The LGBTQ+ community has been fighting for transgender rights for a long time all over the world. It is important to understand the difference between sex and gender. Once, the two terms largely meant the same thing, however today it is understood that they are different. Biological sex refers to primary and secondary sexual characteristics, such as genitalia, expression of breasts, and others. Gender identity is an individual experience that a person identifies with. This can be expressed through, dress, speech, and mannerisms (Castro-Peraza, et al, 2019). Gender identity and biological sex do not always match. Individuals who fall into this category are called transgender. The term includes male-to-female (MfF), female-to-male (FtM), and genderqueer people. Germany has a long-standing reputation for being a conservative nation, especially when compared to several of its neighbors in the European Union (Richarz & Sanderz, 2021). Germany’s policy on legal change of gender – the Law about the Change of First Name and Determination of Gender Identity in Special Cases – has been in effect since 1980. Today, dissatisfaction with the policy is rising despite the changes that have been made.
Brief History of LGBT Policy in Germany
It is important to understand how the policy came into being. Germany has not been the most accepting of the LGBTQ+ community through history. Before the Law about the Change of First Name and Determination of Gender Identity in Special Cases was introduced, the most relevant policy was called Paragraph 175 of the German Criminal Code. It stated that male-on-male sexual contact was illegal (Davidson-Schmich, 2017). As a result of this law, Germany became the first nation to house an LGBT group, the Scientific-Humanitarian Committee. It was led by Magnus Hirschfeld, who introduced the term ‘transsexual’ when he tried to explain it is normal human behavior (Davidson-Schmich, 2017). The Committee tried to fight against Paragraph 175, but they were unable to have it removed.
While Germany was under Nazi control, Paragraph 175 was altered to include not only active same-gender sex, but any thoughts about it. Homosexual men and women were hunted and severely punished. Almost 50,000 people were jailed (Davidson-Schmich, 2017). Many leaders of the German LGBT movement fled the country or were arrested. This included the leader of the Scientific-Humanitarian Committee. As a result, the movement did not fully return to being active until after East and West Germany united.
In 1980, West Germany passed the Law about the Change of First Name and Determination of Gender Identity in Special Cases (Transsexual law). This law makes it possible to change one’s legal gender, under certain conditions. To do this, the applicant must be seen by two independent doctors, who will then write a testimony. Through this, they will testify that the applicant does not identify with the gender they were born with, that they have felt this way for at least three years, and that this position is unlikely to change (Duthel, 2018). This law was inherited after the unification of East and West Germany into the Germany known today. The person applying for legal gender change had to go through surgery to change their sexual organs to fit their gender identity. The process made them unable to have children in the future (Duthel, 2018). Before 2008, the person applying for a gender change had to be single (Davidson-Schmich, 2017). Though criticized today, this policy was the first step towards rights for transgender people in Germany. It allowed them to change the gender on their legal documents, so they would no longer be called the pronouns they did not identify with.
In 1994, Paragraph 175 of the German Criminal Court was also removed because of heavy pressure from German LGBT organizations. In 2006, several lawsuits were filed that argued that the demands of the Transsexual Law were unlawful and violated human rights. In that same year, the policy was amended to remove the demand for the applicant to be single (Davidson-Schmich, 2017). In 2011, the German Constitutional Court finally declared the policy’s demand for surgery that made people unable to have children as unlawful and a violation of human rights (Davidson-Schmich, 2017). There is no deadline to officially remove this part of the policy from legal documents. Given Germany’s previous trends in adapting the European Union’s progressive laws, it is possible that transgender rights will improve in the future.
Current State of the Policy and the Public Opinion
The Law about the Change of First Name and Determination of Gender Identity in Special Cases is currently in effect in Germany. There are two main criticisms for the policy among the German people. The first is the lack of compensation for those who were forced to lose the ability to have children as part of their change in legal gender. This criticism increased significantly after Sweden, another country in the European Union, created a compensation fund for those affected by their similar policy (Richarz & Sanders, 2021). At this point, the German government has remained resistant to the idea.
The second major criticism of the policy addresses the need for two separate medical experts to diagnose the applicant with ‘gender identity disorder’. Gender identity disorder is a mental disorder that happens when an individual does not feel comfortable with their biological sex. The medical exams were introduced in the law to prove that the person applying for gender change does not identify with their assigned gender and is unlikely to change their mind. The fact that they have to be officially marked as having gender identity disorder in order to change their legal gender makes people feel as if they are ill or not normal. The tag of mental disorder carries a negative image in the eyes of society. A medical diagnosis like this would be permanently placed in a person’s file and can be seen by potential employers. Because of this, many members of the German LGBTQ+ community are against this, as it may be used to discriminate against them or otherwise stop them from leading their lives as they want to. Though the Equal Treatment Act of 2006 makes it illegal to discriminate based on sexual orientation, gender identity, or an individual’s sex characteristics, members of the transgender community still fear being discriminated against based on their mental health history as well as their transgender status.
The process of getting these medical exams is also expensive, takes a long time, and can be difficult due to unfair treatment from those within the court system who do not want transgender people to have rights (Sauer et al., 2017). The election of two openly trans women, Nyke Slawik and Tessa Ganserer, into the Bundestag (German federal parliament) in 2021 has opened the possibility for finally reworking the name and gender change laws.
To summarize, the Law About the Change of First Name and Determination of Gender Identity in Special Cases was introduced in 1980 (Davidson-Schmich, 2017). It originally required that two separate doctors had to diagnose the applicant with gender identity disorder. The policy also initially stated that the applicant has to be single and undergo surgery that made them unable to have children. After several court cases, the German Supreme Court ruled that both these conditions go against the law. However, two medical diagnoses are still required to this day. While many German members of the LGBTQ+ community are unhappy with the policy, it is important to remember that it was the first law that gave any rights to the transgender community. Prior to this law, transsexual individuals in Germany had no rights at all. There is hope that the law will be changed once more to better fit current times, however as of April 2022, this has not occurred.
Question for Discussion
What do you think are the positive and negative aspects of the Transsexual Law? What do you think can be changed or added to improve it?
The positive aspect of the Transsexual Law is that it allowed transgender people to change their gender legally. It was the first law to give this group of LGBT+ people rights. The negative aspect is that it needs a diagnosis of mental illness for gender change. This implies that being transgender is the same as being mentally ill. To improve the law, the diagnosis should be removed. Instead, the government could have the applicant testify before the judge about their situation and why they want to change their gender. This would achieve the same result without causing potential harm.
Castro-Peraza, M. E., García-Acosta, J. M., Delgado, N., Perdomo-Hernández, A. M., Sosa-Alvarez, M. I., Llabrés-Solé, R., & Lorenzo-Rocha, N. D. (2019). Gender identity: The human right of depathologization. International Journal of Environmental Research and Public Health, 16(6), 978. Web.
Davidson-Schmich, L.K., (2017) LGBT politics in Germany: Unification as a catalyst for change, German Politics, 26(4), 534-555, Web.
Duthel, H. (2018). My ladyboy date. Books ON DEMAND.
Richarz, T.A., Sanders, A. (2021). Trans rights in Germany. In: Jaramillo, I.C., Carlson, L. (eds) Trans Rights and Wrongs. Ius Comparatum – Global Studies in Comparative Law, 54. Springer, Cham. Web.
Sauer, A., Hamm, J., & Lindner, M. (2017). UPR on Federal Republic of Germany. Single NGO Submission.