The much-cited "new complexity", originally diagnosed by Jürgen Habermas, also applies to the areas of sex and gender. The impossibility of conclusive (objective) gender definitions follows from the overcoming of the gender dual traditionally derived from biological sex in favour of plural (self-)understandings of gender identities. The "*" or "+" sign in the acronym LGBTIQ* indicates the provisional nature and openness of conceptual gender variants. "Queer" not only serves as a self-designation for transgender and gender-diverse people (TGP), but also stands for the non-deterministic relationship between gender identity and biological sex. Sam Killermann's gingerbread figure "Genderbread", which distinguishes between sexual identity, gender expression, anatomical sex, birth sex, gender expression and sexual orientation, offers a differentiating view of gender and sexual complexity (and the discourses surrounding it):
Gender identity refers to the way a person experiences, defines and shapes their gender (personality traits, occupation, hobbies, likes, dislikes, roles, expectations, etc.) and depends on how they agree or disagree with this understanding.
Gender refers to the physical characteristics (sexual organs, hormones, chromosomes, body hair, breast growth, hips, voice) that a person is born with or develops, as well as the gender that a person is assigned at birth.
Attraction is the way in which a person feels attracted to other people sexually, romantically, emotionally and/or in other ways.
Expression refers to the way in which a person presents their gender through their behaviour and appearance (appearance, clothing, style, staging, hairstyle, make-up, etc.) against the background of social expectations.
The categories "gender identity", "sex", "attraction" and "expression" are not alternative descriptions of personal gender and sexual orientation, but cumulative aspects of personal identity that a person develops in their social, cultural and legal-political environment, and in which they are identified as this person. It is crucial that (1.) gender identity and expression cannot be inferred from biological sex and (2.) attraction (sexual orientation) cannot be inferred from social sex (gender identity and expression).
The simple schema deconstructs the traditional heteronormativity associated biologically with dyadic or endosexuality and cognitively and emotionally with CIS gender. In the endosexual person, the biological sex characteristics (genetic, anatomical and hormonal) correspond to the binary male/female body schema; in the case of CIS gender, the cognitive-emotional gender identity experienced corresponds to the ascribed birth sex. While the intersex person does not have endosex congruence, the transgender (transidentical) person (agender, bigender, genderfluid, etc.) has a discrepancy between birth sex and gender identity. Since the 19th century, intersex has been considered a biological pathology, while transgender has been considered a cognitive-emotional pathology.
This is to be distinguished from different-sex and same-sex sexual orientation. This includes "patterns of emotional, romantic and/or sexual attraction". [verstanden]that people exert on others. It also refers to a person's sense of personal and social identity based on their inclinations, associated behaviours and membership of a community of others with similar inclinations and behaviours. Sexual identity is different from gender identity." Sexual orientation, which is also at the centre of highly controversial reparative or conversion treatments, is only one aspect of the comprehensive topic of Sexual Orientation and Gender Identity (SOGI), insofar as it focuses exclusively on attraction against the background of the heteronormative gender order. Both the variability of biological sex and the significance, meaning and personal dimension of non-binary gender identities and forms of expression are ignored.
According to the UN Independent Expert Report, the term "conversion therapy" is used as an "umbrella term to describe interventions of various kinds, all based on the belief that a person's sexual orientation and gender identity, including gender expression, can and should be changed or suppressed if they do not fall within what other actors in a particular setting and at a particular time consider to be the desirable norm, especially if the person is lesbian, gay, bisexual, trans or gender diverse. Such practices therefore consistently aim to bring about a change from same-sex to different-sex and from trans or gender diverse to cisgender. Depending on the context, the term is used for a variety of practices and methods, some of which take place in secret and are therefore barely documented."
