‘The Legitimate Aim of Harmonising Body and Soul’ Changing Legal Gender: Family Life and Human Rights

Summary

INTRODUCTION

In 1977, the European Commission on Human Rights (ECieHR) issued a decision on the admissibility of an application by X against Germany. X argued that Germany had violated Articles 5(1) and 6(1) of the European Convention on Human Rights (ECHR) by denying her request to change her first name into a female name, and to change her legal sex as indicated on her birth certificate from male to female. The latter was denied because Germany at the time had no legislation that provided for the possibility to change one's legal sex. The former was denied because ‘Christian’ (i.e. first) names had to correspond to the sex entered in the birth register, which in X's case was male. After having been found admissible by the ECieHR, the case ended two years later with a friendly settlement. In anticipation of the adoption of a new law that would regulate the issue of legal sex changes for transsexuals, X was granted a female first name and the entry in her birth certificate was changed to female, with effect from the day of entry. X must have heaved a deep sigh of relief. By then she was 54 years old and had already been presenting herself as female for nine years.

Since then, much has changed, but more has so far remained the same. This chapter starts with a brief discussion of gender identity as a human rights issue (section 2). Although national registration systems do differ to some extent, the practice of (binary) sex registration is virtually universal. In section 3, current national and international developments in this area are discussed. The focus will be on the possibilities of changing one's legal sex as such, and on two of the most common conditions for doing so: marital status and physical adaptations, including the increasingly controversial ‘sterilisation requirement’ and its consequences for parental status.