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Transsexuals Act (TSG)

History

In 1980, the German government implemented the Gesetz über die Änderung der Vornamen und die Feststellung der Geschlechtszugehörigkeit in besonderen Fällen (Transsexuellengesetz - TSG). One may translate the TSG's title like "Act on Changing Given Names and Establishing Sex Assignment in Special Cases (Transsexuals Act)", if you will. As the title implies, the TSG regulates no more and no less than these two things: how to legally change your given names and your sex assignment.

In particular, the TSG does not regulate medical treatment and surgery. Nevertheless, it makes use of the medical diagnosis "Transsexualismus"/ transsexualism.

Many of the TSG's rules have been ceased to be in force by the German Federal Constitutional Court, or the German Federal Supreme Court respectively during the past decades - starting as early as in the year after its implementation and mostly recognizing that a given single TSG article was not in line with human dignity as protected by the German Basic Law (as the German constitution is called). In a way, the TSG visualizes the progress that the German society has been making since 1980. Many regulations of what was considered a modern law back in 1980 are no longer in force as per verdicts from Germany's highest courts. The Federal Constitutional Court has issued some of the rationales of its decisions since 2005 as comprehensive press releases in English language for those who are interested in further reading.

The numerous cancellations in the TSG have resulted in the present situation where the change of given names as well as sex re-assignment can take place concurrently (as of Nov 2015).

The TSG's original two step approach of the so-called "small solution" (sole change of given names) followed by the "big solution" (adding sex re-assignment to the changed given names) at a later stage may still be chosen by an applicant on his or her own discretion, but is no longer obligatory. An applicant may as well choose to change the given names and keep the original sex assignment as long as he or she pleases (small solution only).



An attempt to translate the TSG

Understanding the legal framework of transsexualism is crucial in making informed decisions for our future lives. You can find a link to the German text of the Transsexuals Act at the top of this webpage, but we could not find any English translation whatsoever, not to mention one that was validated by a legal advisor.

For these reasons, we dare to present our own entirely inofficial translation as of September 2018. It has got to be read with due care, especially with regard to legal terms that we may not be familiar with. The translation is for information only and the original German law prevails in any case. Switch cannot, and must not, give legal advice.

 

Transsexuals Act

Chapter One Changing Given Names

§ 1 Conditions

(1) The court has to change a person's given names upon that person's application if -

1. he or she no longer feels to belong to the sex as assigned at birth, but to the opposite sex due to his or her transsexual background, and has been under the compulsion to live in accordance with his or her ideas for at least three years,

2. it has to be assumed with a high degree of probability that the feeling of belonging to the opposite sex will not change with high probability, and

3. he or she

a) is German in terms of the Basic Law,

b) being a stateless person or a displaced foreigner, has his or her habitual place of abode within Germany,

c) being entitled to be granted asylum or being a foreign refugee, has his or her place of residence within Germany or

d) being a foreigner whos national law does not know regulations comparable to this Act,

     aa) was granted unlimited right of residence or

     bb) was granted a prolongable right of residence and lives permanently and lawfully within Germany.

(2) The application shall include the given names that the applicant wants to be called in the future.

§ 2 Jurisdiction

(1) The sole responsibility for decisions on applications under § 1 lies with the Amtsgerichte (Local Courts) based at the location of the Landgericht (State Court). Their district encompasses insofar the disctrict of the Landgericht. In case several Amtsgerichte are located at the location of the Landgericht, ...
[Following is complex legal stuff you do not have to dig into, because we have done so for you. Simply refer to the blue box in the How to change given names section below for the competent Amtsgericht responsible for decisions under the TSG for your place of residence.]

(2) Responsible in terms of location is the court the district of which includes the applicant's place of residence or, in case there is none within the territory covered by this Act, includes his or her habitual place of abode; the determining factor is the date when the application is filed. If the applicant is German ... [... then the person will understand the German text and we choose to omit the remainder of this paragraph]

§ 3 Eligibility, parties to the proceedings

(1) On behalf of a legally incapacitated person, the judicial proceedings will be conducted by the legal representative. It takes the approval of the Familiengericht (domestic relations court) for the legal representative to file an application under § 1.

(2) The applicant is the sole party to the proceedings.

§ 4 Judicial proceedings

(1) The judicial proceedings shall be governed by the provisions of the Act on Court Procedure in Family Matters and Non-litigious Matters unless this Act provides otherwise.

