Rentsch, Bettina

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Deregulating Legal Gender in theShadow of Social AscriptionBettina Rentsch 2023-11-22T13:22:18On 23 August 2023, the German government published a bill on Gender Self-Determination (hereinafter also referred to as SBGG-E). The bill is currently underdebate before the German parliament (Bundestag) and is subject to heated socio-political debate. Its primary objective consists of deregulating the conditions foraltering 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 appearself-explanatory, others are infused by what I will hereinafter refer to as the ‘logic ofsocial ascription’.A Shift in the Paradigm of Gender RecognitionIn principle, any fully legally capable person who considers their legal gender doesnot meet their self-assessed gender identity may declare before the registry officethat their civil status be changed (Section 2 (1)) by simply affirming that the newlegal gender (or its absence) „best corresponds to their gender identity“ (Section2 (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 haveto undertake family court proceedings. Nor will a party have to substantiate their wishto change their gender identity by any other act than an autonomous declaration. Inconsequence, a change in legal gender is considered to exclusively depend on self-identification (‘election‘) instead of a third-party assessment (‘ascription‘). Section 1SBGG-E clarifies that this means to improve the social recognition of self-identifiedgender and „ensure it receives respect and respectful treatment“. Yet, as will beshown, the spirit of ascriptive gender recognition models lurks in the shadows of thebill.I will exemplify this by pointing at the requirement to change a given name uponchanging the legal gender. This demand was not part of the recognition model of thedraft bill on Gender Self-Determination, published in May 2023. It may be preciselyfor this reason that the relevance of the name change requirement has remainedmarginal in the heated public and parliamentary debate on the legislative project.Yet, the requirement is neither in line with its declared objective nor attributable torespectable administrative practice demands or an ‘inherent logic’ of civil status law.- 1 -From an Ascriptive to an Elective GenderRecognition ModelIn the desire to meet fundamental and human rights demands to legal gender andfoster gender recognition beyond that, the German legislator faced two optionsfor Law Reform: To abolish gender as an element of civil status or to adhereto gender as a category in civil status law and liberalise the conditions for itschange or abolition. It has opted for the latter. Legal gender will still be assignedat birth (section 21 para. 1 no. 3 German Civil Status Act, Personenstandsgesetz),predominantly by biological criteria. However, the procedures governing subsequentchanges 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 bySection 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 awhole. If an individual chooses this option, „gender-neutral regulations“ – regulationsthat equally refer to men and women and set out identical legal consequences forboth – 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 unlessstipulated otherwise by the SBGG-E or other statutes.Boundaries and Conditions to Gender Self-DeterminationAs was mentioned, gender self-determination under the bill is neither unconditionalnor limitless. Next to a limited scope, a valid declaration on legal gender meetsrestrictions in its effect vis-à-vis public authorities and third parties and is conditionalupon personal and substantial requirements.In scope, a choice of law provision on legal gender resorts to nationality todetermine the law applicable. In addition, a residence permit is required for making adeclaration of legal gender.As to its effect, a declaration on gender shall remain irrelevant for military dutiesin the event of tension or defence (Article 80a German Basic Law), and animmediately preceding waiver of male gender. Besides that, (self-determined)legal gender takes no effect in private legal relationships. Section 6 SBGG-Eexemplifies this by the ‘autonomy of landowners‘ (Hausrecht) and associations(Satzungsautonomie). While both – and other – frontiers are inherent in civilstatus, so does the scheme of protection under the German Equal Treatment Act(Allgemeines Gleichbehandlungsgesetz) limit both autonomies by its own right. Bymentioning the former while keeping quiet on the latter, the bill shows visible wearand tear marks from a heated socio-political discussion on safe spaces and abusivealterations of gender in sports competitions.