Adrian de Silva Negotiating the Borders of the Gender Regime Gender Studies Adrian de Silva completed his doctorate at Humboldt University in Berlin. He holds a postdoc position at the Faculty of Language and Literature, Humanities, Arts and Education at the University of Luxembourg. His research and teaching interests are in queer and transgender studies and 20th-century political theory. Adrian de Silva Negotiating the Borders of the Gender Regime Developments and Debates on Trans(sexuality) in the Federal Republic of Germany This study was submitted to the Faculty of Humanities and Social Sciences at Humboldt-University Berlin as a doctoral thesis in 2015. The publication of this book was funded by the Faculty of Language and Literatu- re, Humanities, Arts and Education at the University of Luxembourg. An electronic version of this book is freely available, thanks to the support of libra- ries working with Knowledge Unlatched. 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In loving memory of Harm Dunkhase and Elisabeth Rösch Contents Acknowledgements | 13 1 I ntroductIon | 15 1.1 Research interest and research questions | 15 1.1.1 Research interest | 15 1.1.2 Research questions | 17 1.2 State of the art and contextualisation of the project | 18 1.2.1 State of the art | 18 1.2.2 Contextualisation of the project | 22 1.3 Sources and approaches | 29 1.4 Perspectives on trans and the trans movement | 38 1.4.1 Perspectives on trans(sexuality) | 38 1.4.2 Perspectives on the trans movement | 40 1.5 Theoretical considerations | 40 1.5.1 Sex, gender, sexuality, the subject and gender regime | 40 1.5.2 The liberal-democratic state | 45 1.6 Structuring the argument | 51 2 c oncepts of gender and transsexualIt y prIor to , and durIng the legIsl atIve process leadIng to the t ranssexual a ct | 55 2.1 Developments and debates on transsexuality in sexology in the 1970s and early 1980s | 55 2.1.1 Approaches to transsexuality in the West German sexological debate | 57 2.1.2 Developments in the treatment of transsexual individuals | 62 2.1.3 Establishing sexology as the authoritative voice on transsexuality | 69 2.1.4 Reorganising marginalised genders | 74 2.1.5 Summary: Sexological constructions of gender and transsexuality in the pre-legislative decade | 79 2.2 Legal developments and debates on transsexuality in the 1960s and 1970s | 80 2.2.1 Principles in law on gender | 81 2.2.2 Legal provisions for a revision of first names and the entry of gender in the register of births prior to the Transsexual Act | 83 2.2.3 Medical knowledge in jurisdiction and legal scholarship on transsexuality | 93 2.2.4 Pre-legislative jurisdiction on transsexuality | 97 2.2.5 Summary: Legal constructions of gender and transsexuality in the pre-legislative phase | 105 2.3 Devising the Transsexual Act | 107 2.3.1 Outline of the legislative process | 108 2.3.2 Sexological and trans concepts and interventions | 115 2.3.3 Negotiating transsexuality and trans rights during the parliamentary debate | 124 2.3.4 The Transsexual Act | 137 2.3.5 Summary: Legislative constructions of gender, transsexuality and gender regime | 143 2.4 A note on the trans movement from the 1970s to the mid-1990s | 144 2.4.1 Basic structural and conceptual features of the trans movement | 145 2.4.2 Factors leading to a homogeneous image and the isolation of transsexual individuals | 146 2.4.3 Discussing the contribution of the trans movement to formal gender recognition | 148 2.4.4 Assessing the future of the trans movement | 149 2.4.5 Summary: Concepts of transsexuality in the trans movement | 150 3 c oncepts of gender and trans ( sexualIt y ) prIor to , and durIng the l aw reform debate | 151 3.1 Developments and debates on trans(sexuality) in sexology from the 1990s to 2010 | 151 3.1.1 Approaches to transsexuality in the sexological debate | 152 3.1.2 Reconceptualising transsexuality | 161 3.1.3 Diagnosing transsexuality and assessing transsexual individuals | 178 3.1.4 The medical management of transsexuality | 193 3.1.5 Summary: Sexological constructions of gender and transsexuality in the reform period | 205 3.2 Developments and debates in the trans movement from the mid-1990s to 2010 | 206 3.2.1 Structural change | 207 3.2.2 Conceptual change and differentiation | 212 3.2.3 Trans perspectives on legal rules, procedures and practices and psycho-medical premises, procedures and practices | 225 3.2.4 Trans organising for social change | 235 3.2.5 Summary: Concepts of gender, trans and gender regime in trans lobby organisations | 255 3.3 Legal developments and debates on transsexuality from the 1980s to 2010 | 256 3.3.1 Jurisdiction on transsexuality in health insurance law | 258 3.3.2 Federal Constitutional Court decisions on age limits and the eligibility of foreigners with permanent residency in the Federal Republic of Germany to an application under the Transsexual Act | 272 3.3.3 Jurisdiction and legal scholarship on marriage and registered life partnership under the Transsexual Act | 282 3.3.4 Jurisdiction and legal scholarship on somatic requirements for a revision of gender status under the Transsexual Act | 296 3.3.5 Summary: Legal constructions of gender, transsexuality