Headnote

to the Order of the First Senate of 11 January 2011

1 BvR 3295/07

1. It violates Article 2(1) and (2) in conjunction with Article 1(1) of the Basic Law that transsexuals who satisfy the requirements of § 1(1) nos. 1 to 3 of the Transsexuals Act may only enter into a registered civil partnership to legally protect their same-sex partnership if they have undergone surgery changing their external sexual characteristics pursuant to § 8(1) nos. 3 and 4 of the Transsexuals Act and if they are permanently infertile and have therefore been recognised in the gender with which they identify and in which they live under civil status law.

FEDERAL CONSTITUTIONAL COURT

- 1 BvR 3295/07 -

IN THE NAME OF THE PEOPLE

In the proceedings

on the constitutional complaint of

the Federal Constitutional Court – First Senate –

with the participation of Justices

Vice-President Kirchhof,

Hohmann-Dennhardt,

Bryde,

Gaier,

Eichberger,

Schluckebier,

Masing,

Paulus

held on 11 January 2011:

1. § 8(1) nos. 3 and 4 of the Act on the Change of First Names and of Officially Assigned Sex in Special Cases (Transsexuals Act) of 10 September 1980 (BGBl I, p. 1654) is not compatible with Article 2(1) and (2) in conjunction with Article 1(1) of the Basic Law as set out in the reasons.

2. § 8(1) nos. 3 and 4 of the Transsexuals Act is not applicable until new legal provisions have been enacted.

3. The Order of the Higher Regional Court of 23 October 2007 - 1 W 76/07 -, the Order of the Berlin Regional Court of 25 January 2007 - 84 T 442/06 - and the Order of the Schöneberg Local Court of 30 August 2006 - 70 III 101/06 - violate the complainant’s rights under Article 2(1) and (2) in conjunction with Article 1(1) of the Basic Law. The Order of the Higher Regional Court is reversed and the matter is remanded to the Higher Regional Court.

4. […]

REASONS :

A.

The constitutional complaint concerns the question whether a male-to-female transsexual having undergone the so-called ‘small solution’ may be denied entering into a registered civil partnership with a woman, on the grounds that they have the option of entering into marriage, given that a change in civil status must have taken place in order to enter into a registered civil partnership, which requires that the transsexual must be infertile and must have undergone reassignment surgery.

I.

1. To enter into marriage, spouses must be of different sex. By contrast, § 1 of the Civil Partnerships Act requires that persons entering into a civil partnership belong to the same sex. In both cases, sex under civil status law acts as a determinant.

2. a) The Act on the Change of First Names and of Officially Assigned Sex in Special Cases (Transsexuals Act) of 10 September 1980 (BGBl I, p. 1654) in the version of 17 July 2009 (BGBl I, p. 1978) provides for two procedures which aim to enable transsexuals to live in their felt gender.

The so-called ‘small solution’ allows for changing one’s first name without first having to undergo gender reassignment surgery. The requirements for this are laid down in § 1 of the Transsexuals Act […].

[…]

In order to establish that the requirements laid down in § 1(1) of the Transsexuals Act have been met, the competent Local Court (cf. § 2(1) of the Transsexuals Act) must obtain opinions from two experts sufficiently familiar with the particular problems of transsexualism on the basis of their training and professional experience and who work independently from one another (cf. § 4(3) of the Transsexuals Act).

§ 8 of the Transsexuals Act sets out the requirements for the so-called ‘big solution’, which results in the recognition of the felt gender under civil status law […].

[…]

If, following the procedure laid down in § 9 of the Transsexuals Act, the application is granted by a court, the applicant, pursuant to § 10 of the Transsexuals Act, is considered to belong to the other gender, from the moment the decision attains legal validity. From then on, the applicant’s gender-dependent rights and obligations are, in principle, based on the new gender. However, pursuant to § 11 of the Transsexuals Act, the transsexual’s relationship to their descendants and parents remains unaffected. Under § 9(3) of the Transsexuals Act, in conjunction with § 6 of the Transsexuals Act, civil status can be changed back to the sex registered at birth upon application.

b) […]

3. […]

4. […]

5. […]

II.

