Centering Trans Voices in the Law: Tracing Gender Recognition Laws in the U.S. and Germany
A re-publication of an article I wrote for Issue 3 of nymph(o) magazine, a queer, sex-positive magazine from Cincinnati.
**Author’s note: I’ve chosen to use the terminology appropriate to the time period I am discussing, including terms like “transvestite,” “transsexual,” or “sex reassignment surgery,” which are not always appropriate today. I do this in an effort to avoid inaccurately imposing modern conceptions of gender identity and sexuality on the past.
With the passage of their latest gender recognition laws earlier in 2023, Spain and Finland became the latest European countries to join a group of nations with progressive gender self-determination laws. Gender recognition laws allow citizens of a country to change their first name or legal gender marker on identification documents and official records to match their identity. Spain and Finland’s laws, in particular, remove outdated requirements in order to change one’s gender identity, including requirements of medical sterilization or approval from medical experts,⁸ ⁹ which have often been implemented or recommended by people without lived experience, such as medical professionals.
This is especially fascinating to me as someone from Ohio who researches the history of science and activism within Germany’s LGBTQ+ community. Both the state of Ohio and the country of Germany have had recent discussions about legal gender recognition and gender-related medical care. By exploring the history of gender recognition, as well as legal and scientific knowledge in the U.S. and in Germany, I prove that the trans experience has often been dismissed in favor of medical expertise, a hierarchy that has led to burdensome restrictions on one’s legal recognition of their gender.
As early as the 1900s, Germany began taking progressive action in legal gender recognition. However, the Nazis destroyed nearly all of the work of homosexual and transvestite advocacy and community organizations, and after the war, outdated and monolithic ideas about transsexual people prevailed in society and science alike. As a result, Germany now lags behind its neighboring nations and still holds outdated requirements, which were a direct result of the German legislature’s decision to privilege medical knowledge over lived experience, as well as the legislature’s desire to reinforce gender binaries and roles. As the law stands today, trans people must have an official psychological diagnosis before they can apply for legal gender recognition.⁷
Starting in the early 1900s, Germany had a developing trans subculture. Transvestite organizations and publications of that time helped to coalesce a collective identity of sorts.² One critical pioneer of homosexual and transvestite rights named Dr. Magnus Hirschfeld worked to decriminalize and protect what were then becoming known as sexual identities. Dr. Hirschfeld believed homosexuality was normal and natural, and in 1910, he argued that cross-dressers should no longer be grouped with homosexuals but rather labeled as their own sexual minority: transvestites.² He believed that transvestites were part of a greater spectrum of sex, that homosexuals were a third sex, and that each person held a unique combination of male and female attributes.⁴
Dr. Hirschfeld collaborated with the Berlin police force in the early 1900s and 1910s to create an official identity document for transvestites. This document prevented prosecution under impersonation laws or other statutes that were designed to regulate their physical presence in public. Sometimes, these documents even allowed for legal name changes to the masculine or feminine form of a person’s given name.² ⁴ However, these documents (which may be seen as the German Empire’s first instance of legally recognizing one’s gender identity), still required an official diagnosis of transvestism.² Dr. Hirschfeld himself did not trust “individual self-assessments of gender,” instead believing it was his own medical examinations and “anatomical findings” that should determine a person’s legal gender.² Still, the climate for homosexuals and transvestites in Germany got worse before better; the Nazis burned Dr. Hirschfeld’s institute and work in 1933 and persecuted, deported, and murdered thousands of homosexual men and transvestites until 1945. After the war, both East and West Germany initially retained legislature criminalizing homosexuality.
