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§ 8.1 no. 2 of the Transsexuals Act unconstitutional

Press Release No. 77/2008 of 23 July 2008

Order of 27 May 2008
1 BvL 10/05

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.