Fines for misgendering? What is really in the Self-Determination Act
The Self-Determination Act has been passed and populists are once again seeing the downfall of the West. However, the debates miss the point by a mile and get lost in primitive mudslinging full of clichés. What is it really about?
By Bent-Erik Scholz
By Bent-Erik Scholz
Let's start with the obvious: transsexuality exists. Of course, this concerns a very small part of the population, but a democracy is also characterized by the fact that it does not leave even the smallest marginalized groups behind. Society is made up of marginalized groups, and even if majorities rule, this should not be confused with a dictatorship of the majority over the minority. Another example: There are "only" very few people who have suffered serious long-term harm from side effects of the corona vaccination, and yet no one would claim that their suffering is not worth mentioning because of their small number. Transsexuality is accompanied by a feeling of dysphoria - the feeling of not being at home in one's own body, of rejecting one's biological gender, of not being able to identify with it.
Until now, the concerns of people who wanted to change their gender status were regulated by the Transsexuals Act (TSG). Anyone who previously wanted to be classified as "male" on their ID card and no longer as "female" had to undergo a lengthy procedure and have two psychological assessments carried out at their own expense, in which, for example, masturbation behavior was asked, in order to have a chance to have a court order. Those affected described this process in parts as humiliation, and even the Federal Constitutional Court viewed the conditions for this special change in personal status as a violation of fundamental rights. For this reason alone, a new regulation was inevitable.
What changes now with the new self-determination law? Anyone who would like to change their gender entry and first name no longer has to go through a legal procedure from November 1st, but can register the changes at the registry office three months in advance and submit a "self-assurance declaration" in which they explain that the chosen person Entry best fits your own identity and you are aware of the weight of your decision. Basically like a civil wedding, for which you don't have to submit a psychological report. In the case of minors, the consent of the legal guardians is required. After changing the gender entry, there is a blocking period of one year before a further change can be applied for.
There is certainly well-founded criticism to be expressed here, especially when it comes to the question of dealing with minors - parental permission or not, isn't this perhaps a decision that one should only make when they are of legal age, or is that " "It's not so crazy" if it's just about an entry at the registry office that can be changed in case of doubt? How problematic could parental influence be on the child's decision? There would be excellent material for discussion everywhere, important questions that we have to ask ourselves - what is gender, what is "sex" and "gender" apart from purely biological factors, because gender differences have been charged with civilization for centuries, regardless of chromosomes or sexual organs. This charge can change again and again, let us consider, for example, that the high heel was originally invented as footwear for men and that pink was considered a masculine color until the last century. So what is a trend and what is a genuine development that we can understand over the decades? All of these would be important and exciting debates in light of the new law. Instead, affect reacts, and it is usually loud and poorly informed.
Let's take a look at the most popular arguments of the vehement opponents of this law. So now it is said that "perverted men" could exploit the new law to gain access to women's safe spaces. For example, they might go to a women's locker room at the gym to harass the women there and then argue that they felt like a woman. Of course, it is extremely sensible and laudable to be concerned about the well-being of women. However, even before the right to self-determination, it was possible for a man to break into a women's locker room. The last time I was at the gym, there was no ID check requiring visitors to prove their gender. I also think it's unlikely that, now that the new law is in place, said "perverted men" will suddenly feel like going through bureaucratic hassle to commit a crime instead of just committing it outright, as before.
Surprisingly, the criticism of this law almost never refers to those who are actually affected by it: the men who, in the dystopian stories of the opponents of this law, want to gain access to women's spaces in an abusive way are not transsexual, but According to these stories, they are just pretending. But even if we assume that a man with the intention to abuse would have his gender changed in order to go into a women's locker room, according to Section 6 Paragraph 2, the gym would still have the right, just as before, to throw this man out: "With regard to access to facilities and rooms as well as participation in events, the freedom of contract and the house rules of the respective owner or owner as well as the right of legal entities to regulate their affairs through statutes remain unaffected." Ergo: According to house rules, people can also be kicked out regardless of gender entry whoever misbehaves.