Reparative or conversion treatments are discussed today under the collective term Sexual Orientation Change Efforts (SOCE). If it also involves measures to prevent non-conforming gender identities and their forms of expression, it is referred to as Sexual orientation, gender identity and expression change efforts (SOGIECE). SOCE in the narrower sense includes all concepts and practices that "influence a person's sexual orientation, or partial aspects thereof, through targeted interventions [...] - whether with the consent, against the will or without the knowledge of the person concerned", in particular "forms of psychotherapy, especially so-called aversion therapies, psychoanalytical procedures, but also religiously motivated approaches to counselling and intervention, including group interventions and finally self-organised measures". The measures used are mainly based on personal experience reports: "Biography work, banishment of homosexual thoughts, religious practices, forced psychiatrisation[...], aversion and electroshock therapy, clitoridectomy, lobotomy, hysterectomy, reinforcement of gender- and heteronormative behaviour, which includes, for example, seeking out opposite-sex prostitutes, training in heterosexual or gender-conforming skills and the administration of various medications as well as systematic desensitisation."
The history of the medical and psychological pathologisation of same-sex attraction begins in the 19th century. Despite the obvious connection, the influence of Christian and other religious moral concepts on homophobic medicine and psychology has, to my knowledge, not yet been systematically investigated. A distinction has been made between an innate, non-influenceable and a socially acquired, treatable same-sex orientation. "This historically developed medicalisation is closely linked to criminalisation and also to a colonial view of bisexuality and heterosexuality. Sexuality between two or more people of the same sex and sexual expression beyond the officially recognised gender was prohibited in large parts of the world until the 20th century and in some cases still is today. At the same time, the medicalisation and thus also the social establishment of rigid binary gender classifications and ideas came to a head during the period of the European Enlightenment and colonialism. The ideals and norms of heterosexual bisexuality that prevailed in modernity were produced and visualised against the backdrop of Black, mostly enslaved people. While Black people and people of colour were usually portrayed as oversexualised and animalistic, white people, on the other hand, were described as civilised and worthy of an ideal of humanity and thus worthy of attaining (at least certain) civil rights. Forms of such dehumanisation are still partially effective today."
The stereotypes are adopted and reinforced by medicine and psychology, as the history of the internationally authoritative classifications ICD of the WHO and DSM (Statistical Manual of Mental Disorders) of the American Psychological Association (APA) show. In 1968, the WHO and in 1952 the APA classified "homosexuality" as an illness and cancelled the category in 1990 and 1973 respectively. In ICD-10 (1994) and DSM-III (1980), the disease term "ego-dystonic sexual orientation" was introduced and deleted in 2019 and 1987 respectively. Transgender was classified as a "gender identity disorder" in ICD-10 (1994) and DSM-III-R (1987) and appears in the current ICD-11 (2022) as "gender incongruence" and in DSM-5 (2013) as "gender dysphoria". Gender incongruence refers to the "marked and persistent experience of a person that their gender identity does not match the gender that is expected of them based on their sex assigned at birth", while gender dysphoria refers to the "discomfort or discomfort with their gender identity". [den] Stress associated with a mismatch between a person's gender identity and the sex assigned at birth".
The history of medical and psychological categorisations has consequences for the professional assessment of conversion measures. The commonly used concept of therapy is incorrect because (1) same-sex orientation is not a disease or disorder and therefore not an indication for therapeutic measures and (2) interventions are used that do not fall under a medically and psychologically sound concept of therapy. "In view of the lack of indication, the lack of evidence of an effect on the target criterion and the broad spectrum of individual and social negative effects, there is a lack of evidence for the implementation of SOGIECE from a medical-psychotherapeutic and sexual science perspective. If a non-heterosexual orientation causes psychological distress, this distress can be the starting point for appropriate counselling or therapy, which must not aim to change the sexual orientation." The current discussion about SOCE is subject to two reservations:
(1.) Under the verdict of a discriminatory and inhumane practice, SOCE cannot be legitimised by any benefit, however justified. On behalf of many medical institutions, the World Medical Association states: "The WMA unequivocally condemns so-called 'conversion' or 'reparative' methods. These are a violation of human rights and unjustifiable practices that should be reported and subject to sanctions and penalties. It is contrary to the medical ethos to participate in such procedures in any way." The growing number of testimonials from affected individuals, journalistic articles and case histories provide harrowing confirmation of the inhumane, harmful, life-threatening and life-destroying practices and their consequences for the individuals concerned. This is why SOCE cannot be discussed independently of the violence against people who have fallen and continue to fall outside the religious, moral, medical and psychological grids of normality. The long history of homophobic culture is reinforced by the shift from violence originally directed against the bodies of strangers to aggression against the bodies of one's own community and one's own body. The modern state claims physical violence against the outside world for itself (monopoly on violence), but largely leaves physical aggression within society to the social processes of social standardisation and discipline. Because responsibility for external violence lies with the state, internal aggression, which is no less brutal and crude, is hardly recognised as injustice, unmasked and sanctioned. Under the guise of pacified civility, violence against the non-conforming body is spreading in a way that did not previously exist (in this form). This particularly affected the reproductive female body and the male body if it did not conform to social norms. In the 19th century, sex became the public object of legal sanctions and erotic pleasure the object of scientific observation, judgement and manipulation. It is no coincidence that it was during this period that Neo-Lutheranism developed its doctrine of the orders of creation, a theological, repressive social morality based on parasitic natural law. The political sexual revolution in the 1960s/70s did little to change the traditional alliance of masculine and homophobic power relations, which only a late bourgeois, diversity-sensitive liberalism was able to tackle.
