Europe’s Gender Recognition Tug-of-War Continues in Germany – Part 2: Implications of the Draft Law on Self-Determination

by | Oct 10, 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. Part I of this blog series considered the history and jurisprudence of the TSG to understand why a new law is so necessary. Part II continues by assessing the implications of the proposed reforms.


The draft Law on Self-Determination (Selbstbestimmungsgesetz or SBGG), if enacted in its current form, would be in step with other recent progressive gender recognition regimes in Europe. In contrast with the Law on Transsexuals (Transsexuellengesetz or TSG), the SBGG aims to establish a system of legal gender change by means of self-determination. A trans adult would be able to obtain recognition by applying to their local registry office to change their recorded legal gender (and their first name, if desired), along with a declaration that they understand the consequences of this action. If the person has no recorded legal gender in Germany, then this process could be used to create such a record for the first time.  This would take three months to come into effect and could not be done more than once every twelve months.  A trans child between the ages of 14 and 18 could similarly obtain recognition so long as they have the consent of their parents, though this consent may be dispensed with by a court in the interests of the child’s welfare. Recognition would in principle be open to trans children younger than 14, though in this case their parents must carry out the process on their behalf.

It is clear that these proposed reforms are significantly more progressive than the current requirement to obtain expensive medical opinions. The current draft is concordant with the majority of progressive gender recognition statutes and is even more permissive than those in Belgium, Denmark and the Republic of Ireland. Additionally, the SBGG aims to provide a more accessible change of name facility than is available to cisgender persons in Germany (who must provide a good reason for changing their name and are not guaranteed to have the change approved), out of recognition for the unique difficulties faced by trans persons whose given name does not reflect their gender identity. The SBGG does not permit a change of name without a change of recorded legal gender, given that its purpose is to accord gender identity and legal gender.

It is worth noting, however, that the SBGG falls short of the broad trans rights statutes in certain other jurisdictions, particularly Malta and Argentina, and that it shies away from recent legal and medical controversies related to the transgender rights conversation. It explicitly does not require, for instance, that trans women be admitted to women’s shelters on the same basis as cisgender women. In other countries this question has been answered outside of gender recognition legislation by the application by courts of general equality legislation to trans people. However, the list of answers to frequently asked questions published by the government make it clear that the regulation of trans persons’ participation in sports, the armed forces, and prisons will be a matter for the relevant authorities and state governments rather than the federal government.

This approach regrettably concedes ground to a certain kind of pressure group that has started to emerge in Western countries, such as Women’s Place or Genspect. Such groups seek to leverage a false conflict between the rights of cisgender women and those of trans people (particularly trans women) by portraying the latter group as a danger to the former. The SBGG also delegates the responsibility to govern prisons and other public institutions to state governments: these may be less progressively-minded than the federal government either now or in the future, given the concerning rise of the far-right Alternative für Deutschland in recent years. Moreover, the various time delays built into the recognition process are not unique in Europe but are unfortunate, as they implicitly reinforce the idea that trans people must in some way be “restrained” from changing their gender identity in a frivolous manner. Finally, the penalty for “outing” a trans person’s previous identity has been criticised by some as not being severe enough, but it is worth noting for fairness’ sake that the presence of this penalty at all is a progressive feature of the SBGG, which is not always present in gender recognition legislation.

The enaction of the SBGG would create a long-overdue, significantly more progressive gender recognition regime than Germany’s former TSG, reflecting a growing European consensus on the liberalisation of this fundamental aspect of trans rights. While it is not perfect, it is to be hoped that the scrutiny of the legislative process will improve rather than diminish the promise of the draft bill.

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