Whether a court decided to order a revision of gender status and first names or not was closely related to the judges’ respective assessments of potential disrup-tions to the public order, customs and institutionalised heterosexuality. Here, too, legal reasoning differed substantially.
marries a person of the male sex as long as the applicant is able to »perform sexually as a man« (ibid: 84 f.).
65 | It is hard to say whether the Federal Constitutional Court felt encouraged by political developments. However, the Court was aware of the provisions in the Bill on the establishment of gender status in specific cases in its version of 31 Aug. 1978 (cf. Federal Constitutional Court 1979: 11) and the agreement between the Federal State and the Länder allowing transsexual individuals to use a gender-neutral name in addition to their respective birth names (cf. ibid).
66 | On 14 Mar. 1979, the Federal Court of Justice finally ruled that s. 47 PStG was to be applied by entering a note in the margin of the registry of births stating the gender status (BGH 1979: 1287).
Different assessments of the effects on the public order are mirrored in the debate on the purpose of the Civil Status Act. In the case of a post-operative transwoman, the Regional Court Münster started out from the premise that human communities and the public order required clear statements on a per-son’s civil status, which the Court understood as conclusive statements on fam-ily law relationships to other living persons. The Court argued that this was not the case, if an individual’s outer appearance, the shape of her external genitalia and the position in society that derives from the former contradicted the gender stated in civil status certificates (LG Münster 1964: 250; cf. Sieß 1996: 61).
However, the Federal Administrative Court disagreed with such an in-terpretation. In the case of a transvestite who wished to supplement his first names by the name ›Maria‹, the Court cited the Federal Court of Justice deci-sion on 15 Apr. 1959. The latter reasoned that it contradicted the right order fixed by morality and tradition, if naming did not observe generally accepted »natu-ral« limitations (cf. BVerwG 1969: 858). The Court argued that it was only due to the individual’s first names that a person’s gender could be inferred from in the registries of marriage, family and death, since the Civil Status Act provided for an entry of a child’s gender in the registry of births only (ibid).67
Courts were also divided over the implications of the revision of a married individual’s first name and gender status. Defenders of marriage as an exclu-sively heterosexual living arrangement assumed a same-sex marriage would pose a threat to the traditional and constitutionally protected concept of mar-riage as a union of a man and a woman.
In its decision on a marriage between two (presumably) female individuals of which one identified as a man and the other as a woman, the Chamber Court defined marriage as a union between a man and a woman. However, the Court determined a person’s gender status based on the physical constitution, regard-less of the individual’s identity. Hence, the Court declared the union between the (presumably) female man and female woman that the registrar had initially entered as a marriage a »non-marriage« (KG 1958: 61).
By contrast, in the case of two married partners of which one had post-operatively been legally recognised as a woman, the Hanseatic High Regional Court Hamburg decided that there was no valid reason for the State not to protect a life partnership of individuals, who had once entered marriage as a man and a woman and whose partnership had become a same-sex partnership as an effect of one partner’s transition. The Court argued that such exceptional
67 | The Federal Administrative Court ruled out that the applicant add ›Maria‹ to his first names. It reasoned that while the additional name ›Maria‹ may be added to male chil-dren’s first names for religious purposes, the conditions for such an exception were not given in the applicant’s case. The applicant was a Protestant and simply desired the first name ›Maria‹ in order to live as a woman (BVerwG 1969: 858).
cases did not threaten the image of marriage as a union between a woman and a man. Moreover, constitutional rights guaranteed in Art. 2(1) in conjunction with Art. 1(1) GG were paramount to potential disruptions of the public order, and irritations and complications that might arise for authorities (Hanseati-sches OLG Hamburg 1980: 245; cf. Sieß 1996: 77).68
Whether courts decided to change a person’s first name and gender status in the birth entry also depended on the emphasis the respective court placed on individual rights in relation to the social order of the time. In its decision on 08 Dec. 1965, the High Regional Court Frankfurt e. g. opposed the notion that a post-operative transwoman’s sex had changed. It argued that social and economic developments take into consideration biological dispositions. There-fore, the determination of a person’s gender needs to observe »natural« facts, which outweigh a person’s attitude (OLG Frankfurt 1966: 408). According to the Court’s opinion, individualised concepts of gender posed a threat to the legal and social order:
If one wanted to render the personal attitude decisive, an individual would be able to influence our moral and legal order as long as the differentiation of human beings into those of a female and a male sex dominates our existence in many ways and cannot at all be thought of as missing in people’s imagination and behaviour towards each other. One only needs to e. g. think of the family as the cell of our social order and social system and of the criminal law provisions, which presuppose the qualification of an of-fender as a man or woman. (Ibid)
As Klöppel suggests, according to the High Regional Court Frankfurt, the free-dom of the individual was subject to conditions:
It is only under the condition that the individual subordinates itself under the existing social order with its premises that it may develop itself freely, i. e., it has to accept the social demand for an unambiguous gender classifiability of all individuals as either male or female as well as the assumption of a natural-fateful gender. (Klöppel 2010: 579) The Federal Constitutional Court, however, took a different stance on the is-sue of the social and legal order. Unlike the High Regional Court Frankfurt, the Federal Constitutional Court defined a person’s gender identity and the ability to live up to the conventions of the experienced gender as one of »the most intimate areas of the personality to which the state has is in principle no access. It is a sphere which may only be intervened into in the case of particular
68 | The Transsexual Act that was to come into force on 01. Jan. 1981 however ruled in s. 8(1)2 TSG that a marriage had to be dissolved before the trans person’s gender would be recognised.
public interests.« (BVerfG 1979: 12)69 To the Federal Constitutional Court, then, it was constitutive of the social and legal order that an individual’s dignity be protected and that a person has the right to develop him- or herself freely.