The Basic Law for the Federal Republic of Germany, 1949, is Germany’s Constitution. Article 1 provides that “human dignity shall be inviolable” and respecting and protecting it “shall be the duty of all state authority.” Article 2 guarantees the right to free development of personality, as well as the right to life and the right to physical integrity. In a landmark decision in 1978, the Federal Constitutional Court held that the combination of the rights to free development of one’s personality and human dignity required that the sex registered at birth must be corrected following sex reassignment surgery (1 BvR 16/72).
The General Equal Treatment Act, 2006, prohibits discrimination on a number of grounds including “sexual identity.” Section 2 prohibits discrimination on these prohibited grounds in areas including employment; vocational education; union membership; social security and health care; social advantages; education; and access to goods and services, including housing. This Act applies to the state and to private actors in “bulk business” situations.
The concept of “sexual identity” includes gay men, lesbian women, bisexuals and transsexuals, as explained in Bundestag publication 16/1780.
Paragraph 175 of the Penal Code, criminalizing “unnatural fornication” between men, was first amended in 1969. “Simple homosexuality,” referring to sexual acts between adult men, was decriminalized. However, a higher age of consent for male-male sexual activity was preserved until June 1994, when Paragraph 175 was ultimately abolished. The age of consent is now the same for same-sex and opposite-sex sexual activity.
Same-sex couples can enter into “registered civil partnerships” under the Law on Registered Civil Partnerships, 2001. Under this Act, they share many of the same rights and obligations as opposite-sex partners in a marriage, including in areas such as inheritance, alimony, immigration, name change, and second-parent adoption rights. Life partners do not have all the same tax benefits as married couples.
German courts have repeatedly ruled in favor of granting same-sex partners the same tax benefits as opposite-sex married couples:
In August 2012, the Federal Constitutional Court held that same-sex couples who have entered into a “registered partnerships” must be exempted from the land transfer tax, as married couples are (1 BvL 16/11).
In 2010, the Constitutional Court found that a portion of the tax code requiring same-sex partners to pay a larger inheritance tax than opposite-sex married partners was unconstitutional (1 BvR 611/07).
In 2009, the Constitutional Court decided that the unequal treatment of marriage and registered civil partnerships with respect to survivors’ pensions under the occupational pension scheme for civil service employees violated the Basic Law (1 BvR 1164/07).
In 2010, an administrative court in Berlin held that same-sex marriages performed abroad must be recognized as registered partnerships in Germany (VG 23 A 242.08).
Same-sex partners have the right to adopt the child of their partner through “step-child adoption”, as outlined in s. 9 of the Law on Registered Civil Partnerships, 2001. Although the Registered Partnership Act did not permit a partner to adopt the adopted child of his or her partner, in February 2013 the Federal Constitutional Court ruled that the Act must be interpreted to permit co-adoption by the second parent. The Court ruled that the ban on successive adoption violated fundamental rights. (1 BvL 1/11)
The Law on the Changing of First Names and the Establishment of Sex Status in Special Cases (known as Transsexuellengesetz or the Transsexual Law), 1981, allows people to change their first name to one reflecting their preferred gender identity (known as the “Minor Solution”) or to change their first name and their sex marker after sex reassignment surgery (known as the “Major Solution”). The Federal Constitutional Court (1 B v R 3295/07) ruled in November 2011 that the requirement that an individual undergo gender reassignment surgery, resulting in infertility, before a change of gender could be legally recognized was a violation of the rights to self-determination and physical integrity.
Under the Law on Registered Civil Partnerships, 2001, same-sex partners are considered “family” for purposes including immigration. A same-sex partner can immigrate to Germany under section 27.2 of the Residence Act, 2004.
Individuals who experience persecution on the grounds of sexual orientation can apply for asylum in Germany under section 60 of the Residence Act, 2004.
link to complete text: Germany-SOGI Legislation Country Report-2013-eng