contributes to it. Prosecution will only take place when public Interest so demands.”[1]

In short, the aim of this section was to regulate sexual relations between men, and sexual relations between humans and animals. The maximum penalty was imprisonment for up to one year, though prosecution was only to take place if it was deemed to be in the “public interest”.

Three separate draft amendments were tabled during the life of § 213. The first two were in conjunction with the comprehensive revisions of the Penal Code which took place in 1925 and 1953. The third and final proposal was put forward in 1971 in connection with the decriminalization debate.

Homosexuality in legislation before 1902

The prohibition of sexual relations between men does not date from 1902, however. Statutory provisions relating to sexual orientation had existed in Norwegian legislation for hundreds of years, ever since the centuries-old ban in the Christian law of the Gulating Code of Laws, Norway’s oldest known body of laws.

The Criminal Code of 1842

1842 saw the introduction of a new Criminal Code in Norway to replace King Christian V’s Norwegian Code of 1687. Until then, “unnatural relations” could be deemed a capital offence. The new Criminal Code contained the same prohibition, but the sentence was reduced from the death penalty to hard labour for six to twelve months. The exact wording in § 18-21 of the Criminal Code was: “Relations which are against Nature shall be subject to Hard Labour to the fifth Degree.”

The Penal Code Commission of 1885

Towards the end of the 19^th Century, a Penal Code Commission was appointed to propose amendments to the Criminal Code. The commission was chaired by a judge and legal reformer called Bernhard Getz. Getz was a proponent of repealing the ban on homosexuality, but he was opposed by a majority in the commission. The Penal Code Commission put forward its proposed new law in 1888.

In the Act which was passed in 1889, the wording and severity of the sentence in § 18-21 was changed to: “If corporal Relations take place between Persons of the Male Sex, the Guilty Parties shall be sentenced to Hard Labour to the fifth Degree or Prison.” The question of whether women should be included in this prohibition was debated in the Storting at the same time.

The Penal Code of 22^nd May 1902

In 1902, the Storting amended the Penal Code. The new legislation included the following wording in section 213: “If indecent relations take place between persons of the male sex, those who are guilty, or are have been accessory to such relations, will be sentenced to prison for up to 1 year. The same punishment will be considered for persons who have had indecent relations with animals, or who have been accessory to such relations. Prosecution will only take place when public interest so demands.”

Once again, the MPs debated whether the prohibition should include women. Gunnar Graarud (Conservative Party) tabled the proposal, being of the view that “indecent relations” between women were equally abhorrent. However, his proposal failed to gain a majority. Ole Anton Qvam, the Minister of Justice, said: “Sexual relations between two women – have you heard of such a thing? It is in the realm of the impossible.” In Qvam’s view, in other words, sexual relations between women could not be treated as the same thing.

Proposed amendments to § 213

The Penal Code Committee 1922

On 11^th May 1922, a Penal Code Committee was appointed to undertake a comprehensive review of the legislation. The resulting recommendation raised the issue of § 213 and the prohibition of “relations between men.” The new proposal was to replace the general ban with other provisions. Homosexuality was to be a criminal offence in cases of prostitution and when adults under the age of 21 were involved. The Penal Code Committee also recommended making the wording gender neutral. But these recommendations were never put before the Storting.

The Penal Code Board of 1953

Fresh efforts to change § 213 were made in the 1950s. Once again, the proposal was to repeal the general ban and to replace it with other statutory provisions. Among the ideas put forward was to set a higher age of consent for homosexuals. The Penal Code Board’s recommendation was considered by the Storting in 1955, but the draft amendments to § 213 were not adopted.

Parliamentary question from Arne Kielland MP on the repeal of § 213 in the Penal Code, 2^nd June 1971

In 1970, Arne Kielland (Labour Party, later Socialist Left Party) tabled a parliamentary question on the repeal of § 213 of the Penal Code. In his view there were two main arguments for doing this. Firstly, current legislation contributed to sustaining prejudices against homosexuals, and secondly, it represented an unfortunate mixture of law and morality. In his reply, Oddvar Berrefjord (Labour Party), the incumbent Minister of Justice, said that § 213 should be repealed, and that the ban should not be replaced by any special rules. Kielland became the spokesperson for the issue when § 213 was finally removed from the statute books in 1972.

Decriminalization and beyond

The Act of 21^st April 1972

213 was repealed in 1972. With that, homosexuality was no longer regarded as a criminal offence, and the campaign for gay rights had yielded results. Det norske forbundet av 1948, the first Norwegian organization for homosexuals, and its secretary general Karen-Christine Friele had played a particularly important role. However, although it was no longer illegal to be gay in Norway, homosexuality was still treated as a diagnosis for a further ten years.

Changes to §§ 135 a. and 349 a. of the Penal Code (prohibition of discrimination against homosexuals). Act of 8^th May 1981

In 1981, special criminal protection for homosexuals was instituted. The change in the Penal Code applied to “degrading treatment of an individual or a group on the basis of their homosexual orientation.” Anti-discrimination laws were later to become part of other legislation, such as the Working Environment Act.

The Partnership Act of 1993

A huge milestone in the campaign for same-sex rights was reached when the Storting passed the Partnership Act in 1993. This legislation gave two people of the same sex the right to enter into a civil partnership. With this, lesbian and gay couples were given the same rights and obligations as those afforded to heterosexual couples in marriage. There were two exceptions, however: the right to adopt children and the right to be united in a partnership in church.

Living conditions and quality of life for lesbians and gays in Norway

The first government white paper on living conditions and quality of life for lesbians and gays in Norway was published in 2000.

The Gender-Neutral Marriage Act of 2008

In 2008, the Storting passed the Gender-Neutral Marriage Act. Its purpose was to give same-sex couples the same rights as heterosexual couples. The Partnership Act was repealed, and same-sex couples were given the right to enter into marriage through the Marriage Act. The change in legislation also gave same-sex couples adoption rights and lesbian couples the right to assisted reproductive technology. That same year, the Government published Norway’s first national action plan on improving quality of life among lesbians, gays, bisexuals and trans persons 2009-2012.

The Discrimination on the Basis of Sexual Orientation Act of 2013

From the start of this century, wide-ranging anti-discrimination legislation was written into several laws, including the Housing Act and the Working Environment Act. In 2013, the Storting passed the Discrimination on the Basis of Sexual Orientation Act. The purpose of this law was to expand and clarify anti-discrimination protection. 

Comprehensive anti-discrimination protection

In 2017, the Storting passed a new Equality and Anti-Discrimination Act. The legislation replaced four separate equality and anti-discrimination laws that were adopted in 2013: the Discrimination on the Basis of Sexual Orientation Act; the Gender Equality Act; the Discrimination on the Basic of Ethnicity Act; and the Discrimination and Accessibility Act. The aim of this new comprehensive law was to provide more uniform protection against all forms of discrimination.

[1] English translation: Halsos 2007 p. 93.