Inter* People

By Dr Oliver Tolmein (lawyer, Hamburg)

Any rights in place for people covered by statutory health insurance comply with the German Social Security Code V (SGB V).

An important right is the “freedom to choose a doctor”[1]. However, there are two important restrictions:

1. You are only permitted to select a doctor who has entered into a contract with the health insurance scheme[2]. However, this restriction does not apply in emergency cases.

2. Doctors cannot be forced to accept someone as a patient. If they have too many patients to deal with and can only offer an appointment far ahead in the future, there are not many efficient ways to refuse to accept this offer.

It sometimes can be the case that if intersex children and adults have to undergo medical treatment, the health insurance scheme will call in the Health Insurance Medical Service (MDK) which will then prepare a statement which either approves or rejects the planned procedure. In many cases, the MDK decides whether the patient is entitled to the planned procedure, based on the “Assessment guide on gender reassignment procedures for transexuality”. This is usually negative because certain requirements (for example, a course of psychotherapy lasting several months) would not be provided. 

In legal terms, statutory health insurance should be regarded in the same way as a public authority. Its decisions are basically decrees. Every citizen has the right to appeal against the health insurance fund. If the appeal is not upheld, it is possible to lodge an appeal before the Sozialgericht (Social Welfare Court) against the appeal decision. If the appeal is rejected, it is possible to lodge a further appeal. If this is rejected, it is also possible to lodge an appeal before the Bundessozialgericht (Federal Social Welfare Court).

If the health insurance fund turns down an application to provide medical rehabilitation or a type of treatment, you can either accept the decision or refuse to accept it. You can choose to work with a lawyer, to seek advice and support from one of the large charities or you can also represent yourself in court. It is necessary to use a solicitor if you lodge an appeal before the Bundessozialgericht. You will not be charged by the court for the costs of the proceedings, i.e. the legal proceedings are exempt from charges. If you are on a low income, it is possible to apply for legal aid (PKH) to cover the costs of legal representation.

Health insurance benefits are generally granted irrespective of gender. This also applies to medical services which relate to gender, for example, cancer screening for breast or prostate cancer. However, there are exceptions, such as § 24i which governs the payment of maternity benefits which are only for “female members”. The SGB V (German Social Security Code) accords with the BGB (German Civil Code) which only recognises “the woman who gave birth to the child” as the mother of a child. Intersex people can therefore only receive maternity pay if their civil status is specified as “female”. However, in the author’s opinion, this interpretation of the regulation infringes a person’s right to equal treatment as stated in article 3, para. 3, clause 1 of the German Basic Law (GG). In addition, since its last reform, § 1 para. 4 of the Maternity Protection Act (Mutterschutzgesetz) clearly states: “This law applies to every person who is pregnant, has borne a child or who is breastfeeding.” This legal clarification also correlates with provisions stated in § 24i of the SGB V (German Social Security Code). It is also not possible to interpret and apply other provisions stipulated in health insurance law in such a way that they disadvantage intersex people due to their gender.

Judgements on claims submitted by inter* people are very rarely given against statutory health insurance funds. In 2014, the Federal Social Welfare Court decided that inter* people who apply for breast augmentation surgery in order to achieve what is commonly perceived to be a more female appearance, cannot pursue a claim to cover these costs with the health insurance company if this person’s breasts have already developed to at least a size A cup.[3]

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[1]  § 76 SGB 5 (German Social Security Code).

[2] For example, there are also doctors who only accept private patients. However, in the case of private clinics which have an excellent reputation for carrying out plastic surgery and which do not have a service agreement with statutory health insurance schemes, it is rarely possible for patients with statutory health insurance to receive treatment that is funded by a statutory health insurance scheme. The health insurance schemes are governed by the efficiency rule stipulated in § 12 of the SGB 5 and are only required to provide services which are “acceptable, which serve a purpose and are cost-effective”.

[3] BSG 1. Senate, 04/03/2014, file reference: B 1 KR 69/12 R.

