Germany’s parliament, the Bundestag, passed the Self-Determination Act on Friday, allowing transgender and non-binary citizens to modify the gender marker on their legal documents through self-identification.
The Transsexuals Act is the German law that is currently in place to govern the legal requirements for modifying gender identity on legal documentation. Section 8 of the act requires that a transsexual person could be legally deemed the opposite sex if they are permanently incapable of reproduction and have undergone a surgical procedure that changes their external sexual characteristics. The law also requires transgender individuals to provide a local court with two expert reports attesting to “a high degree of probability” that the applicant will not want to revert to their previous legal gender. According to a report by the German government in 2017, obtaining these reports requires the disclosure of immaterial details from their childhood and sexual history. The report also found that the legal procedure could last for 20 months and cost an average of approximately 1900 euros.
The new act will abolish these requirements and make modifying gender entry easier. Under the act, transgender, intersex and non-binary people could change their gender entry by submitting an Erklärung mit Eigenversicherung, or a declaration with self-insurance, that assures the chosen gender entry or deletion of the gender entry best corresponds to their gender identity.
The act imposes an additional requirement for minors to have their gender entry amended. For minors up to 14 years old, the application can only be filed by their legal guardians who have also received appropriate advice when making the application. Minors aged 14 or above can apply with the consent of their legal guardians. The family court could also issue that consent if the court believes that the change of gender entry is in the best interests of the child.
The government contended that other civil rights associated with gender identity will not be affected or will be regulated by other legal reforms. For instance, the act dictates that gender entry in the civil status register will not affect the availability of gender-specific medical treatment. The availability should be determined based on individual needs, taking into account their biological and psychological circumstances. The act will also be an interim solution to replace “mother” or “father” with “parent” under parental law before further reform is carried out. Sports associations will also continue enjoying their autonomy to decide which people are admitted to which competition.
The German government previously set up a working group in light of the rising violence against the queer community within the country. The federal interior minister Nancy Faeser reported that 1,400 violent crimes against sexual minorities were recorded annually and that the number continued to rise in 2022.
Senior LGBT rights researcher at Human Rights Watch Cristian González Gabrera welcomed the enactment of the new law, claiming that “pathologizing requirements for gender recognition … have no place in diverse and democratic societies.” He added, “Germany’s new law sends a strong message that trans people exist and deserve recognition and protection.”
Principle 3 of the Yogyakarta Principles provides that self-defined sexual orientation and gender identity are integral to a person’s personality and should be legally recognized without the individual being required to undergo any medical procedures. Currently, 15 countries recognize gender registration based on self-declaration, and Spain and Finland recently passed legislation to recognize gender identity based on self-declaration.