(2.) Conversely, an objective debate about SOCE is made more difficult by a symbolic censorship morality that tabooises questions about what is right with monopoly claims to what is good. The chants of moral hegemonists demonise a lack of obedience to the norm with the same quasi-religious esprit de corps that homophobic societies use to demonise deviations from the heteronormative dominant culture. This plays into the hands of the providers of SOCE measures, who hardly appear in public, but operate in largely closed, authoritarian communities and are protected by a clientele committed to community morality. Although the actual extent in Switzerland is a mystery, it is estimated that over 14,000 people are affected.
At national and cantonal level, repeated initiatives in favour of and against a legal ban on conversion measures have been launched in recent years. Rosemarie Quadranti advocated this in her interpellation 16.3073 "Prohibition and criminalisation of therapies to 'cure' homosexuality in minors" from 10 March 2016 and in her motion 19.3840 "Prohibition of the 'cure' of homosexual adolescents" from 21 June 2019. The cantonal initiative of the canton of Lucerne 22.310 "Prohibition of conversion therapies" of 3 June 2022 supports the request on the grounds that SOCE would represent "an unjustifiable intrusion into the privacy and integrity of the persons concerned". The professional initiative of the Canton of Basel-Stadt 22.311 "Ban on conversion therapies in Switzerland" of 7 June 2022 adds: "These ostensibly 'reparative' treatments are carried out by various people with different professional backgrounds. In addition to doctors, these include coaches, sex counsellors and clergy. While doctors violate their professional duties by carrying out conversion therapy and can expect disciplinary measures, there is no legal action against conversion therapies carried out by coaches, sex counsellors and clergy. Conversion therapies are highly traumatising for the people concerned. This has been proven by numerous studies. [...] Such practices must be prevented in Switzerland. [...] A corresponding law should be as broad as possible and also apply in particular to cases in which minors are affected." The need for legal regulation is also due to the circumstances in other European countries, as Angelo Barrile explains in his interpellation 20.3870 "Switzerland is a haven for 'homo healers'" of 19 June 2020: "Because of this ban in our neighbouring country [Germany; FM], the Brotherhood of the Way, has founded itself as a separate association in Switzerland. This newly formed association originally emerged from Wüstenstrom, the best-known organisation associated with the harmful 'homohealer therapies'. This diversion of activities to our country suggests that the legal basis in Switzerland is not sufficient to prevent such practices."
The demands vary in scope. For example, the parliamentary initiative 21.497 (Sarah Wyss) "Switzerland-wide ban and criminalisation of conversion measures" of 30 September 2021 and the motion 22.3889 of the Commission for Legal Affairs NR "Prohibit and criminalise conversion measures against LGBTQ people" of 18 August 2022 restrict the following: "This ban should not cover - professionally accompanied, open-ended discussions about one's own sexual orientation or gender identity, such as psychotherapy.2022: "The following should not be covered by this ban: - professionally supervised, open-ended discussions about one's own sexual orientation or gender identity, such as psychotherapeutic measures in accordance with the guidelines of the relevant professional associations; - medically indicated measures for gender reassignment; - therapies for criminally relevant sexual preferences and behaviour (such as exhibitionism or paedosexuality)."
