22 November 2023

Deregulating Legal Gender in the Shadow of Social Ascription

On 23 August 2023, the German government published a bill on Gender Self-Determination (hereinafter also referred to as SBGG-E). The bill is currently under debate before the German parliament (Bundestag) and is subject to heated socio-political debate. Its primary objective consists of deregulating the conditions for altering and deleting the gender entry provided by the German Civil Status Act. Aside from a strong commitment to deregulating legal gender (Section 1 SBGG-E), the bill sets boundaries and conditions for gender recognition. While some appear self-explanatory, others are infused by what I will hereinafter refer to as the ‘logic of social ascription’.

A Shift in the Paradigm of Gender Recognition

In principle, any fully legally capable person who considers their legal gender does not meet their self-assessed gender identity may declare before the registry office that their civil status be changed (Section 2 (1)) by simply affirming that the new legal gender (or its absence) “best corresponds to their gender identity” (Section 2 (2) No. 1) and that they are “aware of the consequences of the declaration” (No. 2). This shifts the paradigm in German civil status law from what may be called an ‘ascriptive’ towards an ‘elective’ gender recognition system (cf. Osella/Rubio-Marín). Persons who wish to change or dispense with their gender entry will no longer have to undertake family court proceedings. Nor will a party have to substantiate their wish to change their gender identity by any other act than an autonomous declaration. In consequence, a change in legal gender is considered to exclusively depend on self-identification (‘election‘) instead of a third-party assessment (‘ascription‘). Section 1 SBGG-E clarifies that this means to improve the social recognition of self-identified gender and “ensure it receives respect and respectful treatment”. Yet, as will be shown, the spirit of ascriptive gender recognition models lurks in the shadows of the bill.

I will exemplify this by pointing at the requirement to change a given name upon changing the legal gender. This demand was not part of the recognition model of the draft bill on Gender Self-Determination, published in May 2023. It may be precisely for this reason that the relevance of the name change requirement has remained marginal in the heated public and parliamentary debate on the legislative project. Yet, the requirement is neither in line with its declared objective nor attributable to respectable administrative practice demands or an ‘inherent logic’ of civil status law.

From an Ascriptive to an Elective Gender Recognition Model

In the desire to meet fundamental and human rights demands to legal gender and foster gender recognition beyond that, the German legislator faced two options for Law Reform: To abolish gender as an element of civil status or to adhere to gender as a category in civil status law and liberalise the conditions for its change or abolition. It has opted for the latter. Legal gender will still be assigned at birth (section 21 para. 1 no. 3 German Civil Status Act, Personenstandsgesetz), predominantly by biological criteria. However, the procedures governing subsequent changes and a full abolition of legal gender will be deregulated.

According to the bill, an individual will have to choose between the options set out by Section 22 (3) German Civil Status Act. This allows for legal gender to be “female”, “male” or “diverse”. It is also possible to dispense with a mention of legal gender as a whole. If an individual chooses this option, “gender-neutral regulations” – regulations that equally refer to men and women and set out identical legal consequences for both – will apply to persons without a legal gender. With a few exceptions, the self-identified legal gender determines an individual’s relationship with public authorities (Section 6 (1)). It also determines an individual’s private legal relationships unless stipulated otherwise by the SBGG-E or other statutes.

Boundaries and Conditions to Gender Self-Determination

As was mentioned, gender self-determination under the bill is neither unconditional nor limitless. Next to a limited scope, a valid declaration on legal gender meets restrictions in its effect vis-à-vis public authorities and third parties and is conditional upon personal and substantial requirements.

In scope, a choice of law provision on legal gender resorts to nationality to determine the law applicable. In addition, a residence permit is required for making a declaration of legal gender.

As to its effect, a declaration on gender shall remain irrelevant for military duties in the event of tension or defence (Article 80a German Basic Law), and an immediately preceding waiver of male gender. Besides that, (self-determined) legal gender takes no effect in private legal relationships. Section 6 SBGG-E exemplifies this by the ‘autonomy of landowners‘ (Hausrecht) and associations (Satzungsautonomie). While both – and other – frontiers are inherent in civil status, so does the scheme of protection under the German Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz) limit both autonomies by its own right. By mentioning the former while keeping quiet on the latter, the bill shows visible wear and tear marks from a heated socio-political discussion on safe spaces and abusive alterations of gender in sports competitions.

Although this aspect and the underlying patriarchal narratives certainly qualify for academic discussion, I will not further elaborate on them in this piece. Nor will I provide further detail on other aspects of the bill that have received attention in public and parliamentary debate – e.g., the personal conditions for minors who wish to change or dispense with their legal gender, as established by Section 3 SBGG-E.

Instead, I would like to draw attention to another hidden substantial condition for declaring self-identified gender. A person who intends to declare their self-identified legal gender must abandon their first name and choose a new name “which corresponds to the chosen gender entry”. This is remarkable, given that German Civil Status Law is centred around the principle of name continuity: The first or given name must not be altered after birth unless mandated by compelling reasons.

Gender-Suitable First Names and the Logic of Ascription

As pointed out, applicants must change their first name according to their self-identified legal gender. The chosen name must “correspond” to the self-identified gender. In this regard, the explanatory memorandum to the draft bill stipulates that

“According to Section 2 (3), first names must be chosen in correspondence with the chosen gender entry. If the previous first names already correspond with the chosen legal gender entry, these names are designated as the new first names. For example, a person who has had a “diverse” legal gender since birth and who then declares to change the legal gender entry to “female” may now designate their previous first name “Anna” as their new first name, as this corresponds to the chosen gender entry “female”. She could also keep a gender-neutral first name (e.g. “Eike”). The same rules apply to the determination of first names as apply to the determination of first names at birth.” (bill of 23 August, p. 39)

While it has formulated pointed criticism concerning other mechanisms in the bill, the Federal Chamber (Bundesrat) has remained silent on this requirement in its comments on the bill. Just as the explanatory memorandum to the bill, it appears to suppose a need to adapt their name according to the legal gender.

