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Statement on the draft of the self-determination law

Statement on the draft of the self-determination law by nonbinary.berlin

We are nonbinary.berlin, an active community of nonbinary people from different backgrounds, that has been meeting monthly since 2018. We organize events, support each other, and take political action, also in the realm of ensuring our right to gender-identity self-determination, a realm in which we have been discriminated against by existing German legislation.

We believe it is important for legislators to take into account the needs and wishes of the people affected by this law, and listen to their voices when deciding on its details. This is why we are hereby presenting our considerations in this position paper, after having aligned with many other groups in our communities, who are similarly making their own voices public. We hope that the legislators take our input into account and do what this law is here for to begin with: protect our basic human dignity and constitutional rights.

Three years ago we mobilized trans, inter and nonbinary activists alike, to stand in front of the Bundestag in support of the draft for the gender self-determination law. That law did not pass, because one of the factions voted against it, contradicting what it promised to voters. Now these very parties form the new coalition. However, they did not opt to use this power, granted to them by the people, to pass the same law. Instead, they opted for a much diminished version, full of glaring holes and plagued with an atmosphere of fear, based on imaginary scenarios, inspired by discriminatory discourse.

The law draft published this May 2023 starts with a promising statement as to its purpose: to remove the need for a third party approval of one’s gender-identity so that each person can freely exercise their right to self-determination, and to safeguard recognition and respect for each person’s gender identity. In order to exercise this right, a simplified procedure will allow each person to go to the Standesamt and change or strike their registered gender marker and/or change their first name(s).

We wholeheartedly support the above purpose statement, and would like to take this opportunity to celebrate the removal of trans-pathologization and the need for third party approval and expensive bureaucratic costs. Moreover, the provision of equality for any person residing in Germany, regardless of their nationality or place of birth, is of utmost importance, as gender identity does not depend on nationality nor geography. These important aspects of the law are complemented by the clarification that necessary medical procedures will no longer depend on a person’s gender marker, as it allows us as a society to move past the outdated concept that biology and gender are inextricably connected.

We would also like to praise the provisions for changing official documents according to the new gender marker and name, which will facilitate job searches, application for mortgages and higher education and many other daily tasks, without forcing trans, inter and nonbinary people to expose their previous gender markers and names.

As nonbinary people, we also appreciate the option to choose, according to our needs, first names which do not necessarily align with each other. Choosing a combination of gender-neutral, female and male connoted names will be an option, which mirrors the lived reality of many trans, inter and nonbinary people.

What the Law Draft is Missing

However, there are some important provisions that are omitted in this draft:

  • Gender self-determination starting at 14 years: a crucial age in a person’s journey towards participation in a gendered society

  • A way for parents who do not identify as mothers or fathers to register, from the moment of their child’s birth, under an alternative term

  • Legal and quota provisions for people who are not registered as male or female

  • Rules and sanctions related to the right to privacy and secrecy regarding previous identities and their disclosure

  • Reparations for trans and inter people who were forced to undergo medical procedures in their reproductive organs under previous legislation.

All of these provisions were originally proposed in the law draft from the previous legislature, by the very same parties who now wrote the current law, from which they are all either in part or completely missing.

No Real Self-Determination for Minors Aged 14 and over

In this law draft, minors from 14 to 18, whose guardians do not respect their gender identity, are abandoned by the state to fend for themselves. Instead of helping them gain respect and recognition in an already difficult situation, this law forces them to face their guardians in court for a registry reflecting their true gender identity and name. And that at an age when they are still very much dependent on their guardians for safety, education and livelihood, an age when they are not the least versed enough in the legal process, nor have the economic means to finance legal representation. Considering that the parents of 64% of German teenagers do not take their gender or sexuality seriously, and 47% ignore it on purpose (Krell & Oldemeier 2015:20), we find that making their gender marker and name(s) dependent on their guardians’ consent is the opposite of safeguarding their right for self-determination and respect. Since it is also possible to change the gender marker again after a year, a protection against future consequences is unnecessary. As the gender marker change does not have to be permanent, teens will have the option to reverse or change it as they grow up and develop their gender identities.

Reversal of Burden of Proof in Privacy Violations

Another case where this law puts the burden of proof on victims of marginalization, discrimination and violence, is Clause 14, where a person would be fined for deadnaming (i.e. using the previous name of) and/or misgendering (i.e. referring by their previous gender to) someone who changed their gender registry and name, only if the victim can demonstrate that the accused did it “intentionally”. Intention is hard to prove in court, and demanding such proof places an unreasonable burden on the victim of such damaging behavior, and rather protects the perpetrator. Moreover, it is inconsistent with other legislation regarding damages. In other cases, if a person were to cause injury to the body or property of another person, the intention is immaterial for the question of compensation.

No Reference to Reparations

Reparations for trans and inter people who were forced to undergo medical procedures in their reproductive organs under previous legislation are completely missing from this law draft, thus neglecting the responsibility the Bundestag should bear for its past failings. We criticize the removal and demand the reinstatement of the provision declared in the Fundaments Paper published by this very legislature, according to which “In addition to the new regulations, recognition benefits for transgender and intersex people who have been affected by physical harm or forced divorce due to previous legislation are regulated.”