By Katrin Niedenthal (lawyer, Bielefeld)

Personenstand is an umbrella term used in Germany. It refers to all pieces of information related to births, marriages (or civil unions), and deaths, along with family and name-related records. These vital records are kept in different registers, such as birth registers, marriage registers, and death registers (in German: Personenstandsregister).

On October 10, 2017, the German Federal Constitutional Court ruled that the gender entry plays a key role in establishing and expressing a person’s identity. This means that the recognition of intersex people’s gender identity in their vital records is protected by German constitutional law.

At birth

Within a week after a child is born, parents must submit certain information to the registry office (Standesamt).[1] This includes the child’s gender. [2] This information is then recorded on the birth certificate and on the birth register.

If the child cannot be assigned either a “female” or “male” gender entry, it is possible to leave the entry blank or to use “diverse” as a gender marker [3].

Unfortunately, many people are still unaware of these options. Parents often feel pressured to register their newborn child’s gender as “female” or “male” and even to have their intersex children undergo gender reassignment surgeries (see our text on the “Act for the protection of children with variants of gender development”).

Some registry offices require medical proof stating the child cannot be assigned either “female” or “male” to leave the gender entry blank or to enter “diverse”.

If there are no documents supporting this claim (for instance because doctors are not familiar with intersex children) or if the registry office finds the proof insufficient, they will assume the gender assigned by the hospital/obstetrician at birth.

However, if this first entry is not correct, parents have the right to file a declaration under the Self-Determination Act (in German, SBGG or Selbstbestimmungsgesetz). This declaration allows them to change their child’s gender entry and first name(s).

Changing the gender entered on the records

Until November 1, 2024, there were different legal procedures to change a person’s gender entry and first name in German registers. These were based on paragraph 45b of the Civil Status Act (PStG) and on the so-called Transsexuals Act (TSG).

The German Self-Determination Act (SBGG) was passed in April 2024. In contrast to previous regulations, this new law applies to everyone, regardless of whether a person is intersex, trans, binary, or non-binary.

Under the SBGG, anyone can change their gender entry and first name if they do not match the entries in German registers. However, there are some restrictions, such as for people without a German citizenship (see below).

The declared gender identity doesn’t have to be “verified” by third parties anymore. Neither by the registry office nor by doctors or others. It is no longer necessary to provide medical certificates or reports that confirm the existence of a variant of gender development.

Self-Determination Act (SBGG)

The SBGG came into effect on November 1, 2024, with registrations starting on August 1, 2024.

As is always the case with new laws in Germany, it is not yet clear how the SBGG will be implemented in some situations. At this point, we can only interpret the law based on the explanatory memorandum and other available information. However, it already seems clear that some interpretations of the SBGG will lead to legal disputes.

The SBGG sets different requirements for different groups of people, such as minors, people with legal guardians, or people without German citizenship.

How Does the Legal Procedure Work?

The new legal procedure to change a person’s gender entry and first name involves two steps.

1. Registration (§ 4 SBGG):

The first step is registering. This can be done online, in person, or in written form. Different registry offices (Standesamt) may have different rules, so we recommend getting in contact directly with your local one.

The registry offices are currently working on forms for this step. These forms will ask for the chosen gender entry and first name(s). You can change the information provided at registration during the second step.

2. Declaration (§ 2 SBGG):

The second step is the declaration. This must be done at the same Standesamt where the registration happened. The declaration can be filed after a waiting period of 3 months but needs to happen within 6 months after registration. Otherwise, the registration expires and must be repeated.

There will be a fee for the registration and authentication of the declaration. The cost of the fee is expected to range between € 15 and € 50.

Wher Should I Register and File the Declaration?

To file the declaration, you must go to the registry office (Standesamt) in person. You will be asked to sign the document and are not allowed to have a third party represent you. (Exception: Minors or people with legal guardians. See below).

You can complete the registration and file the declaration at any German registry office. However, both steps must be carried out at the same office.

After that, the declaration will be sent to the officewhere you were registered at birth. The declaration will become effective once the change has been added to the relevant birth-register.

