Bundesverfassungsgericht

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The requirements for the legal recognition of a transsexual’s felt gender set by § 8(1) nos. 3 and 4 of the Transsexuals Act are unconstitutional

Press Release No. 7/2011 of 28 January 2011

Order of 11 January 2011
1 BvR 3295/07

To enter into marriage, spouses must be of different sex, while persons wanting to enter into a civil partnership must belong to the same sex pursuant to § 1 of the Civil Partnerships Act (Lebenspartnereschaftsgesetz). In both cases, sex under civil status law acts as a determinant. 

The Transsexuals Act (Transsexuellengesetz – TSG) provides for two approaches which aim to enable transsexuals to live in their felt gender. The so-called ‘small solution’ allows changing one’s first name without first having to undergo gender reassignment surgery. Pursuant to § 1(1) TSG, this requires that the person concerned, based on their transsexualism, identifies with the other gender, has felt compelled to live in their felt gender for at least three years, and that it is highly probable that the felt gender will not change in the future. Opinions from two independent experts must establish that these requirements are met.

Only the so-called ‘big solution’ under § 8 TSG, however, results in the recognition of the felt gender under civil status law, leading to the gender-dependent rights and obligations of the person concerned being, in principle, based on the new gender. In addition to the requirements set out in § 1(1) TSG, the ‘big solution’ requires, pursuant to § 8(1) nos. 3 and 4 TSG, that the person concerned be permanently infertile (no. 3) and has undergone surgery changing their external sexual characteristics and adapting their appearance to the other gender (no. 4). In respect of male-to-female transsexuals, this requires amputation of the penis shaft and the testicles as well as surgical formation of the external primary female sexual organs; in respect of female-to-male transsexuals, this requires the surgical removal of the uterus, ovaries and fallopian tubes, and also frequently necessitates breast reduction.

The complainant, who is 62 years old, was born with male external sexual characteristics. However, she feels she belongs to the female gender. She is homosexually oriented and lives with her female partner. Pursuant to § 1 TSG, she changed her male first name to a female name. There was no change in civil status (‘big solution’) as the required surgery had not been performed. She and her partner applied for the registration of a civil partnership. The registrar refused the application on the grounds that a civil partnership can only be registered for two persons of the same sex. The Local Court (Amtsgericht) affirmed this decision. It held that the only option available to the persons concerned was marriage, given that gender reassignment surgery would be required for the recognition of the complainant as female under civil status law. The Regional Court (Landgericht) rejected the complaint against this decision; a further complaint lodged with the Higher Regional Court (Kammergericht) was unsuccessful.

With her constitutional complaint lodged in December 2007, the complainant essentially asserts a violation of her general right of personality in its manifestation as a right to sexual self-determination. The complainant submits that as a person identifying as female with a female partner, she wants to enter into a civil partnership. She claims she cannot reasonably be expected to enter into marriage as she would then be considered male in legal terms. Moreover, given her female first name, it would become apparent that one of the partners is transsexual, making it impossible for the couple to lead an inconspicuous life without discrimination. According to the complainant, undergoing gender reassignment surgery would be associated with unforeseeable health risks in view of her age.

The First Senate of the Federal Constitutional Court held that the requirements for the recognition of a transsexual’s felt gender under civil status law, which is required to enter into a civil partnership, are incompatible with the right to sexual self-determination under Art. 2(1) in conjunction with Art. 1(1) of the Basic Law (Grundgesetz – GG) and the right to physical integrity under Art. 2(2) GG. The provisions are declared inapplicable until new legal provisions have been enacted. Given that the ordinary court decisions indirectly based on § 8(1) nos. 3 and 4 TSG violate the complainant’s fundamental rights, the order of the Higher Regional Court is reversed and the matter is remanded to the Higher Regional Court.

In essence, the decision is based on the following considerations:

1. The constitutional complaint is admissible. The complainant continues to have a recognised legal interest in bringing proceedings even though she has married in the course of the constitutional complaint proceedings because, in view of her age and the protracted proceedings, she did not want to wait any longer to legally protect her partnership. She and her partner could not reasonably have been expected to continue to put aside their need for mutual security and support. Moreover, even after having married, her sense of identity as a woman is affected, and she is faced with the fact that her transsexuality has become apparent due to the marriage with her partner.

