“Sexual identity” to be added to the German Constitution?

Christl R. Vonholdt

Inquiries to the initiators of the proposed amendment

The opposition parties in the German Parliament (the Social Democratic Party, the Alliance 90/The Greens, and the Left Party) have recently submitted a proposed amendment to the German Constitution: Article 3, Paragraph 3 should be changed as follows to include the criterion “sexual identity”:
“No person shall be favoured or disfavoured because of gender, sexual identity, parentage, race, language, homeland and origin, faith, or religious or political opinions. No person shall be disfavoured because of disability.” (Proposed amendment in italics.)
According to the amendment proposals, “sexual identity” is to include the following categories: “lesbian, gay, bisexual, transgender, transsexual and intersexual people.”1 This list is arbitrary and confusing, among other reasons because sexual identity and gender identity are portrayed as identical, while in fact, they are two different things. In the case of “lesbian, gay and bisexual” people, we are indeed dealing with chosen sexual identities, while the defining issue for “transgender, transsexual and intersexual” people is one of gender identity. Transgender people are individuals who have consciously chosen to live between genders. While they are clearly male or female from a biological standpoint, they have chosen for themselves to reject the categories of “man and woman”. Transsexual people also have a clear biological gender but desire to be a member of the opposite sex. Intersexuality, on the other hand, is a biological disease of the reproductive organs. These elucidations, however, would not appear in the proposed amendment. The only phrase which would appear is “sexual identity”.

1. What is “sexual identity”?

Sexual identity is not innate. It is neither a standardised nor an objective criterion. Sexual scientists assume that individuals ascribe a particular sexual identity to themselves based upon their personal sexual desires (“sexual orientation”) and their sexual behaviour. However, the correlation is not imperative: there are people with homosexual desires and/or behaviour who nevertheless claim a heterosexual identity for themselves. In addition, sexual desire, sexual behaviour and sexual identity may undergo change several times throughout a person’s lifetime.
Based upon their research, renowned sexual scientists are of the opinion that “sexual identity” is neither clearly definable nor objectively measurable.2 Depending upon which rights a person wants to claim, he can consider himself to be a minority under the criterion of “sexual identity” or not. Sociologist Pepper Schwartz writes: “Because a person’s sexual identity is entirely subjective, ultimately, it can never be known to anyone else but the person in question...”3

2. The State as protector of personal desire and sexual behaviour?

The criterion “gender”, which is clearly mentioned in the German Constitution, is an objective criterion. This criterion safeguards every single human individual.4 There is no reason why various subjective sexual desires and personal sexual behaviour should be protected under the German Constitution. Apart from a few exceptions, a modern government has no place in the bedrooms of adult individuals.
The sexual community of marriage is not particularly protected by the German Constitution because the State is concerned about personal sexual behaviour, but because marriage is the place in which children are not only born, but are best able to grow up and develop. Marriage contributes more than any other relationship to a society’s ability to flourish in the future.

3. Is paedophilia a form of „sexual identity“?

The FDP legal policy maker Sebastian Kluckert points out that sodomites and paedophiles can also fall under this category.5 Several leading sexual scientists, as well as paedophilic groups interpret paedophilic preference as a form of “sexual identity”. One of the most prominent supporters of the proposed constitutional amendment is sociology professor Rüdiger Lautmann, a long-time advocate for the acceptance of paedophilic lifestyles.6 How does our society expect to continue to protect children from “amicable” sexual acts with adults if the protection of “sexual identity” is established by constitutional law? Constitutional law precedes sub-constitutional law! Thus, a constitutional amendment to protect “sexual identity” can result in offender protection being given priority over victim protection!

4. Marriage and family rights for bisexuals?

If the German Constitution were changed to state that no one is to be disfavoured because of his or her “sexual identity”, then it would be necessary to change all laws pertaining to marriage and the family in order to make it possible for lesbian, gay, bisexual, transgender and transsexual people to form legally recognized “marriages” and “families”. Civil partnership laws for bisexuals could be the next step.7 In 2007, the “Young Greens” (an organisation of younger generation members within the Alliance 90/The Greens) already demanded that homosexual marriage, polygamous marriage, group marriage (bisexual marriage) and sibling marriage be legally recognized and extended full rights under family law.8 The European organisation ILGA (International Lesbian and Gay Association) demands that it must be possible for a child to have more than two parents.9 All of this would have unforeseeable ramifications for the well-being of children.

5. Disorientation for children and adolescents

During preadolescence and puberty, many young people experience a sense of insecurity regarding their identity and sexual identity due to the developmental stage in which they find themselves. If all sexual identities are given equal status under the constitution, this must, in turn, be communicated in all pre-school and school textbooks. As a result, children will be deprived of the model of monogamous marriage (one man and one woman) as a significant source of orientation for their lives. They will no longer learn that marriage competence is a cultural achievement which first needs to be developed. Since all sexual lifestyles are to be considered equal, sexual experimentation among many adolescents will increase – bringing with it all the related health and emotional risks. This will lead to increased insecurity among young people with regard to their own identity.

6. Restriction of the freedom of opinion and religion?

If no one may be discriminated against based upon “sexual identity”, what ramifications will this have for religious communities who reject homosexual or bisexual lifestyles because of their moral and ethical beliefs? Would these communities still be allowed to refuse employment to persons who have chosen a bisexual lifestyle? If “sexual identity” becomes a protected criterion in the German Constitution, will people who advocate the primacy of the natural family above other sexual lifestyles still be allowed to publicly promote and defend their position?

7. Conclusion

In light of the concerns outlined above, an amendment of the German Constitution to include the criterion
“sexual identity” should be opposed.


1 Proposed bills before the German Parliament: The Left Party, submitted on January 20,2010; Social Democratic Party of Germany, submitted on December 15, 2009; The Alliance 90/The Greens submitted on November 27, 2009.

2 For example, Lautmann, E.O., The Social Organization of Sexuality, Chicago 1994; Haeberle, E.J., Bisexualitäten (Engl.title: Bisexualities), Stuttgart 1994.

3 Schwartz, P., Blumstein, P., Der Erwerb sexueller Identität: Bisexualität, in: Haeberle, loc. cit., p. 214. (Translated from the German text.)

4 Intersexual people are also protected under the criterion „gender“. They are not asexual.

5 In: „Sexuelle Identität soll vom Grundgesetz geschützt werden“, Tagesspiegel, Berlin, June 25, 2009.

6 Lautmann, R., Die Lust am Kind, Hamburg, 1994. According to Helmut Graupner, European Vice President of the International Lesbian and Gay Law Association, in addition to Lautmann there are other prominent representatives of the LGBT movement who advocate the acceptance of paedophilic ways of life.

7 Forms of bisexual marriage were already demanded during the German parliamentary consultations regarding civil partnership laws by then PDS member of parliament Christina Schenk (today, Christian Schenk).

8 www.gruene-jugend.de/aktuelles/beschluesse/395818.html

9 „Familien, PartnerInnenschaften, Kinder und die Europäische Union“, (Engl. Title: „Families, Partners, Children and the European Union“) published by ILGAeurope, April 2003, p. 39.


Dr. med. Christl R. Vonholdt

Copyright: Deutsches Institut für Jugend und Gesellschaft, DIJG, 28.01.2010

64385 Reichelsheim