Law amending the information to be entered in the birth register

Basic data
Title:	Law amending the information to be entered in the birth register
Type:	Federal law
Scope:	Federal Republic of Germany
Issued on the basis of:	Art. 74 para. 1 no. 2 GG
Legal matter:	Civil status law
Issued on:	December 18, 2018 ; ( Federal Law Gazette I p. 2635 )
Entry into force on:	22nd December 2018
GESTA :	B029
Weblink:	Text of the law
	Please note the note on the applicable legal version.

The law to change the information to be entered in the birth register is a German article law , which in particular changed the Personal Status Act (PStG).

With effect from December 22, 2018, § 45b PStG new version was inserted. The regulation regulates the declaration of gender and first names for people with variants of gender development. If a child can neither be assigned to the female nor the male sex, the civil status case can also be entered in the birth register without such an indication or with the indication " diverse " in accordance with Section 22 (3) PStG new version .

This was preceded by a decision by the Federal Constitutional Court of October 10, 2017, which asked the legislature to allow a positive gender entry other than female or male by December 31, 2018 .

In the media, this option was dubbed the “third option” or “ third gender ”.

Legal position since 2013

The sex of a child is also recorded in the birth register ( Section 21 (1) No. 3 PStG).

Since November 1, 2013, it has been possible to enter the civil status case in the birth register for children who could not be assigned to either the female or male gender without such information (Section 22 (3) PStG in the before December 22, 2018 valid version).

According to the highest court rulings, the Civil Status Act in this version did not allow an entry such as “inter” or “diverse” as a further indication of gender in the birth register. Intersex people , for whom the parents had registered a specific gender, could have the gender indication deleted and thus achieve the status of an undetermined gender.

In response to the constitutional complaint directed against this , the Federal Constitutional Court ruled on October 10, 2017 that this legal situation is incompatible with the general right of personality and with the gender-related prohibition of discrimination under Article 3, Paragraph 3, Clause 1 of the Basic Law, insofar as it is an obligation to state the Gender justified and people whose gender development shows variations compared to a female or male gender development and who permanently assign themselves neither male nor female gender, do not allow a positive gender entry that is not “female” or “male”. Article 3, Paragraph 3, Sentence 1 of the Basic Law also protects people who cannot be permanently assigned to either the male or the female gender from being discriminated against because of their gender.

New regulation by the law to change the information to be entered in the birth register

Legislative process

In the legislative process, it was explicitly discussed whether the new regulation should be extended to people who have a female or male constitution, but feel that they belong to another or neither of these genders, but who ultimately rejected this.

The prerequisites for adapting the first name to the perceived gender affiliation ("small solution") or changing the gender entry in the birth register (changing the gender assignment under civil status law - "large solution") in the case of transsexuality are still regulated in the Transsexual Act despite multiple criticism .

Information to be entered in the birth register

In § 22 para. 3 PStG is the custodial parents given the opportunity, "woman" of a newborn addition to the information in the certification of birth and "male" or "registration of civil status, if no such indication" the name "divers" to choose if an assignment to one of the two sexes is not possible.

In cases in which the further gender development does not lead to an allocation to one of the two genders or in which the allocation was incorrect after the birth, the affected persons themselves are given the opportunity to have the allocation in the birth entry changed by declaring to the registry office and - if this is desired - to choose new first names ( Section 45b (1) PStG).

It is possible to choose between the information "female", "male" and the designation "diverse" and deleting the information on gender.

For a child who is incompetent or not yet 14 years old, only his or her legal representative can make the declaration. From the age of 14, a child can make the declaration himself, but requires the consent of his or her legal representative. In view of the highly personal nature of the decision on gender identity and thus also of the gender information contained in the civil status register, the child should in principle be called upon to make a decision on this issue from the age of 14. In view of the scope of the declaration, however, the legislature considers it necessary that the legal representative accompanies and supports the child in his decision-making in the exercise of parental responsibility and gives his consent to the child's decision. If the legal representative does not agree, the family court will replace the consent if the change in gender or first name does not contradict the best interests of the child . The procedure before the family court is a child- related matter according to the law on the procedure in family matters and in matters of voluntary jurisdiction (FamFG), § 45b Abs. 2 PStG.

If the consent of the legal representative is missing, the registry office must inform the family court ( Section 168a FamFG). The notification is considered a suggestion of the procedure before the family court within the meaning of § 24 FamFG.

Declarations according to § 45b Abs. 1 PStG can be submitted several times and an entry made once can be revised.

If there is no German civil status entry, people with variants of gender development can explain to the registry office which of the designations provided for in § 22 Paragraph 3 PStG is relevant for them or waive the specification of a gender designation if they

Germans within the meaning of the Basic Law are
as stateless or homeless foreigners have their habitual residence in Germany,
as persons entitled to asylum or as foreign refugees are domiciled in Germany or
as foreigners whose home law does not have any comparable regulation,
- have an unlimited right of residence ,
- have an extendable residence permit and are legally residing permanently in Germany or
- have an EU Blue Card .

Variant of gender development

term

According to the reasons for the law and the wording of the law, the scope of application of § 45b PStG extends to people with “variants of gender development.” According to current medical terminology, which is based on the classification proposed at the 2005 consensus conference in Chicago, it includes diagnoses in which the Sex chromosomes, genitals, or gonads are incongruent.

The Federal Constitutional Court understands this to mean "innate variations in the genetic, hormonal, gonadal and genital predispositions of a person, with the result that the gender of a person no longer clearly corresponds to the biological categories of 'male' or 'female'." In the medical and psycho-social categories In the sciences, there is also broad consensus that gender cannot be determined or even established based on genetic-anatomical-chromosomal characteristics, but is also determined by social and psychological factors. A variant of the gender development therefore not only requires that the physical gender development has a variant of a female or male, but also that the person does not permanently assign himself or herself to either the male or the female gender with regard to their psycho-social gender identity.

