Germany, Constitutional Court, 1BvL 10/05, 27 May 2008
Divorce requirement in gender recognition is incompatible with the Basic Law
The petitioner, a transgender woman born in 1929 and who had been married since 1952, complained about not being able to achieve legal gender recognition unless she got a divorce from her wife. The Court recalled that the right to sexual self-determination, including with respect to the identification and recognition of gender identity, was protected under Art. 2§1 (right to protection of personhood) in conjunction with Art. 1§1 (human dignity) of the German Basic Act. Nonetheless, Art. 8§1 of the Transsexuals Act forced trans people to choose between seeking a divorce in order to secure legal gender recognition on the one hand, and preserving their marriage, at the price of living with a gender identity they did not identify with, notwithstanding the fact that they may have already undertaken genital surgery. This forced choice amounted to an interference with the petitioner’s constitutional rights and had to be subjected to strict scrutiny.
The Court noted that the forced divorce requirement pursued the legitimate goal of safeguarding traditional marriage as a different-sex relationship, protected under Art. 6§1 (“special protection of marriage”) of the Basic Act. In this respect, the Court remarked that the relationship involving a trans person who adopted the appearance of their self-determined gender identity and who changed their first name accordingly – an option that was available in Germany without having to divorce – already created the impression of a same-sex marriage. Furthermore, the recognition of the gender identity of a married trans spouse would not necessarily open up marriage to same-sex partners. At the same time, Art. 6 of the Basic Act also protected the petitioner’s marriage from state encroachment, which she did not waive by effect of her decision to transition to another gender identity. The Court also highlighted the difficult situation of the cisgender partner, similarly faced with the hard choice between holding on to the marriage and thus preventing the legal gender recognition of their spouse, or agreeing to a divorce, leading to an unwanted separation and a loss of the legal safeguards associated with marriage.
Art. 8§1 of the Transsexual Act created a “deep inner conflict,” as married trans people were “forced to give up something crucial” regardless of the choice made. The burden placed on trans people was unacceptably heavy, particularly as under German law in force at the time it was very difficult to obtain a divorce. Thus, spouses had to demonstrate the intention to separate permanently. In turn, this would force married trans people seeking a divorce to make false statements before courts by feigning their intention to separate from their spouse. Another option was for the spouses to live separately for a period of at least three years, which was presumed to indicate an irreversibly failed marriage. However, the Court held that it was unreasonable to expect couples who wanted to be together to live apart for such a long period of time.
Summing up, the Court emphasized that it had to weigh up the interest of the state in protecting traditional marriage, against the interest of the petitioner and of her wife in the preservation of their marriage. In that respect, the divorce requirement provided for in Art. 8§1 of the Transsexuals Act drove the petitioner’s relationship in an ”existential crisis,” undermining its characteristic as “unchanged and irrevocably binding.” In contrast, traditional marriage would be affected only tangentially, considering the small number of trans people who were already married when applying for legal gender recognition, and whose marriage survived this event. The Court therefore held that the prohibition inscribed in Art. 8§1 of the Transsexuals Act represented an unreasonable interference with the rights included in Art. 2§1 in conjunction with Art. 1§1, as well as with Art. 6§1 of the Basic Act.