1. Bayerns dauerhafte Identität

Bayern gehört zu den ältesten kontinuierlich bestehenden Staaten Europas und lässt sich in seinen politischen und kulturellen Ursprüngen bis ins 6. Jahrhundert zurückverfolgen. Bayern ist ein Altstamm (Original Nation) und Stammesherzogtum (tribal duchy) im heutigen Süddeutschland und war über Jahrhunderte hinweg ein eigenständiges Königreich, bevor es nach dem Zweiten Weltkrieg in die Bundesrepublik Deutschland integriert wurde. Bayerns Sprachen — Boarisch und Schwäbisch — verfügen über eine mehr als 1.300-jährige schriftliche Überlieferung, werden jedoch rechtlich weiterhin als „Dialekte“ klassifiziert. Im Jahr 2024 unterzeichneten über 22.000 Menschen eine Petition zur Anerkennung des bayerischen Spracherbes im Rahmen der Europäischen Charta der Regional- oder Minderheitensprachen. Der Ausschluss von Boarisch und Schwäbisch offenbart einen grundlegenden Widerspruch im föderalen System Deutschlands: Eine der ältesten Nationen Europas verfügt über keinen rechtlichen Schutz für ihr eigenes lebendiges sprachliches Kulturerbe.

2. Das Entwicklungs- und Menschenrechtsgebot

Sprache ist das Medium, durch das Gemeinschaften Wissen, Werte und Weltverständnis weitergeben. Wie es in Bayern heißt: „Die wahre Heimat ist die Sprache.“ Die Verweigerung der Anerkennung von Boarisch und Schwäbisch löscht Jahrhunderte kultureller Kontinuität aus und beeinträchtigt konkrete Entwicklungschancen. Kinder, die von der Nutzung ihrer Muttersprache abgehalten werden, schneiden schulisch schlechter ab; Sprecherinnen und Sprecher sehen sich im Berufsleben und im öffentlichen Raum häufig als „provinziell“ oder „ungebildet“ stigmatisiert. Dies entspricht dem, was in der Forschung als Linguizid bezeichnet wird — der systematischen Erosion nicht-standardisierter Sprachen durch politische Vernachlässigung.

Das Recht auf Entwicklung, bekräftigt in der UN-Erklärung über das Recht auf Entwicklung von 1986 (Art. 1–2), verlangt eine aktive, freie und sinnvolle Teilhabe an Entwicklungsprozessen sowie Chancengleichheit — Voraussetzungen, die durch sprachlichen Ausschluss unmittelbar untergraben werden. Ebenso verpflichtet das Übereinkommen über die Rechte des Kindes (Art. 8, 28–30) zum Schutz der Identität von Kindern, einschließlich der Nutzung und Pflege sprachlichen und kulturellen Erbes sowie des gleichberechtigten Zugangs zu kulturell sensibler Bildung. Sprachliche Anerkennung ist damit zentral für Zugehörigkeit, Selbstwertgefühl und Entwicklungschancen. Sprachlicher Ausschluss stellt folglich eine Verletzung von Menschenrechten ebenso wie von Grundsätzen nachhaltiger Entwicklung dar.

Die Europäische Charta der Regional- oder Minderheitensprachen trat in Deutschland am 1. Januar 1999 in Kraft. Sie verpflichtet die Vertragsstaaten, regionale und Minderheitensprachen aktiv als Teil des kulturellen Erbes Europas zu schützen und zu fördern. Der Europarat betont:

“Die Sprachenvielfalt ist eines der kostbarsten Elemente des europäischen Kulturerbes … der Schutz und die Kräftigung [der] herkömmlichen Regional- oder Minderheitensprachen tragen zum Aufbau Europas bei …” (Rdnr. 26)

Während Deutschland mehrere Regional- und Minderheitensprachen schützt, bleiben die bayerischen Herkunftssprachen von diesem Rahmen ausgeschlossen, da sie verwaltungsrechtlich als „Dialekte“ und nicht als eigenständige Sprachen eingestuft werden.

Eine rechtliche Anerkennung der bayerischen Sprachen wäre nicht bloß symbolisch. Sie würde die deutsche Praxis mit ihren internationalen Entwicklungsverpflichtungen in Einklang bringen. Konkret würde sie öffentlich-rechtliche Rundfunkangebote in Boarisch und Schwäbisch ermöglichen, die Ausbildung von Lehrkräften in regionalen Sprachen fördern, Mittel für gemeinschaftsbasierte Revitalisierung bereitstellen und eine inklusive öffentliche Beteiligung stärken. Zugleich würde sie bekräftigen, dass kulturelle Vielfalt innerhalb Europas denselben rechtlichen Schutz verdient, den Europa andernorts einfordert.