If you were not born in Germany and, as such, have no entry in any German birth register, you can still file your declaration at any registry office. It will then be processed by the registry office of your place of residence. If you got married in Germany, the declaration will be sent to the registry office where the marriage was entered. If none of these apply, the responsible office is the Standesamt I in Berlin (§ 45b para. 2 PStG).

German citizens living abroad can submit their registration and declaration to the German diplomatic mission in their country of residence (§ 45b PStG). The certified declaration will then be forwarded to the German registry office where they were registered at birth.

What Needs to be Included in the Declaration?

You must declare what gender entry and first name you would like to use in the future.

The available options for gender entries in official records remain “female”, “male”, “diverse” or deleting the previous entry without replacement.

A change of the first name is linked to a change of the gender entry under SBGG. This means that the law does not allow you to change your name without changing your gender entry. To do so, you must use the Name Change Act (§ 3 and 11 NamÄndG). This is a separate legal procedure, which requires a valid reason for the name change. Gender identity can be seen as a valid cause for a first name change even if the gender entry is not changed using SBGG.

In most cases, first names must be changed under SBGG. However, if you already have a gender-neutral name and choose the “diverse” gender entry or “no entry,” you may keep your first name.

Otherwise, you will have to choose a first name that matches your chosen gender entry.

It is still unclear how registry offices will determine if a first name matches a gender identity. This is already causing controversy.

Some registry offices believe that the number of first names cannot be changed and that it is not possible to add or remove names. However, this is not specified in the law.

Signature and Certification

When filing the declaration, the person who wants to change their gender entry and name will be asked to sign a form to certify that the chosen gender entry best matches their gender identity and that they are aware of the consequences of the change.

Minors or, if applicable, their legal guardians must also confirm that they have received counseling on the subject at the time of filing the declaration (see below).

Can You Make Further Changes?

Yes, you can make additional changes, even multiple times, as long as a year has passed since the last change (§ 5 SBGG). If this is the case, you will need to file another declaration.

This waiting period does not apply to children, adolescents, and adults with no legal capacity (Geschäftsunfähigkeit) and a legal guardian authorized to withhold consent. These groups of people can file a new declaration at any time.

If someone requests to change their gender entry back to a previous one, their first name will also automatically revert to the one they had at that time. This rule was created to prevent people from avoiding the Name Change Act.

What Happens when You Change Your Gender Entry and First Name?

Once you’ve changed your gender entry and first name, only the new information will be legally binding (if the gender entry is relevant at all; see § 6 SBGG).

Old records will remain in the official registers. Changes will only be added as an updated entry. However, only the most recent entry will appear, for example, in a copy of the birth register. This means that there is no general right to have old records deleted.

There are not many areas where gender entry is relevant. In healthcare, for example, physical factors are more important, and hormone levels can play a bigger role in the assessment of athletic performance. The SBGG contains exceptions for a few other areas, like military service, parenthood and quota regulations (see below). 

The SBGG clarifies that regulations that previously applied to both women and men and that provided the same legal consequences for both binary genders now also apply to everyone, regardless of their gender entry (§ 12 of the SBGG).  

New Documents:

Once the changes have been made, you can request an updated extract from the birth register at the registry office (Standesamt) where the birth was originally entered.

This office will automatically send the changes to the local registration office (Meldebehörde) at your place of residence. You can then apply for a new ID card/passport.

If you have a “diverse” or blank gender entry, an X will be listed under “Sex” in your passport.

If this is your case, but you need to travel to a country that requires a passport with a binary gender entry for safety reasons, you can apply to have “male” or “female” entered in your passport at the relevant authority at your place of residence. However, this is only possible if you can provide a medical certificate proving that you have a “variation of sex development”.

Some people may no longer be able to prove this because they don’t have a report of their previous medical history. Or, even if they can, only by means of an unacceptable medical examination. In these cases, you can also provide a sworn declaration affirming the existence of a “variation of sex characteristics” (§4 (1) of the Passport Act).

When applying for a binary gender entry in the passport, the chosen gender must be the one previously listed in your birth register. And if there never was a binary gender entry, this can only be chosen once.

Some official registries (for example, the land registry or Grundbuchamt) may not automatically update changes made with SBGG. In these cases, you can ask them to do so.

