Germany: constitutional court legally recognises “lesbian” partnership of a man who thinks he’s a woman

If there were a world wide competition for the silliest legal decision, the German Constitutional Court (Bundesverfassungsgericht, BVG) would have the best chances of winning it this year.

In a decision that was hailed as a “landmark judgment” by some, the BVG found that it was “discriminatory” for a transsexual man to be required by law to undergo surgery and have his outward appearance changed into that of a woman as a pre-condition for entering into a formally recognised (lesbian?) civil partnership with a woman he had fallen in love with.

Here is a link to the full text of the judgment. But unfortunately, it is in German, so I’d better give you a short summary of this truly fascinating case.

For those of my readers who are not very familiar with the vocabulary describing unusual and/or aberrant “sexual identities”, I should begin with a short glossary, explaining the difference between “transgender” and “intersex” persons. By the term “intersex” we describe persons whose biological sex cannot be determined. This anomality is often a source of great suffering for the persons concerned. By the term “transgender”, by contrast, we describe persons whose self-identification as men or women stands in contradiction to their clearly identifiable biological sex: they are men behaving as, and desiring to be identified as, women, and vice versa.

Until recently, a man believing or desiring to be a woman would have been considered to be a man, albeit one with some kind of grave psychic or mental disorder. Today, however, a man believing or desiring to be a woman is considered …. a woman! In other words, what nowadays determines a person’s identification as a man or woman is not his outward appearance, but his self-identification. The fact that a person has the physical appearance, including the sexual organs, of a man counts for nothing if he wants, or believes (it never becomes quite clear which of the two…), to be a woman.

In Germany, the law currently foresees two different options for transgender persons. The so-called “small solution” is that they can replace their male with a female first name (or vice versa) – but apart from this they will still be considered as belonging to their original (i.e. biological) sex. Alternatively, they can request the “great solution”: they are legally recognised as belonging to the opposite sex (i.e. opposite to that sex to which he or she originally belonged due to his/her physical features) provided that he/she is (1) infertile and (2) undergoes surgery to adapt his/her outward appearance to match that of his/her new sex. Such surgery, to be sure, does not turn a man into a woman or a woman into a man; it just destroys the sexual faculty of the body. The aim is just to ensure that the fictitious assignment of femininity to a man is not undermined by his begetting a child in a natural way. This is also why the issue is of interest to the anti-family lobbies that want to de-construct the institutions of marriage and family.

Indeed, the decision at hand opens the door wide for such a de-construction of family and marriage, even if that is not desired by the mainstream of German society. For the BVG has now decided that the “great solution” is unconstitutional: the state must not, according to this judgment, request a man to have his male genitalia (and his capability of begetting children) removed prior to marrying another man or entering a legally recognised “registered partnership” (by which term the German legal order means same-sex partnerships) with a woman. That means that henceforth it will be possible for a man to change his sex simply by declaring he considers himself a woman, and then beget children with another woman. What is impossible in reality thus becomes possible through an arbitrary whim of Germany’s supreme judges: a “woman” can father a child, and a “man” can give birth…

Not that I believe that many people will try to follow the example set by the applicant in the present case: generally, there are not many persons that are unhappy about their sex and want it changed. But nevertheless, the decision sets an extremely dangerous precedent in that it cuts all links between the “legal” situation and the surrounding reality. A man is legally recognised as a “woman” not because he is one, but because he wants, or believes, to be one: not the verifiable facts are decisive, but an irrational desire or an erroneous belief.

One is left to wonder what would happen if the same approach was used in similar cases: if a man sincerely believed to be Napoleon, would that turn him into the emperor of the French? If he desperately wants to be Bill Gates, does that turn him into the chairman and largest shareholder of Microsoft? Or do we still need to remain in keeping with outward reality in some cases, whereas in other cases we prefer to treat our wishes and contrafactual beliefs as if they were facts?

And what about the man who, as was once suggested by G.K. Chesterton, believes to be a poached egg???

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