With the Self-Determination law (Selbstbestimmungsgesetz), the German government wants to improve the lives of trans people and recognize gender diversity. In addition, it wants to abolish the outdated Transsexual Act (Transsexuellen-Gesetz, also known as TSG). The aim is to make it easier for trans people to change their gender and to protect their basic and human rights.
What is TSG?
In 1978, the Federal Constitutional Court ruled that trans people must be legally recognized. The TSG, dated September 10, 1981, defines how a person can change gender in marital status.
The requirements for changing marital status were very strict and considered transgender people sick. Therefore, they were forced to undergo sterilization, divorce and sex reassignment surgery and were subjected to the examination of two experts who ascertained that “the applicant’s sense of belonging will no longer change” (Paragraph 3, TSG). The Federal Constitutional Court to date has abolished most of these procedures because they are not compatible with the Basic Law (Grundgesetz) and violate the fundamental rights of transgender people.
Since 2011, the government has suspended the requirement to undergo sterilization and gender reassignment surgery.
The Self-Determination Law
With its coalition agreement, the new German federal government (consisting of SPD, Grüne and FPD) decided to abolish the old Transgender Law and replace it with a Self-Determination Law. Therefore, in the future it will be possible for trans people to legally change their name and sex in the civil status at the registry office through their own declaration. Until now, the court would decide through a lengthy and humiliating assessment of whether trans people really are. The costs of these court proceedings were just under 2,000 euros, and the people concerned had to pay them.
When will it go into effect?
In June 2022, Lisa Paus, the federal Minister of Family Affairs, and Marco Buschmann, the federal Minister of Justice, presented the key points of the new Law for Self-Determination. They presented the draft of the law in April 2023. The Federal Cabinet (Bundeskabinett) must approve the draft law, and then the final decision is the prerogative of the German Bundestag. The goal is to have a Cabinet decision before the end of summer.
Why is self-determination important?
To date, it is a court that evaluates whether trans people “are enough” to change their name and gender. This only adds to the difficulties that the trans person is already experiencing. The transition period itself is difficult, as coming out often triggers misunderstanding from family, social environment and workplace. Moreover, during the transition period, they are often victims of transphobia and have to reorient themselves in their private lives.
It is important to consider that there is no other proof for gender identity than the person’s own declaration. However, trans people are still faced with so-called experts who think they can determine gender identity with the help of questions that probe too much into their private lives and often harass trans people with questions about sexual fantasies, underwear, masturbation habits, and other sexual practices.
Isn’t there a risk that with the Self-Determination Law people will change genders repeatedly?
Opponents of the Self-Determination Law fear that it will lead to trans people changing their gender over and over again. However, even in countries where the Self-Determination Law is already in place (Argentina, Malta, Denmark, Luxembourg, Belgium, Ireland, Portugal, Iceland, Norway, Uruguay and Switzerland), repeated changes are in very low percentages, close to zero. In fact, when trans people decide to change their name and gender they are making a conscious, serious and well thought-out choice.
What regulations are in place for minors?
Guardians of minors up to 14 years of age may submit the declaration of name and gender change to the registry office. In contrast, minors 14 and under may themselves make the declaration with the consent of guardians. To protect the personal rights of juveniles, family courts will be able to substitute parental consent at the request of the minor if guardians disagree with the change, based on the best interests of the minor.
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Ban on Disclosure
The current Transgender Law already includes a ban on disclosure. After a name change, it is not possible to research the previous one against the wishes of the persons concerned, unless special reasons of public interest require it. The new Self-Determination Law will contain an expanded disclosure ban, subject to fines. The goal is to prevent the dead name of trans people from being disclosed against their will.