Vom Verbot zur Gleichberechtigung - Hirschfeld-Eddy-Stiftung

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7. The opening of the TSG for foreign transsexuals
The options provided by the TSG were only available for Germans (in the sense of Art.
116 of the Basic Law) as well as to people who had been granted political asylum, because
lawmakers were afraid of transsexual tourism. (The other two possible groups –
foreigners who were stateless or without a homeland but held residency permits in Germany
– were irrelevant in actual practice.)
The BVerfG also declared this limitation to be unconstitutional in a decision handed
down on July 18, 2006 (Ref. No. 1 BvL 1/04 and 12/04). According to this decision, the
options provided by the TSG must also be available to foreigners who live in Germany
more than just temporarily, and in whose native countries there is no comparable law.
The options available under this procedure are also something that we owe to the
LPartG. Without it, the plaintiff, a post-operative man-to-woman-transsexual from
Thailand, would not have been able to receive a residency permit to stay in Germany.
Since Thailand does not legally recognise sex changes, and because the law determining
the eligibility for marriage in Germany cites the gender, as officially registered in the subject’s
native country, as a determining factor, she was not able (due to being officially
registered as male) to marry her German partner. She was, however, able to enter into a
life partnership with her partner and therefore receive a residency permit, which then
gave her the opportunity to file a suit for the recognition of her status as a female in
Germany (with success, decision handed down by the District Court in Munich on November
6, 2007, Ref. No. 722 UR III 208/07).
8. A divorce cannot be a prerequisite for the registration of the new gender
After lawmakers did nothing in relation to the provisions of Section 7, paragraph 1, no. 3
TSG (in this conjunction, see No. 6), and there also seems to be no intention to do so (according
to a representative of the Federal Ministry of Justice during an expert discussion
on “Transsexual Law” in Berlin), the BVerfG went a step further and made it possible for
two people who were of the same sex, according to the official registry (in this case female),
to marry.
Section 8, paragraph 1, no. 2 TSG required married transsexuals to divorce before their
new gender could be legally recognised. This divorce requirement was deemed unconstitutional
(decision by the BVerfG on May 27, 2008, Ref. No. 1 BvL 10/05). Lawmakers were
then provided with a number of options for adopting a constitutional solution. One possibility
was to transform the marriage into a registered partnership in the same moment