Landmark transgender case in German Constitutional Court
Today in a unanimous decision the German constitutional Court considerably strengthened the rights of transgender people under German law, particularly the rights of non-operative transsexual people who live in same-gender relationships.
The court decision was welcomed by LSVD and the Liberal and Green Groups in the German Bundestag (Parliament). You can find the official press release (in German) here: http://www.bundesverfassungsgericht.de/bverfg_cgi/pressemitteilungen/frames/bvg05-127
You can find the full Court opinion (in German) here : http://www.bundesverfassungsgericht.de/entscheidungen/ls20051206_1bvl000303.
The case was brought by prominent layer Maria-Sabine Augstein, who also filled the Constitutional Court case that lead to the introduction of the 1981 transsexuality law (Transsexuellengesetz - TSG in German), and was supported in a brief LSVD.
In this overview I am using terms such a pre- and non-operative transsexuals as this is the language used by the Court and the TSG. Within that conceptual framework the Constitutional Court is quite progressive.
In Germany pre- or non-operative transsexuals can change their first name to reflect their new identity (so called “small solution” as opposed to the “big solution” of full surgery) – however legally they remain in their birth sex. In the case decided by the Const. Court a male-to-female non-operative transsexual who had opted for the small solution and had changed her first name wanted to get her relationship with her female partner recognized by the sate – in her perspective she is living in a same-sex relationship. When she went to the marriage registrar and married, she was told that under the TSG her first name had changed back to her previous male name – thus losing her female gender identity in the process. This rule was enacted in 1981 to prevent what would be seen as “same-sex marriage”. Since she is still legally male she can also not get a registered partnership – as these are only available to partners of the same legal gender.
The current law in effect is a prohibition of marriage and partnership for pre- or non-operative homosexual transsexuals in Germany (under the partnership law heterosexual pre- or non-operative transsexuals can register a partnership without having to change their first names back). This aspect of the TSG has been found to violate the Constitution by the Court today as it contravenes the intimate sphere (including the right to one’s first name) and gender identity of the affected individuals. Crucially the Court in its opinion also stresses that many pre-operative transsexuals in Germany do not desire to undergo full surgery and that their gender identity has to be respected by the law. The Court also notes that the 1981 TSG is outdated in its expectation that all transsexuals will be heterosexual – noting that there are many transsexuals who are in fact homosexual.
The German Government and Bundestag now have to reform the TSG to allow pre- or non-operative homosexual transsexuals the ability to get their partnerships recognized.
LSVD has urged the government to use this Court decision as an opportunity to reform the TSG as a whole and make it less burdensome for transgender people as a whole (including the requirement for full surgery to legally change their gender and the requirement for divorce in that case). Also we hope that this Court decision is a good basis to lobby for pre- or non-operative transsexuals with the “small-solution” to receive passports that reflect their gender identity rather than their legal sex – enabling them to travel without hassles outside Europe (in Europe they can use identity cards that do not identify sex).
Member of the Board and International Coordinator
Lesbian and Gay Federation in Germany (LSVD)