On August 28, 2023, the Ministry of Family, Seniors, Women and Youth published their drafted Gesetz Über die Selbstbestimmung in Bezug auf den Geschlechtseintrag, colloquially known as the Selbstbestimmungsgesetz (‘Self-Determination Act’; SBGG), a law intended to offer new pathways for transgender, intersex and non-binary (TIN*) individuals to change their legal name and gender identification.
The SBGG intends to replace the Transexuellengsetz (TSG) and the name changes regulated under paragraph 45b of the Personenstandsgesetz (PStG). Name and gender changes under the PstG require only a doctor’s written testimony, however it is only meant to be used by those with an intersex condition. Under the TSG, transgender individuals can apply for a name and gender marker change provided they fulfil the criteria outlined in the law. These criteria include no longer identifying with their sex assigned at birth but rather ‘the other sex’ and having felt ‘compelled to live as such’ for a minimum of three years, demonstrating a high likelihood that their gender identity will not change in the future [1]. Concrete parameters dictating what constitutes ‘living as the other sex’ are absent.
The application is heard in court. A judge is only permitted to grant the desired changes when presented with two appraisals from experts deemed to have ‘sufficient understanding of the problem of transsexuality’ (usually psychiatrists or psychotherapists) [2]. Until 2011, medical intervention in the form of sterilisation was mandatory for an application to be approved. Gender related surgical procedures and outward appearance are written into the TSG as grounds that a person be viewed ‘as the other sex’ [3]. Above all, among its many hurdles, the TSG places an individual’s right to legal gender identification which matches their lived experience primarily in the hands of others—the courts, ‘experts’ who are rare and difficult to come by, and the expectations of society. Many applicants leave the process feeling degraded and as though they had to play a role inconsistent with their values in order to have their needs fulfilled.
‘They acted like gender cops,’ says Elias, a Berliner and activist, of the two psychiatrists who provided the appraisals when he changed his name through the TSG in 2016. He recalls feeling pressured to act in a ‘strategic’ fashion inconsistent with his self-image, ‘I felt like I needed to say ‘‘I want to [have sex with] women’’ and act really sad that I couldn’t… I was in my early 20s, trying to survive this legal atrocity, and all the things I had to project, I also projected onto myself.’ The forced projection of a misogynist and restrictive gender identity took a long-term psychological toll on Elias, ‘Years of bad connection to my body started in this process… I had to talk about it in therapy years later, for years.’
Human rights lawyer experienced in LGBT issues and antidiscrimination at the Gesellschaft für Freiheitsrechte (GFF) Soraia da Costa Batista says, ‘Many points in the TSG have already been established as unconstitutional. At present, it sets unreasonable conditions for changes and is a long, laborious legal process associated with high costs.’ The TSG is primarily found to be in violation of Article 2 of the German constitution, guaranteeing the ‘right to free development of personality’. As such, Batista greets some of the proposed SBGG with apprehensive positivity, stating that on the backdrop of the TSG’s multiple constitutional conflicts, ‘Replacing the TSG and process ruled under paragraph 45b PStG with the SBGG is a great initial achievement and strengthens gender self-determination for trans, non-binary, intersex and agender individuals, in that it offers a unified, unbureaucratic process free from external appraisal. Despite being a milestone, there is room for improvement. Some rules in the SBGG further disadvantage those seeking name and gender changes in comparison to the current legal circumstance.’
Given the TSG’s numerous flaws, many members of the TIN* community in Germany awaited the new law with optimism. The most significant positive change is the extraction of the procedure from court scrutiny and expert appraisal; an application based on ‘self-declaration’ before the registrar’s office (Standesamt) will be sufficient should the law come into effect.
Yet reactions from the community have been largely ones of disappointment. The Deutsche Gesellschaft für Transidentität und Intersexualität (German Society for Trans-identity and Intersexuality; dgti) is an organisation which has a strong reputation in furthering professionals’ education on gender diversity and in other work for the betterment of trans lives. In their press release on the SBGG, they greet some changes as improvements, but criticise other areas as ‘worsenings’ in comparison to the TSG, such as the SBGG’s approach to personal data protection. In its so-called ‘prohibition of disclosure’ clause, the SBGG makes a broad exception for the automatic transfer of personal data to a number of federal agencies, including the police, national foreigners registry and the agency for immigration and refugees—an action which the dgti condemns as ‘reminiscent of dark times when lists of queer individuals were kept’. While other violations of the prohibition of disclosure can be punishable by fine, a difficult burden of proof that intentions were malicious is placed upon the victims of a non-consensual outing.