You can also ask public or private organizations to change the first name and gender entry on other documents (§ 10 SBGG) if you have a legitimate interest. It is assumed that this is the case if the documents need to be reissued to match the gender entry or first name in your official ID.

Among other documents, you can ask for a new driver’s license, job references, school reports, employment contracts, health insurance cards, ownership certificates, and bank cards.

To request the new documents, you need to contact the organization that issued the original ones and present them. The organization will then keep the old documents. If you no longer have them, you will have to submit a sworn statement explaining that the documents can’t be found.

There is a fee for each new official document issued with changes, and you may also be charged a reasonable price for any changes made by private organizations.

What Happens to People who Have Already Made Changes under TSG or PStG?

SBGG’s rules about the effects and consequences of changing the gender entry also apply to people who had already changed it before this law came into effect using the TSG or section 45b of PStG.

Requirements for Minors

Different rules apply for minors depending on their age (§3 of SBGG).

Minors aged 14 or over must personally file the declaration to change their gender entry and first name at the registry office. They also need their legal guardian’s consent.

If their legal guardian refuses to give their consent, the registry office will involve the family court. This court will grant consent if the change is not contrary to the minor’s best interests.

The same applies if both parents with custody cannot agree on whether to give their consent or not. The family court can, upon request, transfer custody to one parent for the purpose of filing the declaration. This, again, should not be contrary to the minor’s best.

By signing the declaration form, minors must also confirm that they have previously received appropriate counseling.

The counseling can be provided by anyone professionally qualified to do so. These are (§ 3 para. 1 SBGG):

– People who have completed a professional training program in psychology, child and adolescent psychotherapy, or psychiatry.

– Public or independent child and youth welfare organizations.

Children under the age of 14 or minors without legal capacity (Geschäftsunfähigkeit) must be represented by their legal guardians when filing the declaration at the registry office.

If a child has a legal guardian, the family court must give permission for the declaration to be filed, as long as it does not contradict the child’s best interests.

To make sure that changes aren’t made without their consent, children aged 5 or over must be present at the registry office and consent to the changes to their gender entry and first name at the time of filing the declaration.

Parents or guardians of children under the age of 14 or minors without legal capacity must also sign a form confirming that they have received appropriate counseling before filing the declaration (see above).

Requirements for Adults with Legal Guardians (§3, Paragraph 3, SBGG):

Adults who have legal capacity (geschäftsfähig) are subject to the same regulations as any other adult. This applies even if they have a legal guardian appointed for certain matters, such as housing, administrative matters, health, etc.

However, in the case of adults with no legal capacity (geschäftsunfähig) and a legal guardian authorized to withhold consent (whether for all matters or regarding changes to their gender entry), only the legal guardian can file the declaration at the registry office. The declaration must reflect the wishes and will of the person under guardianship and must be previously approved by the guardianship court.

Requirements for People Without German Citizenship

The right to change your gender entry and first name under German law depends on your residence status and place of residence (§1 (3) SBGG).

According to Article 7a (1) of EGBGB, gender entries are generally determined by the national law of a person’s home country.

However, as described in §1 (3) of the SBGG, people without German citizenship may also change their gender entry and first name by choosing German law for the changes, in accordance with Article 7a (2) of the EGBGB. To do this, they must have one of the following:

1. a permanent residence permit,

2. a renewable residence permit and be legally resident in Germany, or

3. an EU Blue Card

Choosing German Law:

Only people with regular residence in Germany have the right to choose German law. “Regular residence” is generally seen as staying long-term in a place where a person has their main social contacts (especially family and work).

Short-term stays or temporary residence, such as visits or tourism, are not enough.

To choose German law, it is necessary to file a declaration at the registry office according to Art. 7a (2) EGBGB (§ 45b. (3) PStG).

Residence Permit:

+ EU citizens: EU citizens have a permanent right of residence (freedom of movement) in Germany. As long as this freedom of movement is not legally withdrawn, they can carry out the SBGG procedure.

+ EU Blue Card holders: Holders of the EU Blue Card (academic professionals) are also eligible for the SBGG procedure.

