Volume 2, Number 1, January - March 1998
Empirical Data on Epidemiology and Application of the German Transsexuals' Act During Its First Ten Years
Citation: Weitze C., M.D., Osburg S., M.D. (1997) Empirical Data on Epidemiology and Application of the German Transsexuals' Act During Its First Ten Years . IJT 2,1, http://www.symposion.com/ijt/ijtc0303.htm
In Europe special legislation for transsexuals was fist passed by Sweden in 1972, followed by Germany in 1981, Italy in 1982, the Netherlands in 1985, and Turkey in 1988.
As far as legislation between different countries with various civil-law systems can be compared, laws relating to transsexuals demonstrate considerable differences. The German Transsexuals´ Act (TSG) provides two options, which may be applied either successively or independently of each other. The first so-called "minor solution" refers to changing the applicant's first name in accordance with Section 1 of the Transsexuals' Act (§1 TSG). The second so called "major solution", legislates gender reassignment according to § 8 TSG. For both proceedings two mutually independent expert opinions are necessary. These expert evaluations have to certify that diagnostic criteria for transsexualism have been in existence for at least three years, and that the condition is of lasting nature. For the "major solution", e.g. the change of legal sex, the applicant has to undergo sex reassignment surgery the extend of which is not precisely defined and adapt his external physical appearance to that of the desired gender. The applicant must furthermore be unmarried and permanently incapable of reproduction. The lower age limit of 25 years, which had originally been required for both proceedings, was eliminated for the legal status change in 1982 according to a decision by the highest German court (Federal Constitutional Court); it continued to be applied for change of first name until 1993. Hormone treatment and surgery do not generally require legal permission; however, a request for castration must be reviewed in advance by two physicians according to the German Castration Act.
We considered the tenth anniversary of the German TSG as an occasion to review the application of this law, and also the epidemiological data arising from its use.
The first goal of this study was the exhaustive examination of all decisions rendered on the basis of the Transsexuals´Act in West Germany during the initial ten years of its existence. To this end, questionnaires were submitted to all German courts of first resort which handle such cases. 36 of these had decided cases according to TSG from 1981 to 1990.
Secondly , all judges who had dealt with TSG cases were asked to fill out questionnaires concerning their decision making rationale. We got answers from 39 judges out of 27 courts.
Thirdly, questionnaires were sent to all transsexuals, who had obtained an expert`s
opinion. They were asked about their experience of undergoing an assessment by two
different experts. Of our 60 transsexual clients, we could reach 49 persons, of whom 37
answered our questionnaire.
Based on the adult population, this figure corresponds to a ten year prevalence rate of approximately 2.4 applicants per 100,000 population. If one considers only the legally recognized transsexuals , i.e. those 1,047 applications approved in court, then the adjusted ten year prevalence rate amounts to 2.1 transsexuals per 100,000 population.
The 1,199 applications submitted under the German Transsexuals' Act between 1981 and 1990 represent a number certainly considerably below the total number of transsexuals living in West Germany during the period covered. So far, no empirical studies have been able to estimate the absolute number of cases of gender identity disorder. Gathering epidemiological data on this disorder has proven to be methodologically difficult, as repeatedly demonstrated by reports in the literature.
Table 1: The prevalence of transsexualism - overview on previous studies
Of all the epidemiological studies of transsexualism, so far only a small number have attempted to systematically incorporate the required data from all available sources of a particular country (e.g., Walinder 1968; Ross et al. 1981; and Tsoi 1988). Most of these populations are from centralized treatment institutions which we can assume are treating the great majority of transsexuals living in a given country (e.g., Benjamin 1966; Pauly 1968; Hoenig & Kenna,1974; Gooren 1993). In all empirical studies transsexualism appears to be a relatively rare phenomenon. However, owing to fundamental differences in data collection, the comparative validity of these studies is limited, as are estimates of the prevalence of transsexualism.
Frequency of claims and court orders during the data collection period:
An initial peak during the first year had to be expected, because there probably was a back log of applicants eagerly awaiting the new legislation who had long since met requirements for changing their legal status. This interpretation in fact explains the peak of legal status changes during the first two years under the law, as well as the following decrease from 1982 to 1985. However, the continually increasing number of applications from 1986 on is extraordinary. In order to determine whether this increase actually reflects a general trend, more long term studies are necessary. Gooren and al. (1993) noted a steady increase of cases up to 1989, followed by a slight decrease in 1990 and 1991.
Distribution of gender
At any rate, it is noteworthy that the predominance of male-to-female transsexuals is considerably lower for legal status changes than for changes of first name. It must also be emphasized that female-to-male transsexuals file their applications, and begin a sex-reassignment treatment at a younger average age. This corresponds to comparative studies, that reveal a higher degree of social integration of female-to-male transsexuals at the time of the diagnosis, or before treatment and legal recognition (Pauly 1974, Kockott &Fahrner, 1988).
