Some observations may be made on Ulrichs' theory. It is now recognised by the leading authorities, medical and medico-juristic, in Germany, by writers like Casper-Liman and Krafft-Ebing, that sexual inversion is more often than not innate. So far, without discussing the physiological or metaphysical explanations of this phenomenon, without considering whether Ulrichs is right in his theory of anima muliebris inclusa in corpore virili, or whether heredity, insanity, and similar general conditions are to be held responsible for the fact, it may be taken as admitted on all sides that the sexual diathesis in question is in a very large number of instances congenital. But Ulrichs seems to claim too much for the position he has won. He ignores the frequency of acquired habits. He shuts his eyes to the force of fashion and depravity. He reckons men like Horace and Ovid and Catullus, among the ancients, who were clearly indifferent in their tastes (as indifferent as the modern Turks) to the account of Uranodionings. In one word, he is so enthusiastic for his physiological theory that he overlooks all other aspects of the question. Nevertheless, he has acquired the right to an impartial hearing, while pleading in defence of those who are acknowledged by all investigators of the problem to be the subjects of an inborn misplacement of the sexual appetite.
Let us turn, then, to the consideration of his arguments in favour of freeing Urnings from the terrible legal penalties to which they are at present subject, and, if this were possible, from the no less terrible social condemnation to which they are exposed by the repugnance they engender in the normally constituted majority. Dealing with these exceptions to the kindly race of men and women, these unfortunates who have no family ties knotted by bonds by mutual love, no children to expect, no reciprocity of passion to enjoy, mankind, says Ulrichs, has hitherto acted just in the same way as a herd of deer acts when it drives the sickly and the weakly out to die in solitude; burdened with contumely, and cut off from common sympathy.
From the point of view of morality and law, he argues, it does not signify whether we regard the sexual inversion of an Urning as morbid or as natural. He has become what he is in the dawn and first emergence of emotional existence. You may contend, that he derives perverted instincts from his ancestry, that he is the subject of a psychical disorder, that from the cradle he is predestined by atavism or disease to misery. I maintain that he is one of nature's sports, a creature healthy and well organised, evolved in her superb indifference to aberrations from the normal type. We need not quarrel over our solutions of the problem. The fact that he is there, among us, and that he constitutes an ever-present factor in our social system, has to be faced. How are we to deal with him? Has society the right to punish individuals sent into the world with homosexual instincts? Putting the question at its lowest point, admitting that these persons are the victims of congenital morbidity, ought they to be treated as criminals? It is established that their appetites, being innate, are to them at least natural and undepraved; the common appetites, being excluded from their sexual scheme, are to them unnatural and abhorrent. Ought not such beings, instead of being hunted down and persecuted by legal bloodhounds, to be regarded with pitying solicitude as among the most unfortunate of human beings, doomed as they are to inextinguishable longings and life-long deprivation of that which is the chief prize of man's existence on this planet, a reciprocated love? As your laws at present stand, you include all cases of sexual inversion under the one domination of crime. You make exceptions in some special instances, and treat the men involved as lunatics. But the Urning is neither criminal nor insane. He is only less fortunate than you are, through an accident of birth, which is at present obscure to our imperfect science of sexual determination.
So far Ulrichs is justified in his pleading. When it has been admitted that sexual inversion is usually a fact of congenital diathesis, the criminal law stands in no logical relation to the phenomenon. It is monstrous to punish people as wilfully wicked because, having been born with the same organs and the same appetites as their neighbours, they are doomed to suffer under the frightful disability of not being able to use their organs or to gratify their appetites in the ordinary way.
But here arises a difficulty, which cannot be ignored, since upon it is based the only valid excuse for the position taken up by society in dealing with this matter. Not all men and women possessed by abnormal sexual desires can claim that these are innate. It is certain that the habits of sodomy are frequently acquired under conditions of exclusion from the company of persons of the other sex—as in public schools, barracks, prisons, convents, ships. In some cases they are deliberately adopted by natures tired of normal sexual pleasure. They may even become fashionable and epidemic. Lastly, it is probable that curiosity and imitation communicate them to otherwise normal individuals at a susceptible moment of development. Therefore society has the right to say: Those who are the unfortunate subjects of inborn sexual inversion shall not be allowed to indulge their passions, lest the mischief should spread, and a vicious habit should contaminate our youth. From the utilitarian point of view, society is justified in protecting itself against a minority of exceptional beings whom it regards as pernicious to the general welfare. From any point of view, the majority is strong enough to coerce to inborn instincts and to trample on the anguish of a few unfortunates. But, asks Ulrichs, is this consistent with humanity, is it consistent with the august ideal of impartial equity? Are people, sound in body, vigorous in mind, wholesome in habit, capable of generous affections, good servants of the state, trustworthy in all the ordinary relations of life, to be condemned at law as criminals because they cannot feel sexually as the majority feel, because they find some satisfaction for their inborn want in ways which the majority dislike?
