Trans and legal issues

Be it as a chaperone when going to the authorities or assisting your child with applications: as a guardian or close person, you can help young trans and non-binary people to become aware of and make use of the rights that they have.
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You can show your support in many ways: for example, you can offer your help during the process of an official name and gender marker change.
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If the name and assigned gender do not match gender identity and/or gender expression, this can lead to stressful situations: from misgendering (the use of wrong pronouns or a wrong form of address) to physical and verbal violence. 
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Many - but not all - trans and non-binary people seek a name and personal status change for this reason as well. 

The legal situation in Germany

Das Grundgesetz (GG) – The Constitution

Article 3 (3) of the Basic Law states: “No one may be discriminated against or given preferential treatment because of his or her sex, ethnicity, race, language, home country and origin, faith, religious or political views. No one may be disadvantaged because of his or her disability.“1 

However, there is no passage in the GG that prohibits discrimination against a person on the basis of “sexual identity”. A prohibition of that kind can be found, however, in the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, AGG).

Allgemeines Gleichbehandlungsgesetz (AGG) - (General Equal Treatment Act)

The aim of the AGG (colloquially also known as the Anti-Discrimination Act) is to “prevent or eliminate discrimination on the grounds of race or ethnic origin, gender, religion or belief, disability, age or sexual identity.”2

Even though the term used here is “sexual identity” and not gender identity, the AGG explicitly includes trans and inter* persons. 3 However, this legal text still uses binary, outdated or pathologizing terms for gender diversity.

Personal Rights

Like all people, children and adolescents have basic and personal rights. Of particular importance for the concerns of trans and non-binary people is the right to self-determination. It is anchored in the Basic Law and should enable the “free development of the personality”.4.

This means that trans and non-binary people should be constitutionally entitled to choose the first name, pronouns and gender expression that they feel is right for them. However, in order to enforce this law - without lengthy procedures, high financial expenses or forced outing - there would have to be an easy-to-access self-determination law.
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Currently, for many trans and non-binary people, this process involves considerable effort and many difficulties.

What can be done without official change of name and civil status?

Class list, school ID or the season ticket for the stadium - all these documents can be issued to a new name without an official name change. However, day-care centres, schools, sports clubs or other institutions are not legally required to do so without an official status change. 5+6

With regard to access to toilets or changing rooms, where a classification is made according to assumed gender assignment, there is also no legal basis that dictates enabling or denying trans and non-binary people access to self-selected premises. Therefore, trans and non-binary people are dependent on the goodwill of others in these situations as well.
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As a caregiver you can offer support in these situations, if requested: talk to the responsible parties. Inform yourself and others about the relevant legal basis and recommended actions 7 and actively advocate for the needs of trans and non-binary children and adolescents.

To help with your arguments, for example, the information brochure Trans* und Schule (Schlau NRW) as well as the assessment of the legal situation of trans children and adolescents (Augstein) and the legal assessment use of the chosen name of trans students at universities regardless of an official name change (Verwendung des gewählten Namens von trans* Studierenden an Hochschulen unabhängig von einer amtlichen Namensänderung) (Antidiskriminierungsstelle des Bundes) can be of use. Unfortunately, at this point these sources are only available in German language.

Tip: Supplementary ID

A great tool for everyday life can be the supplementary identity card, issued by dgti e.V.:
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“The dgti supplementary identity card is a standardized identity document that documents all self-selected personal data and shows a current passport photo (not necessarily biometric). It is known and accepted by all ministries of interior affairs, police, many government agencies, banks, universities, insurance companies, and others.”8
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This ID card is valid in conjunction with the official ID card, can be requested online and currently costs 19.90 euros. (as of June 2022)

Legal Change of First Name and Civil Status: The TSG

If a person decides to change his or her “legal gender” and first name, they currently have the possibility to file an application according to the so-called “Transsexuellengesetz” (Engl.: Transsexuals Law)(TSG).   
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The duration of the procedure may vary. It depends on the workload of the court and the time needed for obtaining and preparing the expert opinions. The average expected waiting period is 6-12 months. 
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The total cost of the name and civil status change depends on the required court costs and the costs for the expert opinions. There are no mandatory cost limits. According to an expert opinion of the Berlin Humboldt University on the “need for regulation and reform for transgender people”, the total cost amounts to an average of 1,868 euros per TSG procedure.7

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Checklist: How does an application under the TSG work?

1. Submit an informal application to the local court
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This application includes the first names and gender entry that the applicant wishes to use in the future. In addition, suggestions for transsensitive experts who will function as future evaluators during the process can be made. If the applicant is not able to bear the costs for the court and the expert opinion, it is advisable to apply for legal aid at this stage.
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You can find an example of such an application in the section Formulare in the Queerlexicon. (Only available in German language)
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Minors can also file an application according to the TSG. However, with a few exceptions, they are considered incapable of acting in legal proceedings. Therefore, they must either present permission of legal guardian(s) for court proceedings or make use of legal representation. Such authorisation can be demonstrated, for example, in the form of a declaration signed by the person(s) with custody.
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The local court will then get back to you in writing and name the experts who have been commissioned for the process (usually the experts requested in the application are confirmed). At this point, an advance payment for the expert opinions must be made.