Erasure of People Outside the Gender Binary

Another glaring absence in this law draft is that of provisions for people with a “divers” or no gender marker, present and future. Clause 12 openly declares that people not assigned to the gender binary terms “male” or “female” should also be considered, wherever other laws discuss the equality of men and women. While it is nice of the legislators to find it in them to dedicate a sentence to the assurance of equal treatment, we, as nonbinary people, cannot help feeling left out, ignored and erased by the fact that no demand, or even promise of a future correction, is made for changing German legislation and ordinates from the binary wording of “men and women” or “male and female” to “people of all genders”. As the law has a strong influence on society and its discourse and communications, we see the correction of all legal texts that mention gender equality from “men and women” to “all genders” as a necessary step for changing the public discourse about gender and gender identity in a way that safeguards recognition and respect for everyone’s gender identities, not only those of men and women.

Missing Regulation for Safe Spaces

In addition, provisions for safe spaces and sport participation for people with a “divers” or no gender marker are missing from Clause 6. The situation right now is that it is not required of institutions and organizations to provide nonbinary, inter and agender people with adequate safe spaces, such as toilets and changing rooms, or with the opportunity to participate in sports without assigning themselves to either a female or male grouping, which would contradict their gender identity. We expect this law to correct the aforementioned discriminatory situations, which especially affect trans, inter and nonbinary people, by making it mandatory to provide gender-adequate facilities and categories also for people with a “divers” or no gender marker.

Moreover, while we do recognize the importance of the independence of Sports, it is unacceptable that sports organizations should be exempt from safeguarding human and constitutional rights. Inter and trans women are frequently and disproportionately discriminated against, excluded and humiliated in Sports. This law should clarify that such unconstitutional abuse will not be tolerated, and provide legal recourse in case any organization, including sports organizations, fail to ensure the safety, integrity, and dignity of all participants, regardless of their gender marker.

Absence of Provisions for Prisoners Outside the Gender Binary

Completely missing are also provisions for nonbinary, inter and agender prisoners. The safeguarding of their safety and of respect for their identity should be provisioned for on a federal level, instead of abandoning it to the different state legislatures. Further, the questions and answers of the Justice Ministry mentions provisions for trans-women, but makes them dependent upon the safety of the other inmates in the female prison, without any provisions for the safety of the inmate who changed their gender marker. This again stands in total contrast to the declared purpose of this law.

Insufficient Quota Regulation

Another place where this absence of regulation regarding people with a “divers” or no gender marker becomes a particularly practical problem is clause 7.1, where quotas are mentioned only for the participation of female or male persons. We would expect the legislator to encourage the creation of quotas for people of other genders too, and at the very least to declare that such quotas are dependent on the registered gender marker at the moment of membership occupation for quotas relating to all genders (male, female, divers and no gender). Neglecting to include this provision can be understood by organizations with gender quotas as permission to go on ignoring nonbinary, agender and intersex people, as well others who are registered as “divers” or without a gender marker. It is also unclear what clause 7.3 is directed at. Is it related to quotas for further genders? Or is it just meant to give organizations permission to implement other dates for determining quota participation, and if so - why?

Missing Self-Determination in Parent Registration

Last but not least, the proposed change to PtsV clause 42 requires that person 1 on a birth certificate, i.e., the person who gave birth to a child, be first registered as the “mother” and person 2 as the “father”, and that they would have to apply in order to change their registry to “parent”, in case they have changed their gender marker or have a “divers” gender marker or none. This regulation is based on a cis-sexist and binary view of genders, according to which the default for a birthing person is “mother”, i.e. female, and the default for the other parent is a sperm producing person named “father”, i.e. male. On top of subjecting new parents, with enough work on their hands, to unnecessary administrative procedures, this approach is exactly the opposite of recognition and respect for one’s self-determined gender-identity. Parents should have the option to register themselves as “parent”, “mother” or “father” of their child in a self-determined way, and not to be subjected to a discriminatory default imposed by the state. The other parent should not be automatically assumed to be a male, a father or even a sperm producer, considering that there are many other family models (for example, the other parent could be a cis-woman, a nonbinary person who doesn’t produce sperm, a cis-man who doesn’t produce sperm, or an adopter). To safeguard the rights reserved to the birthing person, such as pregnancy protection and job protection while pregnant, the law should state that the rights of the birthing or pregnant person will be preserved.

So far, we have summarized the things that we found to be missing in the law draft.

What is Superfluous and Harmful in the Law Draft

Notwithstanding, this law draft is also replete with superfluous and at times unacceptable provisions that seem to be motivated not by the wish to recognize and respect everyone’s gender identities and to safeguard their constitutional right for gender self-determination, but by fear fueled by a plethora of imaginary scenarios in which people, mostly cis-men, who the law shouldn’t even concern, might abuse this law to cause harm, endanger and deceive the state or other people.