Okay, so if a perverted man who molested others in the women's locker room is charged and has to go to prison, can he just be transferred to the women's prison? "The accommodation of prisoners does not have to be based solely on their gender; the SBGG therefore does not require that people always be accommodated in an appropriate institution in accordance with their gender registration. Rather, the Basic Law and the institution's duty of care require that the security interests and personal rights of all prisoners be taken into account when accommodating them in prison." (cf. BT printed matter 20/9049, p. 44)
A major point of criticism of the law lies in the claim that anyone who intentionally or negligently uses the gender information or old name of a trans person can be fined. Not least Maximilian Krah loudly claimed this several times. This claim has often been repeated without reflection. However, a look at the actual law tells a different story: this is about the ban on disclosure, regulated in Section 13, which is largely based on Section 5 of the Transsexuals Act. Ergo: Nothing has changed at this level.
What the disclosure ban provides for is not negligent misgendering, but rather the research and disclosure of previous gender identities with which the person concerned does not agree. If it is known that a person has changed their gender or first name, the ban on disclosure does not apply: you cannot reveal something that everyone already knows. And by the way: Anyone who repeatedly uses a person's so-called "deadname" and thereby expresses contempt and disrespect for the person was already committing a criminal offense before the law was passed last week. Then as now, that was considered harassment.
Above all, the ban on disclosure explicitly states that a fine is only due if people are harmed by the unwanted disclosure of the stored identity: "The offense presupposes that as a result of the disclosure, damage to the material or non-material interests of the person concerned actually occurred is. In addition to financial losses, non-material damages are also recorded, for example in the event of public exposure of the protected person ("character assassination")." (see BT printed matter 20/9049, p. 57) - This means: Anyone who intends to harm someone through the Disclosing one's discarded gender identity can cause harm to avoid a fine if this harm does not actually occur. Anyone who accidentally addresses a person by their old name or gender is not committing a criminal offense.
The internet is raging about this law in a way that does no justice to the content. The Self-Determination Act neither provides a free pass for potential sex offenders to gain access to safe spaces for the opposite sex, nor does anyone who accidentally slips out the wrong name face a five-figure fine. Even sports competitions remain unaffected by the law - another popular straw man. "Then every Schluffi can simply register as a woman and then win all the boxing matches!" What does Section 6 Paragraph 3 say? "The evaluation of sporting performance can be regulated independently of the current gender entry."
All of these debates have their place. It is not illegitimate to think and worry about how we deal with people breaking the binary in a world based on gender divisions. And it is also right to take abuse into account. But isn't it interesting that the criticism is almost never about the people for whom this law is actually passed: the transsexuals who no longer have the leisure to justify themselves in court when they get closer to their own identity want?
Instead, astonishingly, the horror scenarios inflated by bitter enemies of the law are almost always about men who don't have themselves under control, who use the law as a loophole to harass others - which, given that, is still the case prevailing bureaucracy, is unlikely. Here, however, a surprising hostility to men is revealed, because this shows a great distrust of the masculine and their drives. The examples of gender opponents are never about women breaking into men's locker rooms - perhaps because they believe that the primitive, dull types might even like it? It's never about trans men like Chris Mosier, who was born female and who, after transitioning, took second place in his age group at the 2017 US National Duathlon Championships.
But even if such stories found a place in these highly ideological debates, in which anger is primarily expressed over feared paternalism, they would only have a limited impact on the actual content of the law. This has little to do with the horror stories that have been told about it for years. It is remarkable how loudly there are concerns about the protection of women here, while this is sometimes completely ignored by the same actors elsewhere.
This primarily reflects excessive demands in rapidly changing times. Admittedly, the fact that the public discourse about the concerns of trans people is so intense is actually a relatively new development. For a long time, this topic was also extremely taboo. On the other hand, it's not necessarily the fad some people think it is, given the fact that the transgender law has been around since the 1980s. The latent aversion to the self-determination law is based on similar impulses as the aversion to gender: for many it is something unfamiliar, if not downright inconvenient - and that's okay, you don't get fined for being a trans woman man addresses. All attempts to make gender mandatory, for example at universities, have been quickly shot down by the courts.
