1 BvL 10/05, Federal Constitutional Court of Germany (27 May 2008)
After undergoing gender reassignment surgery, the petitioner requested recognition of her new gender at the local administrative office. Since the petitioner was still married to a woman, she did not meet the requirements under the Transsexual Law. The administrative office sought review of the case by the Federal Constitutional Court.
The Transsexual Law provided a mechanism for the legal recognition of gender change. Under Section 1, the “Minor Solution” permitted individuals to change their names but did not permit legal recognition of a new gender. To qualify for the Minor Solution, an individual had to live in the new gender for at least three years and the court had to find that the individual would be unlikely to revert to the gender assigned at birth. Under Section 8, the “Major Solution” allowed an individual who had undergone gender reassignment surgery to have his or her new gender legally recognised. Three conditions were imposed: the individual could not be married; must be permanently incapable of reproducing; and was required to have acquired all the external physical characteristics of the new gender.
The petitioner, who was biologically male but had always identified with the female gender, was born in 1929 and had been married to a woman since 1952. In 2001, the petitioner adopted a female name under Section 1 of the Transsexual Law. The following year she underwent gender reassignment surgery. Although the petitioner and her wife wished to remain married, she sought to have her change of gender legally recognised under Section 8 because she had fulfilled all other legal criteria.
Section 8(1)(2) of the Transsexual Law left the petitioner with two options. She could file for divorce and then apply to be legally recognised as a woman; or she could remain married but legal recognition of her new gender would be denied.
Whether, in requiring transgender people to be unmarried or divorced as a requirement for legal recognition, Section 8(1)(2) of the Transsexual Law violated the constitutional rights of married transgender individuals under the Basic Law.
Basic Law for the Federal Republic of Germany, Article 1(1) (human dignity), Article 2(1) (free development of personality), Article 2(2) (right to life and physical integrity), Article 3(3) (non-discrimination and equality before the law), and Article 6(1) (marriage and the family).
German Code of Civil Law.
Transsexual Law 1980, Section 8(1)(2).
Reasoning of the Court
Under the German Code of Civil Law, spouses were required to live apart for three years to establish that the marriage had failed. The petitioner argued that her marriage was strong and that the couple did not want to live separately for the mandatory three years. Furthermore, the petitioner experienced lasting psychological effects from the abuse she had suffered during the Nazi era. The petitioner feared that she could not live apart from her wife. A forced divorce under Section 8 of the Transsexual Law would be insulting and financially as well as emotionally injurious.
The Court held that Article 2(2) in relation to Article 1(1) of the Basic Law created a protection of the “private sphere” of a person’s life, which included realisation of self-determined sexual and gender identity. In the petitioner’s case, the attainment of her deeply felt female gender identity and the need to harmonise her physical and psychological sex were matters of human dignity and the protection of personhood which these Articles encompassed. The Court held that this personal sphere could be infringed only in cases of special public interest.
By providing a mechanism for the legal recognition of gender reassignment, Section 8 of the Transsexual Law was intended to accommodate and enhance the rights protected in Article 2(2) in relation to Article 1(1). However, the Court held that the requirement in Section 8(1)(2), requiring a transgender person to be unmarried before a gender change could be legally recognised, “substantially limited” the access to those rights of transgender people who were married. Section 8(1)(2) effectively forced the petitioner to choose between two constitutionally protected rights: the right to realisation of self-determined gender identity, and the right to marriage. This curtailment of constitutional rights could only be permitted if the provision in question was justified and proportionate to the pursuit of a legitimate goal.
The Federal Ministry of the Interior argued that the legislature’s legitimate goal, when it required unmarried (or divorced) status, was to prevent the occurrence of same-sex marriage. The Ministry submitted, and the Court agreed, that it was legitimate for the legislature to attempt to preserve the traditional character of marriage as a heterosexual institution and to prevent the “false impression” that same-sex couples would be able to marry.
The Court acknowledged that the legislation had already created a situation in which the appearance of same-sex marriage was legally possible, because the Minor Solution of the Transsexual Law did not require dissolution of marriages. In addition, married post-operative transsexuals who did not seek legal recognition of their gender change were effectively able to live in same-sex relationships and were not forced to end their marriages. Despite these inconsistencies, the Court nevertheless held that the legislature’s goal of preventing the occurrence of same-sex marriage was legitimate.
Having determined that the law had been enacted for a legitimate reason, the Court then considered whether the law operated in a manner that was justified and proportionate to its objective. In preserving marriage in its traditional form, Section 8(1)(2) created a tension between constitutional rights. In this case, the petitioner would have to fabricate reasons for a divorce in order to be recognised as female. The petitioner and her wife would then lose access to the rights and benefits which marriage conferred. On the other hand, if the petitioner and the petitioner’s wife did not end their marriage, Section 8(1)(2) then deprived the petitioner of the right to legal recognition of her self-determined gender identity. For the petitioner, either choice entailed a deprivation of something existentially fundamental – her marriage or legal recognition of her gender identity. In the Court’s opinion this was an unacceptable ultimatum that adversely affected the rights of the petitioner to “an extremely high degree”. The impairment of the right of married transgender individuals was disproportionate to the legitimate interests of the legislature.
The Court held that the legislation could not force divorce on a person who, but for his or her marriage, fulfilled all the other criteria for recognition. The legislation should create a mechanism by which the union could continue in a different “but equally provided for” form. Under the current law, marriage encompassed two fundamental elements. Marriage was, first, an institution that could only be entered into by one man and one woman. It was, second, a legally created but private partnership of shared responsibility and companionship in which the State did not interfere. If, during the course of a marriage, one spouse discovered or disclosed an alternate gender identity, and took steps to realise that identity through gender reassignment, the couple could no longer have their relationship recognised as a marriage per se. However, the rights and duties that the couple had acquired when they entered into the marriage would still be protected under Article 6 of the Basic Law and the legislature was required to ensure that they were not diminished as a result of one spouse’s change of gender.
The Court concluded that Section 8(1)(2) limited unacceptably the ability of a married transsexual person to fully enjoy the constitutional right to realise his or her self-determined sexual identity. The Court also suggested that, because only a small number of transsexuals were confronted by this situation, it was open to the legislature, in lieu of some other reform, to allow married transsexuals to obtain legal recognition of their identity while maintaining their marriage relationship (as an exception to the rule restricting same-sex marriage).
The Court declared Section 8(1)(2) of the Transsexual Law unconstitutional and inoperative until the legislature took action to remedy the situation.
1 BvL 10-05, Federal Constitutional Court of Germany – German (full text of judgment in German, PDF)
1 BvL 10-05, Federal Constitutional Court of Germany – English (full text of judgment in English, PDF)
Table of contents
- SOGI Casebook Introduction
- Chapter one: Decriminalisation
- Chapter two: Universality, Equality and Non-Discrimination
- Chapter three: Employment Discrimination
- Chapter four: Freedom of Assembly, Association and Expression
- Chapter five: Military Service
- Chapter six: Intersex
- Chapter seven: Gender Expression and Cross-dressing
- Chapter eight: Recognising Gender Identity
- Chapter nine: Transgender Marriage
- Chapter ten: Freedom of Religion and Non-Discrimination
- Chapter eleven: Parenting
- Chapter twelve: Asylum and Immigration
- Chapter thirteen: Partnership Benefits and Recognition
- Chapter fourteen: Marriage