(2) The court shall hear the applicant in person.

(3) The court may only assent to an application under § 1 after having obtained expert opinions from two experts who have become sufficiently familiar with the particular problems of transsexualism during their professional education and experience. The experts must act independently; the experts opinions must include their views on whether the applicant's feeling of belonging is unlikely to change with a high degree of probability and according to the findings of the medical sciences.

(4) The parties to the proceedings may bring an immediate appeal against the decision that grants an application under § 1. The decision shall only be effective when it becomes final.

§ 5 Prohibition of revelation

(1) Once the decision changing the applicant's given names has become final, the given names borne at the time of the decision must neither be revealed nor found out without the applicant's consent, unless special reasons of the public interest require otherwise or a legal interest is credibly claimed.

(2) The applicant's former spouse, parents, grandparents and descendants are not obliged to release the new given names, unless required for maintaining public books and registers. This does not apply to children the applicant has adopted after the decision under § 1 had become final.

(3) The birth record of a natural child to the applicant, or of a child the applicant has adopted before the decision under § 1 had become final, shall identify only those given names of the applicant that were relevant before the decision under § 1 had become final.

§ 6 Repeal upon application

(1) The decision that has changed the applicant's given names shall be repealed upon his or her application by the court, when he or she feels to belong to the sex indicated in his or her birth record again.

(2) Paragraphs 2 to 4 shall apply mutatis mutandis. The decision will also indicate that the applicant is going to bear the given names he or she bore at the date of the decision that had changed his or her given names. The court may change these given names upon the applicant's application when this is necessary for the applicant's benefit on serious grounds.

§ 7 Nullity

(1) The decision which has changed the applicant's given names will become invalid if -

1. a child of the applicant is born after a period of threehundred days has elapsed since the decision has become final, at the date of birth of the child, or

2. the descent of a child who was born after a period of threehundred days has elapsed since the decision had become final is accepted by the applicant or is determined by court, with effect from the day on which the acceptance takes effect or the determination becomes final.

(2) The applicant continues to bear the given names that he had borne at the date of the decision that has changed his or her given names. These given names are to be entered -

1. in case of Article 1(1) and (2) into the birth register,

2. in case of Article 1(3) into the marriage register. *)

(3) In case of Article 1(1) the court may, upon the applicant's application, change the applicant's given names back into the given names he or she bore until the decision had became ineffective, if it determines that the child is not the applicant's natural child, or if it has to be assumed for other serious reasons that the applicant will continue to not feel to belong to the sex assigned in the birth record. §§ 2, 3, 4.1, 4.2 and 4.4 as well as § 5.1 apply correspondingly.

_____
*) Editorial note: the former Article 1(3) is invalid as per Article 2 of the "Law to Implement the Right of Marriage For Persons of the Same Sex" since 1 October, 2017

Chapter Two Establishing Sex Assignment

§ 8 Conditions

(1) The court shall determine upon the application of a person who no longer feels to belong to the sex as assigned at birth, but to the opposite sex due to his or her transsexual imprint, and who has been under the compulsion to live in accordance with his or her ideas for at least three years that he/her is to be considered to belong to the opposite sex if -

1. the conditions of § 1.1(1) through (3) are fulfilled,

2. (inapplicable)

3. *) is permanently sterile and

4. *) has undergone surgery modifying his or her external genitalia that has lead to a significant approximation of the opposite sex' appearance.

(2) The application shall include the given names that the applicant wants to be called in the future; this is unnecessary if his or her given names were already changed under § 1.

_____
*) Editorial note: no longer applicable persuant to resolution dated 7 Feb 2011 (BGBl. I S. 224):

The operative part of the resolution of the Federal Constitutional Court dated 11 Jan 2011 - 1 BvR 3295/07 - is published:

1. §8.1(3) and (4) of the Act on Changing Given Names and Establishing Sex Assignment in Special Cases (Transsexuals Act - TSG) dated 10 Sep 1980 (Federal Law Gazette I, p. 1654) is not consistent with Article 2(1) and (2) in conjunction with Article 1(1) of the Basic Law in accordance with the reasons

2. § 8.1(3) and (4) of the Transsexuals Act is not applicable until a revised legal regulation will have come into force.

The above operative part has got force of law persuant to § 31.2 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz - BVerfGG).