Seeking a solution of the difficulty stated in the foregoing paragraph, Ulrichs finds it in fact and history. His answer is that if society leaves nature to take her course, with the abnormal as well as with the normal subjects of sexual inclination, society will not suffer. In countries where legal penalties have been removed from inverted sexuality, where this is placed upon the same footing as the normal—in France, Bavaria (?), the Netherlands (?)—no inconvenience has hitherto arisen.[61] There has ensued no sudden and flagrant outburst of a depraved habit, no dissemination of a spreading moral poison. On the other hand, in countries where these penalties exist and are enforced—in England, for example, and in the metropolis of England, London—inverted sexuality runs riot, despite of legal prohibitions, despite of threats of prison, dread of exposure, and the intolerable pest of organised chantage. In the eyes of Ulrichs, society is engaged in sitting on a safety-valve, which if nature were allowed to operate unhindered would do society no harm, but rather good. The majority, he thinks, are not going to become Urnings, for the simple reason that they have not the unhappy constitution of the Urning. Cease to persecute Urnings, accept them as inconsiderable, yet real, factors, in the social commonwealth, leave them to themselves, and you will not be the worse for it, and will also not carry on your conscience the burden of intolerant vindictiveness.
Substantiating this position, Ulrichs demonstrates that acquired habits of sexual inversion are almost invariably thrown off by normal natures. Your boys at public schools, he says, behave as though they were Urnings. In the lack of women, at the time when their passions are predominant, they yield themselves up together to mutual indulgences which would bring your laws down with terrible effect upon adults. You are aware of this. You send your sons to Eton and to Harrow, and you know very well what goes on there. Yet you remain untroubled in your minds. And why? Because you feel convinced that they will return to their congenital instincts.
When the school, the barrack, the prison, the ship has been abandoned, the male reverts to the female. This is the truth about Dionings. The large majority of men and women remain normal, simply because they were made normal. They cannot find the satisfaction of their nature in those inverted practices to which they yielded for a time through want of normal outlet. Society risks little by the occasional caprice of the school, the barrack, the prison, and the ship. Some genuine Urnings may, indeed, discover their inborn inclination by means of the process to which you subject them. But you are quite right in supposing that a Dioning, though you have forced him to become for a time an Uraniaster, will never in the long run appear as an Urning. The extensive experience which English people possess regarding such matters, owing to the notorious condition of their public schools, goes to confirm Ulrichs' position. Headmasters know how many Uraniasters they have dealt with, what excellent Dionings they become, and how comparatively rare, and yet how incorrigibly steadfast, are the genuine Urnings in their flock.
The upshot of this matter is that we are continually forcing our young men into conditions under which, if sexual inversion were an acquired attribute, it would become stereotyped in their natures. Yet it does not do so. Provisionally, because they are shut off from girls, because they find no other outlet for their sex at the moment of its most imperious claims, they turn toward males, and treat their younger school-fellows in ways which would consign an adult to penal servitude. They are Uraniasters by necessity and faute de mieux. But no sooner are they let loose upon the world than the majority revert to normal channels. They pick up women in the streets, and form connections, as the phrase goes. Some undoubtedly, in this fiery furnace through which they have been passed, discover their inborn sexual inversion. Then, when they cannot resist the ply of their proclivity, you condemn them as criminals in their later years. Is that just? Would it not be better to revert from our civilisation to the manners of the savage man—to initiate youths into the mysteries of sex, and to give each in his turn the chance of developing a normal instinct by putting him during his time of puberty freely and frankly to the female? If you abhor Urnings, as you surely do, you are at least responsible for their mishap by the extraordinary way in which you bring them up. At all events, when they develop into the eccentric beings which they are, you are the last people in the world who have any right to punish them with legal penalties and social obloquy.
Considering the present state of the law in most countries to be inequitable toward a respectable minority of citizens, Ulrichs proposes that Urnings should be placed upon the same footing as other men. That is to say, sexual relations between males and males should not be treated as criminal, unless they be attended with violence (as in the case of rape), or be carried on in such a way as to offend the public sense of decency (in places of general resort or on the open street), or thirdly be entertained between an adult and a boy under age (the protected age to be decided as in the case of girls). What he demands is that when an adult male, freely and of his own consent, complies with the proposals of an adult person of his own sex, and their intercourse takes place with due regard for public decency, neither party shall be liable to prosecution and punishment at law. In fact he would be satisfied with the same conditions as those prevalent in France, and since June, 1889, in Italy.