Author: Lawyer Enrico Germano .
The change in the law approved by the Swiss Parliament on 18 December 2020 makes it possible, as of 1 January 2022, for interested persons to change their gender and surname entered in the civil register quickly and easily, without bureaucratic hassles, by means of a simple declaration in front of the civil registrar: “the declaration may be made by any person who has the intimate and abiding conviction that he or she does not belong to the gender entered in the civil register”.
The amendments to the Federal Ordinance also specify that if the person concerned has not yet reached the age of 16, is under general deputyship or has been ordered to do so by the Adult Protection Authority, then the consent of the legal representative will be required (Art. 11 para. 4-6 Civil Status Ordinance-OSC). The declaration is subject to a fee of (only) 75 Swiss francs, in accordance with the Ordinance on Civil Status Fees (OESC).
The Commentary on the revision of the OSC and OESC drawn up by the Federal Office of Justice (FOJ) on 30 August 2021 made it clear, however, that civil registrars must not actively search for abuses. In accordance with the general principle of good faith (Art. 2 of the Swiss Civil Code), the sincerity of the person who declares that he or she wishes to change the gender entry in the civil register is presumed. The amendments to the OSC do not provide for any obligation on the part of the civil registrar to verify the intimate conviction of the person concerned: “Abuse exists only if it is manifest, i.e., if it leaps out. The new Article 30b of the Swiss Civil Code states that any person who is firmly convinced that they are not of the sex entered in their respect in the civil register may declare to the civil registrar that they wish to have the entry changed”.Therefore, only in the case of clear abuse, namely if there are objective and concrete indications of abuse, is the civil registrar obliged to refuse to accept a declaration of gender change and this decision may be appealed to the supervisory authority.
Without wishing to go into statistical details, the Explanatory Report on the Draft Proposal on the Revision of the Swiss Civil Code (Change of Sex in Civil Status) of 23 May 2018 mentioned that there are between 100 and 200 transgender people in Switzerland who have undergone an operation or for whom an operation is planned. Transgender persons who have changed from male to female sex by undergoing an operation amount to one in 30,000, while those who have changed from female to male sex amount to one in 100,000.
The first effect of the legislative changes is that many more people have decided to change their gender. In some Cantons, such as the Canton of Ticino, the number has increased sixfold to 31 in 2022, for a population of 352,121 as of 25 August 2022, according to data from the Office for Statistics of the Canton of Ticino. In the city of Zurich alone 101 and in the Canton of Berne 140. The official figures for the year 2022 are not yet known, but it is clear that the number has grown exponentially. There is no shortage of abuses, including that of a 60-year-old Swiss man from Lucerne who had himself registered as a woman only to be able to retire 1 year earlier, or that of a 23-year-old who had himself registered as a woman in order not to serve and not to pay military tax.
1 Press release of the Swiss Federal Council.
2 Civil Status Ordinance (OSC) – amendment of 27 October 2021, entry into force 1 January 2022.
3 Ordinance on Emoluments in Matters of Civil Status (ECO) – amendment of 27 October 2021 to section 4.9.
4 Commentary on the revision of the OSC and the consequent amendment of the OESC drafted by the Federal Office of Justice FOJ on 30 August 2021, page 5.
5 Explanatory Report on the Draft Proposal for the revision of the Swiss Civil Code (change of sex in civil status) of 23 May 2018, page 8.
6 La Domenica, page 6, 12th February 2023.