Marco Buschmann immediately makes it clear what the new law means to him. “We are concerned with keeping a key promise of the Basic Law: the promise of equal freedom and equal dignity for all people,” says the Federal Minister of Justice. Together with Family Minister Lisa Paus, he came to the federal press conference to present “key points” for a new self-determination law. The Liberal and the Greens want to make it easier for transgender and non-binary people to change their gender entry and first name. So far, this has only been possible with great effort and through a degrading process.
The Greens and FDP, then still in opposition, had already submitted draft laws to the Bundestag in the last legislative period – which were rejected, however. In the coalition negotiations, the Greens and FDP then agreed with the SPD to abolish the transsexual law and replace it with a self-determination law. The cornerstones now presented are intended to form the basis for this new self-determination law.
The previously applicable transsexual law dates from 1980, and large parts of it have now been declared unconstitutional by the Federal Constitutional Court. The law stipulated, for example, that those affected must be sterilized before changing their gender. Also, if they were married, they had to file for divorce. As a result of the transsexual law, “a lot of injustice has been done,” says Minister for Family Affairs Paus. It is now “also time that we apologize for this injustice” and that victims would be compensated.
Transgender and non-binary people still have to go through a court process in which two expert opinions are obtained before a gender entry can be changed. These legal proceedings are often lengthy and costly. The current law treats the people concerned “like sick people, there is no justification for that,” says Minister of Justice Buschmann. That is why we want to abolish this procedure now. According to the Family Ministry, the courts decide in 99 percent of cases in the interests of the applicants.
Minors and their parents should be given “open-ended” advice
In the future, it should be possible to change the gender entry and the first names in a simple procedure before the registry office. Reports will no longer be necessary, including medical certificates. A “declaration with self-insurance” by those affected should be sufficient.
The new regulation expressly does not deal with gender reassignment procedures. In the cornerstones it says: “The scope of the new self-determination law does not include any pre-determination with regard to medical measures, since the change in the gender entry and the first name is independent of this.”
Buschmann and Paus are aiming for the new self-determination law to be passed by the cabinet this year. The key points already contain a large number of details. After a change in the gender entry and the first name, for example, there should be a blocking period of one year for a new change in order to ensure that the change request is serious.
While adults can have their gender entry and first name changed “in the sense of real self-determination” through the declaration with self-insurance, additional requirements apply to younger people. “For minors up to the age of 14 or if the minor is incapacitated, the legal guardians submit the declaration of change to the registry office,” says Paus and Buschmann’s proposal. “From the age of 14,” minors “should be able to make the declaration themselves with the consent of those having custody.” If the legal guardians do not agree, family courts should, in order to protect the personal rights of young people, “based on the child’s well-being – as in other family law constellations – replace the decision of the parents at the request of the minor”.
“Professional, open-ended and free advice” for minors and their parents will be of central importance, according to the key points. Buschmann and Paus also want to introduce a “disclosure ban subject to fines”. The previously registered gender may not be revealed against the will of those affected. This should prevent a “forced coming out”, says Paus.