Taking account of the regulatory context, this is surprising. Under German Private Law, the first name forms the object of rights and obligations. In the former sense, it determines a person’s self-image and thus warrants fundamental rights protection. In the latter sense, the first name helps to unambiguously identify a person – hence the principle of ‘name continuity’.

Besides that, the legislator confines the need to adapt the first name according to the self-identified legal gender to cases where the given name and legal gender “diverge“. So, the obligation to change a given name upon declaring a new legal gender does not apply if the former is already gender-neutral or corresponds to the declared legal gender for other reasons. This indicates that a change of the given name does by no means confer a symbolic meaning to the close connection between name and gender for an individual’s self-image.

Rather, the legislator seems to attribute a mandatory signalling function to the first name. The name suggests the gender by which a person wants to be “read” in society: Those who bear a female first name express that they would like to be “read” as a woman in their legal relations, while those who confer on themselves a gender-neutral name refrain from self-identifying with an established gender. Indeed, there are few more effective ‘publifiers’ (Publizitätsträger) for gender than an individual’s first name. However, a self-understood duty to signal one‘s self-identified gender to third parties is at odds with the core elements of an elective model for gender recognition, as adopted by the bill: To “detach gender assignment from the assessment of third persons”. As mentioned earlier, the bill, in principle, introduces a non-ascriptive model of gender recognition. Why then force individuals to choose a means of identification to allow for that?

Inherent Explanations – Logic of Civil Status Law

With the objective of the bill in mind, conferring the name a signalling function for self-identified gender calls for justification. Further, bearing in mind that the bill‘s explicit aim is to improve social respect for self-identified gender‚ aspects bearing an ascriptive logic, such as community expectations, social gender models etc., are hardly suitable to build a case in favour of the name change clause.

What remains are constitutional, or, as I shall refer to them, ‘inherent’ explanations, as may be found in administrative practice or civil status law. Yet, these systems suggest a name change upon a change in legal gender.

First and foremost, a congruence of first names and legal gender, as seemingly supposed by the bill, is neither mandated by German federal law nor by constitutional law. On the contrary, an administrative principle making gender-conforming first names mandatory was struck down by German Federal Constitutional Court Jurisprudence (German Federal Constitutional Court, decision of 05 December 2008 – 1 BvR 576/07 -, para. 15 et seq). Aside from that, gender and name are protected by the general right of personality (Allgemeines Persönlichkeitsrecht) by their right to be relevant to making an identity(ibid., para. 13). As a result, making gender and name dependent on one another requires individuals to waive a fundamental right.

In addition, the mandatory name change is at odds with Civil Status Law itself, namely, the principle of name continuity (Grundsatz der Namenskontinuität): Upon entry in the register of births (Section 21 para. 1 no. 4 Civil Status Act), a first name must not be changed unless this is mandated by a “good cause”.

We may assume that the legislator considers a change in legal gender as such “good cause”. Even then, the fact that neither the explanatory memorandum nor the Federal Chamber (Bundesrat) seem to even consider the name change a point worthy of discussion lends a deep insight into the mindset of Germany‘s legislative organs as regards gender recognition. Aside from an admirable commitment to deregulating legal gender, a decisive part of the operative provisions of the bill remains infused by the logic of social ascription. While fully deregulating the conditions for a change in legal gender, gender itself remains an object of third-party recognition if subject to socially accepted ‘publifiers’.

 

An earlier version of this opinion piece was presented to the Feminist Legal Jurisprudence and Private Law Discussion Groups at the University of Oxford on 9 November 2023. I am grateful to all participants for their comments and advice and to Vanessa Grifo for comments on this version.


SUGGESTED CITATION  Rentsch, Bettina: Deregulating Legal Gender in the Shadow of Social Ascription, VerfBlog, 2023/11/22, https://verfassungsblog.de/deregulating-legal-gender-in-the-shadow-of-social-ascription/, DOI: 10.59704/e7183e28162b38e2.

One Comment

  1. N.W. Wed 22 Nov 2023 at 15:12 - Reply

    The whole problem seems to stem from the idea that legally recognized biological sex should be replaced by subjective self-identification and ”gender”. Correct me if I’m wrong, but ”gender” was invented precisely as criticism of a patriarchal society. Women were required to ”enact” a certain role, a society prescribed ”gender” that came with a set of attributes did not necessarily coincide with the essence of their biological sex. How did we get from ”You are a woman even if you don’t wear a dress and a red lipstick because you are a biological woman” to ”You are a woman if you wear a dress and a red lipstick, despite not being a biological woman” in a very short time span beats me, but it seems like it’s the entire logic of feminism turned on its head. I find it extremely worrying that the legislators are taking this these initiatives seriously and introducing chaos into their legal systems without even thinking what these initiatives are and what disastrous consequences they will have. If they want to be truly constructive towards trans people, they should require a diagnosis and a transition towards the desired sex before any change in the civil status is approved. Ideas of non definable and never ending genders, while everybody’s right to entertain in their personal life, should not be reflected in legislation.

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