Discriminatory Delays in the Effect of Changes to Registry

Clause 4, for example, demands a 3-months waiting period before the gender-marker and name changes come into power. This waiting period is unprecedented in other registration procedures performed at the Standesamt, and is therefore discriminatory. To us it seems that it comes not to provide us with the chance to change our minds about our gender marker change (for this, a provision allowing to reverse the change within 3 months would have been adequate), but to answer the unfounded and imaginary scenario of: “But what if an endosex cisgender man changes his gender marker in order to infiltrate a safe space for women or a women’s quota?” Making this imaginary man wait for 3 months might indeed deter him from trying such a stunt. However, for the thousands of very real trans, inter, agender and nonbinary people waiting to change their registered gender and name after months and years of internal processing and evaluation, and before the months-long process of changing all of their legal documents to fit their gender identity, this is just an unnecessary hurdle, another hoop to jump through, and exactly that third party intervention in one’s gender registry, which this law is aiming at removing.

Missing Self-Determination of Names when Changing Gender Back

Continuing this trend, clause 5.2 determines that if a person decides to change their gender marker back to a previous one they had before, then they have to also go back to their previous name. We do not understand why the legislator should be a deciding third party regarding which part of a person’s self-determined identity should remain after a registry change. To us it seems that this clause comes not to defend our ability to regret a previous decision, but to answer the unfounded and imaginary scenario of: “But what if an endosex cisgender person uses this law to change their name without the use of the existing name-changing law?” On this, our position is that if the government is so concerned of this eventuality, it might want to consider altering the general name-changing procedure, so that it is not so excruciating as to make a gender self-determination procedure an attractive alternative. Be the case as it may, the process of understanding one’s gender identity is not linear, and going back to a previous gender marker does not necessarily mean that the name one had with that gender marker in the past still fits their current gender identity. Moreover, names can be a major cause of dysphoria, so that even if one were to go back to a former gender identity, being forced back to a former name could cause significant mental damage. Once again, we would like to remind the legislator that people whose gender marker needs adjusting more than once should not be the ones to pay the price for the current potentially inadequate name-changing legislation.

The Spreading of Transphobic Narratives

Clause 6.2 is one of the most alarming and glaring cases of a superfluous and harmful provision motivated by an imaginary scenario, that comes to serve not one’s right for self-determination of gender identity, but the fears of people who do not need to change their registered genders. In the best case, it is the scenario in which a cis-man changes his gender marker to “female” in order to enter women’s safe spaces and endanger women there. In the worst case, it is the scenario in which cis-women feel threatened or uneasy by the presence of trans-women, which is, simply put, transphobic discrimination. As mentioned in the Justice Ministry’s questions and answers, this clause represents no change to existing legislation. It is therefore superfluous and should be completely stricken from this law. Another reason for the necessity of removing it from the law is that instead of safeguarding recognition and respect for everyone’s gender-identities, it reinforces harmful and discriminatory prejudices about trans-feminine people, and may embolden organizations and event organizers to exclude and discriminate against people who aren’t perceived as “feminine enough”, be they trans or inter. However, if the coalition wishes to make it clear that the Hausrecht will not be harmed by this law, it should at the very least, in the same clause, also clarify that the AGG too will not be harmed by this law, and that the exclusion of people based solely on their gender-identity, gender-representation or appearance would still not be allowed.

Discrimination During Military Conflicts

Clause 9 goes further than all other fear-based unnecessary and harmful provisions of this law draft, as it completely denies the right of self-determination from people who have a male gender marker in the case of military conflicts or tensions, even adding a 2-months retroactive period to this denial of their rights. This again seems to be based on an imaginary scenario, probably one of: “What if men try to dodge a mandatory conscription by falsely changing their gender marker?” However, men already have the right to refuse military service with a weapon, according to Art. 4, Abs. 3 GG, so there is simply no motive for them to use the gender-changing path to avoid military service. The only real consequence of this clause would be to deny gender self-determination of people with a male gender marker, for third party reasons that have nothing to do with their personal gender identity, nor with federal security considerations.

Our position is that the aforementioned unnecessary, superfluous and potentially harmful provisions, based on imaginary scenarios, should be removed from the suggested law or amended as suggested above.

We appeal to the coalition, who has committed to granting the people who elected it, and all other people in Germany, the basic human dignity and constitutional right of defining their own genders and names: to fearlessly follow through with the promises it has been making for over three years now; and not to subjugate this basic human dignity and this constitutional right to unfounded concerns based on imaginary scenarios, propagated by a discriminatory and prejudiced discourse, thus also promoting it. And last but not least, we, as a nonbinary advocacy group, are here to remind you that this law should safeguard also our dignity and rights, and not only those of people who identify with the male and female binary genders.

We thank you for your efforts in strengthening the constitutional rights of all people living in Germany, regardless of their gender.

Best regards,
nonbinary.berlin

Last update: 2023.05.31