By Valeria Liedtke

Law is a significant part of how we learn to live and act as citizens in society. Since the Civil Rights Movement, rights mobilization has played an important role in fights for human rights and social justice. Legal constructs shape our very capacities to imagine social or political possibilities. But we need to be concerned about the double-edged character of law. On the one hand, it can enable marginalized groups of people to fight for human rights and against systematic oppression, as we can see in many social movements. On the other hand, it defines categories and upholds the larger infrastructure of the status quo by maintaining those who are in power: „The master’s tools will never dismantle the master’s house.” (Lorde 1984)

Still, we must use the transformative power of law to scope for broader changes. Addressing structural issues and dismantling motives behind acts of violence in the judiciary helps to make a discursive shift when we are not heard by politicians. Especially if we approach international courts like the European Court for Human Rights, we can change legal regulations as we have already experienced in our fights against the discrimination of LGBTQIA+ people in Georgia in the past fifteen years. These possibilities of collective mobilization and strategic litigation help us to shape society’s frameworks but still depend on the complex and often changing dynamics in which struggles occur.

We can recognize this paradoxical matter of law when we have a look at the “Law for Transsexuals” in Germany from 1980, which determines the process of legal recognition for trans people. It is based on a binary understanding of gender and pathologizes the existence of trans people, as we can read from the motive for this law. It was implemented to identify, treat and regulate the existence of trans people through the following requirements: ‘expert report’ from two ‘authorized specialists’ (which costs more than 1500 euros and includes intimidating questionnaires and practices), not married, sterilized, and top surgery enforcement. The process for gender recognition before the law contains two steps. After being diagnosed by a psychotherapist, you can apply for the ‘expert report’ to change your first name, which already takes years and costs a lot of money for those approvals. Secondly, you need to get top surgery and be sterilized if you want to get the final legal gender recognition.

This procedure is an attack against the human right of dignity, the right to free development of personality, and the right to physical integrity. Since 2005 there have been several legal proceedings against this law. By addressing those human rights violations, unconstitutional practices, and violations of the equality law, the discriminating understanding of a binary gender system and the pathologizing motives were dismantled and put to the court. In 2011 the German constitutional court declared the enforcement of the second step for top surgeries unconstitutional because of one’s right to integrity. Another important year in this fight was 2017 when the constitutional court found that only those categories of gender identity as ‘male’ and ‘female’ are against the law of equality for gender identities. This led to the reform of a third choice for gender recognition as “divers” for everyone who identifies as trans or inter. Non-binary people are not even on the marital status and, therefore, not on the agenda of this law. This step-by-step reformation of the “Law for Transsexuals” according to the process of legal gender recognition for trans people did not touch any structures of systematic oppression. Trans people, activists, organizations, and some politicians have been fighting for the right to self-determination for many years. On the 19th of May 2021, two days after the International Day against Homophobia and Transphobia, the government rejected several draft laws for a new self-determination law proposed by the opposition in the German parliament. After the election at the end of 2021 and after one more year of work, the new government announced the replacement of the “Law for Transsexuals” with the “Law of self-determination.”

The Law is still not implemented yet, but it will contain the following aspects: The process of changing surname and legal gender recognition can be done at the registry office within a simple procedure without any somatic or surgery requirements. This applies to any gender identity, therefore, also to non-binary people. After one trial year, the process for gender recognition is legally done. This new process of legal gender recognition is an important step to giving back the agency to people to define themselves. But self-determination is not the only issue of people with not cis-gender identities. This solution doesn’t touch structural and materialistic oppression, such as (better access) to healthcare, etc., like this person from the community claims.

As we can learn from the reformation and replacement process of the “Law for Transsexuals” in Germany, legislation can empower people to claim their rights. Still, it will also always be embedded in hegemonic structures. We always need to ask ourselves: Will it be accessible? What does it change daily? Who is profiting from it? And not being satisfied with little concessions in our fights against systemic oppression.