Against an independent legal ban on SOCE, postulate 21.4474 (Erich Siebenthal) "Review of the spread of so-called conversion therapies in Switzerland and the need for legal regulation" of 16 December 2021 points out that "the situation is unclear. There is still no study on these practices that would show which problematic cases occur in Switzerland today and how the current law responds to these situations. In addition, the complexity of the topic places high demands on any formulation of the law and requires a clear basis. It is also important to bear in mind that the right to sexual self-determination of people who seek appropriate support in accordance with their wishes and convictions must be respected." The Swiss Evangelical Alliance (SEA) agrees with the Federal Council's rejection of a legislative initiative and emphasises that "the adoption of new laws is not an appropriate strategy. On the contrary, it runs the risk of being counterproductive by restricting the right to sexual self-determination, which it seeks to better protect. In addition, there is a risk of curtailing other rights worthy of protection: freedom of opinion, conscience, religion and the freedom to organise one's own life."
The Federal Council also took a defensive stance for a long time. In its statement on interpellation 16.3073 Quadranti, it stated: "Such therapies are not only ineffective, but are also associated with considerable suffering for the children and adolescents concerned." At the same time, there is "no possibility or need for action specifically aimed at protecting minors from therapies against homosexuality". The Psychology Professions Act guarantees the necessary protection. "Carrying out therapies to cure homosexuality, whether on minors or adults, is a violation of these professional duties." The child and adult protection authority (KESB) is the point of contact for any potential risks to a child. However, as conversion measures are incompatible with the professional ethics of specialists, the Federal Council states that "it must be assumed that offers from self-proclaimed 'healers' in particular will be utilised. Whether the provision of such therapies constitutes a criminal offence can only be judged in individual cases before a court. [...] The churches are responsible for enforcing professional ethics in pastoral care." In the meantime, the National Council has adopted Postulate 21.4474 von Siebenthal, which calls for (1.) a definition of so-called "conversion therapies", (2.) a review of the actual extent of such practices in Switzerland and (3.) an assessment of the possible responses to them under current law. The Federal Council is of the opinion "that the results of this report should be awaited before deciding whether and - if so - which changes need to be made to federal law".
The 29 "Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity" drawn up by an international commission of lawyers and the International Service for Human Rights (ISHR) were adopted in November 2006 and supplemented in November 2017 by nine further principles and 111 additional state obligations in "The Yogyakarta Principles plus 10" with a view to the special concerns of trans* people. The principles of both documents present a postcolonial re-reading of classic human rights documents, recognising "that this account must build on the current state of international human rights law and be regularly reviewed to reflect the evolution of these rights and their application to the lives and experiences of people with different sexual orientations and gender identities over time and in different regions and countries" (Preamble). The principles that deviate from the established nomenclature are striking:
"The right to protection from medical ill-treatment" (Principle 18): "No one shall be forced to undergo any form of medical or psychological treatment, examination or measure, or to be admitted to a medical institution, on the grounds of sexual orientation or gender identity. Contrary to judgements to the contrary, a person's sexual orientation and gender identity are not illnesses in and of themselves and should therefore not be treated, cured or suppressed."
"The right to effective remedy and reparation" (Principle 28): "Every victim of a human rights violation - this includes violations of rights based on sexual orientation or gender identity - has the right to effective, adequate and sufficient remedy. Measures aimed at providing compensation or adequate support to persons of diverse sexual orientation and gender identity are an integral part of the right to effective remedy and redress."
"Accountability" (Principle 29): "Every person whose human rights, including the rights addressed in the present Principles, have been violated is entitled to have those who are directly or indirectly responsible for that violation, whether or not they are public officials, held accountable for their actions in a manner commensurate with the gravity of the violation. There must be no impunity for those who commit human rights violations related to sexual orientation or gender identity."