and gender regime in the reform period | 318 4 C onCepts of gender and trans ( sexualit y ) after the aCt to amend the t ranssexual a Ct | 319 4.1 Legal developments with respect to the Transsexual Act in 2011 | 319 4.1.1 The Federal Constitutional Court decision on somatic requirements for a revision of gender status under the Transsexual Act | 320 4.1.2 Sexological knowledge in Federal Constitutional Court reasoning on somatic requirements | 323 4.1.3 Trans movement reactions and reactions in legal scholarship to the Federal Constitutional Court decision on somatic measures | 324 4.1.4 Initial lower court interpretations of the Federal Constitutional Court decision on somatic measures | 325 4.1.5 Summary: Legal constructions of gender, transsexuality and gender regime in the immediate aftermath of the Act to amend the Transsexual Act | 326 4.2 Developments in trans politics from 2011 to 2014 | 327 4.2.1 The dgti e. V. key issues paper for a reform of the Transsexual Act | 328 4.2.2 The catalogue of demands for transsexual law reform by the Nationwide Workgroup Transsexual Law Reform | 330 4.2.3 The Waldschlösschen declaration by the nationwide network Trans*Aktiv | 335 4.2.4 Summary: Concepts of gender, trans and gender regime in trans politics since the Act to amend the Transsexual Act | 338 4.3 Developments and debates in sexology on trans(sexuality) from 2011 to 2014 | 339 4.3.1 The debate on reconceptualising transsexuality | 341 4.3.2 Diagnosing gender dysphoria | 348 4.3.3 Rethinking the psycho-medical management of trans(sexuality) | 359 4.3.4 Rethinking psycho-medical involvement under the Transsexual Act | 369 4.3.5 Summary: Sexological constructions of gender, trans(sexuality) and gender regime from 2011 to 2014 | 375 5 c onclusIons | 377 6 a bbrevIatIons and transl atIons | 385 7 r eferences | 391 ACKNOWLEDGEMENTS This study developed in a supportive, encouraging and inspiring environment. I would like to thank my supervisors Prof. Dr. Eveline Kilian and Prof. Dr. Kon- stanze Plett, LL-M for their continuous interest, deep commitment, encourage- ment and insightful comments as my project evolved. Thanks also goes to the Centre for Transdisciplinary Gender Studies for providing a welcoming place to pursue transgender studies and the graduate research training group »Gender as a Category of Knowledge« at Humboldt University, Berlin for providing an intel- lectually stimulating environment. I would like to thank the German Research Foundation for funding my pro- ject; Humboldt University for a granting a completion scholarship and Prof. Dr. Eveline Kilian for supporting my application; the archivists of the Parliamen- tary Archives in Berlin for assisting my research and the Federal Home Office for allowing me to photocopy submissions to the government. This book is a slightly revised version of my dissertation. I am grateful to my supervisor Prof. Dr. Georg Mein at the University of Luxembourg for giving me time for revisions and for thoughtful guidance and unyielding support, and to the Faculty of Language and Literature, Humanities, Arts and Education of the University of Luxembourg for kindly funding the publication. I would also like to thank Dr. Wolfgang Delseit for typesetting this book and for supporting the copy-editing process. My gratitude also goes to the transcript project manager Carolin Bierschenk for taking care of the publication process. Developing a research question the way I did would not have been pos- sible without queer and trans political, intellectual and social communities. I would like to thank the activist and/or academic groups of which I was, or con- tinue to be, a member. These are especially the Project Group Queer Studies in Bremen, the editorial team of the online journal Liminalis in Berlin, the Queer and Trans Workgroup of the graduate research training group, the workgroup »Catalogue of demands for a reform of trans law« and the Inter-Trans Aca- demic Network. I would like to thank my students in the political science and gender stud- ies departments at the University of Göttingen and in the gender studies de- partment at the University of Oldenburg whose interest and questions spurred Negotiating the Borders of the Gender Regime 14 me to continue developing my project. My gratitude goes to Bettina Bock von Wülfingen, Josch Hoenes, Utan Schirmer and Irina Schmitt for interesting discussions at conferences and in academic projects. Thanks also go to Jens Borcherding and Sabine Meyer for lively discussions, movie nights and culinary feasts in our workgroup and while Sabine Meyer and I met to work on our respective theses. I am grateful to Robin Bauer, Bet- tina Bock von Wülfingen, Josch Hoenes, Sabine Meyer, Corinna Bath, Valentin Emerson and Falko Schnicke for providing invaluable advice, encouragement and assistance in the final stages of my project. I am particularly grateful to Corinna Bath who has supported me more of- ten and in more ways than I could possibly mention here. My thanks also goes to my friends, in particular Markus Behr, Bettina Bock von Wülfingen, Jens Borcherding, Michael Bochow, Uli and Christa Drabinski, Valentin Emerson, Josch Hoenes, Nathalie