Frequently Asked Questions about sexual identity
The term sexual identity refers to lesbian, gay, bisexual, heterosexual and also to asexual or pansexual persons. Sexual identity is often used synonymously with the term sexual orientation. In fact, the term sexual identity as opposed to the term sexual orientation makes clear that sexuality is an integral part of a person’s self-perception that is not only defined by a sexual relationship to another person.
The General Act on Equal Treatment (German abbreviation: AGG) prohibits discrimination on grounds of sexual identity in working life and in daily business, though it does not define the term sexual identity. In the explanatory memorandum to the act, however, the term also covers discrimination against transgender and intersex persons, i.e. gender identity. The European Court of Justice considers transness and intersexuality protected by the characteristic of gender.
The abbreviation LGBTI* is a collective term and stands for lesbian, gay, bisexual, transgender and intersex persons. The asterisk is a place holder for various identities. Trans*, for example, is a generic term for different gender identities (transgender, transsexual, trans-identifying...). The abbreviation is used in different variants and may include, for example, additions such as Q (queer), A (asexual) or a second T (transsexual).
The English term queer is also used as a comprehensive term for LGBTI* (German: LSBTI*). Queer was once considered a derogatory term but was chosen as the self-designation by persons who, in their sexual or gender identity, cannot or do not wish to classify themselves as heteronormative or gender-binary.
The history of homosexual, bisexual, transgender and intersex people is closely intertwined. Many organisations and associations, as well as symbols and events, therefore equally address lesbian, gay and bisexual people and transgender and intersex people.
Homophobia refers to the open or subtle rejection of homosexuality. In this context, the term describes a disparaging/negative attitude towards gay, lesbian and bisexual persons, which often goes hand in hand with prejudice, discrimination and even psychological and physical violence, and was the basis of decades of state persecution. Homophobia can also target people who are perceived as homosexuals.
The International Day against Homophobia, Transphobia and Biphobia raises awareness of discrimination and persecution of LGBTI* with actions and events every year on 17 May.
The introduction of same-sex marriage in 2017, the rehabilitation of wrongfully convicted homosexuals under Section 175 of the Criminal Code and the ban on conversion therapies, which was adopted in 2020, represented important steps to protect homosexual people and to review the history of persecution of homosexual and bisexual people.
Nevertheless, lesbian, gay and bisexual people still become victims of discrimination or violence frequently. In 2020, the European Union Agency for Fundamental Rights (FRA) published the results of a survey from 2019 of 140,000 people who described themselves as lesbian, gay, bisexual, transgender or intersex. Around 16,000 people from Germany took part. Of those, 36 per cent responded that they had experienced physical or sexual assaults on account of their sexual or gender identity in the last five years before the survey. These figures were clearly above the EU average of eleven per cent.
In addition, there is still discrimination, for example with regard to blood donation: until 2015, men having sex with men were not allowed to donate blood as a matter of principle. With its decision in the Léger case (C-528/13) of 29 April 2015, the European Court of Justice ruled that, although men who have sex with men are subject to a high risk of transmission of diseases such as HIV when donating blood, the permanent contraindication in blood donations is incompatible with the fundamental rights of the Union and in particular with the ban on discrimination on the grounds of sexual identity. Since 2017, men who have sexual relations with men have been allowed to donate blood in Germany if they have not had sex with another man for twelve months. There is no such waiting period for any other group. This decision is legally reflected in the regulation of Section 5 (1) Sentence 2 of the German Transfusion Act (TFG) in conjunction with section 22.214.171.124.2.2 of the Guidelines for the Preparation of Blood and Blood Components and the Use of Blood Components (Hemotherapy) which the German Medical Association amended in 2017.
With the opening of marriage, same-sex spouses are also placed on an equal footing in adoption law. This means that, like heterosexual couples, they can adopt children together.
Despite this progress, the law of descent poses particular problems for rainbow families. After all, outside of adoption law, only a woman and a man are recognised as parents of a child.
Under the Adoption Aid Act adopted in May 2020, non-biological parents who wish to have their parenthood recognised by means of a stepchild adoption will have to receive mandatory counselling in the future. For lesbian couples, where one mother necessarily has to go through this form of adoption, this creates an additional hurdle and burden for the child to be recognised as the joint child of both spouses. In addition, this also means that the child is placed at a disadvantage as it only has one legal guardian until adoption. However, counselling has no longer been mandatory since 2020 if the adopting parent is married to the child's biological parent at the time of its birth or if they live in a stable partnership in a shared household. In addition, an involvement of the adoption agency is not necessary for these kinds of couples either.
Both the Berlin Higher Regional Court and the Celle Higher Regional Court found it unconstitutional that there is no provision for a married female couple in the sections on parenthood. The decision now lies with the Federal Constitutional Court. Further information on parenthood of same-sex couples can be found here (only in German).
The General Act on Equal Treatment (German abbreviation: AGG) prohibits discrimination on grounds of sexual identity. The Act in particular provides protection at the workplace and in legal transactions of everyday life, for instance when going shopping or when going to the cinema. If a person is discriminated against on the basis of sexual identity, it is irrelevant whether the affected individual is in fact lesbian, gay or bisexual. The only decisive factor is the corresponding assumption by the discriminating person.
Unlike the German abbreviation: AGG, the Basic Law does not expressly provide protection for the characteristic of sexual identity. Incorporating the term in Article 3 would ensure that homosexual and bisexual persons are protected against discrimination in the same way as members of different social groups . In the Land constitutions of Berlin, Brandenburg, Bremen, Saarland and Thuringia, this protection has already been implemented and incorporated. In a 2019 survey by the Federal Anti-Discrimination Agency (only in German) on amending Article 3, which relates to equality before the law, and on including the prohibition of discrimination on the grounds of sexual orientation, 52 per cent of respondents were in favour of it, while one third (33 per cent) somewhat or fully disagreed.
On 30 June 2017, the German Bundestag passed the Act introducing the right to marry for persons of the same sex. This means that same-sex couples have also been allowed to marry since 1 October 2017.
Before that, since 2001, same-sex couples had only been able to enter into a registered civil partnership that, while taking into account important regulations such as the right to visit the partner in hospitals and the right of residence for non-German partners, did not mean equal treatment. Inequalities continued, especially with regard to tax regulations and adoption law, which were only gradually declared to be violating the principle of equality by various decisions of the Federal Constitutional Court. In the meantime, same-sex couples have been placed on an equal footing with others in tax and adoption law.
Couples who already live in a registered partnership can convert it into marriage but are not obliged to do so. Although it has not been possible to enter into registered civil partnerships since the introduction of same-sex marriage, existing civil partnerships continue to be under legal protection.
In 2002, the German Bundestag annulled the judgements from the time of National Socialism. Only on 22 July 2017, all judgements passed after 1945 were also declared null and void. This was preceded by an expert opinion by the Federal Anti-Discrimination which found that it was constitutionally necessary to annul the judgements. Affected persons can now claim damages at the Federal Office of Justice in low-threshold proceedings. Further information on Section 175 can be found here (only in German).