+ Permanent Residence Permit Holders: People with a permanent residence permit (Niederlassungserlaubnis or an EU long-term residence permit) can also follow the SBGG procedure.

+ Temporary but Renewable Residence Permits: People with a temporary but renewable residence permit (such as work permits or permits for family reunion) also have the right to go through the SBGG procedure if they are legally living in Germany.

+ Asylum Holders and Refugees: People who have been entitled asylum, recognized refugees under the Geneva Convention, individuals granted subsidiary protection, and those with a ban usually receive a temporary but renewable residence permit. Therefore, they can also benefit from the Self-Determination Act.

– Asylum Seekers with Open Applications: Asylum seekers with pending applications (Aufenthaltsgestattung) only have a temporary residence status, and not a formal residence permit. This means that they can only go through the SBGG process once their asylum application has been accepted and they receive a residence permit.

– Exceptional Leave to Remain (Duldung) and “People without Papers”: People with an exceptional leave to remain or without any permit do not qualify for the SBGG procedure.

+/- Stateless and People with Unclear Nationality: Stateless individuals and people whose nationality is unclear can only benefit from the SBGG if they meet the conditions describe above (habitual residence in Germany and a residence status according to Section 1 (3) SBGG).

Special Rule for Residence Permit Expiration or Revocation: If a person without German citizenship meets the requirements to file a declaration under the SBGG, but their residence permit is at risk of expiring or being revoked, the following rule applies:

If the declaration is filed within a period of two months before an event that may result in the expiration or revocation of the residence permit, the previous gender entry and first name remain (Section 2 (4) SBGG).

Some examples of events that may result in the expiration or revocation of the residence permit and the legal obligation to leave the country are, among others:

• The residence permit expires and cannot be extended.
• The residence permit is revoked by the immigration office because its requirements are no longer met (for example, the marriage to a German person has ended or the refugee status has been legally withdrawn).
• The immigration authority issues an expulsion order (for example, due to criminal offenses) and it becomes legally effective.
• The individual leaves the country and does not return within six months (or a longer period determined by the immigration authority).

What to do if the Registry Office Rejects the Changes?

If the registry office (Standesamt) has doubts about accepting the requested changes, it may refer the case to the district court. This could happen, for example, if it questions whether the chosen first name is appropriate for a given gender entry. During this process, the person applying for the changes must be involved and invited to participate in the court.

In cases where the registry office sees clear and objective evidence of misuse of the law, it can reject the application without involving the district court. In this case, the affected person has the right to file a claim at the district court (§ 49 PStG). The court will then review the case and, if appropriate, instruct the registry office to accept the requested changes.

The Military Gender Exception

The Self-Determination Act rules that, in the context of military tension or state of defense involving military service, people with a “male” gender entry will retain their “military gender” even if they file a declaration under SBGG. The change, however, will be effective and legally binding in all other areas of their lives.

Specifically, this means that changes that are made in the context of a state of military tension or defense (or two months before its declaration) are not effective regarding compulsory military service – and only regarding this (§ 9 of SBGG).

Once the Bundestag lifts the state of war or tension, the gender entry change will also become legally effective for matters related to military service. As a result, affected people will no longer be assigned the “male military gender” in another possible state of tension and defense.

For Parents

The Self-Determination Act only partially connects the parent-child relationship to the gender entry (§ 11 SBGG).

The “mother” is defined as the person who gives birth to a child, regardless of their gender entry.

The “father” is the person who fertilized the egg and whose paternity was legally recognized, regardless of their gender entry.

A person listed as “male” in the gender entry at the time of the child’s birth may be legally recognized as the “father” if they are married to the “mother” or fi they acknowledge their paternity with the “mother’s” consent.

People with a “diverse” or blank gender entry are currently excluded from these legal methods of being recognized as the “father.” In this case, the only option (at least until the law is reformed) is to adopt the child as a stepchild.