Kubon, Sabine Meyer, Willie Müller, Marion Schmelz, Irina Schmitt, J. Seipel and Frank Andreas Weininger for helping me navigate through life. I would also like to thank Wiltrud and Noël Wickramasinghe, Petra Meyer and Irmgard Schwertfeger for spontaneous financial assistance when I was unable to make ends meet. I owe my deepest gratitude to my mother Elisabeth de Silva for unconditional love and support, encouraging my curiosity and unwaivering trust in me. I am grateful to my father John de Silva for conveying to me the value of education and introducing me to books. My gratitude also goes to my brothers René und Nik for standing by my side, especially in challenging times, and to my cats Fieps and Toto for being their own well-tempered, adorable and wilful furry selves. My partner Harm Dunkhase deceased only weeks after I had moved to Ber- lin to work on my project. His kindness, thoughtfulness, unflinching trust in me, his generosity, humour, open-mindedness and wit inspired me and made me feel at home with him and in life. My deepest thanks goes to Corinna Bath, Bettina Bock von Wülfingen, Iri- na Schmitt, J. Seipel, Willie Müller, my parents and siblings for their kindness and warmth in a time of deep pain; to Harm’s wide circle of friends for organis- ing and inviting me to dignified commemoration ceremonies in Bremen and Hamburg and to further individuals for their support and kindness. My grandmother Elisabeth Rösch was keenly interested in the world and a generous, wise, knowledgeable, modest, kind and witty person. She took a profound interest in my studies until she was way into her 80s and supported me in my academic endeavours, a privilege foreclosed to her. It is to Elisabeth Rösch and Harm Dunkhase that I dedicate my book. Esch-sur-Alzette in May 2018 Adrian de Silva 1 INTRODUCTION 1.1 R ese aRch inteRest and Rese aRch questions 1.1.1 Research interest In 1965, the category ›transvestitism‹ appeared as a ›sexual deviation‹ in the eighth version of the World Health Organisation’s (WHO) International Sta- tistical Classification of Diseases and Related Health Problems (ICD-8). Ten years later, the term ›transvestitism‹ vanished from the ICD-9, and the terms ›trans-sexualism‹ [sic!] and ›transvestism‹ were added to the ›sexual deviations‹ in the ICD-9. When the ICD-10 appeared in 1990, ›transsexualism‹ 1 was reclas- sified as a ›gender identity disorder‹ and placed in the mental health section of chapter V Disorders of adult behaviour and personality, along with a number of other forms of gender identity deemed pathological (Drescher 2014: 141). The effects of entering ›transsexualism‹ into medical classification sys- tems, such as the ICD and the Diagnostic and Statistical Manual of Mental Disorders (DSM), published by the American Psychiatric Association (APA), were twofold on the subjects subsumed under this category. On the one hand, psychiatrists acknowledged that some individuals experience a gender that is not socially associated with their assigned sex and frequently seek medical and/ or surgical interventions to alter gendered parts of their bodies to match their identity. On the other hand, ›transsexualism‹ was conceptualised as a mental health problem rather than as one of many equally legitimate possibilities to relate to ›gender‹. Social marginalisation and lacking legal recognition and health insurance assumption of sex reassignment measures provided points of departure for social and political struggles in several liberal democracies. These struggles 1 | In 1923, the sexologist and physician Magnus Hirschfeld coined the term ›Transsexu- alismus‹. The general practitioner Cauldwell translated the term as ›transsexualism‹ into English, whereas the physician and endocrinologist Benjamin popularised the term in his book The Transsexual Phenomenon , which appeared in 1966 (Stryker 2008: 18; idem/ Whittle 2006: 28-57). Negotiating the Borders of the Gender Regime 16 developed unevenly, depending on the healthcare system, the medical, the national 2 and occasionally supranational legal and political environment and developments in related and in part overlapping social struggles, such as e. g. lesbian and gay movement struggles, to name a few factors, and the (tempo- rary) outcomes differ. This book examines how struggles over trans(sexuality) 3 evolved in the Federal Republic of Germany. Soon after sexology consolidated transsexual- ism as a distinct and pathologised form of embodying gender in the course of the 1970s, 4 legal and political conflicts over recognising transsexual subjects and securing health-insured access to healthcare unfolded. Having gained the right to change first names and revise gender status as early as in 1981 5 and having achieved statutory health insurance assumption of costs for hormonal and surgical interventions in 1987, these struggles continued to develop into an ongoing battle over the terms of recognition and access to transition-relat- ed healthcare in an increasingly complex and changing mesh of concepts of trans(sexuality), practices and institutions. They also were, and continue to be, 2 | For the impact of, for example, state structures on social movements, see Johnston 