§ 9 Judicial proceedings

(1) In case the application cannot be granted only because the applicant has not yet undergone surgery modifying his or her external genitalia or is not permanently sterile yet, the court shall state so in advance. The parties to the proceedings may bring an immediate appeal against the decision.

(2) Has the decision under Article 1, first sentence become final and do the obstacles mentioned there no longer apply, the court shall make a decision under § 8. In doing so, the court is bound by its determination made in the decision under Article 1, first sentence.

(3) §§ 2 through 4 and 6 apply mutatis mutandis; the experts opinions must include whether the prerequisites of § 8.1 nos. 3 and 4 are satisfied. The decision under § 8 and the final decision under Article 2 shall also change the applicant's given names unless these have already been changed under § 1.

§ 10 Effects of the decision

(1) Once the decision that the applicant is to be considered to belong to the opposite gender has become final, his or her gender related rights and duties shall be governed by the new gender unless otherwise stated by law.

(2) § 5 shall apply mutatis mutandis.

§ 11 Parent-to-child relationship

The decision that the applicant shall be considered to belong to the other sex shall be without prejudice to the legal nature of the relations of the applicant and his or her parents as well as between the applicant and his or her children, in case of adopted children only if they were adopted before the decision became final. The same applies to the descendants of these children.

§ 12 Pensions and comparable recurring services

(1) The decision that the applicant shall be considered to belong to the other sex shall be without prejudice to the entitlement to pensions and comparable recurring services existing when the decision became final. An immediately subsequent service from the same legal relationship shall, as far as the gender is criterion, continue to be appraised on the basis valid on day when the decision becoming final.

(2) The decision that the applicant shall be considered to belong to the other sex shall not substantiate any claim for services from the insurance or pension based on the service of the former husband or wife.

Chapter Three Modification of Laws

§§ 13 bis 15 (Modifications)

[reserved]

Chapter Four Transition and Completion

§ 16 Transition

[Not to be translated in all of its complexity. Our interpretation: § 16 does not apply to new applications.]

§ 17 Berlin clause

This Act also applies in the state of Berlin persuant to § 13.1 of the Third Transitional Law (Drittes Überleitungsgesetz).

§ 18 Entry into force

[Not to be translated in all of its complexity. Our summary: the Act entered into force in 1980/ 1981.]



How to change given names

Persuant to § 2 TSG, the competent court in charge of changing given names is typically the Amtsgericht (Local Court) based at the location of the Landgericht (State Court) responsible for the applicant's place of residence. Actually, many German federal states deviate from the general rule and concentrate matters according to the TSG at few or even just one single Amtsgericht. However, one thing is sure: The Amtsgericht processing the change of given names is also the competent court for establishing sex assignment.

Even if there are several Amtsgerichte competent for changing given names in any given federal state, only one of these is your Amtsgericht. Identify it using the blue box.

Local Courts (Amtsgerichte) competent for changing given names and sex assignment i.a.w. the TSG

First of all, you need to check in which State Court district (Landgerichtsbezirk) or Higher Regional Court district (Oberlandesgerichtsbezirk) your place of residence is located. Identify your competent LG or OLG in the directory of courts.

Second, find your competent Amtsgericht in the following list:


The application

The application can be filed informally. I. e., you need not complete any form, just write an ordinary letter. The DGTI provides two sample letters under the headline "Musterbriefe" on their website. The first one (Antrag § 1 TSG) is for the sole change of your given names, the second one (Antrag § 8 TSG mit Vorabentscheid nach § 9) includes the application for preliminary ruling on the change in sex assignment. The term preliminary ruling dates back to the years before 2011, when the change in sex assignment required additional preconditions to be met after having changed given names.

The TSG requires two expert opinions in order to have your given names changed (§ 4 Abs. (3) TSG). The experts are appointed by the Local Court (Amtsgericht), but you may propose them. However, the Amtsgericht need not follow your suggestion. In Hamburg, the Amtsgericht will generally follow your suggestion, other Amtsgerichte may decide differently and might not allow your therapist to give an expert opinion.

In case you do not suggest experts, the Amtsgericht will commission them. You may as well suggest one expert and leave it to the Amtsgericht to choose the other. In case the Amtsgericht is ready to follow your wish, but does not know your expert yet, it will send that person a questionnaire (or you will get the questionnaire and forward it to the expert).

