Germany’s New Law for Self-Determination: Progressive for Some, Regressive for ‘Others’

by | Oct 11, 2023

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About Mohammad Zayaan and Souniya Dhuldhoya

Mohammad Zayaan is a fifth year undergraduate law student at Gujarat National Law University, India. His research interests include constitutional law, human rights law, and criminal justice. Souniya Dhuldhoya is a third-year undergraduate law student at Gujarat National Law University, India. She has a keen interest in international law, private law and human rights.

Germany is currently in the process of amending its gender self-identification law to make it more progressive. The Federal Ministry of Justice and the Federal Ministry for Family Affairs, Senior Citizens, Women and Youth have published a proposal for the new law, which has been approved by Cabinet. This is a welcome step towards removing hurdles faced by transgender, intersex, and non-binary people to undergo gender-affirming surgery. These hurdles have made surgery inaccessible to vulnerable people without the resources to obtain expert assessments or court authorisation, as mandated by law.

However, while the progressive nature of the proposed law will ensure the advancement of human rights, there remains a glaring shortcoming:the law bars ‘illegal’ immigrants from accessing gender-affirming surgery in Germany. This makes the law discriminatory and exclusionary, violating the human rights of one of society’s most vulnerable groups. The law is therefore also a derogation of the precedents of the European Court of Human Rights (ECtHR) in its interpretation of the European Convention on Human Rights (ECHR), to which Germany is a party.

‘Illegal’ immigrants are individuals who do not have permission in the form of a residence permit to live in the country. Under the German Residence Act, unauthorised stay is illegal and entails penal consequences. However, authorisation is not the benchmark for deciding ‘validity’ of a claim for a permit. Numerous administrative hurdles, coupled with the lack of resources available to asylum seekers, often lead to an arbitrary denial of authorised residence permits. Further, even people waiting for a decision on their asylum claims are considered to be ‘unauthorised’– and are thus on the receiving end of a discriminatory law.

As such, denial of a medical procedure like gender-affirming surgery further perpetuates the disadvantages faced by this vulnerable group and violates their basic human right to access healthcare. The ECtHR has held that gender-affirming surgery constitutes “medically necessary treatment”, and its refusal violates the right to access healthcare, which is a universal right and should be enjoyed by everyone without discrimination. The ECtHR has also held that denial of such surgery violates the right to respect for private life under Article 8 of ECHR. Therefore, a ban on such procedures violates human dignity and decisional autonomy.

Further, such denial can also lead to severe medical issues. If an asylum seeker has already started hormonal treatment in their country, an interruption in the procedure could lead to health problems like development of osteoporosis in transgender men, baldness in transgender women, and other irreversible physiological changes.

The justification provided for excluding undocumented immigrants is that they might ‘evade the authorities’ by misusing the law. However, this is problematic on two levels. Firstly, any individual can ‘misuse’ the law to evade authorities, and this is not exclusive to undocumented immigrants. Therefore, imposing the restriction solely on this particularly vulnerable group is discriminatory. Secondly, even if there is a possibility of evading authorities, the restriction imposed is disproportionate. There exist less restrictive measures that can be adopted, for example maintaining legal records corresponding to a previous identity. This can be accomplished under Section 7 of the Asylum Seekers Benefit Act, which allows for collection of personal data and its retention for ten years for legitimate purposes. This data could include status of residency and any outstanding criminal liabilities.

Moreover, the threshold to deny gender-affirming surgery is very high. ECtHR has observed that unless a substantial hardship is caused to the public interest, society can be reasonably expected to tolerate certain inconveniences so that transgender persons may live in dignity, in accordance with the identity chosen by them at a great personal cost. A mere risk of evasion – which can be reduced by other means – does not cause any substantial hardship to the public, and cannot therefore be a reason to deny the right to healthcare to gender minorities.

The proposed legislation brings positive reform by removing administrative hurdles. However, by excluding undocumented immigrants, the Government has overlooked the fact that immigrants belonging to gender minorities are often fleeing persecution due to their identity. As such, the law exposes them to increased vulnerability in addition to statelessness. For these reasons, the proposed bill demands renewed attention and critical appraisal from human rights advocates.

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