1. The complainant was born with male external sexual characteristics in 1948 and was named R. R. However, she feels she belongs to the female gender. She is homosexually oriented and lives with her female partner. Pursuant to § 1 of the Transsexuals Act, she changed her first names to L. I. and changed her title of nobility to its female form (‘small solution’). There was no change in civil status pursuant to § 8(1) of the Transsexuals Act (‘big solution’). However, she is receiving hormone treatment. In her birth certificate, the complainant is designated as “L. I. Baroness ..., male”.

By application of 8 December 2005, the complainant sought the registration of a civil partnership with her partner at the T. registry office in Berlin. The registrar refused the application by notice of 2 February 2006, claiming that a civil partnership can only be registered for two persons of the same sex. In response, on 8 February 2006 the complainant applied for the registrar to be ordered to register the civil partnership with her partner.

The Local Court rejected this application in its order of 30 August 2006. It held that a civil partnership could only be established between two persons of the same sex. […] The Regional Court rejected the complaint against this order in its order of 25 January 2007. A further complaint remained unsuccessful. In its order of 23 October 2007, the Higher Regional Court confirmed the legal view of the lower courts.

2. The complainant lodged a constitutional complaint against this decision on 28 December 2007. She claims a violation of her rights under Art. 2(1) in conjunction with Art. 1(1) of the Basic Law. She argues that she has a constitutionally protected right to live in a legally and socially recognised partnership with another person. […]

[…]

3. […]

III.

Statements on the constitutional complaint were submitted by the Federal Ministry of the Interior on behalf of the Federal Government, the Land Berlin, the German Lesbian and Gay Association (Lesben- und Schwulenverband Deutschland ), the German Society for Trans Identity and Intersexuality (Deutsche Gesellschaft für Transidentität und Intersexualität ), the Ecumenical Working Group ‘Homosexuals and the Church’ (Ökumenische Arbeitsgruppe Homosexuelle und Kirche ), the sonntags.club and the Transgender Network Berlin (Transgender-Netzwerk Berlin ).

[…]

B.

The constitutional complaint is admissible. In particular, the complainant continues to have a recognised legal interest in bringing an action even though she has married in the meantime.

[…]

C.

§ 8(1) nos. 3 and 4 of the Transsexuals Act is not compatible with Art. 2(1) and (2) in conjunction with Art. 1(1) of the Basic Law insofar as the requirements laid down therein indirectly prevent a homosexual transsexual who satisfies the requirements under § 1(1) nos. 1 to 3 of the Transsexuals Act from entering into a registered civil partnership.

I.

1. Art. 2(1) in conjunction with Art. 1(1) of the Basic Law protects the personal sphere that is closer to the core of private life (engere persönliche Lebenssphäre ), which also encompasses intimate sexual matters, comprising sexual self-determination, and thus also the finding and recognising of one’s gender identity and sexual orientation (cf. BVerfGE 115, 1 <14>; 121, 175 <190>). It is scientifically proven that a person’s gender cannot be determined on the basis of the external sexual characteristics at the time of birth alone, but that it greatly depends on a person’s psychological condition and their own internally felt genderedness (selbstempfundene Geschlechtlichkeit ) as well (cf. BVerfGE 115, 1 <15>). If a transsexual’s own felt gender is lastingly in conflict with their official sex assigned on the basis of external sexual characteristics, human dignity in conjunction with the fundamental right to the protection of one’s personality require that the right to self-determination of the person concerned be taken into account, and that their internally felt gender identity be officially recognised. This allows the person to live in accordance with their felt gender without their intimate sphere being exposed by the contradiction between the person’s appearance as adapted to their felt gender and their actual legal status (cf. BVerfGE 116, 243 <264>). It is for the legislator to structure the legal order in such a way that these requirements are satisfied and, in particular, that officially assigning the lastingly felt gender is not subject to unreasonable (unzumutbar ) requirements.