3. Schlussfolgerung

Wenn Sprache Heimat ist, dann ist Anerkennung ihr Fundament. Für die bayerischen Völker ist sprachliche Gerechtigkeit keine nostalgische Forderung, sondern gelebte Entwicklung. Der Schutz von Boarisch und Schwäbisch würde sie von marginalisierten „Dialekten“ zu lebendigen Bestandteilen des deutschen Kulturerbes machen und Gleichheit, Teilhabe und demokratische Legitimität stärken. Während die Vereinten Nationen Deutschlands Fortschritte im Bereich des Rechts auf Entwicklung prüfen, zeigt der bayerische Fall, dass eine ernsthafte Dekolonisierung innereuropäischer Hierarchien unabdingbar für die Glaubwürdigkeit und Universalität globaler Menschenrechte ist.

See english version here.

Bavaria’s Enduring Identity
Bavaria is one of Europe’s oldest continuous states, tracing its political and cultural origins to the sixth century. Bavaria is an Altstamm (Original Nation) and Stammesherzogtum (tribal duchy) in what is now southern Germany, and was once an independent kingdom before its post-war integration into the Federal Republic of Germany. Its languages — Boarisch and Schwäbisch — have a written history stretching back more than 1,300 years, yet remain legally classified as “dialects”. In 2024, more than 22,000 people signed a petition calling for the recognition of Bavaria’s linguistic heritage under the ECRML. The exclusion of Boarisch and Schwäbisch reveals a contradiction at the heart of Germany’s federal system: one of Europe’s oldest nations remains without protection for its own living linguistic heritage.

The Development and Human Rights Imperative
Language is the vessel through which communities transmit knowledge, values, and worldview. As Bavarians say, “Die wahre Heimat ist die Sprache” — the true homeland is language. Denying recognition to Boarisch and Schwäbisch erases centuries of cultural continuity and damages development outcomes. Children discouraged from using their mother tongue perform worse academically; speakers face stereotypes of being “provincial” or “uneducated” in workplaces and public life. This mirrors what scholars term linguicide — the systematic erosion of non-standard languages through policy neglect. The right to development, affirmed by the 1986 UN Declaration on the Right to Development (Arts 1–2), requires active, free, and meaningful participation in development and equality of opportunity — conditions that linguistic exclusion directly undermines. Similarly, the Convention on the Rights of the Child (Arts 8, 28–30) requires the protection of children’s identity, including the use and enjoyment of linguistic and cultural heritage and equal access to culturally responsive education, underscoring the importance of linguistic recognition for belonging and self-worth. Linguistic exclusion, therefore, constitutes a violation of both human rights and sustainable development principles.

The ECRML entered into force in Germany on 1 January 1999. The Charter obliges states to actively protect and promote regional and minority languages as part of Europe’s cultural heritage. The Council of Europe emphasises:

“Linguistic diversity is one of the most precious elements of the European cultural heritage … the protection … of its traditional regional and minority languages represents a contribution to the building of Europe” (para. 26).

While Germany protects several regional and minority languages, Bavaria’s ancestral languages remain excluded from this framework, as they are administratively classified as “dialects” rather than distinct languages.

Legal recognition of Bavaria’s languages would not merely be symbolic. It would realign Germany’s domestic practice with its international development obligations. For instance, it would allow public broadcasting in Boarisch and Schwäbisch, teacher training in local languages, funding for community-based revitalisation, and inclusive public participation. It would also affirm that diversity within Europe deserves the same legal protection Europe demands elsewhere.

Conclusion
If language is the homeland, recognition is its foundation. For the Bavarian Peoples, linguistic justice is not nostalgia — it is development in practice. Protecting Boarisch and Schwäbisch would transform them from marginalised dialects into living components of Germany’s cultural heritage, advancing equality, participation, and democracy. As the UN examines Germany’s progress on the right to development, Bavaria’s case demonstrates that meaningful decolonisation of Europe’s internal hierarchies is essential to the credibility and universality of global human rights.

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.

Background and Basis of the Lawsuit

Germany’s NECP, which is updated to align with the EU’s climate framework, serves as a vital tool for EU member states to chart their paths or plans toward emission reductions. The organization argues that without actionable policies, the NECP fails to meet the legal and practical requirements of the EU’s Effort Sharing Regulation (ESR) and the broader “Fit for 55” package, designed to cut greenhouse gas emissions by 55% by 2030.