2. It violates the general right of personality in its manifestation as a right to sexual self-determination following from Art. 2(1) in conjunction with Art. 1(1) GG that transsexuals with a homosexual orientation who wish to legally protect their partnership must either enter into marriage or must undergo surgery for gender reassignment and for inducing infertility in order to be recognised in their felt gender under civil status law and thus to be able to enter into a registered civil partnership corresponding to their relationship, which they themselves feel is a same-sex relationship.

a) Requiring a transsexual with a homosexual orientation who only meets the requirements to change their name under § 1 TSG (‘small solution’) to marry in order to legally protect their partnership is unreasonable. Firstly, through marriage, as an opposite-sex union, the complainant is obliged to take on an official gender role that is externally perceptible and that contradicts their felt gender. This violates the constitutional requirement to recognise a person’s felt gender identity. Secondly, when the complainant enters into marriage, it becomes apparent that either she or her married partner is transsexual because their changed name and their appearance adapted to the felt gender show the relationship to be a same-sex relationship. This fails to protect the intimate sphere against involuntary disclosure, as constitutionally guaranteed.

b) Moreover, it is not compatible with the right to sexual self-determination and physical integrity that a transsexual may only enter into a registered civil partnership to legally protect their same-sex relationship if they have undergone gender reassignment surgery and if they are permanently infertile and have therefore been recognised in their felt gender under civil status law.

It is not objectionable under constitutional law that the legislator defines access to registered civil partnerships on the basis of the sex assigned to the partners under civil status law, even in the case of transsexuals with a homosexual orientation. Nor is it objectionable that the legislator sets objective requirements for the assignment of sex under civil status law. This serves to ensure that civil status is lasting and unambiguous and to avoid the divergence of biological sex and legal gender. The legislator can therefore determine in detail how to legally prove the stability and irreversibility of a transsexual’s identification with and life in the other gender, even beyond the requirements set by § 1(1) TSG. However, the legislator’s requirements for such proof are overly strict and unreasonable for the persons concerned, given that in § 8(1) nos. 3 and 4 TSG the legislator requires unambiguously and without exception that transsexuals undergo surgery that changes their sexual characteristics and results in infertility.

Gender reassignment surgery constitutes a severe impairment of physical integrity, protected under Art. 2(2) GG, and involves considerable health risks and side effects for the person concerned. According to current scientific findings, gender reassignment surgery is not always recommendable, even where the diagnosis of transsexuality is largely definite. The lasting and irreversible nature of a transsexual’s felt gender cannot be measured by the degree to which their external sexual characteristics are adapted to their felt gender by way of surgery. Rather, it must be determined how consistently a transsexual lives in their felt gender. Turning gender reassignment surgery pursuant to § 8(1) no. 4 TSG into an absolute prerequisite is excessive given that this requires transsexuals to undergo such surgery and to accept health impairments, even if in their case this was not advisable and not necessary for determining that their transsexuality is lasting.

Permanent infertility is another unreasonable requirement set by the legislator, in § 8(1) no. 3 of the Transsexuals Act, for recognition of a transsexual’s felt gender under civil status law, insofar as surgery is required in this regard. It is true that the legislator pursues a legitimate objective in setting this requirement because it seeks to prevent persons officially assigned the male sex from giving birth or persons officially assigned the female sex from fathering children, which would be contrary to our understanding of sex and would have far-reaching consequences for the legal order. However, in a balancing of interests, these reasons are not capable of justifying the considerable impairment of the fundamental rights of affected persons because greater weight must be accorded to the right of transsexuals to sexual self-determination while preserving their physical integrity. In this respect, it must be taken into account that in view of the small number of transsexual persons, cases where someone’s official gender is in conflict with their role of fathering a child or giving birth are rare. Moreover, this mainly affects the assignment of children to their father and mother. Yet it can be ensured by law that the affected children have a legal father and mother, despite the change of official gender of a parent. § 11 TSG sets out that the parent-child relationship of a transsexual whose felt gender has been recognised by law is not affected; this provision can be interpreted in such a way that it also applies to children that are born after one of their parents changed their gender under civil status law.