Germany Navigates Uncharted Legal Waters of Gender and Parenthood

A transgender woman in Berlin saved some of her sperm, prior to having gender reassignment surgery, in order to have a baby with her female partner. They intended both women to be listed as the child’s mother. Germany’s highest court, however, refused to allow the transgender woman to register as the legal mother of the child, who was born in 2015. Although trans people have rights according to their presented gender and sex, the legal rights in connection to their offspring leave much to be desired. On what grounds, we might ask, is this different from rulings of parentage in same-sex marriages? Was the decision made based on the success of parenting? If so, is a transgender woman less fit to be a mother than a cisgender female or lesbian?

A similar situation with a same-sex couple (both cisgender women) was decided in April 2016 by the German Federal Court of Justice. The couple was wed in South Africa in 2008, with a child born via artificial insemination in 2010. Although the biological mother held South African citizenship, the co-mother held German and South African citizenship. They wished to register the child’s birth in the German civil registry, but to no avail. South African laws of parenthood allowed the couple to be co-parents by way of marriage, but it was not recognized by the German registry.

At that time, civil unions were the only legal form of partnership for same-sex couples in Germany. They could only adopt their partner’s biological child. It wasn’t until October 2017 that same-sex couples in Germany were granted the right to marry, as well as the right to adopt non-biological children as a couple.

Although the child was born abroad in South Africa, the German nationality law says that the child citizenship is determined in a few ways—by the law of the land in which the child was born, the law of land of the parent’s nationality, or the law that governs the parents’ marriage. All three instances point back to South African law, where same-sex co-parenting is legal. With this provision, the German court decided that they too must recognize them as co-parents under law.

The marriage of the co-parents, however, was still unrecognized. They would only be considered a “registered life partnership” in Germany although they had greater rights in South Africa. Once again, this meant that the wife of the biological mother might not be considered a legal parent of the child. Luckily, the wife’s status as a parent was the result of a legal provision regarding the child’s descent rather than the stipulations of a registered life partnership. While they may not have been considered legally married in Germany, they were still legal co-parents under this provision. The court also noted that the child’s best interest comes first, and there was no difference in the well-being of children who grew up in a committed registered life partnership (same-sex union) versus an opposite-sex marriage.

Another request regarding the legal parenthood of a trans person was denied in September 2017. Oscar Muller, a transgender man who transitioned in 2011, conceived a child in 2013 through artificial insemination. The German registry refused to list him as the father on his child’s birth certificate and, instead, listed him as the mother along with his assigned birth name.

Many might agree with this ruling, saying it’s in the child’s best interest to grow up with a parent whose gender identity and biological sex align. These are the kinds of parent-child relationships that people are used to seeing, so any deviation from that is seen as a threat to the child’s stability. This same criticism was used against same-sex couples with children, but studies refuted the idea that children were less stable in these cases—even when parents reported being stressed. Same-sex couples are just as fit to be parents as opposite-sex couples. Can we say the same for trans parents? Perhaps this is the wrong question to ask, as their gender identity has no effect on their ability to be a successful parent.

In November 2017, Germany’s court ruled in favor of the introduction of a third gender for those who do not subscribe to the binary categories of male and female. This decision was made on the grounds that previous law was discriminatory towards intersex, trans, and gender-fluid individuals. However, this ruling would not immediately absolve Muller of the hurdles he encountered. Transsexuellengesetz (TSG), Germany’s gender identity law introduced in 1981, does not cover trans issues regarding parent-child relationships. Even though the child was conceived after Muller’s transition, the law is such that the transition never happened. According to Steve Taylor, representative of the International Lesbian, Gay, Bisexual, Trans, and Intersex Association, TSG did not consider the possibility of trans people conceiving children and thus the law ignores this aspect.

While it’s a victory to transition to one’s innately-determined gender and to be legally recognized as such, it’s becoming more and more evident that gender identity and expression is fluid, and a non-gendered title should reflect that under law. Germany’s ruling in favor of a third gender gives hope to an estimated 100,000 trans people living in the country—those who conceive children but who aren’t legally recognized by their preferred title, those who want to adopt children but can’t due to marriage law restrictions, and even those soon to be born into this world who will be made to fit into one box or the other. These small victories can help those who are transsexual, intersex, transgender and other non-binary identities to gain the same basic rights as their cis-born and same-sex counterparts. Moreover, it also helps to provide personhood, privacy, and protection of non-binary people and their families.