Parliamentary seat illegitimately taken by male MP
On 26 September 2021, Green Party member Markus Ganserer was elected to the Bundestag (the German Parliament) under the name Markus (Tessa) Ganserer. Ganserer claims he is a woman and has assumed the name Tessa. Markus Ganserer is a biological man. Not only that, his legal status is also registered as that of a man. Despite this, he was able to run for election to Parliament on a position on the Bavarian Green Party list which, according to the rules of the Green Party’s own Women’s Charter, should have been reserved for a woman. Now Ganserer is listed in the German Bundestag itself as a female MP.
How did this happen?
The Green Party’s women’s statute allows any male member of the party to self-identify as a woman. A simple speech act is all it takes. The party’s rules therefore make it possible for men to stand for election on a position on the party’s election list intended for a woman. This was how Markus Ganserer was able to win an all but safe seat in the Bundestag as a woman without following the legal procedure which applies to everyone else in Germany under the German Gender Recognition Act (Transsexuellengesetz, TSG).
The Green Party can, of course, decide to adopt whatever rules it likes – internally. But applying this internal party rule to the selection of candidates for election to the Bundestag violates democratic and procedural principles, which according to the German Constitutional Court (Bundesverfassungsgericht) apply to the democratic electoral process (BVerfG, 2 BvC 2/91). If Markus Ganserer had not been selected to run on this woman’s position in the electoral list, the seat he now has in the German parliament would have gone to a woman instead or, generally speaking, another person.
The issue here is not so much the women’s quota, but rather the fact that it is completely open:
- how the assembly of the Bavarian Greens would have proceeded then
- whether and on which place Markus Ganserer would have run then
- whether he would ever have had a chance to win a seat on the Bundestag via a top position on the list.
Supporters of the Geschlecht-zaehlt.de (Sex Matters) initiative have responded by lodging objections to the legitimacy of Markus Ganserer’s election to the Bundestag. In Germany, any person entitled to vote may file an objection against the validity of the election result of a Bundestag election and thus have it examined.
Markus Ganserer now counts statistically as a woman, even though his male name was on the ballot
The forester Markus Ganserer from Nuremberg ran for election on position 13, a woman’s position, on the Green Party’s Bavarian state list in the 2021 German election. Markus Ganserer is both legally and biologically a man and, according to an interview he gave to the German news magazine Spiegel, he has no intention of applying for gender recognition as the law currently requires.
Nonetheless, prior to the general election, the Bavarian State Electoral Board had ruled that Markus Ganserer could not stand for election using only his assumed name of Tessa. He was only permitted to stand for election on the condition that he also used his legally registered name of Markus in addition to his assumed name: „Markus (Tessa) Ganserer“.
One might have thought, therefore, that Ganserer would have had to stand for election as the man that he in reality is. But far from it: The electoral authorities and state and federal statistics offices now treat Markus Ganserer as a woman – and intend to continue doing so in the future. Why? The answer lies in the Federal Electoral Law (BWG) of 1956, which despite many subsequent amendments, infers a person’s sex from their first name. A case such as that of Ganserer was unthinkable at the time the law came into effect. This is a gap in the law that has come about because no other candidate had ever previously claimed to be of the sex other than the one established at birth.
The Greens’ abuse of quota rules for women violates election principles
The Green Party’s Women’s Charter states clearly:
“Achievement of equal participation of women in politics is one of the political objectives of the Green Party (Bündnis 90/Die Grünen). Minimum quotas for party office and elected representatives are one means of attaining this goal. The term “woman” applies to anyone who identifies themselves as such.” (Preamble)
“At least half of all the positions on BÜNDNIS 90/DIE GRÜNEN committees and on all committees and bodies to which BÜNDNIS 90/DIE GRÜNEN sends, appoints or elects members must be occupied by women; all uneven positions on electoral lists or proposals for candidature must be reserved for women (minimum quotas).”
Although gender self-ID is not currently possible in German law, the Green Party allows a man to self ID as “woman” within the party itself. However, this rule and its consequences when selecting candidates for an election to the Bundestag violate democratic principles and in particular Article 38 Para. 1 Sentence 1 of Germany’s Basic Law. If the Green Party had not allowed Markus Ganserer to stand for election on his list position, the position would have been taken by a woman.
The electoral authorities accept what the parties submit to them
The Federal Returning Officer and state statistical offices use the information about candidates on their state electoral lists as presented to them by the political parties. For statistical purposes, a person’s sex is inferred from their first name.
According to Section 39 Para. 1 No. 2 of the Federal Electoral Regulations (BWO), a candidate’s first name is the name that is provided by the candidate herself or himself and communicated to the party’s spokesperson (Section 22 Federal Electoral Law (BWG)). The parties are required by law to provide register office data when they submit their lists to the electoral authority. This certified document includes a person’s legal first name.
The discrepancy between the first name of Markus Ganserer given by the Greens and the legal document must have prompted the Bavarian State Election Committee to act, which then ordered that the first name „Markus“ be entered on the ballot paper. It added that the name “Tessa” could be added in brackets.
In response to an inquiry, the Bavarian State Office for Statistics has stated:
“Electoral law makes no distinction between the sexes. Markus (Tessa) Ganserer identifies as female and will be included in all future statistics as female accordingly.”
The question is why, despite this statement, the electoral authority uses first names to determine the sex of MPs for statistical purposes.
