Controversial reactions to the draft bill

The new draft bill on the amendment to the Personal Status Code (PStG), which was presented to the Federal Council on 7 September 2018, has elicited various reactions in recent weeks (a summary of the draft can be found in the blog post of 6 November 2018, the bill itself can be found under this link).

Josch Hoenes of the Federal Association Trans*, an interest group for sexual diversity and autonomy, has launched a campaign against this bill in its current form. In an interview with the Süddeutsche Zeitung (SZ) on 11 November 2018, Hoenes stated that the requirement in the draft bill to provide medical evidence before a change to the entry in the birth register can be made was inappropriate for many reasons. On the one hand, sexual diversity is far more than a matter of physical sexual characteristics and should be considered independently of these features. People with a variation in sex development that is not “medically provable” would be excluded from this law. In addition, the obligation to provide a medical certificate means undergoing a new medical examination for people who have in some cases experienced violence through the medical system (Hoenes is presumably referring in this case to unwanted, medically unindicated operations on the genitals of the child). Hoenes insists that this law should allow any person to change their sex entry in the birth register at the registry office without a medical certificate.

Similar criticisms can be found in the “Notes on the Draft Bill” by Dr Jörg Woweries, a former paediatrician in Berlin. In his comments, which he has kindly made available to this HOOU blog, Woweries writes that the percentage of people with a variation in sex development who identify as neither female nor male is very small. The new draft bill still does not offer these people the option to choose the category “female” or “male”, which constitutes significant discrimination. In addition, the previous requirement to leave the entry open at birth or to choose “diverse” leads to compulsory disclosure and discrimination against the persons concerned. Woweries describes the obligation to provide a medical certificate as pathologising and pointless, as there is no diagnostic method to determine a person’s gender identity. By gender identity we mean the individual perception of belonging to a gender. Just like Hoenes, Woweries insists that self-declared gender identity at the registry office must be sufficient to change the sex entry. Unlike Hoenes, however, Woweries insists that the third option should not be registered until adolescence or adulthood, “because it is necessary to defer this until the children are able to understand and decide for themselves”.

The bill also met with great resistance among the political parties. During the 1st reading of the Bundestag on 11 October 2018, it was almost unanimously criticised and regarded as a “small-minded solution”, a “new combination of old mistakes” and “discriminatory”. According to the political parties the FDP and die LINKEN, the obligation to provide a medical certificate in order to change the sex entry in the birth register is comparable to discrimination under the German Transsexuals Act (TSG). The TSG has permitted transsexual or transgender people in Germany to change their civil status and/or first name since 1981. The prerequisite, however, is that they undergo an evaluation process by two independent experts. According to Elisabeth Kaiser (SPD), obtaining a medical certificate as envisaged in the new bill on the third sex marker is, however, based on an external attribution of gender identity, which cannot be determined by biological features.

The bill is currently being presented to the Committee on Internal Affairs and Community and is under debate.