Transgender rights in Germany

Transgender rights in the Federal Republic of Germany are regulated in the Transsexuellengesetz ("Transsexual law"), since 1980. The law initially required them to undergo surgical alteration of their genitals in order to have key identity documents changed. This has since been declared unconstitutional.[1] Discrimination protections on the basis of gender identity and sexual orientation vary across Germany, but discrimination in employment and the provision of goods and services is in principle banned countrywide.

The Transsexuellengesetz

In 1980, West Germany passed a law that regulates the change of first names and legal gender. It is called "Gesetz über die Änderung der Vornamen und die Feststellung der Geschlechtszugehörigkeit in besonderen Fällen (de:Transsexuellengesetz – TSG)" (Law about the change of first name and determination of gender identity in special cases (Transsexual law – TSG)). However, the name change becomes legally void if a child of the person's descent is born more than 300 days after the name change.[2] Since 1990, the law applied to all of Germany following the reunification of East and West Germany.

In the past, German law required parents to give their child a gender-specific name.[3][4] This is no longer true, since the Federal Constitutional Court of Germany held in 2008 that there is no obligation that a name has to be sex-specific, even if it is the only one.[5] One can either obtain a change of name alone, and proceed later with a change of legal gender, if possible or desired, or obtain both in a single legal procedure.

For both, two independent medical court experts have to be commissioned by the judge. They are asked to evaluate, whether

• the person "does not identify with the birth-assigned sex/gender,[6] but with the other one",[7] and
• "feels a compulsion to live according to his/her ideas for at least three years",[7] and
• it is to be assumed with high probability, that the feeling of belonging to the other sex/gender[6] is not going to change".[7]

For the change of legal gender, it was also once required that the person

• is permanently infertile,[8] and
• has had surgery through which their outer sexual characteristics are changed to a "significant approximation" to the appearance of their preferred biological sex.[8]

These requirements were declared unconstitutional by supreme court ruling in a 2011.[1][9]

Originally, the law stated that neither change of name nor legal gender were available for people under 25 years of age. This condition has been declared void by the courts, and today there is no minimum age. Until 2008, the person had to be unmarried.

The TSG applies only to German citizens; there are exceptions only for non-German citizens with very specific legal status, such as stateless people living legally in Germany, or in case the foreign state has no equivalent law, which would be in accordance with German constitution.

Several court decisions have further specified several matters. For example, a person with only a name change has the right to be called "Herr" or "Frau" (Mr. or Ms.) according to their first name, not their legal gender; similarly, documents have to be issued reflecting their actual gender identity, not legal gender. Job references, certifications and similar from the time before the change of name may be reissued with the new name, so effectively there is no way for a new employer to learn about the change of name and/or legal gender. Also, people with only a name change do not have to divulge their legal gender to employers.

In 2011, the German Constitutional Court ruled that a person did not need either sex reassignment surgery or sterilization in order to legally change their gender. In January 2011, the German Constitutional Court ruled that these two requirements were unconstitutional.[10]

Discrimination protections

The Equal Treatment Act came into force on 18 August 2006. It law bans discrimination based on sexual orientation, gender identity and sex characteristics in employment and the provision of goods and services.[11]

Hate speeches on the basis of sexual orientation and gender identity are not banned nationwide in Germany. Some states have laws banning all forms of discrimination in their constitutions. (Berlin, Brandenburg, Bremen, Saarland and Thuringia) In those states, hate speeches based on both sexual orientation and gender identity are prohibited.[12][13]

Third gender

In November 2017, the Federal Constitutional Court (Bundesverfassungsgericht) ruled that civil status law must allow a third gender option.[14] This means that birth certificates will no longer have blank gender entries for intersex people.[15]

See also

• LGBT rights in Germany
• Legal aspects of transgenderism
• Intersex rights in Germany
• Transvestite certificate (issued to trans and crossdressing people in Weimar Germany by Magnus Hirschfeld, under the aegis of the Institut für Sexualwissenschaft)[16][17]

References

1. "ERT Notes Steps Taken Around the World Recognising the Gender Identity of Gender Variant Persons". Equal Rights Trust. 2011-12-14. Retrieved 26 May 2015.
2. "BGBl. I S. 1654" (PDF) (in German). Bundesansieger Verlag. Retrieved 17 May 2015.
3. "Oh no, you can't name your baby THAT!". Retrieved 26 July 2015.
4. Flippo, Hyde "The Germany Way" Published by McGraw-Hill (1996), Pages 96-97
5. BVerfG, 1 BvR 576/07 vom 5.12.2008, paragraph 16
6. The German word Geschlecht (the teminology used in the law) can be translated as either "sex" or "gender".
7. "Bundesverfassungsgericht - Presse - Voraussetzungen für die rechtliche Anerkennung von Transsexuellen nach § 8 Abs. 1 Nr. 3 und 4 Transsexuellengesetz verfassungswidrig". www.bundesverfassungsgericht.de. Retrieved 2019-02-06.
8. Prerequisites for the statutory recognition of transsexuals according to § 8.1 nos. 3 and 4 of the Transsexuals Act are unconstitutional
9. "– German Constitutional Court declares compulsory surgeries unconstitutional". tgeu.org. Retrieved 26 March 2017.
10. "– German Constitutional Court declares compulsory surgeries unconstitutional". tgeu.org.
11. "Antidiskriminierungsstelle - Publikationen - AGG in englischer Sprache". antidiskriminierungsstelle.de.
12. "Rainbow Europe: Germany". rainbow-europe.org. Retrieved 26 March 2017.
13. (in German) Diskriminierungsverbot in die Bremische Landesverfassung
14. Civil Status Law Must Allow a Third Gender Option
15. Germany officially recognising 'third sex' other than male and female The Independent, 8 November 2017
16. Gershon, Livia (18 November 2018). "Gender Identity in Weimar Germany". JSTOR Daily. Retrieved 19 July 2019.
17. Frost, Natasha (2 November 2017). "The Early 20th-Century ID Cards That Kept Trans People Safe From Harassment". Atlas Obscura. Retrieved 19 July 2019.