Federal Constitutional Court - Press office -
Press release no. 77/2008 of 23 July 2008
Order of 27 May 2008 – 1 BvL 10/05 –
§ 8.1 no. 2 of the Transsexuals Act unconstitutional
The applicant, who was born in 1929, has been married for 56 years. His
marriage produced three children. He has felt that he belonged to the
female gender for a long time. He has held a female forename since 2001
on the basis of a court ruling according to the Transsexuals Act
(Transsexuellengesetz - TSG). He underwent a sex-change operation in
2002. Following this, he applied for a determination according to the
Transsexuals Act that he is to be deemed to belong to the female
gender. According to § 8.1 no. 2 TSG, however, the determination and
legal recognition of the other gender affiliation is contingent on the
person concerned not being married. The applicant and his spouse
however do not intend to divorce since their relationship is intact.
In response to a submission by the Schöneberg Local Court
(Amtsgericht), which considered itself to be prevented from complying
with the applicant's application in light of the statutory requirement
of being unmarried, the First Senate of the Federal Constitutional
Court reached the conclusion that § 8.1 no. 2 TSG is unconstitutional.
It is unreasonable to expect the legal recognition of the new gender of
a married transsexual to be conditional on his or her divorcing his or
her spouse, with whom he or she is united by law, and with whom he or
she wishes to remain together, without being enabled to continue his or
her partnership, which is based on marriage, in a different but equally
secured form. The legislature was instructed to remedy the
unconstitutional situation by 1 August 2009. § 8.1 no. 2 TSG
(requirement of being single) is inapplicable until such time as a new
provision comes into force.
In essence, the ruling is based on the following considerations:
I. § 8 TSG in principle accommodates the constitutional right to
recognition of self-determined sexual identity by facilitating
recognition under the law on civil status of the gender of a
transsexual that has been changed by means of an operation. § 8.1
no. 2 TSG however stipulates as a precondition for the change of
civil status that the person concerned is not married. This
prerequisite imposes on a married transsexual who only discovered
his or her transsexuality or decided to reveal his or her
perception of belonging to the other gender during marriage, and
indeed decided to have him or herself adjusted to this gender by
means of an operation, restrictions in asserting and exercising
his or her right to attribution to the other sex under the law on
civil status. This places him or her before the alternative to
uphold his or her marriage, but then despite a physical sex change
already having taken place not to receive legal recognition of his
or her new sexual identity. Or he or she must divorce in order to
receive legal recognition, even if he or she and his or her spouse
wish to remain united by marriage.
II. This impairment which a married transsexual incurs by virtue of §
8.1 no. 2 TSG is disproportionate.
1. The legitimate interest of the legislature in reserving the
legal institution of marriage, particularly protected by
Article 6.1 of the Basic Law (Grundgesetz - GG), exclusively to
man and woman, in other words to partners of different genders,
as a form of legally secured cohabitation, takes on
considerable significance. Legal recognition of the changed
gender affiliation of a married transsexual would lead to a
situation in which his or her marriage was continued by
same-sex partners.
2. By contrast, however, the impairment also takes on considerable
weight which a married transsexual incurs by virtue of § 8.1
no. 2 TSG. In particular, the existing marriage of the person
concerned is considerably impaired. If the state forces spouses
to have their marriages dissolved, this not only runs counter
to the structural characteristic of marriage as a lasting
partnership and community of responsibility. It also denies to
existing marriages the protection granted to them by Article
6.1 GG. This protection is not removed by virtue of the fact
that the transsexual spouse adjusts his or her external sexual
characteristics to the perceived gender during marriage by
undergoing operations. The marriage is therefore now kept by
same-sex partners, both de facto and as to its external
appearance. It however continues to be a lasting partnership
and a community of responsibility between two spouses. What is
more, the spouse of the transsexual also incurs a considerable
impairment of the protection of his or her marriage. He or she
is also subjected to the conflict of deciding on either
upholding the marriage, but thereby preventing his or her
spouse obtaining legal recognition of his or her sexual
identity, or of divorcing his or her partner against his or her
own will, and hence not only accepting separation from him or
her, but also losing the legal security that is associated with
marriage.
3. The legislative interest in maintaining the institution of
marriage as a union of man and woman must not in principle take
a back seat to the interest of a same-sex married couple to
uphold their marriage; equally, the legislature cannot
unhesitatingly ignore the interests of a married couple to
maintain their existing marriage. However, it must be
considered here that the regulation places specific
relationships in a situation that is experienced as an
existential crisis. It is a matter of the further fate of a
path through life taken together, and hence of consequences
which are subjectively existential in their dimension. By
contrast, the principle of different sexuality is only
marginally affected in view of the specific circumstances. The
instant cases only refer to a small number of transsexuals who
did not discover or reveal their transsexuality until during
marriage, and whose marriages did not break up as a result of
this profound change in the couples' relationships, but are to
be continued according to the wishes of both spouses.
The interplay between Article 6.1 GG and the right to
recognition of self-determined sexual identity, which is also
protected by fundamental rights, is particularly decisive for
the weight. The special burden entailed by § 8.1 no. 2 TSG lies
in the fact that, in order to implement the will of the
legislature, it makes the realisation of one fundamental right
contingent on renouncing the other. This leads the persons
concerned not only to a virtually unsolvable internal conflict,
but also to an unacceptable impairment of fundamental rights. §
8.1 no. 2 TSG is hence unconstitutional because it does not
afford to a married transsexual the possibility to obtain legal
recognition of his or her new gender affiliation without having
to terminate his or her marriage.
III. The legislature is to decide by what means it will remedy the
unconstitutionality. If it does not wish to permit couples to
remain in a marriage who are of the same sex under the law on
civil status by virtue of the establishment of the changed gender
affiliation of the transsexual spouse, it may follow such a course
since its concern takes account of Article 6.1 GG. It must however
then ensure that the marriage of the transsexual can at least be
continued as a legally secured community of responsibility. Thus,
it can transfer it to a registered civil partnership or to a
legally secured civil partnership sui generis, but must ensure
that for the couple, the rights acquired and duties imposed from
the marriage remain unreduced.
In view of the small number of married transsexuals concerned, the
legislature may however also decide to afford them the possibility
of the legal recognition of their changed gender whilst continuing
their marriage, and delete § 8.1 no. 2 TSG to this end.
IV. In view of the gravity of the encroachment on married transsexuals
by refusal of legal recognition of his perceived and changed
gender affiliation, § 8.1 no. 2 TSG is declared inapplicable until
such time as a new provision comes into force.
This decision has been passed with 7 : 1 votes with regard to no. IV,
and unanimously in other respects.
This press release is also available in the original german version.
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