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Federal Social Court Kassel (picture from 2015)

Photo: Uwe Zucchi / DPA

Gender reassignment surgery for non-binary people is currently not covered by health insurance: This has been decided by the Federal Social Court (BSG) in Kassel. According to the 1st Senate of the BSG, the entitlement to reimbursement of the costs of such interventions in the case of insured persons who perceive their gender as neither female nor male requires a recommendation by the Federal Joint Committee (G-BA). So far, there has been no corresponding recommendation from the highest body of self-administration in the health care system, consisting of representatives of the medical profession, health insurance companies and hospitals.

The lawsuit was brought by a person who had been assigned the female gender at birth and who had her first name and gender in the birth register changed to "not specified" in October 2019. Shortly thereafter, she applied to her health insurance company to cover the costs of the removal of the breast of around 5000 euros in order to no longer be perceived as a woman. The health insurance company rejected the application, as the BSG announced. In the meantime, the operation had been carried out.

While the Social Court of Mannheim ordered the health insurance company to reimburse the costs, the Regional Social Court of Baden-Württemberg dismissed the lawsuit. The BSG has now decided that body-modifying surgeries on non-binary people are a new examination and treatment method. There is no entitlement to this until the G-BA has made a corresponding recommendation. It is now his task to assess the proper application of the new methods and their effectiveness in order to protect the persons concerned from irreversible wrong decisions.

The previous case law of the BSG on "transsexualism" had been based on the clearly demarcated appearances of the female and male sex, the presiding judge explained. He emphasized that the Senate no longer adheres to the restriction to gender reassignment surgeries exclusively for the purpose of adapting to the female or male sex. This is contradicted by the case-law of the Federal Constitutional Court, according to which gender identity is also protected by the general right of personality for persons with variants of sex development who permanently assign themselves neither to the male nor to the female gender.

(Reference B 1 KR 16/22 R)