How to find experts

You do not want to leave anything to chance having the court choose your experts? Good idea. So how do you get contact details of experienced experts? There are a couple of choices:

  1. Go to a meeting of a peer support group like Switch, for example. You will meet many people there who have faced the same challenge before and who will be happy to share their experience with you.
  2. Ask your therapist if you have already got one.
  3. Some Local Courts provide a list of recognized experts on request.
  4. Search therapist lists on the internet, e. g. with the German Society for Sexual Research (Deutschen Gesellschaft für Sexualforschung) (DGfS). Click "TherapeutInnen".

Mail from the Amtsgericht

The court will usually send you an application form for legal aid along with the court's acknowledgement of receipt. In case the form is not enclosed and you require legal aid you should take care of this quickly at that point in time.

Duration of proceedings

The duration of proceding is difficult to predict. A typical duration in Hamburg is between 5 and 8 months. In many cases it takes very long to get the expert opinions written. Once the decision is made there will be a period for you to raise objections. The decision will only become final at the end of your objection period. At least at this point you can accelerate the proceedings by notifying the court (Amtsgericht) in written about you waiving an appeal. Even better: Have the judge place your waiver from appeal on record during your hearing. The judge is obliged to see you in person before making his judgement.

Consequences of changed given names

  1. With validity in law of the decision that changes your given names you acquire the right to be addressed by the gender that is i.a.w. the new given names. Ironically, health insurance companies and authorities are among those who violate this right rather obstinately sending letters to Herr Brigitte Müller or Frau Daniel Schmitt. This is unlawful and does not need to be tolerated persuant to the decision of the Federal Constitutional Court (Bundesverfassungsgericht) filed under 2 BvR 1833/95. The decision is available on the DGTI website.
  2. In addition, Germans can have the gender matching the new given names entered into their passports on request and prior to sex-reassignment persuant to § 4 (1) PassG. Check your national laws for such a provision in case you are a foreign national.
  3. Former employers have to change your references on your request and whether you have had your sex assignment changed or not to show your new given names and the related title and personal pronouns. The original reference must be returned at the same time, because there must not be more than one. There must not be any sign of change. The reference must look as if there had never been another. In particular, it must be dated at the original issue date and must not have revision marks like "replacement" or "duplicate" or visible alterations like strikethroughs and replacements; as decided by the State Labour Court (Landesarbeitsgericht, LAG) Hamm, decision dated 17 Dec 1998 - 4 Sa 1337/98. The verdict relates to labour references, but is just as applicable to school reports or high school and university certificates.
    The correction is only limited if the original letter form no longer exists or the orginal signatory no longer works for that company. Such deviations from the original form cannot be avoided and will probably not be discovered in future job applications.
    In case the former employer does not exist any longer, some people advise to correct the reference or certificate using suitable graphics software and argue that this was not falsification after all once the decision that has changed the given names has become final, but a legitimate correction of an error. We refrain from commenting on such advice, expecially from a legal perspective.
  4. Germans can have their birth certificate renewed, usually with the registry office of the place of birth. However, the orginal sex assignment will remain along with the new given names as long as sex assignment has not been changed as well. Check your national laws for such a provision in case you are a foreign national.


Sex re-assignment

Sex re-assignment under the TSG means the judicial decision that "the applicant is to be considered to belong to the opposite gender", § 10 TSG. The road to sex-reassignment is the same as that to changing given names and is already described above. This is why we are merely making some further notes:

One of the most important ones: Due to the inapplicability, or ineffectiveness of all further, formerly required legal conditions changed given names are - at least until there will be a new legal provision - the only condition for sex re-assignment under the TSG. Some judges could not or did not want to believe this, so that the Federal Constututional Court had to assert the legal situation once again: file 1 BvR 2027/11.

If you want both, apply for both simultaneously. But some individuals have their sex assignment changed at a later point in time. The reasons for doing so may vary from one person to another, e. g.

The legal consequences are governed by § 10 TSG:"Once the decision that the applicant is to be considered to belong to the opposite gender has become final, his or her gender related rights and duties shall be governed by the new gender unless otherwise stated by law."

Until recently, some women having a private health insurance have had good a reason to keep their male sex assigment, because they would otherwise have had to pay the considerably higher premium for women. This impediment was removed - once again only by decision of the Federal Court of Justice (Bundesgerichtshof, BGH) - in 2012. Private health insurance companies are no longer allowed to adapt the premium to the new gender after sex re-assignment (BGH Decision filed under IV ZR 1/11). Such action is excluded in the statutory health insurance anyway.