2. It is not compatible with these principles that transsexuals with a homosexual orientation who wish to legally protect their partnership must either enter into marriage or must undergo surgery for gender reassignment and for inducing infertility in order to be recognised in their felt gender under civil status law and thus to be able to enter into a registered civil partnership corresponding to their relationship, which they themselves feel is a same-sex relationship. The recognition under civil status law of their felt gender must not be dependent on requirements that involve severe impairments to physical integrity and are associated with health risks, if these are not, according to current scientific findings, a necessary requirement for a lasting and recognisable change of gender.

a) The free development of one’s personality, protected under Art. 2(1) of the Basic Law, includes the right of any person to enter into a long-term partnership with the person of their choice and to legally protect this partnership in one of the institutions provided for by law (cf. BVerfGE 115, 1 <24> ). In accordance with the constitutional requirement [to protect marriage and the family] of Art. 6(1) of the Basic Law, it is, on the one hand, possible to enter into marriage, an option available to opposite-sex couples (cf. BVerfGE 105, 313 <344 and 345>). On the other hand, the legislator has created the institution of registered civil partnership for same-sex couples. In this respect, access to the respective institution under German law is currently determined by the gender constellation of the couple wanting to form a legal union, not by their sexual orientation, even though a person’s decision for marriage or registered civil partnership is generally linked to their sexual orientation (cf. BVerfGE 124, 199 <221>). What is relevant here is the officially assigned sex under civil status law at the time of entering into the legal union. It is not objectionable under constitutional law that the two options provided by the legislator for couples to enter into a legal union are differentiated solely on the basis of the officially assigned sex of the persons concerned (cf. BVerfGE 115, 1 <23>; 121, 175 <195>). This allows for an objective and simple determination of the requirements for access to marriage and civil partnership, prevents partners from having to disclose intimate information about their gender identity or their sexual orientation before entering into marriage or civil partnership, and thus serves to protect their private sphere (cf. BVerfGE 107, 27 <53>).

b) However, the fact that a person’s sex under civil status law is decisive for entering into marriage or civil partnership does affect the right to sexual self-determination under Art. 2(1) in conjunction with Art. 1(1) of the Basic Law if a person’s officially assigned sex is based only on their external sexual characteristics and not on their felt gender as confirmed by expert opinions, and if an existing disparity between sex under civil status law and felt gender cannot be eliminated in a way that is reasonable (zumutbar ) for the person concerned, so that this person would have to live in what they feel is the wrong gender if they wish to legally protect their union.

This is the case for transsexuals with a homosexual orientation who satisfy the requirements of § 1(1) nos. 1 to 3 of the Transsexuals Act but who have not undergone surgery changing their external sexual characteristics and bringing about infertility, which is required under § 8(1) nos. 3 and 4 of the Transsexuals Act in order to be recognised in one’s felt gender under civil status law. Male-to-female transsexuals with the ‘small solution’, such as the complainant, feel themselves to be women and adapt their name and appearance to their felt gender, but continue to be treated as men under civil status law. In accordance with the current legal situation, the ordinary courts have found that the complainant was not able to enter into a registered civil partnership to legally protect her relationship to a woman, which she feels is same-sex, even though this form of partnership has been created by the legislator specifically for same-sex couples in order to reserve marriage as an opposite-sex union between a man and a woman (cf. BVerfGE 115, 1 <18>). If a male-to-female transsexual wants to enter into a legal union with her partner, she thus faces a choice between entering into marriage with her partner (see aa below) or subjecting herself to surgery for gender reassignment and for inducing infertility in order to obtain recognition of her felt gender under civil status law and thus satisfy the requirements for entering into a registered civil partnership which corresponds to her homosexual relationship (see bb below). Both options impair her right to sexual self-determination in an unreasonable way.

aa) By requiring a transsexual with the so-called ‘small solution’ and with a homosexual orientation to marry in order to legally protect their partnership, the transsexual is obliged to take on an official gender role that is externally perceptible and that contradicts their felt gender. At the same time, their transsexuality becomes apparent. This does not satisfy the requirement under Art. 2(1) in conjunction with Art. 1(1) of the Basic Law to recognise a person’s felt gender identity and to protect their intimate sphere.

