Europe’s Gender Recognition Tug-of-War Continues in Germany – Part 1: The Law as it Stands

by | Oct 9, 2023

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About Jack Heron and Isabel Ecker

Jack Heron is a BCL candidate at St Hugh's College, University of Oxford. He holds a BCL (Hons) undergraduate degree in Law with Politics from University College Dublin, and is qualified to practise as a solicitor in the Republic of Ireland, England, and Wales. His research interests include human rights, public law, and the intersection between issues of gender and sexuality and the law.
Isabel Ecker is an MJur candidate at Lincoln College, University of Oxford and a German Academic Exchange Service (DAAD) scholar. She finished her PhD in Germany at the University of Cologne on an international criminal law topic. She was granted a PhD scholarship by the German Academic Scholarship Foundation (Studienstiftung des deutschen Volkes). Her research focuses on international criminal law, human rights and legal technology.

Germany may soon close a troubled chapter on its legal provision for gender recognition, ending the decades-long reign of the 1980 Law on Transsexuals (Transsexuellengesetz or TSG), in favour of the draft Law on Self-Determination (Selbstbestimmungsgesetz or SBGG), recently introduced by the government. The SBGG is based on two unsuccessful proposals for a new law on trans people by the FDP and the Bündnis 90/Die Grünen that were presented in the previous legislative period. This blog considers the history and jurisprudence of the TSG to understand why a new law is so necessary.

What is the TSG?

The TSG, imposed in 1980, provides two ways for trans people to change their given name. The first possibility, under Section 1 of the TSG (the “kleine Lösung” or “small solution”), requires the applicant to prove to a local court that, for at least three years, they have not identified with their current legal gender and wish to live their life as their authentic or preferred gender, and that this identification is very unlikely to change. Alternatively, an applicant may seek a preliminary ruling under Section 8 of the  TSG (“große Lösung” or “big solution”), which requires – among other criteria – that the applicant be permanently sterile and have undergone gender confirmation surgery to modify their external genitalia to resemble those of the preferred gender. The big solution enables a change of legal gender as well as name but is much more invasive. Both the small and big solution require applicants to obtain two costly medical “expert opinions” to support their applications. Though the German Federal Constitutional Court (Bundesverfassungsgericht or BVerfG) has declared several of the TSG’s harsher requirements to be unconstitutional, inaction by the legislature has meant that some of these retain the force of law for practical purposes. The first part of this blog will discuss several BVerfG decisions, highlighting the need for reform in this area.

Jurisprudence of the TSG: A Reactive and Inconsistent Patchwork

The first casualties of the BVerfG’s scrutiny were the age requirements in the TSG. First, the BVerfG found in March 1982 that Section 8(1) no. 1 TSG violated Article 3(1) of the German Constitution (Grundgesetz or GG) and therefore could no longer be applied. This section prohibited a trans person under 25 from changing their legal gender, even if they had completed an operative gender reassignment. In contrast, trans people over 25 had such a right. An attempted justification on the grounds of protecting young adults from making hasty decisions was ineffective, as the court held that someone who has already completed gender confirmation surgery has already made a final decision on the matter. This paved the way for the court to abolish the same restraint from the small solution – if no age limit could be justified for the weightier big solution, it was irrational to impose one for something as small as a name change.

In 2005, the BverfG also declared Section 7(1) no. 3 TSG to be unconstitutional on the ground that a legally protected partnership was not available to homosexual trans people without them having to give up their chosen first name and being reassigned their previous first name. This situation violated Article 2(1) in conjunction with Article 1(1) of the Grundgesetz. The government argued that getting married and keeping the chosen first name could give the impression of a same-sex marriage, which was illegal in Germany at the time. This justification failed, mainly because there was no other option for a trans person to secure their partnership at that time. Moreover, the court did not see a real threat to the institution of marriage, since the small solution relates to personal gender identity and not to legally recorded gender. In 2008, on similar grounds, the court decided that Section 8(1) no. 2 of the TSG was unconstitutional by forcing a divorce contingent on the big solution. The government advanced a similar justification as in the previous case, but could not justify the predicament of married trans people: namely, facing the choice of either staying married without an accurate legal gender or being able to correct their legal gender for the price of divorcing their partner.

Finally, the BVerfG declared Section 8(1) nos. 3 and 4 of the TSG to be unconstitutional in 2011. Subsection 3 forced a trans person to be permanently sterile in order to apply for a change in sex assignment, whereas subsection 4 required the applicant to undergo surgery modifying their external genitalia. A trans person in a same-sex partnership, who wished to obtain legal protection for that partnership, was required either to marry or to undergo gender confirmation surgery. If such a person wanted to obtain legal recognition of their preferred gender and thus become eligible to enter into a civil partnership with their partner, they were required to become sterile. The court emphasised that these sections produced a situation that was not compatible with the principle of human dignity, in conjunction with the fundamental right to the protection of one’s personality, under Articles 1(1), 2(1) and 2(2) of the Grundgesetz. These subsections have not been removed by the legislature to date and constitute the harshest and most invasive requirements in the TSG, hence the urgent need for a new law.

Part II of this blog series continues by assessing the proposed reforms of the new draft bill and their implications for the human rights of trans people in Germany.

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