Legal Gender Recognition and Self-Determination
Gender recognition is a hot topic of discussion in the U.S. and Germany right now –– but how long has legal recognition existed, and what role has science played in the advancement of trans* rights?
On 27 April, the federal ministries of justice and families here in Germany released a draft bill allowing gender self-determination across the country.
Legal gender recognition is a common discussion across much of the U.S. and western Europe right now: Spain and Finland just passed self-determination bills earlier this year, joining a number of other European countries with similar processes. Germany’s new political coalition promised to begin work on a self-determination bill when current Chancellor Olaf Scholz was elected back in late 2021.
But that is not where Germany’s legal gender recognition started. In fact, as Annette Timm mentions in Others of My Kind, Dr. Magnus Hirschfeld worked with the Berlin police as early as 1906 to create “transvestite passes” to allow people with a legal diagnosis of transvestism to present in public without fear of being arrested under public disturbance laws. This was over a century ago, yet Hirschfeld himself did not trust people’s own assessments of their identities, and instead relied on his own physical examinations, as explained in Others of My Kind.
Though the National Socialists attacked transvestites and gender non-conforming people, trans* recognition (and medical care) continued to develop after World War II, and in 1980, the Federal Republic of Germany (also known as West Germany) passed the Transsexuellengesetz, a law regulating legal name changes and gender recognition –– however, the law contained a number of brutal requirements, including medical sterilization, divorce (if married), and surgeries to align the applicant’s external sex characteristics with their identified gender.
While this law was drafted and passed, legislators knew little about trans* identities (then referred to as transsexuals), so they sought the help of medical experts, as Adrian de Silva argues in Negotiating the Borders of the Gender Regime, allowing these medical experts’ ideas (such as the idea that every transsexual person wanted genital surgery) to bleed into the bill.
Over the years, many of those requirements were struck down for being unconstitutional or ineffective, but as the law currently stands, trans* people in Germany must provide two recommendations for medical experts. This process often costs time and hundreds of euros and puts trans* people at risk of harassment and discrimination in medical settings.
The law, as it is today, also continues to over-privilege medical opinions in lieu of lived experience in a matter unrelated to medicine: trans* identity is no longer classified as a medical disorder, and the law is unrelated to medical care (such as surgeries, hormone replacement therapy, or other therapies).
The draft bill of the Selbstbestimmungsgesetz, or the self-determination law, would change that: according to the Süddeutsche Zeitung, the first newspaper to report on the draft, trans* people would simply have to declare their gender identity at the registration office. People could only change their legal gender marker once per year, providing a safeguard against abuse by cisgender people.
Self-determination removes barriers to legal gender recognition, including pathologizing requirements privileging medical experts as the most trustworthy voices in trans* experience.
This is, of course, not to say that medical experts should never be consulted in trans* issues, simply that legislators and communities alike should be wary of over-privileging medical or scientific voices in situations not requiring medical treatment.
However, this draft bill also contains a number of exceptions, including sports, locker rooms, bathrooms, and prisons –– the Süddeutsche Zeitung (and other media outlets who have reported on the draft) do not specify much beyond stating that privately-owned areas can remain protected spaces, like women’s saunas, and that gender will not be the only factor taken into account in prison situations. In addition, people assigned male at birth will not be allowed to use a legal gender change to avoid conscription.
These exceptions beg the question: whose experiences and knowledge are being prioritized here? Who benefits from the self-determination bill codifying sex essentialism by allowing sex assigned at birth to take priority in certain spaces? How can the bill truly liberate trans* people when sex essentialism is written into the law?
The draft bill needs to pass Chancellor Scholz’s cabinet and then both houses of the federal German parliament, so this draft is only the beginning. I plan to follow the bill’s progress here and in my research project with the Alexander von Humboldt Foundation.
Despite the sex essentialism written into this specific draft, a self-determination bill would mark a positive step for trans* people in Germany, removing many barriers to legal gender recognition –– in fact, if the law passes, the only remaining barrier would be scheduling an appointment at Germany’s always-busy registration offices.
I have a more in-depth article on the history of legal gender recognition in Germany coming out in Issue 3 of nymph(o) magazine soon –– check that out and be sure to follow nymph(o) for all of the best queer, sex-positive, feminist content!
Further reading:
TGEU’s fact page on legal gender recognition
TGEU’s 2023 trans rights map
The Süddeutsche Zeitung’s article on the Selbstbestimmungsgesetz draft bill (in German)
Others of My Kind: Transatlantic Transgender Histories
Negotiating the Borders of the Gender Regime: Developments and Debates on Trans(sexuality) in the Federal Republic of Germany
Selbstbestimmungsgesetz fact sheet (in German)
Erin in the Morning, who reports on trans* legal battles 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