2. Obtain expert opinions
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The application may only be granted after the trans or non-binary person has obtained two expert opinions 10. An expert opinion can be acquired from (at least) one interview with each of the experts appointed by the district court. With reference to the application and the feedback of the district court, the applicant can arrange appointments for the expert opinions.
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Remark:
In most cases, the expert opinions are positive, i.e. in favour of the applicant.
Nevertheless, this process is stressful for many trans and non-binary people. It sometimes takes several months and is perceived by many as very degrading, among other reasons because the applicant cannot proceed in a self-determined manner and their expertise about their own gender is not being recognised. 
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It is not uncommon for trans and non-binary people to have to deal with evaluators who have little or no awareness of trans and queer issues. They may be asked intrusive questions, or the experts base their assessments on stereotypes about “male” and “female” behaviour. 
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The selection of the experts can therefore play a critical role to ensure that the process runs as smoothly as possible. You can provide valuable assistance by researching counselling centres and initiatives in your area for recommended experts.
You can do more than just help with the search for suitable experts. Let your child know that you are there for them. Listen when they turn to you and take any fears and experiences of discrimination that they may have reported seriously. You can also celebrate the joy of a positive outcome of an assessment. If necessary, deliberate together on how you can make the process as pleasant as possible.  


3. Court hearing of the application
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After the expert opinions have been prepared, the applicant attends a hearing in front of the respective court. Following the hearing, the court will decide whether or not to approve the application. If the application is rejected, an objection can be filed or a new application can be submitted.
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The legal guardians or legal representatives of minor/underage applicants must also be present.


4. Change or adjustment of the (official) documents
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With the successful outcome of the procedure, the first names and gender entry mentioned in the application become legally binding. From this point on, this information must be used everywhere, whether at school, place of work or in official letters from authorities. Bank or health insurance cards must also be issued in the names that are valid with immediate effect by the relevant authorities.In addition, important documents such as old school reports, membership cards or contracts can also be changed at a later date.     
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Official documents such as identity cards or passports can now also be changed or adapted. 
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Ask the young trans or non-binary person if you can help with applying for and organising the change of name and civil status. For example, you could provide tips on cover letter wording.  

The Trans-Kinder-Netz e.V., for instance, has compiled a list of documents that can be changed after the name change. You can find the document here. (Only in German language)
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Rights of (underage) trans and non-binary people without German citizenship

According to the TSG, the following persons without German citizenship may also apply for a change of name and civil status:
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- stateless or homeless persons whose regular place of residence is in Germany 
- persons entitled to asylum or refugees with residence in Germany 
- foreign persons whose country of origin has no regulations comparable to the TSG 
- persons with an unlimited right of residence or a renewable residence permit who are legally residing in Germany on a permanent basis.

Under certain circumstances, unaccompanied minors may have to make use of legal representation. In addition to the residence status, age also plays a role: according to Section 12 (1) of the AsylVfG, persons who have reached the age of 16 are generally considered “capable of performing legal acts”.11

In such a case, it is highly recommended to seek expert help or legal advice. Further useful tips and valuable information for queer, trans and non-binary persons with a refugee and migration background can also be found at Queer Refugees Germany (available in several languages), or in the brochure Trans* Refugees Welcome (Trans*Geflüchtete Willkommen) (rubicon and LaKo Trans* NRW, 2020), which is available in Arabic, Farsi, French and English.

A Future Perspective: The Self-Determination Act

For many years, there have been requests to abolish the TSG. The TSG is not only criticised because of its misleading and pathologizing name: many parts of the TSG have now been classified as unconstitutional. In addition, the current TSG violates the dignity of trans and non-binary persons. 
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The recent inclusion of a self-determination law in the coalition agreement between the SPD, the Green Party and the FDP at the end of 2021 raises hope for an upcoming implementation:
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We will abolish the Transsexuals Act and replace it with a self-determination law. This will include a procedure at the registry office that makes changes to the gender marker entry in the civil status possible by means of self-disclosure, an extended ban on disclosure that is backed by sanctions, and a strengthening of educational and counselling services.
(Coalition agreement 21-25, p.19)
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At this point, there is no information available about if and when this new law will be passed. A final draft of the law is not yet available. Trans, queer and non-binary initiatives and associations demand a quick enactment of these campaign promises.


For more information:
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Documentary in German language: „Ab heute. Der lange Weg zum eigenen Namen.“
(As of Today. The long way to your own name) by Sophia Emmerich and Sam Arndt (2021)

Quellen

1) GG Artikel 3 Abs. 3
2) AGG, §1 Ziel des Gesetzes
3) Bundesrat - Drucksache 329/06, S. 32
4) GG, Artikel 2, Abs. 1
5) Augstein, Zur Situation transsexueller Kinder in der Schule vor der offiziellen (gerichtlichen) Vornamensänderung, 2013.
6) Antidiskriminierungsstelle des Bundes, Verwendung des gewählten Namens von trans*Studierenden an Hochschulen unabhängig von einer amtlichen Namensänderung, 2016
7) BMFSFJ – Regelungs- und Reformbedarf für transgeschlechtliche Menschen, Anhang 4, 2.2
8) Ergänzungsausweis der dgti e.V.
9) Gesetz über die Änderung der Vornamen und die Feststellung der Geschlechtszugehörigkeit in besonderen Fällen (Transsexuellengesetz– § 1 TSG Voraussetzungen
10) § 4 Abs. 3 TSG
11) BAMF – Unbegleitete Minderjährige in Deutschland
12) § 45b PStG
13) BGH, Beschluss vom 22. April 2020 – XII ZB 383/19
14) SPD Koalitionsvertrag 2021-2025