The Bundestag accepts the Green Party’s gender self-ID position – without legal basis
The Bundestag adopts the information it is given from the List of Election Candidates. The parliamentary administration issues MPs with identity cards which grant members of parliament certain privileges. These are based on the information provided by MPs themselves. In response to an inquiry, the parliamentary administration has stated:
“The names of members of parliament in parliamentary documents, registers and identity cards has for many years largely reflected MP’s individual wishes. Immediately following the election to the German Bundestag the parliamentary administration drew up a list of the names of the newly elected members of parliament based on the List of Election Candidates submitted by the Federal Returning Officer. As a rule, several MPs ask for changes to be made; these requests are usually complied with.
In the case of Ms. Ganserer, a change was not necessary because the List of Election Candidates based on the registry office data from the municipal authorities already contained two first names. Of these, only the name Tessa is now used in the German Bundestag, in accordance with the MP’s wishes.“
The Bavarian State Electoral Board, which decided that Ganserer had to run under the first names „Markus (Tessa)“, must, according to this interpretation, have been acting contrary to the law as the first name Tessa, from which the sex of the candidate is inferred, cannot have been in the official registry office data for Markus Ganserer.
This highly questionable practice, which is in contravention of the law, extends all the way to the German Bundestag – initiated and actively pursued by the Green Party (Bündnis 90/Die Grünen).
The Greens’ strategy: presenting a fait accompli with no basis in law
The Greens’ strategy is to introduce a de facto gender self-ID ruling which is not based on law. Gender self-identification is the core element of a “Self-ID Act” which was turned down by the German parliament in May 2021. The May 2021 draft law had been introduced to parliament by the Green Party and the Free Democratic Party (FDP).
The current legal position is that a person’s legal gender can only be changed under the provisions of the Transsexual Act (TSG). According to statements Markus Ganserer has given to the media, he has no intention of submitting to this legal procedure.
The Green Party and Markus Ganserer are in this way misapplying the law and this practice is not only being tolerated by the Bundestag but is being perpetuated by treating Markus Ganserer as if he was a female MP.
The strategy of the Green Party of allowing a man to stand for election as a woman and of using a gap in the electoral law that exists for purely historical reasons to win a seat for him in Parliament serves a further purpose. The population and the media, it is hoped, will simply get used to the idea of the category gender being redefined in our legal system. The aim is to make it impossible to determine the categories of woman and man according to objective physical-biological characteristics. Instead, sex will be superseded by the category of „gender“ or „gender identity“ that is based solely on subjective feeling and stereotypical ideas and clichés about what it is to be a man or woman.
Statistics about the proportion of women in parliament have been distorted and will continue to be in the future
Although the decision reached by the Bavarian State Electoral Board only permitted Markus Ganserer to run for parliament by adding his legal first name, the federal and state electoral authorities now list him in their statistics as female. According to the Bavarian State Office for Statistics, Markus (Tessa) Ganserer will continue to be listed as female in all statistics in the future:
“… individual statistics are also published on the results of the 2021 Bundestag elections in Bavaria, in which the Bavarian members of parliament are listed according to gender. In this regard, we refer in particular to the following publication on the 2017 Bundestag elections: https://www.statistik.bayern.de/mam/produkte/
veroffentlichungen/statistische_berichte/b7144c_201751_25324.pdf.
The corresponding report on the 2021 general election, in which Markus (Tessa) Ganserer will be listed as female, will be published in a few months. We also provide information in our publication ‚Women in Electoral Statistics‘. (https://www.statistik.bayern.de/mam/produkte/
veroffentlichungen/statistische_berichte/b7000c_202051.pdf).
We also draw attention to a recent publication by the Federal Returning Officer in which Markus (Tessa) Ganserer is identified as a woman:
https://www.bundeswahlleiter.de/dam/jcr/a15985ef-8772-48ca-8a72-f518bf6bca81
/btw21_sonderheft.pdf“
By acting in this way, the electoral authorities at federal and state level are contradicting themselves. On the one hand, they emphasize that the electoral law makes no distinctions between the sexes. At the same time, a male candidate is listed as a woman simply on the grounds of his own assumed, but not legally valid, female first name. In this way, the Federal Returning Officer and all statistical offices are participating in the falsification of the election results and the statistics on the proportion of women in parliament.
Women’s voices raised in objection
The actions of the Green Party are tantamount to electoral fraud. Markus Ganserer should be disqualified from sitting in parliament as he gained his seat under false pretences.
The actions of the Bundestag are unworthy of a democratically legitimized parliament and severely damage society’s trust in the rule of law. All efforts to increase the proportion of women in political bodies are thus reduced to absurdity at the highest level. This contradicts the state’s duty under Article 3 of the Basic Law to promote equality between women and men.
Many women filed an objection with the Electoral Scrutiny Committee of the German Bundestag pursuant to Section 2 Para. 2 of the Law on the Scrutiny of Elections (WahlPrG) against the election to the 20th Bundestag on 26 September 2021 in the Free State of Bavaria, insofar as it was determined that Markus Ganserer was elected on the election proposal of Bündnis 90/Die Grünen in list position No. 13.
In March 2023, the Bundestag rejected the election objection in accordance with the recommendation of the election review committee.
Action before the Federal Constitutional Court
In May 2023, the women lodged an appeal against this decision with the Federal Constitutional Court.
A ruling is pending.