When marriage is available to both opposite-sex and same-sex couples, as is the case in several European countries […], no conclusions can be drawn from marriage as to the sex and sexual orientation of the partners. When, by contrast, the legal order provides for a second form of partnership besides marriage to protect a legally binding partnership – as is the case in Germany with registered civil partnerships – and when it distinguishes these two forms of partnership solely on the basis of the sex of the partners, reference to one such form of partnership also involves ascribing gender roles within the partnership. Thus, even the mere designation of spouse or civil partner influences how the respective partners perceive themselves and how they and their relationship are perceived by others. If transsexuals with the ‘small solution’ and a homosexual orientation are required to marry in order to legally protect their partnership and they then marry out of necessity, because gender reassignment surgery is not an option yet they do not want to forgo a legal bond with their partner, this exposes them to a questioning of their gender identity as well as their sexual orientation. Not only does this create a contradiction between the impression that marriage conveys of their gender identity and their own opposite internally felt gender. Marriage, as a heterosexual union, also ascribes a role to the transsexual which runs counter to their sexual orientation.

It is true that even when they marry, transsexuals may keep their name which they had changed pursuant to § 1 of the Transsexuals Act and which corresponds to their felt gender (cf. BVerfGE 115, 1 <24>). Yet precisely this name and their appearance adapted to the felt gender, which expose the relationship to their partner as a same-sex relationship, permanently contradict them and their partner in their status as a married couple. They are perceived as a couple for which marriage is actually not a suitable option. It becomes apparent that one of them must be a transsexual. Because of the discrepancy between their marital union and their noticeably same-sex relationship, they must always expect to be asked about their gender. While it may be possible in everyday life to avoid revealing one’s status as a spouse, under constitutional law it is not reasonable to expect the persons concerned to keep their legal status secret in order to live in accordance with their felt gender roles. The intimacy of transsexuals and their partners, protected against involuntary disclosure by Art. 2(1) in conjunction with Art. 1(1) of the Basic Law, is thus not sufficiently safeguarded (cf. BVerfGE 88, 87 <97 and 98>). Therefore, it is not reasonable for transsexuals or their partners to be required to marry in order to legally protect their relationship.

bb) It is not objectionable under constitutional law that the legislator defines access to registered civil partnerships on the basis of the sex assigned to the partners under civil status law, even in the case of transsexuals with a homosexual orientation. Nor is it objectionable that the legislator sets objective requirements for the assignment of sex under civil status law. However, it does violate the right to sexual self-determination under Art. 2(1) in conjunction with Art. 1(1) of the Basic Law when the recognition of a transsexual under civil status law is subject to requirements which are too strict and thus unreasonable.

(1) A registered civil partnership is available to same-sex couples only. However, while homosexual transsexuals and their partners see themselves as same-sex couples, the relationship is not legally regarded as same-sex as long as the transsexual’s felt gender is not recognised under civil status law. Transsexuals can only enter into a civil partnership that corresponds to their self-perception if they satisfy the requirements for changing civil status as laid down by the legislator. The officially assigned sex in civil status law serves the purpose of unambiguously assigning a sex to the partners when reviewing whether they should be granted access to a registered civil partnership. In doing so, the legislator pursues a legitimate objective. By requiring proof of sex under civil status law, it seeks to ensure that a registered civil partnership is only available to partners who are officially recognised as same-sex (cf. BVerfGE 105, 313 <351 and 352>).