The second document from 2017 emphasises: "The right to be free from criminalisation and sanctions based on sexual orientation, gender identity, gender expression or sex characteristics" (Principle 33): "Everyone has the right to be free from criminalisation and any form of sanction that results directly or indirectly from their actual or perceived sexual orientation, gender identity, gender expression or sex characteristics."
"Having rights but no resources and no services available is a cruel joke." The question of the scope and equal access to human and fundamental rights arises the moment it becomes clear that addressing "people" and "citizens" does not naturally include every person. Whether a person can enjoy the fundamental rights of freedom and entitlement depends on whether they are respected and recognised as a "human being" and "citizen" with everything that constitutes their identity. The modern focus on universality in the law leads to a systematic ignoring of the discriminatory, racist and sexist definition of what constitutes a human being and a citizen, which attributes belong to them as "normal" and which characteristics are excluded as "abnormal" or deviant. The problem of inequality does not exist with regard to the formal legal equality of the person, but with regard to the limitations of the attributes of the person that are legally guaranteed and protected.
The controversy between the demand for criminal law standardisation of conversion measures (3.1), the primacy of self-determination (3.2) and the human rights declaration (3.3) lies in the different assessments of the inclusivity and effectiveness of existing legal systems. While positions 3.1 and 3.3, from a morally critical perspective, call for explicit criminal or human rights standardisation in order to effectively sanction conversion measures and efficiently protect the persons affected by them, position 3.2, from a liberal perspective, considers the current laws and existing professional regulations to be sufficient. Both sides can invoke plausible reasons, but both lines of argument presuppose a legal entity and function that do not exist in reality. The difficulty can already be found in Immanuel Kant, who imagines the cosmos of practical reason as a global courtroom in which the autonomous subjects - like Iustitia, the goddess of law - walk through the world blindfolded and encounter every fellow human being "without regard to person".
The modern legal subject constructed in this way forms - to use an image from Slavoj Žižek - a kind of decaffeinated standard citizen who follows a familiar taming scheme: "Nowadays there is a whole range of products on the market that have been stripped of their bad qualities: Coffee without caffeine, cream without fat, beer without alcohol. And the list goes on: How about virtual sex as sex without intercourse? Or Colin Powell's doctrine of war without casualties (on our side, of course) as war without war?" According to this, same-sex, gender-incongruent or trans* people are treated equally if they abstract from their gender identity so that no one is confronted with it. Exactly those characteristics of a specific person that correspond to the dominant cis-heteronormative image of humanity are respected and recognised. The modern principle of equality has no difficulties with the formal legal subject on which it is fixed, but massive problems with the political reality in which moral concepts of man decide on the recognition of a person as a legal subject. Universal equality is an equality of subtraction, in which everything that collides with the standard views and conformity requirements is subtracted.
If this brief instruction manual of the modern legal subject is correct, the controversy between the three positions is resolved because they are each backing the wrong horse of the law in their own way. The self-determination position correctly invokes the universal validity of personal rights and the criminal law and human rights position just as correctly criticise the particular interpretation of what belongs to each person as aspects worthy of protection. However, all three overlook the fact that the law is only a regulator for the practice of everyday perceptions and judgements. The law demands that we look away where it is important to take a closer look. Lifeworlds, social communities and political societies are constituted through attention, visibility, presence and recognition and not through an artificial suppression of what constitutes a person as precisely this person. The rightly denounced discrimination, stigmatisation and exclusion are not actually a problem of the law (which naturally presupposes the equal recognition of all legal subjects), but of a morality that uses the law for its own ends, and it is therefore questionable whether the precarious unequal treatment can be legally addressed and resolved.
