The Gender Self-determination Act seeks to put Germany on a progressive path by replacing current expensive and burdensome discriminatory practices with a streamlined procedure. This Act allows citizens aged 14 or older to change their gender entry and given names on official documents through a simple declaration process at their local civil registry office. The new Act replaces the draconian Transexuals Act, adopted by West Germany in 1980. Under the previous law, transgender individuals were required to obtain expert opinions to change their gender entry and first name. The discussion ahead explores the effectiveness of the new law, the challenges it presents, and the scope for improvement to ensure that it serves all individuals equally.

Judicial Response

In 2011, the Federal Constitutional Court declared most provisions of the Transexuals Act unconstitutional. The Court ruled that an individual’s gender identity is not determined solely by physical sex characteristics but is significantly influenced by their self-identified gender. This is also indirectly protected under the German Constitution, particularly through the right to free personal development in Article 2, Section 1. The recognition of gender identity is thus considered part of individuals’ fundamental rights. Since 2011, the requirement to undergo sterilization and gender-affirming surgery for a change of gender entry has been suspended. However, the relevant paragraphs declared invalid were not removed from the legal text after being suspended. The new Act therefore makes it easier for people wishing to change their gender.

Effectiveness

The Act reinforces an individual’s right to self-identify their gender. It helps combat discrimination and promotes respect for diverse gender identities. Further, it simplifies the process for changing gender and protects individuals’ privacy by restricting the disclosure of past gender entries without consent.

Shortcomings

Critics have argued that the Act could be misused for fraudulent purposes or to evade legal obligations. Some have expressed concerns that minors might make irrevocable decisions about their gender identity without understanding the implications. A special expert on violence against women and girls has expressed concerns that the Act may jeopardize the safety of women and girls in shelters and bathrooms, while the German government maintains that the law aligns with human rights standards.

Additionally, the Act (Article 3, Sections 1-3) requires parental consent for minors to change their gender entry, which may be difficult in unsupportive family settings. The changes must be registered with the office three months prior to the request (Article 4, Section 1); this could be troublesome and may not consider the urgent needs of certain individuals.

A particularly concerning aspect of the Act (Article 1, Section 3) is that it restricts migrants and refugees from changing their gender and name changes, specifically requiring a permanent residency, an extendable residence permit or an EU Blue Card. This provision is discriminatory and does not provide equal access to all individuals. Moreover, if the migrants leave the country with a changed name or gender, it may lead to confusion upon re-entry, especially if there are inconsistencies between their previous documents and their new legal identity. The Act does not address this issue.  The Act also fails to engage with existing laws and policies concerning gender identity and rights related to health services and sports.

Suggestions

The Act could be amended to include all individuals, regardless of their immigration status. In this regard, it may be beneficial to establish guidelines between immigration authorities and gender recognition bodies to deal with cases involving foreign nationals, as it would clarify measures for officials in addressing inconsistencies in documentation. Additionally, implementation of training programs for immigration authorities to enhance their understanding and respect for gender identity rights could be helpful in avoiding confusion at entry points.

There should be clarity on medical procedures related to gender transition within the scope of the Act, as this could facilitate access to necessary medical care for individuals.  In cases of unsupportive family settings, establishing a more supportive procedure for minors to change their gender designation without the necessity of parental consent, possibly involving a legal guardian or a lawyer, could be advantageous.

Therefore, while the Act has positive intentions in recognizing and respecting gender identity in Germany, it also presents complexities and concerns that will need enduring attention and dialogue among policy makers, transgender people themselves, and the wider society.