(2) In principle, the legislator may use the external sexual characteristics of a person at the time of birth as the basis for assigning sex. It may define certain requirements for the recognition under civil status law of the felt gender which is in contradiction with these characteristics. As sex is determinant for attributing rights and obligations and as family roles are dependent on it, it is a legitimate objective of the legislator to make civil status lasting and unambiguous, in order to avoid the divergence of biological sex and legal gender where possible, and to grant a change in civil status only if there are valid reasons for it and constitutionally guaranteed rights could otherwise not be sufficiently safeguarded. In order to rule out arbitrary changes of civil status, the legislator can request proof based on objective criteria that the felt gender, which is in contradiction with the officially assigned sex, is indeed lasting and its recognition is of existential significance to the person concerned.

Thus, for a change of sex under civil status law pursuant to § 8(1) no. 1 of the Transsexuals Act with reference to § 1(1) of the Transsexuals Act, the legislator requires persons who identify with the gender that is not their officially assigned sex to submit two opinions by independent experts with relevant professional knowledge and experience in the field of transsexuality. These expert opinions must establish that the persons concerned have felt compelled to live in their felt gender for at least three years. Furthermore, it must be highly probable that the felt gender will not change in the future. It is not objectionable under constitutional law that recognition under civil status law is subject to such requirements.

(3) The legislator can indeed determine in detail how to legally substantiate the stability and irreversibility of a transsexual’s identification with and life in the other gender. It can even go beyond the requirements of § 1(1) of the Transsexuals Act to specify conditions, for instance, regarding medical care for transsexuals, their appearance, or the quality of expert assessments. However, the legislator’s requirements for substantiating that a transsexual identifies with and lives in the other gender lastingly are overly strict and unreasonable for the persons concerned, and are thus incompatible with Art. 2(1) in conjunction with Art. 1(1) of the Basic Law, given that in § 8(1) nos. 3 and 4 of the Transsexuals Act the legislator requires unambiguously and without exception that transsexuals undergo surgery that changes their sexual characteristics and results in infertility in order to obtain recognition of their felt gender under civil status law […].

(aa) […]

Surgery to largely eliminate a person’s sexual characteristics or to reshape these in such a way that their appearance corresponds to the felt gender to the greatest extent possible is a severe impairment of physical integrity, protected under Art. 2(2) of the Basic Law, and involves considerable health risks and side effects for the person concerned. […]

In its decision of 6 December 2005 (BVerfGE 115, 1), the Federal Constitutional Court already held that in light of current scientific findings, it cannot be assumed that seriously and irreversibly felt transsexuality can only be determined where the person concerned seeks, by any means available, to correct, as an error of nature, their sexual organs and characteristics through gender reassignment. Indeed, since then, experts have reached the conclusion that gender reassignment surgery is not always recommendable, even if the diagnosis of transsexuality is largely definite. Whether gender reassignment is medically acceptable and advisable must be determined on an individual basis, in the context of a medical diagnosis (cf. BVerfGE 115, 1 <21>). The lasting and irreversible nature of a transsexual’s felt gender cannot be measured by the degree to which their external sexual characteristics are adapted to the felt gender by way of surgery. Rather, it must be determined how consistently a transsexual lives in their felt gender and is at ease with it […]. It is true that gender reassignment surgery is a clear indication of a person’s transsexuality. Yet if it is turned into an absolute prerequisite for recognition under civil status law, this would require transsexuals to undergo physical surgery and to accept health impairments, even if in their case this were not advisable and not necessary for determining that their transsexuality is lasting. The legislator has thus set excessive requirements for substantiating the lasting nature of transsexuality. These requirements do not sufficiently take into account the fundamental rights of the persons concerned under Art. 2(1) in conjunction with Art. 1(1) and Art. 2(2) of the Basic Law, which must be protected.

