Germany's parliament on April 12, 2024, passed a landmark law that allows transgender and non-binary people to modify their legal documents to reflect their gender identity through an administrative procedure based on self-identification, Human Rights Watch said today. The law will take effect in August 2024.
The new law replaces Germany's outdated 1980 Transsexuals Law (Transsexuellengesetz), which requires trans people to provide a local court with two "expert reports" attesting to "a high degree of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. The German Constitutional Court had previously struck down other draconian aspects of the law, including surgical requirements for gender recognition.
"Germany has joined a growing list of countries that are abolishing pathologizing requirements for gender recognition, which have no place in diverse and democratic societies," said Cristian González Cabrera, senior LGBT rights researcher at Human Rights Watch. "As populist politicians in Europe and beyond try to use trans rights as a political wedge issue, Germany's new law sends a strong message that trans people exist and deserve recognition and protection, without discrimination."
Under the new law, trans and non-binary people will be able to go to a civil registry office and have their gender marker and their given names changed through a simple declaration. No "expert" opinions or medical certificates will be required. The applicant will be able to choose from several gender markers - male, female, or "diverse" - or opt not to enter a gender at all.
According to a 2017 report from the Federal Ministry of Family Affairs, Senior Citizens, Women and Youth, under the Transsexuals Law, applicants said that to secure the necessary "expert" reports, they had to disclose immaterial details from their childhood and their sexual past, and even undergo physical examinations. The ministry found that the legal procedure could take up 20 months and cost an average of €1,868 (about. US$2,000).
The gender recognition reform comes as lesbian, gay, bisexual, and transgender (LGBT) activists warn of an uptick in anti-LGBT violence in Germany. The federal interior minister said in June 2023 that in the preceding year the police registered over 1,400 hate crimes against LGBT people. Several attacks occurred at Pride parades in recent years, one of which ended in the death of a trans man in 2022.
In May 2023, the federal human rights commissioner expressed worries about setbacks for LGBT rights. In June 2023, state-level interior ministers committed to strengthening their prevention of anti-LGBT hate crimes and violence, including through law enforcement training and the introduction of designated contact people at police stations throughout Germany.
Legal gender recognition reform based on self-declaration will not in itself ensure protection for trans people in Germany from abuse and discrimination. But the new law indicates that the government supports trans and non-binary people's fundamental rights, which contributes to a broader understanding and acceptance of diverse gender identities, Human Rights Watch said.
A growing number of countries have removed burdensome requirements for legal gender recognition, including medical or psychological evaluation. Countries including Argentina, Belgium, Denmark, Ireland, Luxembourg, Malta, Norway, Portugal, Spain, and Uruguay provide for simple administrative legal gender recognition processes based on self-declaration.
The move toward such straightforward administrative procedures reflects international medical consensus and human rights standards. The World Professional Association for Transgender Health, an interdisciplinary professional association with members worldwide, has found that medical and other barriers to gender recognition for transgender people, including diagnostic requirements, "may harm physical and mental health." The most recent International Classification of Diseases, the World Health Organization's global diagnostic manual, formally depathologizes trans identities.
The International Covenant on Civil and Political Rights (ICCPR), to which Germany is a party, provides for equal civil and political rights for all, everyone's right to recognition before the law, and the right to privacy. The United Nations Human Rights Committee, in charge of interpreting the ICCPR, has called on governments to guarantee the rights of transgender people, including the right to legal recognition of their gender, and for countries to repeal abusive and disproportionate requirements for legal recognition of gender identity.
The European Court of Human Rights ruled in Goodwin v. United Kingdom that the "conflict between social reality and law" that arises when the government does not recognize a person's gender identity constitutes a "serious interference with private life." Since then, the court has ruled that various abusive requirements for gender recognition, like sterilization and other medical interventions, violate trans people's human rights.
The European Union's LGBTIQ Equality Strategy (2020-2025) also upholds "accessible legal gender recognition based on self-determination and without age restriction" as the human rights standard in the member bloc.
Principle three of the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity affirms that each person's self-defined gender identity "is integral to their personality and is one of the most basic aspects of self-determination, dignity, and freedom."
As a member of the Equal Rights Coalition, the Global Equality Fund, and the UN LGBTI Core Group, Germany plays a key role in advocating for LGBT and intersex (LGBTI) rights beyond its borders. In March 2021, the federal government pledged to do more through a LGBTI Inclusion Strategy, which, among its many goals, aims to further Germany's role in promoting LGBTI people's rights at international and regional human rights institutions.
"Germany's gender recognition reform removes a stain on its national human rights record and bolsters its commitments to LGBT rights at home and abroad," González said. "Following this critical reform to legal gender recognition, German authorities should continue to push for full equality, to eliminate acts of anti-LGBT violence in Germany and to promote anti-LGBT legislation overseas."
