The abovementioned submissions marked clear interventions into the political realm. In the letter accompanying the 1974 medico-legal statement on trans-sexuality mentioned above, the authors urged the Federal Minister of Justice to
16 | The DGfS has a history of interventions into law and politics through public statements, reports and expert witnesses. Issues were e. g. the decriminalisation of male homosexuality (see, e. g., Giese 1958: 134-139; Sigusch et al.: 1980: 36; Sigusch et al.:
1981: 9; Pro Familia et al. 1989: 4), the decriminalisation of abortion (see, e. g., Dannecker et al. 1987: 28 f.; Hauch et al. 1993: 335-338) and issues pertaining to transsexuality and the law (see, e. g., Sigusch/Gindorf/Kentler 1979: 36; Becker et al. 2001: 258-268).
For more public declarations and submissions, see DGfS undated a.
17 | The GFSS was founded in 1971 by Rolf Gindorf. It is the oldest non-medical sexologi-cal association in Germany. Its aim is to supplement traditional medisexologi-cal, biologisexologi-cal and psychoanalytical approaches to human sexualities with social science perspectives, tak-ing into account sociological, psychological, ethnological, pedagogical, legal and histori-cal aspects. While acknowledging a biologihistori-cal substratum of sexuality, the GFSS argues that the variability of human sexualities cannot be explained without taking into consid-eration social norms that shape them (DGSS 2014). Unlike the DGfS, the GFSS mainly focused on issues pertaining to homosexualities and bisexualities in the decade prior to trans legislation (DGSS 2014a). In 1982, the GFSS became part of the German Society for Social Scientific Sexuality Research (Deutsche Gesellschaft für Sozialwissenschaftliche Sexualforschung; DGSS) (ibid 2014a).
draft legislation appropriately, quickly and comprehensively. They furthermore suggested treating the statement as a proposal and impetus (Sigusch 1991: 228).
Sigusch stated later on that framing transsexual individuals as »a minority disadvantaged by fate whose basic rights are withheld by the legal order« played an essential role in the politico-legal struggle that led to the Transsexual Act (ibid). The DGfS finally presented itself as spokesperson for the »transsexual minority consisting of one to three thousand individuals« (ibid).
As early as in the 1960s, sexologists had begun to publish their findings in law journals and to claim an expert position on transsexualism.18 In 1967, e. g., the gynaecologist Nevinny-Stickel and the legal scholar Hammerstein col-laboratively published the article »Medizinisch-rechtliche Aspekte der menschli-chen Transsexualität« (Medico-legal aspects of human transsexuality) in the law journal NJW.
In the article, the authors commented on the latest jurisdiction of their time in higher court cases dealing with the legal recognition of post-operative trans-women. They contrasted the courts’ rulings with state of the art medical knowl-edge on transsexuality, in particular male-to-female transsexuality. Moreover, the authors demanded of courts to take into consideration medical expertise in their decisions.
In both court cases, a post-operative transwoman pleaded to have the en-try specifying an infant’s sex/gender in the birth register altered from ›boy‹
to ›girl‹.19 In the mid-sixties, the Chamber Court (Kammergericht [KG]) Ber-lin20 and the High Regional Court Frankfurt ruled that surgical and hormonal measures removing male genitalia, forming a neovagina and inducing chest growth in a person who was at the time of birth unambiguously male did not render a person a female. Hence, the revision of the entry in the birth register does not apply as it would in the case of »ambiguous« genitalia at the time of birth (KG 1965: 1084; OLG Frankfurt 1966: 407).
The courts reasoned that an individual is assigned to a gender based on a person’s morphology at the time of birth. The external sex characteristics are of particular relevance to the determination of gender (ibid). Moreover, the
18 | However, this was not a unilateral process. As we will see in the following subchapter, legal scholars and courts turned to medicine for reliable information on trans issues. The same applies to policy-makers as will become evident in the course of the legislative process.
19 | In the Federal Republic of Germany, s. 47[1] PStG provides for a revision of the entry in the birth register in cases in which a person was assigned to a gender that based on morphological facts proves to be wrong later on. Judges applied this particular section to intersex individuals. Since there was otherwise no legal provision to revise a person’s gender status, some trans people attempted to be recognised as intersex individuals.
20 | The Chamber Court is the (translated) name of the high regional court in Berlin.
judges argued that a person’s psychic gender affiliation was legally irrelevant compared to an individual’s morphology (KG 1965: 1084; OLG Frankfurt 1966:
408). Finally, they reasoned that a transition from male to female was not pos-sible, since a neovagina was not a »real« and »permanent« structure. Rather, it was »artificial« and simply resembled female genitalia (ibid). Furthermore, the court in Frankfurt blamed the transwoman for the adverse social consequences following sex reassignment surgery:
The applicant’s lack of recognition as a woman and the possibly resulting psychologi-cal distress as well as difficulties in his [sic!] social and professional life cannot be accounted for, since considerations of equity have no influence on this decision. He [sic!] should have been aware of the far-reaching consequences of his [sic!] voluntary decision before undergoing the operation. (OLG Frankfurt 1966: 409)
Nevinny-Stickel and Hammerstein criticised the courts’ reasoning. They claimed that the courts did not sufficiently take into consideration fundamental medical principles and that they failed to interpret medical facts appropriately (Nevinny-Stickel/Hammerstein 1967: 664). The authors argued that based on the premise that bisexuality is a ubiquitous principle in humans and that a per-son’s gender depends on a multitude of determinants, the psyche in humans is at least as significant with regard to a person’s gender as are morphologi-cal facts. Therefore, the human psyche cannot be derived from morphologimorphologi-cal facts alone (ibid).
Nevinny-Stickel and Hammerstein extended their concept of intersexual-ity to encompass the ›incongruence‹ of the psyche and bodily facts (ibid: 665).
Moreover, they believed to have observed a genetically induced feminisation in mtf transsexual individuals from puberty onward. This observation prompted them to classify male-to-female transsexuality as a form of intersexuality (ibid).
With regard to male-to-female transsexuality, which they called ›male transsexuality‹, they argued that sex reassignment surgery was the only justifi-able medical response, since psychotherapeutic and androgenising hormonal treatment had failed so far. The authors also refuted the notion that a neovagina differs substantially from a vagina with regard to its appearance, functionality and permanence (ibid).
In the light of these medical facts, they insisted that medical experts were responsible for determining a person’s gender and that the courts should there-fore base their decisions on medical expertise:
In this not so small circle of people with a discrepancy between the various determi-nants of gender, the assignment to a gender should occur according to the prevailing male or female predisposition while acknowledging all physical and psychic features. It is up to the medical expert to state this based on medical results and biological
princi-ples, and the courts should base their decisions on the expert recommendations. (Ibid:
666)