[…]

(bb) Permanent infertility is another unreasonable requirement set by the legislator, in § 8(1) no. 3 of the Transsexuals Act, for recognition of a transsexual’s felt gender under civil status law, insofar as surgery is required for permanent infertility. Exercising the right to sexual self-determination under Art. 2(1) in conjunction with Art. 1(1) of the Basic Law is thus made conditional upon abandoning the right to physical integrity, without sufficiently weighty reasons that could justify these interferences with the fundamental rights of the transsexuals concerned (cf. BVerfGE 121, 175 <202>).

A person’s fertility is protected by Art. 2(2) of the Basic Law, and is part of the right to physical integrity (cf. BVerfGE 79, 174 <201 and 202>). If transsexuals are required to undergo surgery resulting in their infertility in order to obtain recognition of their felt gender under civil status law, they face a dilemma: they can either refuse surgery, but at the same time forgo official recognition of their felt gender, which forces them to permanently live in conflict with their officially assigned sex; or they can accept surgery with far-reaching consequences, entailing not only physical changes and loss of function, but also affecting their self-image as a person, given that this is the only way to obtain official recognition of their felt gender under civil status law. No matter the choice of the persons concerned, essential fundamental rights in respect of their psychological or physical personal integrity are always impaired.

The reasons given for this inescapable and serious interference with fundamental rights are not tenable. However, the legislator does pursue a legitimate objective when it makes permanent infertility a requirement for the recognition of felt gender under civil status law, because it seeks to prevent persons officially assigned the male sex from giving birth or persons officially assigned the female sex from fathering children, which would be contrary to our understanding of sex and would have far-reaching consequences for the legal order […].

[…]

[…] It is a legitimate objective to officially assign children to their biological parents in such a way that their parentage is not attributed to two legal mothers or fathers, in conflict with their biological conception. As § 11 of the Transsexuals Act shows, such a clear official assignment of children to a father and a mother, corresponding to the biological circumstances, is already provided for by law. The provision sets out that the relationship of a transsexual recognised under § 8 of the Transsexuals Act to their children is not affected; for adopted children this only applies if they were adopted before the decision on the recognition of the new gender attained legal validity. […] In this respect, when balancing, on the one hand, the reasons that led the legislator to make permanent infertility a requirement pursuant to § 8 of the Transsexuals Act for official recognition of the felt gender against, on the other hand, the serious interferences with transsexuals’ fundamental rights arising from the fact that they only obtain official recognition of their felt gender when they undergo surgery that seriously interferes with their physical integrity, even if this is not medically justified and even though male-to-female transsexuals are often infertile anyway due to hormone treatment, the right of transsexuals to sexual self-determination while safeguarding their physical integrity carries greater weight. This applies not least because there are legal options for ensuring that children who have transsexual parents are nevertheless officially assigned to their father and their mother. […]

II.

The challenged decisions of the Higher Regional Court, the Regional Court and the Local Court are indirectly based on the unconstitutional provision and violate the complainant’s fundamental right under Art. 2(1) and (2) in conjunction with Art. 1(1) of the Basic Law. The order of the Higher Regional Court is reversed pursuant to § 95(2) of the Federal Constitutional Court Act. The matter is remanded to the Higher Regional Court for a decision on procedural costs.

D.

§ 8(1) nos. 3 and 4 of the Transsexuals Act is unconstitutional, yet the provision is not declared void; it is only declared incompatible with Art. 2(1) and (2) in conjunction with Art. 1(1) of the Basic Law. This is because, as set out above, the legislator has the option to lay down requirements for substantiating the serious need to live in the other gender that are more specific than the requirements laid down in § 1(1) of the Transsexuals Act. Alternatively, the legislator can completely revise the law on transsexuals to bring it in conformity with the Constitution.

Given the severity of the impairment for transsexuals whose felt gender is not recognised under civil status law if they do not satisfy the requirements of § 8(1) nos. 3 and 4 of the Transsexuals Act and who therefore cannot enter into a registered civil partnership corresponding to their sexual orientation, § 8(1) nos. 3 and 4 of the Transsexuals Act is declared not applicable until new provisions have been enacted.

[…]

The decision was taken with 6:2 votes.