Nobody is forced to praise this law to the skies or to uncritically accept everything that happens in the course of these debates. As mentioned, particularly with regard to shelters and performance assessments, there are very legitimate questions that we need to find answers to collectively in order to prevent abuse. However, this anticipated abuse is not the fault of those affected, nor does it legitimize the boundless cynicism that underlies this debate in many places. Above all, it is factually incorrect to claim that this new law will open the door to the apocalypse - as shown, not much has happened given the existing legal situation. Because, to remind you again: the core of this law is a reaction to the fact that the Federal Constitutional Court did not consider the previous regulation on changing the gender entry, which almost exclusively has a direct impact on official processes, to be in accordance with fundamental rights.
04/17/24
*Bent-Erik Scholz works as a freelancer for RBB
Until now, the concerns of people who wanted to change their gender status were regulated by the Transsexuals Act (TSG). Anyone who previously wanted to be classified as "male" on their ID card and no longer as "female" had to undergo a lengthy procedure and have two psychological assessments carried out at their own expense, in which, for example, masturbation behavior was asked, in order to have a chance to have a court order. Those affected described this process in parts as humiliation, and even the Federal Constitutional Court viewed the conditions for this special change in personal status as a violation of fundamental rights. For this reason alone, a new regulation was inevitable.
What changes now with the new self-determination law? Anyone who would like to change their gender entry and first name no longer has to go through a legal procedure from November 1st, but can register the changes at the registry office three months in advance and submit a "self-assurance declaration" in which they explain that the chosen person Entry best fits your own identity and you are aware of the weight of your decision. Basically like a civil wedding, for which you don't have to submit a psychological report. In the case of minors, the consent of the legal guardians is required. After changing the gender entry, there is a blocking period of one year before a further change can be applied for.
There is certainly well-founded criticism to be expressed here, especially when it comes to the question of dealing with minors - parental permission or not, isn't this perhaps a decision that one should only make when they are of legal age, or is that " "It's not so crazy" if it's just about an entry at the registry office that can be changed in case of doubt? How problematic could parental influence be on the child's decision? There would be excellent material for discussion everywhere, important questions that we have to ask ourselves - what is gender, what is "sex" and "gender" apart from purely biological factors, because gender differences have been charged with civilization for centuries, regardless of chromosomes or sexual organs. This charge can change again and again, let us consider, for example, that the high heel was originally invented as footwear for men and that pink was considered a masculine color until the last century. So what is a trend and what is a genuine development that we can understand over the decades? All of these would be important and exciting debates in light of the new law. Instead, affect reacts, and it is usually loud and poorly informed.
Let's take a look at the most popular arguments of the vehement opponents of this law. So now it is said that "perverted men" could exploit the new law to gain access to women's safe spaces. For example, they might go to a women's locker room at the gym to harass the women there and then argue that they felt like a woman. Of course, it is extremely sensible and laudable to be concerned about the well-being of women. However, even before the right to self-determination, it was possible for a man to break into a women's locker room. The last time I was at the gym, there was no ID check requiring visitors to prove their gender. I also think it's unlikely that, now that the new law is in place, said "perverted men" will suddenly feel like going through bureaucratic hassle to commit a crime instead of just committing it outright, as before.
Surprisingly, the criticism of this law almost never refers to those who are actually affected by it: the men who, in the dystopian stories of the opponents of this law, want to gain access to women's spaces in an abusive way are not transsexual, but According to these stories, they are just pretending. But even if we assume that a man with the intention to abuse would have his gender changed in order to go into a women's locker room, according to Section 6 Paragraph 2, the gym would still have the right, just as before, to throw this man out: "With regard to access to facilities and rooms as well as participation in events, the freedom of contract and the house rules of the respective owner or owner as well as the right of legal entities to regulate their affairs through statutes remain unaffected." Ergo: According to house rules, people can also be kicked out regardless of gender entry whoever misbehaves.
Okay, so if a perverted man who molested others in the women's locker room is charged and has to go to prison, can he just be transferred to the women's prison? "The accommodation of prisoners does not have to be based solely on their gender; the SBGG therefore does not require that people always be accommodated in an appropriate institution in accordance with their gender registration. Rather, the Basic Law and the institution's duty of care require that the security interests and personal rights of all prisoners be taken into account when accommodating them in prison." (cf. BT printed matter 20/9049, p. 44)
A major point of criticism of the law lies in the claim that anyone who intentionally or negligently uses the gender information or old name of a trans person can be fined. Not least Maximilian Krah loudly claimed this several times. This claim has often been repeated without reflection. However, a look at the actual law tells a different story: this is about the ban on disclosure, regulated in Section 13, which is largely based on Section 5 of the Transsexuals Act. Ergo: Nothing has changed at this level.
