Federal Constitutional Court - Press office -
Press release no. 7/2011 of 28 January 2011
Order of 11 January 2011 – 1 BvR 3295/07 –
Prerequisites for the statutory recognition of transsexuals according to
§ 8.1 nos. 3 and 4 of the Transsexuals Act are unconstitutional
To enter into a marriage, the spouses must be of different genders,
while according to § 1 of the Civil Partnerships Act
(Lebenspartnerschaftsgesetz), it is only possible for persons of the
same gender to enter into a civil partnership. What is decisive in both
cases is the gender under the law on civil status, i.e. the gender
registered in public records.
The Transsexuals Act (Transsexuellengesetz – TSG) provides two
procedures intended to make it possible for transsexuals to live in
their perceived gender. What is known as the “small solution” allows
changing one’s first name without surgical gender reassignment
operations having to take place before. For this, § 1.1 TSG essentially
requires that the person, due to his or her transsexual orientation,
feels that he or she belongs to the other gender, has been under the
compulsion to live according to his or her perceptions for at least
three years, and that it can be assumed with a high degree of
probability that the person’s perceived affiliation to the other gender
will not change again. Evidence that these prerequisites are met must be
provided by two expert opinions delivered independently of each other.
However, only what is known as the “big solution” according to § 8 TSG
results in the perceived gender being recognised under the law of civil
status, with the consequence that the rights and obligations of the
person concerned that depend on the person’s gender will fundamentally
depend on the new gender. Apart from the requirements under § 1.1 TSG,
the “big solution” additionally requires according to § 8.1 nos. 3 and 4
TSG that the person concerned is permanently infertile (no. 3) and has
undergone surgery which has changed his or her external sexual
characteristics and which has resulted in clearly approaching the
person’s appearance to that of the other gender (no. 4). In the case of
a male-to-female transsexual, this requires the amputation of the penis
shaft and of the testicles and the surgical formation of external
primary female genitals; in the case of a female-to-male transsexual,
the surgical removal of the uterus, the ovaries and the oviducts and
frequently breast reduction surgery are required.
The complainant, who is 62 years old now, was born with male external
genitals. However, she perceives herself as belonging to the female
gender. Her sexual orientation is that of a female homosexual, and she
is living in a partnership with a woman. In accordance with § 1 TSG, she
has changed her male first name into a female one. No change of civil
status (big solution) has taken place because the necessary surgery has
not been performed. Together with her partner, she made an application
for the registration of a civil partnership, which was refused by the
registrar on the grounds that a civil partnership was exclusively
reserved to two parties of the same gender. The Local Court
(Amtsgericht) confirmed the decision arguing that the only possibility
open to the parties concerned was that of entering into a marriage
because the complainant’s recognition as a woman under the law of civil
status required gender reassignment surgery. Her complaint against this
decision before the Regional Court (Landgericht) and her further
complaint before the Higher Regional Court (Kammergericht) were
unsuccessful.
By means of her constitutional complaint lodged in December 2007, the
complainant essentially challenges a violation of her general right of
personality in its manifestation as the right to sexual
self-determination. The complainant argues that she wants to enter into
a civil partnership as a perceived woman whose partner is a woman. She
further argues that it is unreasonable to expect of her to enter into a
marriage because as a consequence, she would legally be regarded as a
man. Furthermore, her female first name would disclose that one of the
two women in the partnership is transsexual, which would make it
impossible to live an inconspicuous life free from discrimination in the
new role. Due to her age, gender reassignment surgery would involve
incalculable health risks.
The First Senate of the Federal Constitutional Court has decided that
the prerequisites of the recognition of transsexuals under the law of
civil status for entering into a civil partnership as set out under §
8.1 nos. 3 and 4 TSG are not compatible with the right to sexual
self-determination pursuant to Article 2.1 in conjunction with Article
1.1 of the Basic Law (Grundgesetz – GG) and with the right to physical
integrity under to Article 2.2 GG. The provisions are inapplicable until
a new legislation has entered into force. As the decisions of the
non-constitutional courts, which are indirectly based on § 8.1 nos. 3
and 4 TSG, violate the complainant’s fundamental rights, the ruling of
the Higher Regional Court has been reversed and referred back there for
a new decision.
In essence, the decision is based on the following considerations:
1. The constitutional complaint is admissible. The fact that the
complainant has entered into a marriage in the course of the
constitutional complaint proceedings because in view of her age and of
the length of the proceedings, she did not want to wait any longer to
legally secure her partnership does not render her need for legal
protection invalid. For it was unreasonable to expect of her and her
partner to further disregard their need for mutual protection and
support in this respect. Apart from this, even after having entered into
a marriage, she continues to be affected with regard to her own
perception of her identity as a woman; she is also confronted with the
fact that due to the marital union with her partner, her transsexuality
has become apparent.