2011; for country-specific developments of the trans movement in the USA and the UK, see Stryker 2006: 5 f. 3 | The terminology used to describe the population addressed here in sexology, law, federal politics and in the social movement varied historically and is frequently contested in historically-specific settings. Seeking a historically correct term and one that respects the self-definitions the subjects of this study addresses is a challenging endeavour. ›Trans(sexuality)‹ is my proposed solution when referring to the whole period of investigation. Whenever historically-specific sexological, legal, political or social movement concepts are subject to analysis, I take up the terms that happen to be used in this specific context, and wherever possible, I refer to individuals the way they describe themselves. The term ›trans‹ ( Trans* ) is frequently used in the trans movement in Germany since the late 1990s as a self-description of, and category for a broad spectrum of individuals who temporarily or permanently do not consider themselves adequately described by the gender assignment at birth. In this sense, ›trans‹ may include e. g. ›transgender ‹ , ›transsexual‹, ›non-binary‹ individuals and ›cross-dressers‹. Whenever I am not bound by an analysis, I use the term ›trans‹ as a non-pathologising umbrella term for the population described above. 4 | For historical developments on sexing the body, see Balzer 2008: 84-105, Klöppel 2010 and Meyer 2015: 223-299. For earlier developments on transvestitism and trans- sexuality in sexology, see Herrn 2005 and Weiß 2009. 5 | The Federal Republic of Germany was second only to Sweden, which passed an act to revise gender status called Lag om fästställande av könstillhörighet I visa fall in 1972 (Scherpe 2004: 62). For a report on committee proceedings leading to the Swedish Act, see Carsten 1970. Introduction 17 disputes over definitions of gender and challenges to a gender regime, which is based on the assumption that there are ›by nature‹ two ›healthy‹ genders (›man‹ and ›woman‹) that can be derived from one particular of exclusively two polarised sexes (›male‹ and ›female‹). This project addresses the period prior to, and during the processes leading to the Act to change first names and establish gender status in special cases (Transsexual Act [TSG]) 6 in 1980, the period of the transsexual law reform de- bate between 2000 and 2009 and developments in the immediate aftermath of the Act to amend the Transsexual Act ( Transsexuellen-Änderungsgesetz [TSG- ÄndG]). The motivation for conducting this research was to find out how social change evolved in the broader contexts of the legislative processes related to a change of first names and a revision of gender status with regard to considering trans a viable way of embodying gender in the Federal Republic of Germany. Developments and debates on trans(sexuality) within and between the ma- jor actors involved in these processes were uneven. This study covers develop- ments and debates in sexology from the 1970s to the early 1980s and from the early 1990s to 2014. It traces developments and debates in law from the late 1950s to 2013. The project deals with the trans movement from the mid-1970s to the mid-1990s briefly and in depth with a focus on major trans organisa- tions and networks with a decidedly political agenda between the mid-1990s to the time of writing in 2014. Finally, this study addresses federal politics as it relates to the Transsexual Act from the early 1970s to the beginning of 1981 in detail and briefly from the beginning of the reform period in 2000 to the Act to amend the Transsexual Act in 2009. 1.1.2 Research questions The major question is how sexology, the law, the political branch of the trans movement and federal politics interacted prior to, and during the above- mentioned processes to either generate, establish or challenge concepts of trans(sexuality). While this project addresses a number of issues, it focuses on three questions to answer the main question: 1. How did sexology, the law, the political branch of the trans movement and federal politics, mirrored in the practices and mediated by the procedures of the respective discipline and area, construct trans(sexuality) in relation to socially accepted genders? This project relates concepts of trans(sexuality) to concepts 6 | The German name of the Act is Gesetz zur Änderung des Vornamens und die Feststel lung der Geschlechtszugehörigkeit in besonderen Fällen ( Transsexuellengesetz [TSG]). The Act to change first names and establish gender status in special cases will be referred to as the Transsexual Act. Negotiating the Borders of the Gender Regime 18 of socially accepted genders, i. e. cismen and ciswomen 7 as they emerge in the respective debates, practices and procedures for three reasons. First, a compari- son reveals the degree of accepting or rejecting trans(sexuality) as a socially viable way of relating to gender. Second, naturalised genders are frequently the yardstick according to which trans individuals are granted or denied access to legal and medical provisions. Third, a comparison allows conclusions to be drawn from how negotiations over trans(sexuality) impacted on the gender bi- nary, or more specifically, how outcomes of legal and political struggles for rec- ognition challenged hegemonic notions of gender, sexuality and embodiment. 