The NECP is a 10-year plan which covers various topics including greenhouse gas emissions, renewable energy adoption,  and research and innovation. DUH, who is the petitioner in the case, highlights several deficiencies in the NECP including the insufficient mitigation measures in transport and building refurbishment, sectors that are central to Germany’s decarbonization.

In addition, the absence of measurable interim targets and accountability mechanisms hampers Germany’s compliance with EU obligations; and there are no suitable measures or policies in place to achieve the ‘Land use, land-use change and forestry Regulation’ target.

While Germany emphasizes carbon capture and storage and renewable energy solutions, DUH claims the government relies excessively on these without integrating them into actionable policies. Thus, Germany’s plan lacks clear or comprehensive projections on the efficiency of the planned measures.

Clean Air Task Force (‘CATF’), another organization working in the field of climate change, has raised similar concerns by noting that Germany continues to be overly reliant on imported fossil fuel. They also added that the approach taken by Germany might not be adequate to address all relevant factors that come into play such as the complexity, cost-effectiveness and reliability. The issue of the overly ambitious plan of Germany to shift to hydrogen and hydrogen derivatives was also raised.

Broader Legal and Policy Implications

This lawsuit is part of a growing trend of climate litigation globally, reflecting a shift towards judicial intervention to enforce governmental accountability on climate commitments. For Germany, the case underscores its ongoing struggle to reconcile ambitious climate neutrality goals with practical execution.

Germany’s failure to produce a legally adequate NECP could have far-reaching consequences. A ruling against the government could compel Germany to revise its NECP, establishing stricter legal standards for future climate action plans. Such a ruling may serve as a precedent to subsequent ‘climate lawsuits’ in the EU and beyond. Germany’s non-compliance may trigger scrutiny or penalties under EU frameworks, undermining Germany’s leadership on climate policy. Further, the lawsuit amplifies public discourse on the need for transparent, enforceable, and equitable climate policies.

Conclusion

As the global climate crisis deepens, legal actions such as DUH’s illustrate the critical role of civil society in bridging the gap between policy and implementation. The outcome of this case could serve as a blueprint for future litigation across Europe, signalling the judiciary’s pivotal role in climate governance. For Germany, the lawsuit serves as a wake-up call to fortify its climate strategies and lead by example in achieving EU climate targets.

Traditional Owners of the Boigu and Saibai islands, Uncle Pabai Pabai and Uncle Paul Kabai (Applicants), have filed a class action in the Federal Court against the Commonwealth Government for failure to protect them from climate change. Success would be ground-breaking for raising Australia’s climate mitigation efforts, yet hurdles remain, including in determining the role of science and the role of courts in climate change litigation.

The Case

The Applicants claim the Australian Government has breached a duty of care to take reasonable steps to protect the inhabitants of Zendath Kes, their traditional way of life, and the surrounding marine environment from the current and projected impacts of climate change. The claim emphasises the protection of traditional culture, known as Ailan Kastom – a spiritual and physical connection to the land and waters in Zendath Kes, which is existentially threatened by climate change.

The Applicants seek declaratory and injunctive relief in order to require the Government to reduce Australia’s greenhouse gas (GHG) emissions in line with the “best available science” targets.

Climate litigation in context

“Climate framework cases”, like Pabai Pabai v Commonwealth, challenge a government’s overall efforts to reduce GHG emissions. The first successful framework case was Urgenda in the Netherlands, with two other successful cases – Klimaatzaak (Belgium, on appeal), and Neubauer (Germany). These cases have drawn on fundamental human rights (in addition to a duty of care). However, if successful, the Australian case would be the first to rely on solely on a tortious claim, in absence of Federal human rights protections.

The Role of Science

The Federal Government’s current climate policy is to cut GHG emissions by 43% (below 2005 levels) by 2030 and net-zero emissions by 2050. The Applicants argue that “best available science” requires Australia to cut its GHG emissions by 74% by 2030 (from 2005 levels) and achieve net-zero emissions by 2035, to keep global warming below 1.5 degrees. The Applicants claim that holding the global temperature increase to 1.5 degrees would prevent the most significant projected climate harms, in line with the Paris Agreement.

The role of science will likely be a contested issue in the case, including what science is considered the “best available” and how situations of scientific uncertainty should be addressed.