2. It is a violation of the general right of personality in its
manifestation as the right to sexual self-determination pursuant to
Article 2.1 in conjunction with Article 1.1 GG that to legally secure
their partnership, transsexuals with a homosexual orientation either
have to enter into a marriage or undergo gender reassignment surgery
that results in infertility for their perceived gender to be recognised
and for themselves to be able to enter into a registered civil
partnership that corresponds to their relationship, which they perceive
as a homosexual one.
a) It is unreasonable to refer a transsexual person with a homosexual
orientation who merely complies with the requirements for a name change
according to § 1 TSG to the possibility of entering into a marriage to
secure a partnership. On the one hand, marriage as a union of partners
of different genders assigns this person, from the legal perspective and
externally visible, a gender role which contradicts the one perceived by
him or herself. This infringes the constitutional precept of the
recognition of the gender identity perceived by a person him or herself.
On the other hand, entering into a marriage makes it apparent that the
person him or herself or the partner he or she has married is
transsexual because the person’s name change and his or her outer
appearance, which has been approached to the perceived gender, reveals
the homosexual nature of the relationship. This means that the
protection of the person’s intimate sphere against unwanted disclosure,
which is protected by constitutional law, is not ensured.
b) Furthermore, it is not compatible with the right to sexual
self-determination and physical integrity that to secure a same-sex
partnership, transsexuals can only enter into a registered civil
partnership if they have been recognised under the law of civil status
because they have undergone gender reassignment surgery and are
permanently infertile.
It is constitutionally unobjectionable that the legislature deems the
gender which has been recognised under the law of civil status the
relevant criterion for the access to a registered partnership also in
the case of transsexuals with a homosexual orientation, and that it
makes the gender determination under the law of civil status contingent
on objectifiable prerequisites in order to render the civil status
permanent and unambiguous and to avoid a divergence of biological and
legal gender affiliation. The legislature can therefore specify, even
beyond the prerequisites set out in § 1.1 TSG, how evidence of the
stability and irreversibility of transsexual persons’ perception and
life in the other gender is to be provided. However, by unconditionally
and without exception requiring them under § 8.1 nos. 3 and 4 TSG to
undergo surgery that modifies their genitals and leads to infertility,
the legislature places excessive demands on such evidence which are
unreasonable to expect of the persons concerned.
Gender reassignment surgery constitutes a massive impairment of physical
integrity, which is protected by Article 2.2 GG, and it involves
considerable health risks and side effects for the person concerned.
However, according to the current state of scientific knowledge, it is
not always indicated even in the case of a diagnosis of transsexuality
that is certain to a large extent. The permanent nature and
irreversibility of transsexual persons’ perceived gender cannot be
assessed against the degree of the surgical adaptation of their external
genitals but rather against the consistency with which they live in
their perceived gender. The unconditional prerequisite of a surgical
gender reassignment according to § 8.1 no. 4 TSG constituted an
excessive requirement because it requires of transsexual persons to
undergo surgery and to tolerate health detriments even if this is not
indicated in the respective case and if it is not necessary for
ascertaining the permanent nature of the transsexuality.
The same applies with regard to the permanent infertility which is
required under § 8.1 no. 3 TSG for the recognition under the law of
civil status to the extent that its permanent nature is made contingent
on surgery. By this prerequisite, the legislature admittedly pursues the
legitimate objective to preclude that persons who legally belong to the
male sex give birth to children or that persons who legally belong to
the female sex procreate children because this would contradict the
concept of the sexes and would have far-reaching consequences for the
legal order. Within the context of the required weighing, however, these
reasons cannot justify the considerable impairment of the fundamental
rights of the persons concerned because the transsexual persons’ right
to sexual self-determination safeguarding their physical integrity is to
be accorded greater weight. Here, it has to be taken into account that
in view of the fact that the group of transsexual persons is small,
cases in which the legal gender assignment and the role of procreator,
or person bearing a child, diverge will only rarely occur. Furthermore,
this predominantly affects the existing children’s assignment to their
father and mother. In this context, however, it can be ensured by the
law that the children concerned will, in spite of a parent’s legal
gender reassignment, always be legally assigned a father and a mother. §
11 TSG provides that the relationship of legally recognised transsexuals
to their descendants shall remain unaffected; this provision can be
interpreted in such a way that it also applies to those children who are
born only after the gender reassignment of a parent under the law of
civil status has taken place.
This press release is also available in the original german version.
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