2. What dynamics developed within sexology, the law, the social movement and federal politics with regard to trans(sexuality)? Sexology, the law, the social movement and federal politics are sites of conflict and power struggles involv- ing various perspectives on trans(sexuality), gender and gender regime. How did some concepts become authoritative and others marginalised? 3. What dynamics developed between sexology, the law, the social move- ment and federal politics with regard to trans(sexuality)? The interplay of sex- ology, the law, the political branch of the trans movement and federal politics highlights how and what concepts of trans(sexuality) entered other disciplines and fields and how concepts of trans(sexuality) were read into, or challenged in the respective parameters of the disciplines or social arenas in an uneven and frequently conflictual process. 1.2 s tate of the art and conte x tualIsatIon of the project 1.2.1 State of the art No study has to date dealt with the constructions of trans(sexuality) and chal- lenges to these constructions, in sexology, the law, the political branch of the trans movement and federal politics, dynamics within, and the interplay of these disciplines and arenas and the effects on the gender regime in the entire period this project addresses. Previous studies have overall been disciplinary, 7 | Sigusch coined the term ›cissexuality‹ ( Zissexualität) in his concept of depatho logising transsexuality. Cissexuality denotes the unquestioned, seemingly natural concurrence of sex and gender identity (Sigusch 1991: 338). In doing so, he ruptured the assumed naturalness of gender based on anatomy. I will frequently use either the phrase ›socially accepted genders‹ or, drawing upon Bauer, attach the prefix ›cis‹ to men and women who live according to the gender they were assigned to at birth. In addition to pointing to all genders as socially constructed, the prefix avoids privileging morphology as a point of reference (cf. Bauer 2014: 257). Introduction 19 only randomly refer to other disciplines involved, cover other or shorter periods and/or focus on other research questions. I will briefly address the studies that have dealt with either discourses or concepts of trans(sexuality) before turning to the research situation regarding the dynamics within and between the disci- plines and fields under investigation. Constructions of trans(sexuality) Most of the studies engage with the medical construction of transsexuality. Contextualised within a genealogy of the change from the concept of genital homology of male and female sexes to a radical difference, based on social in- teractionist premises and using an ethnographic approach, Hirschauer’s study (1999) traces the way professionals carry out medical transitions and how psy- cho-medical and transsexual individuals interact in transition processes, i. e. the production of knowledge in the concrete setting of a medical transition from a micro-sociological perspective. While offering insights into the medical construction of transsexuality as part of the contemporary construction of the gender binary, he does not deal with the dynamics within sexology. Rather, he constructs medicine as monolithic. In contrast, Weiß (2009) deals with the medical construction of transsexu- ality over a longer historical period. He approaches the subject by analysing medical discourses. He distinguishes between three periods: the ›formative phase‹, beginning with early experimental surgery in the 1910s; the ›construc- tion phase‹, starting with the establishment of gender clinics in the USA in the mid-1960s, and the ›management phase‹, beginning with the entry of trans- sexuality as a disease in the DSM-III, published by the APA in 1980. His study focuses on the first period. The approach to constructions of trans(sexuality) in sexology in this book differs from Weiß’s study in several ways. First, rather than skip from one con- tinent to the other, this project, wherever applicable, examines how US develop- ments influenced the debate in sexology in the Federal Republic of Germany and in which ways sexology diverted from international developments. Moreo- ver, rather than consider sexology as a monolithic bloc, the approach used here allows uncovering dynamics and power struggles within the discipline in a particular national political and legal setting. Third, every phase involved spe- cific constructions and developments in the management of transsexuality that warrant attention. Medical constructions of transsexuality have also been subject to investiga- tion in sexology itself. In contrast to the sociological studies mentioned above, sexological introspections into medical constructions of transsexuality have so far been unsystematic and based on limited sources. In the second of his two- part article published in the Zeitschrift für Sexualforschung (German Journal for Sex Research [ZfS]) in 1991, Sigusch self-critically assesses the medical totalisa-