Age distribution of applicants
|Nature of court decisions rendered:
The great majority of applications under §§ 1 and 8 TSG -- that is to say 83% and 96%, respectively -- received decisions of approval. Nearly one third of the 17% of the rejected applicants for first-name change had been younger than the minimum age of 25 years. The age distribution of those whose application for legal status change was rejected is relatively uniform ( as can now be expected for first name changes after abolition of the age limit).
The ratio of accepted to rejected applications for both proceedings showed no statistically significant differences between male-to-female and female-to-male transsexuals. The actual surprising result here, however, is that in a significant number of cases, the courts ignored the age limit of 25.
Differences in the nature of the decisions rendered
Such inconsistencies result from varying judicial interpretations of the Transsexuals' Act, and / or from use of poorly defined criteria in the assessments by the court appointed experts. The assumption of considerable regional differences in the judicial practice was confirmed by our inquiry of the judges:
There were variations concerning the nature of evidence judges demanded as proof that a transsexual condition had existed for at least three years, as shown in Table 2.
Table 2: Differences in the judicial practice - the evidence for the transsexual perception
Also, concerning surgical sex- reassignment there seemed to be considerable differences in the kind of evidence the judges expected the transsexual applicants to submit in order to bolster their claim of membership in the desired gender as shown in table 3 and table 4.
Table 3: Differences in the judicial practice - demands for change of sex in m-t-f- transsexuals
Surgical measures for m-t-f transsexuals:
Table 4: Differences in the judicial practice - demands for change of sex in f-t-m- transsexuals
Surgical measures for f-t-m transsexuals:
The figures demonstrate, that in case of male-to-female transsexuals we find in 10% a maximum and in 10% a minimum of demands for being legally accepted as women. In the case of female-to-male transsexuals 23 % of the judges demanded only sterilization or the resection of the inner sexual organs, measures, which do not adapt the applicant to the outward appearance of the desired sex, as demanded by the German law, while 31 % of them demanded some kind of phalloplasty besides the resection of uterus , ovaries and breasts. It was especially noteworthy that even among judges of the same court there existed considerable differences in decision making patterns ranging from minimum to maximum demands. One got the impression that prerequisites for name or sex change applications were arbitrary. None of the 39 judges had considered changing the nature of these prerequisites based on innovations in medical/surgical treatments in the last decade. In light of the progress made by medicine it seems particularly surprising that many judges accepted sterilization as a sufficient prerequisite for sex reassignment.
The expert testimony.
Furthermore, we were astonished to discover that the procedure of a mandatory assessment by two experts was rated negatively by 19 transsexuals and positively by 18, but on the other hand, nearly two thirds considered an assessment by two experts as more objective.
Applications for retransformation.
The rarity of claims for retransformation corresponds to the recently published review
of all international publications on the catamnesis of transsexuals by Pfäfflin and Junge
(1992). Nevertheless, with view to our own clients we think, that it is probable that not
every case of an unsuccessful or mistaken sex reassignment will lead to application for
retransformation. It seems to us much more likely that, instead of choosing the
unsatisfactory possibility of physical reversal, a transsexual will elect to stay in role
of first change or suicide.
As in all empirical studies transsexualism is shown to be a relatively rare phenomenon. There is a predominance of male to female transsexuals of roughly 2:1. Female to male transsexuals change sex earlier with all possible legal consequences.
Although in Germany a special legislation for transsexuals does exist, there are remarkable differences in the practice of jurisdiction.
The extreme rarity of sex retransformation applications appears on the surface to evidence that there were extremely few erroneous judicial rulings in the Federal Republic of Germany. However, we doubt that this result can be attributed to thorough and differentiated diagnostic study, to optimal surgical possibilities, or to sufficiently long testing of new sex roles in everyday life by the persons affected , underlying factors cited for successful sex retransformation in the literature. With view to the great variations in the procedures of expert`s assessment and with view to the fact, that the number of regretful sex changes among our clients is higher than the reported percentage and not all of them claim for retransformation, to us the question arises as to whether the diagnostic security perceived as apparent here may not in fact originate in an artificial framework of interrelated medical examination, hormone therapy, and judicial measures -- and whether it may not actually be rigidly fixed on an iatrogenic basis. The hormone therapy, in Germany usually started before or during TSG proceedings, may well represent a one way street with no return.
In our opinion it would be more effective to considerably simplify the process of first
name change as a trial stage to allow persons with a gender identity disorder to become
accustomed to their new role in everyday life, without the requirement for judges or
experts to verify that a firmly established and lasting transsexual feeling existed on the
part of the applicant. A thorough examination should be rather initiated from the point in
time at which an applicant desired irreversible therapeutic measures such as hormone
therapy or surgery.
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1 Freie Universität Berlin
2 Landesinstitut für gerichtliche und soziale Medizin