We have written a law. That’s cool, right? But what distinguishes our counter-proposal of a Self-Determination Act from the one voted on by the government in the Bundestag?
For a law that is intended to contribute to the self-determination of trans*, inter*, non-binary and agender people, we have developed two basic concepts that shape our work: “Gender autonomy” and “Gender coercion”.
Gender autonomy means: the ability to express one’s own gender or lack of gender in a self-determined manner. Gender coercion describes contexts in which this ability is curtailed.
The principle for a Self-Determination Act that expands gender self-determination as much as possible within the current legal framework should be to minimize gender coercion as much as possible and to respect the gender autonomy of all people. Gender coercion occurs when a gender identity is imposed on a person against their stated will. A person’s gender autonomy is respected if it is recognized that their gender orientation can only be determined and stated by them.
In order to underpin gender autonomy in our draft law with the greatest possible legal protection, we rely on Article 2, Paragraph 1 of the Basic Law (right to unrestricted development of personality, right to physical integrity and health) in conjunction with Article 1, Paragraph 1 of the Basic Law (protection of human dignity).
A similar fundamental protection of gender autonomy was also provided for in the Green Party’s draft of 2020. In contrast, the law currently being discussed by the traffic light coalition (a coalition government of the Social Democratic Party of Germany (SPD), the Free Democratic Party (FDP) and The Green Party) has been watered down and in many respects is merely a formal regulation of the relationship between citizens and the state.
A Self-Determination Act that really deserves the name should not only regulate the formal relationship between trans*, inter* and non-binary people and the state. Good laws are not minority laws that are written for a specific group, but rather laws that apply equally to everyone. This is a lesson from German history, in which the Nuremberg “race laws”, for example, showed the impact that group-based minority laws can have.
Our draft law therefore says: EVERYONE has the right to exercise their gender autonomy. This includes not only nominal gender identity (change of name and gender registration as an administrative act), but also substantive gender identity. Material gender autonomy means that people are given the support they need to express their gender in a self-determined way. For us to really be able to determine our own gender identities, we need more than just the ability to formally change our gender entries and first names. We must actually be able to develop our gender identities.
The means of developing one’s own gender identity as a fundamental part of one’s personality also includes, for example, access to gender-affirming measures. Our Self-Determination Act 2.0 therefore also stipulates the legal right to these measures as an important cornerstone of material gender autonomy. We have also taken this from the Green Party’s draft from 2020. Even if the details of the regular health insurance benefits are regulated in the Social Security Code on the basis of changing medical standards of care, the right to these services can and should be protected by a Self-Determination Act. The federal government’s draft does not contain any regulation of health services.
“The right to physical self-determination for TIN* – apparently not foreign policy-oriented enough for the feminist image of the Green Party – had to give way to realpolitik considerations about the bargaining chips of the Self-Determination Act.” (Mine Pleasure Bouvar, Missy Magazine, 01/2024)
This regulation would also reduce barriers to necessary treatments for inter*sex people and increase the political pressure to act on the overdue reform of the Social Security Code in the current difficult care situation for trans* and non-binary people.
Protecting gender autonomy for future generations is just as much a part of a Self-Determination Act as enabling the unrestricted development of personality for those who have suffered years of injustice. People who have been harmed by inter*hostile medical practices, TSG-prescribed forced sterilizations or forced assessments must be compensated in order to give them back their self-determination. There is nothing in the government coalition’s draft about compensation payments, despite statements about financial savings through eliminating bureaucracy. In contrast, we have used concrete figures to calculate possible compensation in our Self-Determination Act 2.0.
“The costs for aftercare due to non-essential interventions, the material and psychological damage at the hands of doctors, the missed jobs and rejections on housing applications because the name on the ID didn’t match, travel costs to the TSG experts, trauma due to […] invasive assessment interviews, […] Being trans costs money, nerves, our own health, our own desire to have children, our own ability to have a fulfilling sexuality, and, for some of us, even our lives… And the state that is doing this to us wants to save money in the name of our self-determination.” (Mine Pleasure Bouvar, speech from November 12, 2023)
In direct comparison, it is clear that the law of the traffic light coalition is not aimed at the actual self-determination of trans*, inter*, non-binary and agender people. Gender autonomy is explicitly restricted in many places in the government’s draft law – through housing rules, compulsory military service, restrictions on disabled people and the paternalism of children and young people…
The government’s self-determination law is a law of exceptions that is not intended to protect marginalized people, but rather to satisfy the resentments and concerns of uninformed endo cis people. A law like this leaves a lot of potential that can be exploited politically and becomes a legal tool that, above all, enables gender coercion.
“The cabinet’s draft differentiates in detail where and how TIN* people are allowed to live out their gender identity – in the administration, in the army, in the sauna in the women’s parking lot, in the judicial system. These separations are measures to strengthen gender coercion and should therefore be rejected in their entirety.” (Juliana Franke, speech from November 12th, 2023)