During the work of the EKS Council on the topic of "Religious conversion in asylum procedures", a misunderstanding arose because religious change of faith was confused with conversion treatments for sexual orientation. Of course, the topics have nothing to do with each other, but the term conversion is used in both contexts and the change or conversion is closely (although not exclusively) related to religious beliefs. From the perspective of religious conversion, Henning Theissen has criticised the equal legal treatment of religious beliefs and sexual orientation in the asylum procedure because, unlike religious beliefs, sexual orientation cannot be changed. Regardless of whether this distinction is correct, this is also a question of decaffeination: With regard to which aspects of their identity can a person be expected to refrain from (publicly) expressing them? Can a person in a repressive religious society be expected to restrict their practice of faith to the private sphere in order to avoid the risk of religious persecution? Similarly, can a person in a cis-heteronormative majority society be expected to conceal their gender identity in public in order to avoid becoming a victim of discrimination and stigmatisation?
The comparison of the two conversion contexts is revealing because religious faith and sexual orientation are treated analogously in the asylum debate as reasons for unreasonable endangerment in the country of origin, while in the context of "sexual polarity reversal" they are placed in a conflictual relationship in which religious faith defines and sanctions the "right" and "wrong" sexual orientation. It is less interesting that certain religious currents prescribe a strictly heteronormative sexual morality than how they deal with conflicting religious and gender identities. In fact, they resolve the identity conflict by confronting religious identity with the "right" and "wrong" sexual orientation. But what does it actually mean to have a sexual orientation?
"The word 'orientate' comes from the Latin 'oriens', 'rising': the 'Orient', seen from Europe, is the land that lies in the direction of the 'rising sun' (sol oriens), as opposed to the 'Occident', the land in the west where it sets (sol occidens), and 'orientate' originally means 'to turn towards the east'." What all orientations have in common is "that they have to do with 'room for manoeuvre' in which alternatives arise that have to be decided upon, that these decisions have to be made under uncertainty and therefore require courage. Orientations therefore have common structures, but are not standardised and must not be if they are to do justice to individual situations." In order to orientate themselves, a person must not only know the order, but must also be able to locate themselves within it, i.e. identify their position in the order. According to this understanding, religious identity would be the order in which the person would have to locate themselves with their gender and sexuality. At its core, this interpretation corresponds to a fundamentalist Christian view, as well as the neo-Lutheran doctrine of the order of creation, which declares sexual orientation to be a question of biblical requirements or quasi-natural norms. Falling in love, desire and sex become a moral moose test, like the old woman on the kerb who wants to be accompanied across the street, or the found purse that has to be handed in to the lost property office without first being plundered.
The concept of orientation turns out to be a false path because it isolates sexual attraction and categorically decouples it from gender identity, gender and expression. Sexual orientation transforms a person's gender identity into an accidental question of virtuous behaviour. From the perspective of personal identity, however, the following applies: (1.) Gender identity (including attraction) can no more be "subtracted from a person's identity than a belief that completely defines a person". The person would not be the person they are without their gender identity. (2.) "A person's identity is not limited to their interiority, but is expressed [...] in how they are perceived and identified by others. Intrapersonal identity and interpersonal identification are in an indissoluble relationship of resonance. In both cases - sexual orientation and religious identity - it is about the constitutive social dimension of personal identity." The error of religiously motivated converts is not only the denial of the person's sexual identity, but also the mistrust of the religious identity of the believer. What kind of pathetic small faith forbids the idea that Christ naturally lives in gays, lesbians, trans*, gender-diverse and gender-incongruent people? Why does a religious language that so demonstratively emphasises love get stuck in the throat where affects and emotions are expressed directly and with the greatest intimacy and tenderness? Why does piety that is expressed with particular seriousness exchange Christian love for bigoted morality?
Actually, a Christian view - trained in Pauline theology - should not be surprised by the plurality and diversity of human life forms. Irritations only arise because theology has shied away from the question of what it means for one's own gender identity that it is no longer I but Christ who lives in me (Gal 2:20), like the devil shuns holy water. The defence of a cis-heteronormative normal morality with the means of indoctrination, stigmatisation and violent bending of the personality of dependent children and adolescents and dependent adults is precisely what the Bible calls idolatry. Sexual orientation is not a religious belief because both categories reduce gender and religious identity to a single secondary aspect. In contrast, there can only be a faith that determines the whole of life if religious and gender identity belong inseparably together in the believer.
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