Despite initially maintaining regressive laws on homosexuality and transsexuality, West Germany saw a wave of sexual liberalization in the late 1960s and early 1970s, which included decriminalizing consensual adult homosexuality. Also during this time, there were a number of views on transsexuality, including growing subcultures once again. However, science and medicine remained the official authority, with sexologists (scientists who study sex and sexuality) publishing in legal journals on trans rights as early as the 1960s and recommending legal protections in 1974.¹ Still, although professional organizations pushed for protections, a number of sexologists pathologized transsexuality as having an “obsessive” need to transition and reinforced heterosexual and binary models to transsexuality.¹
Medical procedures that helped reduce gender dysphoria for transsexuals continued to develop throughout the 1970s. At the beginning of the decade, a federal court in Germany acknowledged the possibility of legally recognizing one’s gender identity in 1971.¹ Nearly a decade later in 1980, the Transsexuellengesetz (the Transsexual Act, or the TSG) brought that possibility to fruition. German law had already “made gender legally relevant” by including rules on equal rights and rules outlining different consequences for men and women, including parental rights, for example.¹ Because the government claimed it “lacked conclusive knowledge on transsexuality,” legislators relied on medical research and knowledge to help shape the groundwork of the law. Legislators sought knowledge from subject experts like sexologists and psychiatrists but did not include transsexual people in the discussion,¹ ³ thus institutionally privileging medical knowledge and putting it “at the hands of political dynamics.” ¹ This led to brutal restrictions on gender recognition, as sexologists and doctors often held monolithic, heteronormative views on transsexuality.
The TSG created two pathways for trans people to gain legal recognition. The first –– the so-called “small solution” –– only allowed trans people to change their legal name and did not require surgery, but merely required a psychological diagnosis of transsexuality. The “big solution” allowed a trans person to change their legal gender marker, requiring them to not only change their name and procure a psychological diagnosis, but also required: medical sterilization, sex reassignment surgery, and (if married), a divorce. Sexologists believed that sex reassignment surgery was a key aspect of transition,¹ treating trans people as a monolith –– many of whom did not desire any sort of surgery –– and lawmakers integrated this stereotype into the law. Both “solutions” had an age requirement of 25 and, because most mainstream medical knowledge at the time saw gender as inflexible and immutable, stated the person’s gender identity must be highly unlikely to change as determined by a medical professional.¹ These notions and requirements effectively rendered genderfluid or genderqueer identities invisible in the eyes of the law.
Over the years, requirements within the TSG have been struck down through a series of constitutional court cases.³ The first to fall, in 1982, was the age requirement of 25, which was rescinded because there was no legal age requirement for sex reassignment surgery.³ Moreover, a professional association of sexologists declared in 2001 that not every trans person needs or wants gender affirmation surgery.¹ In 2008, the court struck down the requirement to be unmarried because the constitution protects the institution of marriage as well as the right to develop one’s personality –– including one’s gender identity.³ In 2011, the requirements to be medically sterilized and to have surgery were also rendered unconstitutional. The court noted these requirements not only were a “massive impairment of the applicant’s bodily integrity,” but also that “according to existing scientific understanding,” altering external sex characteristics is “not a valid indicator of a stable and irreversible self-identification” with a given gender.³
Today, the only requirement that still stands in Germany is a psychological diagnosis, requiring trans people to provide two expert (typically medical) opinions.⁶ Chancellor Olaf Scholz’s new coalition ignited talks of a self-determination bill last summer, however. In April of this year, the federal justice and family ministries introduced a draft bill that lawmakers hope will reach the cabinet before the summertime.¹⁰ Lawmakers noted in the draft that the previous law was based on pathologizing and outdated perceptions of trans people. The proposed bill allows trans people to change their legal gender marker at 14 years old (with parental permission until age 18).¹⁰ Changes to one’s name and gender marker would take three months to take effect and would not be changeable again for a year after the initial filing.¹⁰
Although the bill is more progressive than previous laws, it still maintains a basis of sex essentialism, including requiring applicants assigned male at birth to keep their names in the military draft list and allowing exceptions to legal gender recognition in sports, prisons, privately-owned single-gender spaces, and bathrooms and locker rooms.¹⁰ If the law reaches and passes Chancellor Scholz’s cabinet, it must still pass the two houses of the German parliament, the Bundestag and the Bundesrat.¹⁰ In the meantime, trans people must still go through burdensome appointments, often costing hundreds of euros and putting people at risk of discrimination or harassment at doctor’s offices.⁶
Knowledge on sexology and LGBTQ+ communities has historically flowed from Germany to the United States. For example, Dr. Alfred Kinsey referenced Dr. Hirschfeld’s work, and Hirschfeld influenced American sexology during and after his speaking tour through the country before the Nazis came to power.²
In the U.S., requirements for legal gender recognition vary state by state. In Ohio, trans people must petition the court for legal name changes and provide an application signed by a doctor, therapist, or social worker for legal gender marker changes on state driver’s licenses. To change a birth certificate in Ohio, trans folks need to petition the court for an order of correction, which includes filling out an application, submitting the original birth certificate and official identification, and paying a fee, which varies by county.⁵ ¹¹ Between the application fee and the requirement that the application is signed by a medical professional or social worker, the process can be costly and time-consuming.
