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Article Germany: Government Proposes Self-Identification Law for Transgender, Nonbinary, and Intersex Persons

On May 9, 2023, the German Federal Ministry of Justice (Bundesministerium der Justiz, BMJ) and the German Federal Ministry for Family Affairs, Senior Citizens, Women and Youth (Bundesministerium für Familie, Senioren, Frauen und Jugend, BMFSFJ) published a proposal for a self-identification law (self-ID law) (Gesetz über die Selbstbestimmung in Bezug auf den Geschlechtseintrag, SBGG) that would allow transgender, nonbinary, and intersex persons to change their gender entry and first name at the civil registry without any bureaucratic hurdles.

Content of the Proposed Self-ID Act

Affected persons whose registered gender does not match their gender identity must simply state at the civil registry that they would like to change or completely delete their gender entry, that the new entry matches their gender identity, and that they are aware of the consequences of the declaration. (SBGG § 2, paras. 2, 3.) They may choose one or more new first names. (§ 2, para. 3.) As an alternative, affected persons may select one or more new first names to match their gender identity without changing the gender entry. (§ 2, para. 4.) Minors 14 years of age or older may make the declaration themselves but require permission from their legal representative for the change. The permission may be replaced by the family court if it does not contradict the child’s best interests. (§ 3, para. 1.) For persons under 14 years of age or for persons who are subject to various types of guardianship, only the legal representative may make the declaration. (§ 3, paras. 2, 3.)

The change becomes effective three months after the declaration has been recorded at the civil registry. During that time frame, the declaration may be withdrawn in writing. (§ 4.) In general, affected persons must wait one year before they can make a new declaration. This rule does not apply to minors or people under guardianship. (§ 5.)

Laws on pregnancy, childbearing capability, artificial insemination, and collection of ova or embryos apply irrespective of the gender registered in the civil registry. Likewise, laws on the collection of sperm or using sperm for artificial insemination, or laws that attach legal consequences to being a legal father or someone who has had intercourse with the mother at the time of conception apply regardless of the registered gender. (§ 8.) The registered gender does not affect the existing parent-child relationship. With regard to future parent-child relationships, the gender entry at the time of the birth is decisive for determining who will be recognized as the father of the child, meaning only persons who are registered as “male” at the time of the birth will be recognized as the father of the child. However, a court may establish paternity of a person who is registered as “female” or “diverse” or who has no gender entry at all at the time of the birth if the child was conceived with the sperm of that person. (§ 11.)

The former gender entry or name may not be disclosed without consent of the affected person except if there is an overriding public or legal interest. Intentional violations are subject to a fine of up to 10,000 euros (about US$10,972). (§§ 11, 12.)

The draft bill does not address gender-affirming medical procedures. (SBGG § 1, para. 2.) It also does not change the rights of owners, companies, or sports clubs to differentiate on a case-by-case basis to protect privacy or personal safety, such as with regard to access to saunas, gyms, or changing rooms. However, the limits of the General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz, AGG) must be taken into account. (§ 6, para. 2; Explanatory memorandum at 2.)

Next Steps

The ministries have sent the proposal to the states and various associations for comments. (GGO § 47.) The government is planning to send it to the German Bundestag (parliament) for its consideration by the summer. No possible date for entry into force has been indicated.

Jenny Gesley, Law Library of Congress
May 23, 2023

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Chicago citation style:

Gesley, Jenny. Germany: Government Proposes Self-Identification Law for Transgender, Nonbinary, and Intersex Persons. 2023. Web Page. https://www.loc.gov/item/global-legal-monitor/2023-05-22/germany-government-proposes-self-identification-law-for-transgender-nonbinary-and-intersex-persons/.

APA citation style:

Gesley, J. (2023) Germany: Government Proposes Self-Identification Law for Transgender, Nonbinary, and Intersex Persons. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2023-05-22/germany-government-proposes-self-identification-law-for-transgender-nonbinary-and-intersex-persons/.

MLA citation style:

Gesley, Jenny. Germany: Government Proposes Self-Identification Law for Transgender, Nonbinary, and Intersex Persons. 2023. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2023-05-22/germany-government-proposes-self-identification-law-for-transgender-nonbinary-and-intersex-persons/>.