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[1] §18 of the PStG (German Civil Status Act)

[2] § 21 of the PStG (German Civil Status Act)

[3] § 22 para. 3 of the PStG (German Civil Status Act)

[4] § 47 of the PStG (German Civil Status Act)

[5] § 45b of the PStG (German Civil Status Act)

[6] § 49 of the PStG (German Civil Status Act)

[7] § 49 of the PStG (German Civil Status Act)

[8] § 42 of the PStV (Personal Status Act)

Most people generally don’t look forward to visiting the doctor. Inter* people and parents of intersex children or young people can find these visits particularly difficult and overwhelming due to their special nature. They can even turn out to be unpleasant and upsetting.

Some visits to the doctor can involve discussing physical variation, whilst other appointments may concern other health matters. However, regardless of the type of visit, it can often lead to unpleasant or unexpected situations.

We would like to give you a few tips to help make these types of situations easier to handle. You can decide for yourself which tips would be most useful to you:

Be prepared

• Write down questions
  It doesn’t matter what sort of doctor’s appointment you will be attending, it is useful to write down a few questions beforehand that you definitely want to be answered. You can find out from support groups and online forums which kinds of questions could be important for your appointment and what type of examination you might need to expect.
• Prepare answers
  It can also be useful to prepare answers to specific questions the doctor might ask, especially before you attend routine appointments or appointments with your general practitioner. This is because, depending on which gender is specified on your or your child’s medical record, certain assumptions are made which may not necessarily need to apply to your body or your child’s body. Pre-formulated answers to specific questions can help you to feel less anxious in these situations and to retain control over the conversation. It can be useful to find out about other people’s experiences and to ask for their advice about your concerns.

Emotional support

• Take a trusted person with youa
  Emotional support is important. For example, it can be very helpful to have a trusted person by your side who will help you to feel safe and secure. It is also important to remember that two heads are often better than one. The two of you together are more likely to remember everything the doctor has said.
• Sensory distraction
  Sensory distraction can help to reduce anxiety because it diverts your attention away from your fears and even rising panic towards something else that is more pleasant. There are a few techniques you could try, such as listening to a playlist of your favourite songs whilst you are in the waiting room or watching some videos on the internet. You could also try using a hand cream which smells particularly nice or aromatherapy oil. Taking sips of cold water can also help.
  Mindfulness exercises can also help to reduce feelings of panic that may be starting to increase.
• Taking care of yourself after the appointment
  After you have experienced a stressful and perhaps unpleasant visit to the doctor, it can be good idea to spoil yourself a little or to try to connect with people from your support network. Perhaps you could treat yourself to a delicious ice cream, maybe read a book and/or have a chat with your friends.

Your doctor’s appointment

• Ensure you are able to ask questions
  If you are feeling unsure, find out what you need to expect from your appointment at the doctor’s surgery or at the hospital. Also feel free to ask why the procedure is taking place and what will happen throughout the process. You should also ask what the findings mean to ensure that everything is happening for a good reason in order to better understand your own body or the body of your child.
• Ask for specialist terms to be explained
  If the meaning of specialist terms is not clear, then ask for them to be explained. You have the right to not only hear what the doctor is saying but also to understand it. This also applies to all treatments or therapeutic measures, particularly if the procedure is expected to be invasive (e.g. through surgery).
• Take copies of your patient documents
  Whenever you visit your doctor to discuss intersex matters, it is particularly important to ask for copies of any patient documents. This ensures you will always have the facts to hand if you change doctor or need to check any details.

Even if you are being well cared for by medical staff, it can often be the case that you are the best expert when it comes to your or your child’s experience of being intersex. It can be frustrating if you in fact know more about intersex than the doctor. However, this could give you the opportunity to share your knowledge. For example, it might be useful to take one of your pamphlets or to recommend this website to enable the doctor to acquire more knowledge. It can also be helpful to discuss matters with other experts, for example, those that offer advice in support groups.

Doctors can sometimes be intimidating. If you want to find out more about your rights, please take a look here.

It is also still the case that doctors will recommend operations on the genitals which are not necessary for health reasons. These types of operations on young children are now recognised by the UN as human rights violations. If you would like to find out further details about this, please click here.

The most important thing when visiting your doctor is that you should feel you are being well looked after and supported. The doctors are there to help you or your child to feel better!