For federal records in the U.S., gender marker changes to passports are solely based on self-determination as of 2021 and applicants can choose a non-binary third marker (an X). To change certain federal records, such as social security records or immigration documents, people can either provide state documentation showing the updated gender marker or submit a recommendation from a physician.⁵
As a number of U.S. states become more and more hostile toward trans people, it’s important to remember whose experience is being privileged. In questions of healthcare, physicians should be the experts –– including organizations like the American Academy of Pediatrics, which believes in gender-affirming care for young people –– but in questions of identity, we need to trust that trans people know themselves better than science can determine.
Sources
¹ de Silva, A. (2018). Frontmatter. In Negotiating the Borders of the Gender Regime: Developments and Debates on Trans(sexuality) in the Federal Republic of Germany (pp. 1-6). Bielefeld: transcript Verlag. https://doi.org/10.1515/9783839444412-fm
² Bakker, A., Herrn, R., Taylor, M. T., & Timm, A. F. (2020). Others of my kind: Transatlantic transgender histories. University of Calgary Press.
³ Scherpe, J. M. (Ed.). (2015). The legal status of transsexual and transgender persons. Intersentia.
⁴ Mildenberger, F., Evans, J., Lautmann Rüdiger, Pastötter Jakob, & Sutton, K. (2014). From Sexual Inversion to Trans*: Transgender History and Historiography. In Was ist homosexualität? Forschungsgeschichte, gesellschaftliche entwicklungen und perspektiven (pp. 181–203). essay, Männerschwarm-Verl.
⁵ National Center for Transgender Equality. (2022). Id documents center. National Center for Transgender Equality. Retrieved April 1, 2023, from https://transequality.org/documents
⁶ Anarte, E. (2023, January 25). Feature-Europe moves towards trans self-id despite controversy. Reuters. Retrieved April 1, 2023, from https://www.reuters.com/article/lgbt-europe-news/feature-europe-moves-towards-trans-self-id-despite-controversy-idUSL8N3451W6
⁷ TGEU. (n.d.). Trans Rights Map. TGEU. Retrieved April 1, 2023, from https://transrightsmap.tgeu.org/home/
⁸ TGEU. (2023, February 1). Self-determination model presented to Finnish parliament. TGEU. Retrieved April 1, 2023, from https://tgeu.org/self-determination-model-presented-to-finnish-parliament/
⁹ TGEU. (2023, February 21). Finalmente! Spain adopts self-determination law. TGEU. Retrieved April 1, 2023, from https://tgeu.org/finalemente-spain-adopts-self-determination-law/
¹⁰ Zeitung, Süddeutsche. “Details Zum Selbstbestimmungsgesetz Der Ampelkoalition Liegen Vor.” Süddeutsche.de, Süddeutsche Zeitung, 28 Apr. 2023, https://www.sueddeutsche.de/politik/selbstbestimmungsgesetz-entwurf-1.5826184.
¹¹ Cooper, C. Benjamin. “Name-and-Gender-Change-Guide-Adults-Nov.-2022-1.Pdf.” Equitas Health, TransOhio, and Cooper Elliott, Mar. 2021.
Further Reading
Ralf Dose – Magnus Hirschfeld: The Origins of the Gay Liberation Movement
schwulesmuseum.de
magnus-hirschfeld.de
transequality.org
tgeu.org
nymph(o) Magazine –– check out Issue 3 for this article in print!
Erin in the Morning, who tracks trans*-related legislation across the U.S.
"History isn't something you look back at and say it was inevitable, it happens because people make decisions that are sometimes very impulsive and of the moment, but those moments are cumulative realities." - Marsha P. Johnson