By Katrin Niedenthal (lawyer, Bielefeld)
The term Personenstand (civil status) is used in Germany. This encompasses all pieces of information relating to births, marriages (civil partnerships) and deaths, and any information connected with family status and names. A number of registers are used to record a person’s civil status, e.g. birth registers, marriage registers and death registers.
The German Federal Constitutional Court passed a resolution on 10/10/2017 which determined that entering the gender of a person into a register establishes and expresses this person’s identity. This means that the recognition of the gender identity of intersex people in terms of their civil status is protected under the German Basic Constitutional Law.
When registering their child’s birth at the registry office within one week of their child’s birth, the parents must provide different types of information and specify the gender of their child. This information is entered into the register of births. The registry office then issues the birth certificate.
If either the male or female gender cannot be assigned to the child, this section of the form can be left blank or it is possible to enter the word “diverse” instead.
Unfortunately, a lot of people still do not know that it is possible to leave this section blank or use the term “diverse”. Parents often feel under pressure after the birth to enter the gender of their child as either “male” or “female” and/or to allow gender reassignment operations to be carried out on their intersex child.
Operations which are not required for medical reasons and are carried out without consent are recognised as human rights violations. An outright ban of these types of procedures is currently under discussion in Germany. You can find out more about this here.
Changing the gender entered on the records
It is possible to change the gender that has been entered into a civil register retrospectively.
In accordance with § 45b of the PStG (German Civil Status Act), it is necessary to inform the registry office that corresponds with the place of the child’s birth which assignation you would like to be recorded for the future (“diverse”, “male”, “female”, or left blank). It is also possible to register a new first name or the previous name that was registered can be amended. It is permissible to register a gender-neutral name. People who enter the word “diverse” or who do not enter a specific gender are also permitted to register a first name which can be associated with both the male or female genders.
If only the first name is going to be changed, it is necessary to discuss the matter with the appropriate registry office. If required, an application must be made in accordance with the Change of Name Law (NamÄndG).
It is necessary for the legal guardians of children under the age of 14 years to request a change to the gender and first name recorded in the register. Young people older than 14 years must make this request themselves, however, they also require permission from their legal guardians (parents in most cases) while they are still underage. If the child’s legal guardians do not agree to this request, approval can be granted by a family court if changing the information relating to the child’s gender and first name on the register does not put the child’s welfare at risk. The young person does not have to apply to the family court in person. In accordance with § 168a para. 1 FamFG, the registry office is required to inform the family court. You can find out more about the rights of minors here.
To comply with § 45b of the PStG (German Civil Status Act), the declaration must be certified by a notary, which can be carried out by any registry office or by a notary. If the declaration is certified by a notary or by the registry office that corresponds with the person’s place of residence, it must be forwarded to the registry office that corresponds with the person’s place of birth. This office is responsible for changing the register of birth.
Further information relating to the registry office that must be communicated with if the person in question was not born in Germany is stated in § 45b para. 4 of the PStG (German Civil Status Act).
Official registry offices also require that a medical certificate is presented which states that there is “a variation of sex characteristics.” A simple certificate is sufficient and it is not necessary to specify a diagnosis. A statement from a doctor formulated along the following lines is adequate: “I hereby confirm that the individual concerned has variations of sex characteristics.” If the medical records also include a relevant diagnosis, this can also be submitted so that it is not necessary to visit the doctor to obtain a certificate. However, as it is usually the case that registry office staff do not have the necessary specialist knowledge at their disposal and will not be able to determine whether the medical documents confirm “a variation of sex characteristics”, we recommended that you obtain a specific certificate that confirms “a variation of sex characteristics”.
You can also affirm the existence of “a variation of sex characteristics” by submitting a declaration on oath. However, this is only provided for if it is no longer possible to affirm the existence of a “variation of sex characteristics” as a result of hospital treatment or if it can only be affirmed through a type of investigation that the individual finds intolerable, and it is not possible to submit a medical certificate as a result of medical treatment that has already been given.
If these conditions are met (certified statement and presentation of a medical certificate or affirmation in lieu of an oath), the registry office will change the civil status record. It is also possible to apply for a new birth certificate to be issued. You can then insist that other agencies (e.g. employers, schools, universities) change the entries against your gender and, if necessary, your first name in their records. If you want your first name to be amended in addition to your gender, you should also ask the registry office to confirm that you have changed your first name as this will enable you to prove your personal identity.
If the registry office refuses your application to change your gender (e.g. because the staff there believe that the requirements have not been met), it is possible to lodge an appeal with the county court which governs the registry office that holds your birth records. The court is able to instruct the registry office to change your civil status record.
If the staff at the registry office are not sure which details need to be entered into the records, it is also possible to ask the county court to help clarify what is classified as a “Zweifelsvorlage” (a submission requiring clarification).
Unresolved questions and regulatory requirements
The ability to enter “diverse” or leave this section blank when recording your gender is relatively new. This means that registry offices are sometimes uncertain or don’t have enough experience in terms of what this means on a practical level for people who have entered this type of information on their personal identity documents.
For example, there can be differing opinions concerning when a “variation of sex characteristics” is applied. Some members of staff only want to accept this in the case of specific diagnoses. Others only accept the entry if the person in question does not identify as either “male” or “female”.
In addition, now that it is possible to leave this section of the record blank or to enter “diverse”, there are further legal requirements that need to be considered.
For example, the
provisions of the law of parentage as stated in the BGB (German Civil Code) have
not been amended to conform to the new legal position. According to the BGB
(German Civil Code), for example, a person who gives birth to a child is still
described as a “mother” even if this person is not “female”. If this or other
regulatory loopholes arise on a practical or legal level, it is necessary to
seek the help of an advisory service or a specialist lawyer.