The Government’s Defence raises scientific uncertainty as one basis for dismissing the Applicants’ claim. This includes disputing whether “tipping points” for climate harm in Zendath Kes will occur at 1.5 degrees, and not 2 or 3 degrees warming. Furthermore, the Government argues there is scientific uncertainty as to the causal nexus between its emissions target and the impacts of climate change in Zendath Kes. It remains to be seen whether the Federal Court will appeal to the “precautionary principle”, a pillar of international environmental law, to justify obligations on the Government where scientific uncertainty exists and grave harms are at stake.

Finally, the “fair share” of GHG emission reductions to be undertaken by Australia, as opposed to other countries, is contested. Scientific and other methodologies differ on the calculation. The IPCC reports, generally taken as “best available science” do not address country-specific allocations, only a global average rate of reduction.

Role of Courts

Another anticipated tension in the case will be the role of courts in assessing Government action on climate change. The Applicants seek relief to require the Government to reduce GHG emissions, in line with “best available science”. How the Government meets these higher targets would remain a matter of policy. The Government argues a judicial ruling on Australia’s GHG emissions targets involves “questions of policy-making unsuited to judicial determination”.

The previous Minister  for the Environment v Sharma case sought to impose a duty of care on the Minister to take reasonable care to avoid future climate harms on young people, when approving a new coal project. The duty was dismissed on appeal. One basis (central to Chief Justice Allsop’s reasoning) was that the duty would require consideration of questions of policy “unsuitable for the judicial branch to resolve.”

Relevantly, Sharma concerned a specific exercise of the Environment Minister’s decision-making power, whilst Pabai seeks the Courts to enforce an overall emissions target, without judicial comment on policy implementation. As such, questions of policy-making in Sharma and Pabai seem distinguishable and not settled by Sharma.

How the Australian Federal Court addresses these questions on the role of science and the role of courts will likely be influential for other countries facing similar cases on state climate inaction, and significant for the lives and continued culture of First Nations people in the Zendath Kes. The judgment is expected in late 2024.

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.

Want to learn more?

• Read: Horizontal Reservation for India’s Transgender Community
• Read: Depathologising Gender Identity at the United Nations: A Call to South Africa
• Read: Welfare as a Human Right: An Intersectional Approach to Trans Rights in India
• Read: New Frontiers of LGBTQ+ Liberation
• Read: Hungarian Bill Obliterates Gender Recognition Rights

The SBGG

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.

Want to learn more?

• Read: Horizontal Reservation for India’s Transgender Community
• Read: Depathologising Gender Identity at the United Nations: A Call to South Africa
• Read: Welfare as a Human Right: An Intersectional Approach to Trans Rights in India
• Read: New Frontiers of LGBTQ+ Liberation
• Read: Hungarian Bill Obliterates Gender Recognition Rights

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.

Want to learn more?

• Read: Europe’s Gender Recognition Tug-of-War Continues in Germany
• Read: Horizontal Reservation for India’s Transgender Community
• Read: Depathologising Gender Identity at the United Nations: A Call to South Africa
• Read: Welfare as a Human Right: An Intersectional Approach to Trans Rights in India
• Read: New Frontiers of LGBTQ+ Liberation
• Read: Hungarian Bill Obliterates Gender Recognition Rights

In the last seven years, German law has undergone significant change regarding a person’s legal gender. In 2013, the legislator first introduced a provision (section 22(3) PStG, old version) which provided for the possibility to leave the gender entry open where it was not possible to determine the biological sex of a child as either male or female. By contrast, the provision did not allow for a positive non-binary gender entry.

In 2017, the narrow scope of section 22(3) PStG was subject to a successful constitutional challenge. The German Federal Constitutional Court (Bundesverfassungsgericht – BVerfG) ruled that the general right to personality set forth in Art. 2(1) in conjunction with Art. 1(1) of the German Basic Law (Grundgesetz – GG) also protected the gender identity of those persons who do not identify as either male or female. Furthermore, the court held that the prohibition of discrimination in Art. 3(3) GG also protected non-binary persons from gender-based discrimination. The German legislator was therefore obliged to introduce a third positive gender entry option or to abolish mandatory gender registration altogether.

Since 2018, the legal gender of a new-born child can now also be registered as “divers” pursuant to section 22(3) PStG (new version), if the child’s sex cannot be determined as male or female. Furthermore, according to section 45b PStG, a person’s gender can also be changed at a later point in life if that person can present a medical certificate confirming “differences of sex development” (“Varianten der Geschlechtsentwicklung”).

While the new rules can be described as important steps in the right direction, many legal questions remain unanswered. One of the most important questions is whether the term “Varianten der Geschlechtsentwicklung” must be interpreted in light of a person’s self-perception and gender identity or whether a purely biological understanding should prevail.

