Germany’s political parties negotiating coalition agreements to create a new government should make a commitment to change the law on legal gender recognition, so that it is based on self-determination, not so-called expert reports, Human Rights Watch said today. While the parties try to reach agreements on key issues such as climate, foreign policy, migration, and the economy, they should also address the current pathologizing and onerous procedure for transgender people to modify their registered name and gender.
“Germany’s current procedure for gender recognition is out of tune with developments in international law and medical science,” said Cristian González Cabrera, LGBT rights researcher at Human Rights Watch. “All political parties should agree to a change to the status quo in the next legislative session and make the procedure straightforward, nonjudicial, accessible, and based on self-determination for all trans people.”
Germany’s Transsexuals Law (Transsexuellengesetz) specifies that to have the name and gender with which they identify legally recognized, trans people need to provide a local court (Amtsgericht) with two expert reports. The reports must attest to “a high degree of probability” that the applicant will not want to revert to their previous legal gender. The law does not have a minimum age at which a trans person can seek legal gender recognition, an aspect of the law that should be retained.
According to a 2017 report from the Federal Ministry of Family Affairs, Senior Citizens, Women and Youth, applicants consider the assessment process humiliating. Some applicants said that to secure the necessary reports, they had to disclose immaterial details from their childhood and their sexual past, and even undergo physical examinations. The report found that the legal procedure can take up 20 months and costs an average of €1,868 (approx. US$2,160).
The political parties most likely to form a coalition government following Germany’s September elections are the Social Democratic Party (SPD), the Union parties’ (CDU/CSU), the Free Democratic Party (FDP), and the Greens. These parties have made previous unsuccessful legislative attempts to reform Germany’s legal gender recognition procedure under the current government.
The SPD, the junior partner in the current ruling coalition, announced in January 2021 that negotiations broke down as the Union parties opposed a process based solely on self-determination. The Greens and the FDP, both in the opposition in the last legislative period, each presented bills to reform the Transsexuals Law, which the parliament rejected.
A growing number of countries around the world have removed burdensome requirements to legal gender recognition, including medical or psychological evaluation. Countries including Argentina, Belgium, Denmark, Ireland, Luxembourg, Malta, Norway, Portugal, and Uruguay center individual autonomy over gender identity, providing for simple administrative processes based on self-declaration. Costa Rica and the Netherlands have taken steps toward removing gender markers on identity documents altogether.
The move toward straightforward administrative procedures based on self-declaration reflect science-based and human rights standards. The World Professional Association for Transgender Health, an interdisciplinary professional association with over 700 members worldwide, has found that medical and other barriers to gender recognition for transgender people, including diagnostic requirements, “may harm physical and mental health.” The most recent International Classification of Diseases, which will come into effect in January 2022, formally depathologizes trans identities.
The International Covenant on Civil and Political Rights (ICCPR), to which Germany is a party, provides for equal civil and political rights for all, everyone’s right to recognition before the law, and the right to privacy. The United Nations Human Rights Committee, in charge of interpreting the ICCPR, has called on governments to guarantee the rights of transgender people, including the right to legal recognition of their gender, and for countries to repeal abusive and disproportionate requirements for legal recognition of gender identity.
The European Court of Human Rights ruled in Goodwin v. United Kingdom (2002) that the “conflict between social reality and law” that arises when the government does not recognize a person’s gender identity constitutes “serious interference with private life.” The European Union’s LGBTIQ Equality Strategy (2020-2025) also upholds “accessible legal gender recognition based on self-determination and without age restriction” as the human rights standard in the member bloc.
Principle three of the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity affirms that each person’s self-defined gender identity “is integral to their personality and is one of the most basic aspects of self-determination, dignity, and freedom.”
As a member of the Equal Rights Coalition, the Global Equality Fund, and the UN LGBTI Core Group, Germany plays an important role in advocating for lesbian, gay, bisexual, transgender, and intersex (LGBTI) rights beyond its borders. In March 2021, the federal government pledged to do more through a LGBTI Inclusion Strategy, which, among its many goals, aims to further Germany’s role in promoting LGBTI people’s rights at international and regional human rights institutions.
“While Germany remains at the forefront of advancing the rights of LGBTI people overseas, its outdated approach to legal gender recognition for trans people taints its domestic human rights record,” González said. “In current coalition negotiations, Germany’s lawmakers should seize the opportunity to ensure that Germany’s transgender residents have their rights fully respected in law and make Germany a leader when it comes to gender diversity at home and abroad.”