In jurisprudence and literature, the question is controversial whether a deviating subjective gender perception alone can justify a variant of gender development within the meaning of § 45 b PStG. The Federal Court of Justice has so far denied this. The provision does not apply to persons who are clearly physically female or clearly male.

proof

A variant of gender development has to be proven to the registry office by submitting a medical certificate, exceptionally by means of an affirmation in lieu of an oath ( Section 45b (3) PStG).

Application practice and desiderata

In the period from December 22, 2018 to March 31, 2019, a total of 385 declarations pursuant to Section 45b PStG were submitted, most of them in North Rhine-Westphalia.

A circular from the Federal Ministry of the Interior to the Interior Ministries and Senate Administrations for the Interior of the Länder on April 10, 2019 made it clear that the new regulation in Section 22 (3) PStG and Section 45b PStG only covers intersex people, but not transsexuals for whom the Procedure according to the transsexual law applies because they have a clear biological gender that just does not match the perceived gender.

After references to cases in which transsexuals claim the regulation created solely for intersex people, the registrar is obliged to check the medical certificate of a variant of gender development under the following aspects:

The certificate may only be issued by those who have a medical license . These are primarily the relevant specialists. Psychologists without an additional medical license, however, cannot issue the medical certificate.
If there are legitimate doubts about the correctness of the medical certificate, e.g. B. because the person concerned is pursuing a procedure under the Transsexual Act in parallel, the matter must be further clarified. For this purpose, the medical certificate can be specified in more detail to the effect that a variant of the gender development is confirmed according to the definition internationally established in the consensus conference in Chicago 2005. If the doubts cannot be dispelled, the rejection of the notarization should be considered.
If there is also a suspicion that an incorrect medical certificate has been issued in accordance with Section 278 of the Criminal Code, number 70 PStG-VwV must be observed and the matter reported to the public prosecutor.

The circular met with criticism from interest groups and politicians.

A legal opinion commissioned by the Federal Ministry of Family Affairs on December 2nd came to the conclusion that restricting § 45b PStG to intersex people was neither medically nor legally justified. Also, transgender and non-binary gender identity are covered by the term "variants of sex development". In particular, attesting a “variant of gender development” in the case of transgender and non ‐ binary gender identity is not a criminal offense.

A comprehensive reform of the civil status law, which creates a uniform procedure for everyone who does not identify with the original gender entry, is controversial in legal policy.

Individual evidence

↑ BVerfG, decision of October 10, 2017 - 1 BvR 2019/16

^ Draft of a law to change the information to be entered in the birth register BT-Drs. 19/4669 of October 1, 2018.

↑ cf. Law to change personal regulations (Personal Status Law Amendment Act - PStRÄndG) of 7 May 2013 ( Federal Law Gazette I p. 1122 ).

↑ § 22 PStG old version (old version) in the version valid before December 22, 2018 buzer.de, accessed on August 14, 2020.

↑ BGH, decision of June 22, 2016 - XII ZB 52/15

↑ cf. Recommendation for a resolution and report by the Committee on Home Affairs and Home Affairs (4th Committee) on the draft law to change the information to be entered in the birth register. BT-Drs. 19/6467 of December 12, 2018, p. 10 f.

^ BR plenary prot. 971 p. 376; BT plenary prot. 19/71 pp. 8330, 8334 ff.

^ LSVD: Statement on the draft law. October 23, 2018, accessed October 10, 2019 .

^ German Institute for Human Rights: Statement. July 2018, accessed October 10, 2019 .

↑ Deutscher Juristinnenbund eV - Opinion 18-11 / on the draft bill of the Federal Ministry of the Interior, for Building and Home Affairs: Draft of a law to change the information to be entered in the birth register (as of June 5, 2018). Retrieved October 10, 2019 .

^ Anne Spiegel: Plenary speech at the 971st meeting on October 19, 2018. Item 28: Draft of a law to amend the birth register. Retrieved October 10, 2019 .

^ Draft of a law to change the information to be entered in the birth register BT-Drs. 19/4669 of October 1, 2018, p. 12.

↑ BT-Drs. 19/4669 of October 1, 2018, p. 7; Lee PA, Houk CP, Ahmed SF, Hughes IA: Consensus Statement on Management of Intersex Disorders. International Consensus Conference of Intersex. Pediatrics 2006; 118: E488-E500.

↑ BVerfG, decision of October 10, 2017, para. 9.

↑ BVerfG, decision of October 10, 2017, para. 35.

↑ Anna Katharina Mangold, Maya Markwald, Cara Röhner: Legal opinion on the understanding of "variants of gender development" in § 45b Personal Status Act December 2, 2019, p. 6.

↑ BGH, decision of April 22, 2020 - XII ZB 383/19 para. 15 ff.

↑ BGH, decision of June 10, 2020 - XII ZB 451/19

↑ Transgender people are not people with variants of gender development Rechtslupe.de, July 30, 2020.

↑ Queer.de: BGH: No change in gender entry for “perceived intersexuality”. Retrieved on August 12, 2020 (German).

^ German Society for Transidentity and Intersexuality eV: Shocking decision at the Federal Court of Justice - gender is not a feeling. Retrieved August 12, 2020 .

↑ Written questions with the answers received from the Federal Government BT-Drs in the week of January 6, 2020 . 19/16423 of January 9, 2020, p. 13 f.