In the abovementioned decision, the Federal Court of Justice (BGH) now opted for the latter approach. The court argued that the legal changes introduced to the PStG in 2019 were meant to only address persons with a medical intersex condition and thus did not apply to persons who solely identified as non-binary (referred to by the court as “merely perceived intersexuality”). The court further held that those persons could only change their legal gender according to the stricter rules of the German Transsexuals Act (Transsexuellengesetz -TSG) which requires mandatory court proceedings as well as two independent expert opinions.

The decision of the BGH is facing considerable criticism and a constitutional complaint is already pending before the BVerfG. And indeed, in light of the constitutional rights to gender identity and equal treatment, the biological approach taken by the BGH is not convincing.

Firstly, as the BVerfG has stressed in a number of decisions, a person’s gender cannot solely be determined by biological factors. Rather, a person’s gender significantly depends on their self-perceived gender identity. Furthermore, such a subjective understanding is also supported by several decisions of the European Court of Human Rights (ECHR). For instance, in Goodwin v The United Kingdom, the ECHR held that the right to respect for private life under Article 8 of the European Convention on Human Rights also includes the right to autonomously establish details of one’s own gender identity.

Secondly, it is more than doubtful whether the differential treatment between intersex persons and those with “merely perceived intersexuality” is in line with the constitutional right to equality under Art. 3(1)(3) GG. While the BGH argued that the compared groups were not relevantly alike, one can hope that the BVerfG will reject this line of argument together with the curious notion of “merely perceived intersexuality”. Nonetheless, the long-term solution can only be a comprehensive legal reform which puts a person’s gender identity at the heart of a new gender recognition act.

The legal framework in Germany

According to Section 8 I 2 of the Transplantation Act (TPG), living organ donation is only permissible for the purpose of transfer to first- or second-degree relatives, spouses, registered partners, fiancées or other persons who are obviously close to the donor in a special personal relationship. The law prohibits the following acts: undirected (anonymous) living donations, pool or ring models and, depending on whether one assumes a “close personal relationship” between the donor-recipient pairs due to a shared fate based on a common emergency, cross-over living donation (section 19 II TPG).

Living donation is based on the fundamental principle of the person’s self-determination over one’s body (Art 2 I in conjunction with 1 I of the Basic Law (GG)) on the part of the potential organ donor, as well as the right to life and physical integrity secured by Art 2 II 1 GG on the part of the potential organ recipient, so that a restriction of the circle of donors constitutes an infringement of the scope of protection of the fundamental rights. Accordingly, it is not the demand to expand the circle of donors that requires justification, but rather the existing restriction of this.

Concerns about voluntariness and organ trafficking

The aim of Section 8 I 1 TPG was to ensure the protection of the voluntary nature of donation and to prevent organ trafficking. However, it is not clear that limiting the pool of living donors to only those with close personal ties to the recipient ensures the voluntary nature of the decision. Rather, the current framework risks the danger of the possibility of an involuntary donation that results from social expectations and a “strong incentive character” where exerting pressure is easier because of personal proximity and perceived moral obligations. This societal force lacks the same power in the case of anonymous living organ donation. Ensuring voluntariness should instead be the task of living donation commissions.

Furthermore, it is not plausible that the risk of organ trafficking should be higher in case of anonymous living organ donation than in case of living donations based on a proximity relationship. The concern about covert allocation activities is unfounded insofar as the distribution of anonymously donated organs, similar to post-mortem donation, would presumably take place via the competent allocation body (Eurotransplant) within the meaning of Section 12 TPG. The Federal Constitutional Court (1 BVR 2181/98) confirmed that in this case the danger of organ trafficking is practically excluded and the voluntary nature of the donor’s decision is ensured. Insofar as it is unclear to what extent this would increase living donation, this does not constitute an argument for prohibiting it under threat of punishment.

Conclusion: moving beyond undue restrictions on personal autonomy

In view of the unsuitability of the measure to achieve the legitimate purposes and the consequent lack of compliance with the constitutional requirements for a justified intervention, a reformulation of Section 8 I 2 TPG is advisable. This could be achieved by expanding the circle of donors to include pool models, cross-over and anonymous living donation, whereby the dangers of autonomy-violating instrumentalisation and commercialisation can be prevented by procedural safeguards.

Want to learn more?

• Read: International Legal Responsibilities of Medical Transplantation Institutions
• Read: Organ Donation: New Law, New Horizons
• Read: Life Saving at a High Cost: The Case for Provision of Rare Disease Treatments being a Human Right