What the disclosure ban provides for is not negligent misgendering, but rather the research and disclosure of previous gender identities with which the person concerned does not agree. If it is known that a person has changed their gender or first name, the ban on disclosure does not apply: you cannot reveal something that everyone already knows. And by the way: Anyone who repeatedly uses a person's so-called "deadname" and thereby expresses contempt and disrespect for the person was already committing a criminal offense before the law was passed last week. Then as now, that was considered harassment.
Above all, the ban on disclosure explicitly states that a fine is only due if people are harmed by the unwanted disclosure of the stored identity: "The offense presupposes that as a result of the disclosure, damage to the material or non-material interests of the person concerned actually occurred is. In addition to financial losses, non-material damages are also recorded, for example in the event of public exposure of the protected person ("character assassination")." (see BT printed matter 20/9049, p. 57) - This means: Anyone who intends to harm someone through the Disclosing one's discarded gender identity can cause harm to avoid a fine if this harm does not actually occur. Anyone who accidentally addresses a person by their old name or gender is not committing a criminal offense.
The internet is raging about this law in a way that does no justice to the content. The Self-Determination Act neither provides a free pass for potential sex offenders to gain access to safe spaces for the opposite sex, nor does anyone who accidentally slips out the wrong name face a five-figure fine. Even sports competitions remain unaffected by the law - another popular straw man. "Then every Schluffi can simply register as a woman and then win all the boxing matches!" What does Section 6 Paragraph 3 say? "The evaluation of sporting performance can be regulated independently of the current gender entry."
All of these debates have their place. It is not illegitimate to think and worry about how we deal with people breaking the binary in a world based on gender divisions. And it is also right to take abuse into account. But isn't it interesting that the criticism is almost never about the people for whom this law is actually passed: the transsexuals who no longer have the leisure to justify themselves in court when they get closer to their own identity want?
Instead, astonishingly, the horror scenarios inflated by bitter enemies of the law are almost always about men who don't have themselves under control, who use the law as a loophole to harass others - which, given that, is still the case prevailing bureaucracy, is unlikely. Here, however, a surprising hostility to men is revealed, because this shows a great distrust of the masculine and their drives. The examples of gender opponents are never about women breaking into men's locker rooms - perhaps because they believe that the primitive, dull types might even like it? It's never about trans men like Chris Mosier, who was born female and who, after transitioning, took second place in his age group at the 2017 US National Duathlon Championships.
But even if such stories found a place in these highly ideological debates, in which anger is primarily expressed over feared paternalism, they would only have a limited impact on the actual content of the law. This has little to do with the horror stories that have been told about it for years. It is remarkable how loudly there are concerns about the protection of women here, while this is sometimes completely ignored by the same actors elsewhere.
This primarily reflects excessive demands in rapidly changing times. Admittedly, the fact that the public discourse about the concerns of trans people is so intense is actually a relatively new development. For a long time, this topic was also extremely taboo. On the other hand, it's not necessarily the fad some people think it is, given the fact that the transgender law has been around since the 1980s. The latent aversion to the self-determination law is based on similar impulses as the aversion to gender: for many it is something unfamiliar, if not downright inconvenient - and that's okay, you don't get fined for being a trans woman man addresses. All attempts to make gender mandatory, for example at universities, have been quickly shot down by the courts.
Nobody is forced to praise this law to the skies or to uncritically accept everything that happens in the course of these debates. As mentioned, particularly with regard to shelters and performance assessments, there are very legitimate questions that we need to find answers to collectively in order to prevent abuse. However, this anticipated abuse is not the fault of those affected, nor does it legitimize the boundless cynicism that underlies this debate in many places. Above all, it is factually incorrect to claim that this new law will open the door to the apocalypse - as shown, not much has happened given the existing legal situation. Because, to remind you again: the core of this law is a reaction to the fact that the Federal Constitutional Court did not consider the previous regulation on changing the gender entry, which almost exclusively has a direct impact on official processes, to be in accordance with fundamental rights.
04/17/24
*Bent-Erik Scholz works as a freelancer for RBB
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