Summary:

I.

The Transsexuals Act (hereinafter referred to as the Act) provides that a transsexual’s first name may be changed upon application by the transsexual, even if the transsexual does not first undergo an operation. However, filing an application under § 1 of the Act is restricted to Germans and persons governed by German law (i.e. stateless or displaced aliens whose habitual residence is in Germany, persons entitled to asylum, foreign refugees with their residence under the jurisdiction of the Act). Filing an application for a change of official gender identity after gender reassignment surgery is also restricted to this category of persons (§ 8 of the Act).

This exclusion has the indirect effect of referring foreign transsexuals to the law of their home state and requiring them to apply there for the changes sought. However, if their lex patriae contains no provision comparable to the German provision, then, under current law, they are permanently denied the legal recognition of their self-perceived gender identity.

The current proceedings are the result of referrals by two regular courts to the Federal Constitutional Court for specific judicial review. There were two cases involved: one concerning a Thai citizen and the other, an Ethiopian citizen. Both persons had undergone gender reassignment surgery and had applied for legal recognition of their new gender identities. The courts dealing with the cases rejected the applications for lack of entitlement to apply.

Thereupon two courts of appeal submitted the following question to the Federal Constitutional Court:

Is the entitlement to apply, as restricted to Germans or to persons governed by German law, under § 1 and § 8 of the Act compatible with Article 3.1 and Article 3.3 of the Basic Law (requirement of equal treatment) in those cases where the lex patriae does not provide equivalent proceedings for change of name or of official gender identity?

II.

The Federal Constitutional Court held that § 1.1.1 of the Transsexuals Act violates the requirement of equal treatment (Article 3.1 of the Basic Law) in conjunction with the fundamental right to the protection of one’s personality (Article 2.1 in conjunction with Article 1.1 of the Basic Law) insofar as it bars foreign transsexuals who are lawfully and not merely temporarily in Germany from applying for a change of their first name or of their official gender identity, in those cases where their lex patriae does not contain comparable provisions. The legislature was instructed to enact a new provision, compatible with the Constitution, by 30 June 2007. Until then, § 1.1.1 of the Act remains in force.

In essence, the decision was based on the following considerations:

In restricting the category of persons entitled to apply to Germans and persons governed by German law, the legislature was following a legitimate purpose related to the principle of nationality. It reserves the decision on the name and the official gender identity of foreign transsexuals to each individual’s state of origin. It does so out of respect for the legal order of those states of which the persons concerned are citizens.

But the principle of referring foreign transsexuals, who are present lawfully and not merely temporarily in Germany, to the law of the state of which they are nationals, without exception, disadvantages those whose lex patriae does not contain comparable provisions on changing one’s first name and official gender identity as against Germans and persons governed by German law. This unfavourable treatment is not objectively justified. The exclusion of foreigners in § 1.1.1 of the Act is intended to give unrestricted validity to the principle of nationality in respect of the change of a first name or of official gender identity; this is not a sufficiently weighty reason.

In certain legal situations, there may be reasons requiring a deviation from the principle of nationality. This may be the case, in particular, when the foreign law in question, from the point of view of German constitutional law, withholds constitutionally relevant rights or has made provisions whose application is detrimental to the fundamental rights of the persons affected. In German private international law, Article 6 of the Introductory Act to the German Civil Code, which is an ordre public provision, takes this into account by stating that foreign law is not applicable if this would lead to a result that would be manifestly incompatible with essential principles of German law. Thus, in particular in connection with violations of constitutional law associated with the application of foreign law, it is possible, through this provision, to have recourse to German law in order to prevent such violations.

§ 1.1.1 of the Act deprives foreigners, from the outset, of the possibility of having a German court review the substance of their application, given that, on the one hand, the provision states that the provisions of § 1 and § 8 of the Act do not apply to foreigners and, on the other hand, it contains no order giving effect to the lex patriae of the persons in question. This creates a situation where, in the case of foreign applicants, the courts cannot apply the German Transsexuals Act. However, they are also prevented from applying the relevant foreign law and, while doing so, from examining whether the application of the lex patriae in question contravenes the ordre public. Thus, there is no way that German law could be brought to apply via Article 6 of the Introductory Act to the German Civil Code. The provision submitted for review thus results, for foreign transsexuals whose lex patriae contains no provision on the change of first name or of official gender identity, in the complete exclusion from the protection of fundamental rights granted under Article 6 of the Introductory Act to the German Civil Code. This has the effect that the persons concerned suffer serious impairment to their right to the free development of one’s personality and to the protection of their private sphere.

In the case of those persons who are only present in Germany for a short time and presumably only temporarily, this impairment may be justified by the legitimate concern of the legislature, which wishes to prevent foreigners entering Germany for the sole purpose of making an application pursuant to the Transsexuals Act. But this concern does not apply to those who are present in Germany lawfully and not merely temporarily. For them, withholding rights under the Transsexuals Act constitutes ongoing unfavourable treatment as well as continual impairment of their right of personality.