An article for queer.de by Jeja Klein hypothesises that notifying police databases of changes according to the SBGG could have dramatic consequences for transgender and non-binary individuals. Making this information viewable to public authorities has the potential to incur discrimination and psychological devastation for the affected.
In their statement, nonbinary.berlin highlights a number of ways in which the new law excludes those whose gender is neither entirely male nor female. They note that such individuals are left out of legal and quota provisions and erased from general legislation using the term ‘men and women’ rather than ‘people of all genders’. They voice further concern over restrictions on the rights of 14-17 year-olds in self-determining their own name and documented gender, as well as the erasure of non-binary parents, who are automatically listed as ‘mother’ or ‘father’, only having the option to change to a neutral descriptor of ‘parent’ retroactively.
The Lesben und Schwulenverband Deutschland (LSVD) shares nonbinary.berlin’s stance toward the SBGG’s handling of families and youth. Their press release further calls attention to queer youth and family rights violations. Individuals 14 and older in Germany are entrusted with a limited degree of legal competence allowing them to participate in aspects of life unavailable to younger children, such as being held responsible for their own criminal actions. The SBGG would require youth 14 to 17 to obtain permission from their legal guardians before pursuing name and gender marker changes. The LSVD demands that ‘youth 14 and older should—unrestricted and with self-determination—be allowed to decide their names and gender markers’.
A further area of criticism includes a three-month waiting period between an application to change name and gender data and that change being granted. An additional wait period of one year is imposed before further changes can be made in order to prevent ‘misuse’. With many people anticipating the SBGG coming into effect in order to change their personal data, a three-month wait could exacerbate an impending backlog of applications.
Unanimously, organisations in and for the TIN* community and their allies assert that the needs of those the law affects have not been adequately centred in its infrastructure and that their input has not been taken into sufficient consideration.
Contrary to concerns surrounding the security of ‘women’s spaces’ coming primarily from the political right in anticipation of the SBGG, in 2022 Frauenhauskoordinierung e.V. (FHK, an organisation dedicated to supporting women’s shelters across Germany) released a statement in support of gender self-determination. FHK recognises that in the cultural debate surrounding women’s spaces there is ‘a political attempt to play the needs of women and queer people against one another’, citing the Istanbul Convention’s recognition of trans, non-binary, and intersex individuals as a vulnerable group. In their reaction to the SBGG draft, FHK largely abstains from commenting on whether the specifics of the law were reasonable. They did, however, reaffirm their commitment to providing refuge from gender-based violence for all women, be they cisgender, trans, or intersex. As the FHK notes, who has access to ‘women’s spaces’ lies primarily under the jurisdiction of householder’s rights—such decisions are left to organisations rather than determined by legal gender documentation.
Absent from the debate in Germany is the option of foregoing bureaucracy and legal gender determination altogether. In the Darlington Statement Australian and Aotearoa/New Zealand intersex advocacy groups and activists argue that applying a sex marker to a birth certificate disregards the full spectrum of human gender diversity, and hinders gender self-determination and invites propagation of gender/sex based structural violence. They acknowledge that while such markers are still required, access to diverse legal categorisation must be simplified and available per individual request, as is the wish of TIN* groups in Germany.
To bring the SBGG in line with constitutional law and the interests of the gender diverse individuals, Batista proposes axing the three-month wait period; fortifying the prohibition of disclosure through overarching entitlement to new personal documents by disallowing automatic, blanket transfer of new data to security offices and implementing fines for negligent handling of personal data; and reformation of descent law to correctly recognise queer and gender-diverse parent-child relationships. She also sees in the SBGG an opportunity to open name and gender marker changes to all foreigners residing in Germany.
There is still hope. Per Batista, ‘Changes could still take place in the Bundestag,’ she thus calls for ‘a respectful, factual debate among elected representatives centred around the goal of the SBGG—reinforcement of the rights of trans, intersex, non-binary, and agender individuals!’
A petition backed by more than 350 TIN*, queer and feminist organisations and supporters can be found here.
Footnotes
1 TSG Abs. 1. §1
2 TSG Abs. 1. §2.
3 TSG Abs. 2. §8
