1 BvR 3295-07, Federal Constitutional Court, Germany (11 January 2011)
Constitutional complaint before the Federal Constitutional Court. The complainant challenged a violation of her general right of personality and specifically the component of the right to sexual self-determination.
The complainant was born in 1948 with male external genitals. She perceived herself as belonging to the female gender. Her sexual orientation was that of a female homosexual, and she lived in a partnership with a woman. In accordance with the “Minor Solution” under Section 1 of the Transsexual Law she changed her male first name to a female one. She was not able to change her civil status to female in her identity documents because she had not undergone the surgery required by the “Major Solution” under Section 8 of the Transsexual Law. In December 2005, together with her partner, she applied to register a civil partnership, and was refused by the registrar on the grounds that a civil partnership was exclusively reserved for parties of the same gender. Transsexuals with a homosexual orientation either had to enter into a marriage or undergo gender reassignment surgery that resulted in infertility, before their perceived gender could be recognised legally, allowing them to enter into a registered civil partnership that corresponded to their same-sex relationship.
The local court confirmed the registrar’s decision, holding that marriage was the only option available to the parties. The complainant’s recognition as a woman under the law of civil status could not be enacted without the required gender reassignment surgery. Her appeals were unsuccessful. The plaintiff informed the Court in May 2010 that she and her partner had married because, in light of the complainant’s age, they did not wish to wait further to obtain mutual legal protection.
Whether it was constitutional to require a transsexual person to undergo gender reassignment surgery, including treatment leading to permanent infertility, as a precondition of changing civil status; whether a transsexual person who had changed his or her name but not undergone surgery could be denied entry into a registered partnership with a person of the same gender.
Transsexual Law 1980, Sections 1 (requirements for a name change) and 8 (requirements for a sex change on identity documents, including gender reassignment surgery and infertility).
Basic Law for the Federal Republic of Germany.
Reasoning of the Court
The complainant wanted to enter into a civil partnership as a woman with her female partner. She argued that it was unreasonable to expect her to enter into a marriage because marriages were only for opposite-sex couples and, 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 was a transsexual, which would make it impossible to live an inconspicuous life free of discrimination in her new role. Due to her age, gender reassignment surgery involved significant health risks.
The Court held that it was unreasonable to require a transsexual person with a “homosexual” orientation, who had only complied with the requirements for a name change under Section 1 of the Transsexual Law, to enter into an opposite-sex marriage as a means of securing legal protection for her relationship. Since marriage in Germany was limited to opposite-sex couples, a marriage would align a “homosexual” transsexual with a gender that contradicted the individual’s self-perceived gender identity. This would infringe the constitutional principle that the gender identity perceived by the individual should be the one recognised. Entering into a marriage would make it apparent that one of the parties was transsexual, because the person’s name change and his or her external appearance would indicate a same-sex relationship. As a result, the person’s intimate sphere would not be protected against unwanted disclosure, as constitutionally guaranteed by the Basic Law.
Furthermore, a law that required transsexuals to have undergone gender reassignment surgery and become permanently infertile before they could be recognised under the law of civil status and by extension enter into a registered civil partnership was not compatible with the right to sexual self-determination and physical integrity.
Legal requirements for gender reassignment surgery and infertility surgery constituted massive impairments of physical integrity, which was protected by the Basic Law. They involved considerable health risks for the person concerned. Nor, according to the current state of scientific knowledge, was gender reassignment surgery always medically indicated in the case of a transsexuality diagnosis. The Court accepted that the State’s desire to preserve an understanding of gender that precluded men giving birth or women procreating children was a legitimate State interest. However, it accorded greater weight to the individual’s rights to sexual self-determination and physical integrity.
The Court considered the case was justiciable, despite the fact that the complainant had meanwhile entered into a marriage, because, in view of the complainant’s age and the lengthy legal proceedings, the spouses could not delay acquiring legal protection for their relationship. The Court acknowledged as well that, having entered into marriage, the complainant’s identity as a woman was constantly compromised because her gender identity was made visible to others through the marriage.
The Court found that the constitutional complaint was admissible. It found Section 8 of the Transsexual Law to be incompatible with the Basic Law. These points of the law were held to be inapplicable pending the enactment of a new law. The previous decisions by the Regional Court and Higher Regional Court violated the complainant’s personality rights and were thus void. The Federal Republic of Germany was required to reimburse the complainant for costs incurred.
1 BvR 3295-07, Federal Constitutional Court, Germany – German (full text of judgment in German, PDF)