Lessons to be learnt from German experience with gender recognition

The Gender Recognition Bill 2014 has been criticised for several provisions which some people see as too restrictive and exclusionary. These include the omission of gender recognition for people under the age of 16 and the requirement that an applicant’s gender identity be medically verified.

Particularly contentious is a clause that would require married transgender people to divorce as a precondition for the legal recognition of their gender, as that would amount to a same-sex marriage.

The German constitutional court struck down as unconstitutional a similar compulsory divorce provision in its transsexual law in 2008. The case involved a couple married for 50 years who rejected the option of turning their union into the life partnership that German law provides for same-sex couples.

“Finally the legislator gave in and abolished the divorce requirement . . . in 2009. In the legislative intent of the bill, the legislature expressly stated that same-sex marriage would be accepted in these very rare and specific cases,” says Dr Johanna Schmidt-Räntsch, a judge in Germany’s supreme court.

She spoke about the role of the German courts in its gender recognition law in light of Ireland's legislation currently before the Oireachtas. She was invited by Free Legal Advice Centres (Flac) and the UCD Human Rights Network to speak at the UCD Sutherland School of Law earlier this month.

Personal issue

The issue is a personal one for Judge Schmidt-Räntsch, who has been a German federal supreme court judge since 2002. She is also a professor of law at the Humboldt University in Berlin and a transgender woman.

She started transitioning in 2011 and with the support of her son and her wife of 28 years, came out at work last year, something she says took all of her courage.

“I myself probably would not have applied for amendment of my Christian name and my sex if I had to divorce my wife or if I had to accept a legal conversion of our marriage to a life partnership. This is no real alternative for couples in our situation,” she says.

“I do not feel that I’m against what marriage is,” she says, adding that having to choose between her family and her identity would feel like a punishment for both her and her wife.

"And I hope that Ireland won't make this mistake. In Germany, we have made this mistake, and we have been corrected by the constitutional court.

“It’s not for me to decide on the Irish case, but I hope Ireland would avoid some mistakes we have made. From my personal point of view, the most important point is this requirement of divorce,” she says.

Coming out

Judge Schmidt-Räntsch came out “very late” in life. “I took it that society wouldn’t accept me as such, so I tried to live my life as society wanted until 2011; then I couldn’t stand it any longer.”

She waited until last year to come out at work, due to a combination of anxiety and a desire to have her gender legally changed so there would be no practical problems in the courtroom (for example, how people should address her).

Initially, she sent a letter to her colleagues explaining her transition.

“It was a terrible feeling the first time I went in dressed as a woman. I went by train to my court . . . I was very anxious. I didn’t sleep the night before. But nothing happened. Absolutely nothing. People . . . didn’t react in any way.”

Supportive colleagues

Despite her fears, there was also no public backlash, and she is “happy and proud” to have supportive colleagues. She had a similarly positive experience coming out at her Catholic parish.

“Looking back, Germany has had difficulties with transgender legislation,” the judge says. In 1980 the German parliament enacted the transsexual law, which allowed for gender recognition if an applicant met a “very strict” set of requirements, including being a German citizen, being over the age of 25, being permanently non-reproductive and being divorced if married. The law also required applicants to have had gender reassignment surgery and to have their gender identity medically proven.

“These conditions proved to be difficult obstacles to overcome” and not every trans person was able to meet them,” Judge Schmidt-Räntsch says. “The strict conditions . . . showed how cautious, even anxious, the German legislator was in approaching the transgender topic.”

The judge describes how, case by case, over the course of many years, the German federal constitutional court declared almost every requirement in the original transgender act unconstitutional.

She says that generally the decisions of the federal constitutional court are “based on human dignity and equality, the most fundamental rights we have”.

“The orders of the federal constitutional court have fundamentally changed the German transsexual act. The strict conditions that the legislator originally thought were necessary have all been dropped,” she says.

Evaluations

The age, citizenship, reproductive, surgery and compulsory divorce provisions of the law were struck down by the court. The application still requires two psychological or psychiatric evaluations to substantiate the person’s gender identity.

Judge Schmidt-Räntsch says that each ruling was the result of an enormous amount of work.

“The court really did the job parliament should have done. I sometimes think the parliament was quite happy that they had the constitutional court because they had the possibility to say, ‘Well . . . don’t blame me, blame the constitutional court,’” she says.

“With the German federal constitutional court having set the pace, we have reached a lot for trans persons. But as in all matters, you can always do better,” she says.

Flac senior solicitor Michael Farrell, who represented Dr Lydia Foy in the second half of her nearly two decades of litigation for gender recognition, also spoke at the event.

“It’s a very foolish country . . . which comes to an issue late and then looks around at what other countries are doing and ignores it and makes the same mistakes over again. We should aim to avoid that process,” he said.