The recognition of fatherhood for a child by a transgender man can be invalid under certain circumstances. This concerns the period before the 2024 Self-Determination Act, when the person did not yet have a male gender marker at the time of the baby’s birth, as ruled by the Federal Court of Justice (BGH) in a decision published Thursday in Karlsruhe (Case XII ZB 456/25, PDF). The recognition does not become valid simply because more than five years have elapsed.
In the Mecklenburg-Vorpommern case, a woman gave birth to a child in November 2014. She was in a relationship with the transgender man. Since August 2016 he was legally regarded as a man, which at the time still required a court to determine, and he changed his first name. After that, he recognized paternity for the child with the mother’s consent and was entered as father in the birth registry at the civil registry office.
In 2019 the two stated they wanted to share custody for the child. They then separated. The child stayed with the mother. She went to court to have her former partner’s paternity declared invalid. She did not succeed before the Stralsund District Court or the Rostock Higher Regional Court, but did so before the BGH.
Birth-time gender entry decisive
A paternity recognition is invalid under the ruling if it is given by someone who, at the time of the child’s birth, had a female gender marker. The BGH accordingly amended the Mecklenburg-Vorpommern decision. It left open whether a transgender man could generally recognize paternity before the Self-Determination Act took effect. This is not decisive here, because the BGH based its decision more precisely on the birth-time gender marker.
The twelfth Civil Senate of the BGH sees its decision in line with the legislators’ understanding. The later Self-Determination Act continued to pursue the goal of legally assigning children to their biological parents so that their parentage is not traced to two legal mothers or fathers in conflict with their biological conception, quoting the BGH from the bill’s justification.
The Self-Determination Act came into force in November 2024. Since then, a declaration at the registrar’s office suffices to change gender marker and given name. In the new regulation regarding paternity recognition, the legal relationship between a person and their children is determined by the gender marker in the civil status register at the time of the child’s birth — however, there are several exceptions, for example for the person who gave birth to the child.
The entire system of lineage law is complex and still awaiting reforms, including for queer people, such as in families with two mothers or the previously lacking recognition of intersex or non-binary parents.
Update Left: Reforms needed (4:25 p.m.)
The BGH decision is formally understandable, commented Maik Brückner, spokesperson for queer policy of The Left in the Bundestag, in a press release. “But the case highlights several problems for queer and transgender parents: The legislature must finally move away from the idea that there can only be one father and one mother as parents in the law of descent. At the same time, Paragraph 11 of the Self-Determination Act must be scrapped entirely, because it discriminates against transgender men compared to transgender women.” An old gender marker should not be able to catch up with people years later and deprive them of rights. “Family is where people take responsibility for each other, even after separation. It should not hinge on an earlier gender marker. The child grew up with the father.”