- 2 -Although this aspect and the underlying patriarchal narratives certainly qualify foracademic discussion, I will not further elaborate on them in this piece. Nor will Iprovide further detail on other aspects of the bill that have received attention in publicand parliamentary debate – e.g., the personal conditions for minors who wish tochange or dispense with their legal gender, as established by Section 3 SBGG-E.Instead, I would like to draw attention to another hidden substantial conditionfor 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 thatGerman Civil Status Law is centred around the principle of name continuity: Thefirst or given name must not be altered after birth unless mandated by compellingreasons.Gender-Suitable First Names and the Logic ofAscriptionAs pointed out, applicants must change their first name according to their self-identified legal gender. The chosen name must “correspond” to the self-identifiedgender. In this regard, the explanatory memorandum to the draft bill stipulates that“According to Section 2 (3), first names must be chosen in correspondencewith the chosen gender entry. If the previous first names alreadycorrespond with the chosen legal gender entry, these names aredesignated as the new first names. For example, a person who has hada „diverse“ legal gender since birth and who then declares to change thelegal gender entry to „female“ may now designate their previous first name„Anna“ as their new first name, as this corresponds to the chosen genderentry „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 tothe 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 itscomments on the bill. Just as the explanatory memorandum to the bill, it appears tosuppose a need to adapt their name according to the legal gender.Taking account of the regulatory context, this is surprising. Under German PrivateLaw, the first name forms the object of rights and obligations. In the former sense, itdetermines a person’s self-image and thus warrants fundamental rights protection. Inthe latter sense, the first name helps to unambiguously identify a person – hence theprinciple of ‘name continuity’.Besides that, the legislator confines the need to adapt the first name according tothe 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 legalgender does not apply if the former is already gender-neutral or corresponds tothe declared legal gender for other reasons. This indicates that a change of the- 3 -given name does by no means confer a symbolic meaning to the close connectionbetween name and gender for an individual’s self-image.Rather, the legislator seems to attribute a mandatory signalling function to the firstname. The name suggests the gender by which a person wants to be “read” insociety: 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 themselvesa gender-neutral name refrain from self-identifying with an established gender.Indeed, there are few more effective ‘publifiers’ (Publizitätsträger) for gender than anindividual’s first name. However, a self-understood duty to signal one‘s self-identifiedgender to third parties is at odds with the core elements of an elective model forgender recognition, as adopted by the bill: To „detach gender assignment from theassessment of third persons“. As mentioned earlier, the bill, in principle, introduces anon-ascriptive model of gender recognition. Why then force individuals to choose ameans of identification to allow for that?Inherent Explanations – Logic of Civil Status LawWith the objective of the bill in mind, conferring the name a signalling function forself-identified gender calls for justification. Further, bearing in mind that the bill‘sexplicit aim is to improve social respect for self-identified gender‚ aspects bearingan ascriptive logic, such as community expectations, social gender models etc., arehardly 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 systemssuggest a name change upon a change in legal gender.First and foremost, a congruence of first names and legal gender, as seeminglysupposed by the bill, is neither mandated by German federal law nor byconstitutional law. On the contrary, an administrative principle making gender-conforming first names mandatory was struck down by German FederalConstitutional 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 (AllgemeinesPersönlichkeitsrecht) by their right to be relevant to making an identity(ibid., para.13). As a result, making gender and name dependent on one another requiresindividuals 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): Uponentry in the register of births (Section 21 para. 1 no. 4 Civil Status Act), a first namemust 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 northe Federal Chamber (Bundesrat) seem to even consider the name change a pointworthy of discussion lends a deep insight into the mindset of Germany‘s legislative- 4 -organs as regards gender recognition. Aside from an admirable commitmentto deregulating legal gender, a decisive part of the operative provisions of thebill remains infused by the logic of social ascription. While fully deregulating theconditions for a change in legal gender, gender itself remains an object of third-partyrecognition if subject to socially accepted ‘publifiers’. An earlier version of this opinion piece was presented to the Feminist LegalJurisprudence and Private Law Discussion Groups at the University of Oxford on 9November 2023. I am grateful to all participants for their comments and advice andto Vanessa Grifo for comments on this version.- 5 -

Deregulating Legal Gender in the Shadow of Social Ascription

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Deregulating Legal Gender in the Shadow of Social Ascription

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