330 Basic Rights and Liberties however, decided a few months later, the Constitutional Court declined to the same degree of protection to the testimony of a social worker. The o m that while such professionals are personal advisers, they are also agents of t entrusted with the administration of public assistance.44 Tape Recording II is yet another landmark in the Constitutional Court's privacy jurisprudcr barred the use in a criminal proceeding of a secret recording that the via made in a conversation with the accused. Again tile court noted the import balancing the individual's interest in privacy against the public's interest ín b criminals to justice. The public interest, said the court, might require the adn ity of a secret recording that conveys information not related to the private sj an individual's personality. Given the nature of the offense, however, th balanced the interests in favor of the defendant but appeared at the same erect an absolute barrier against the public disclosure of information touch "inner core" of the human personality. 7.8 Transsexual Case (1979) 49 BVerfGE 286 [The complainant in this case had undergone a surgical procedure changed "his" sex from male to female. Subsequent thereto, a local civil c in Berlin allowed "him" to change "his" civil status to that of a woman ordered that it be so entered in the appropriate birth registry. In a deci affirmed by the Federal High Court of Justice, the Berlin District G pursuant to an objection by the secretary of state, reversed, with the c plainanťs status reverting to that of a male. The complainant appealed r< Federal Constitutional Court, claiming a violation of human dignity personality rights.] Judgment of the First Senate. viola^T011 ^/^ HiSh C°™ »f Justice of September „, „ «otees 4 baste h of the complainant arising out of ^ 2 (l) „ md, ^S,1'0 °\ *= ConSttaÜ°- We reverse and remand the case to , reaeral High Court of Justice. LičlCOrdÍng t0 ttmCdiCal 0pMOn befOTe *e CO™. *<= complainant is psych logtcaUy a woman Through hormone treatments and operadons modern Lid has made tt poss.ble to give him the appearance of a member of the female sex. 1 the complamant«treated as a man in the eyes of the law. The possibility of livinj normal healthy, and socially adjusted life as a woman is thus denied to this pa» rnelack of conformity between his outward appearance andhis personal legal stati is mantfested by the fact that it is not legally possible for him to bear a first na„- Human Dignity and Personhood 331 IIv associated with the female sex. Because the law on civil status is based on •iiiisc that a person's first name must reveal the sex of its bearer, the complain-n change his name only after the entry of his sex is changed in the birth ľ Even where a gender-neutral name is concerned, the possibility of a com-ir being brought into a situation of conflict cannot be ruled out; the spheres ituations touch belong to that most intimate realm of personhood, which is red against state interference and with which government may interfere only mance of special public concerns [citing cases]. (a) Article 1 (1) of the Basic Law protects the dignity of a person as he rands himself in his individuality and self-awareness. This is connected with a that each person is responsible for himself and controls his own destiny. 2 (j), when seen in relation to Article 1(1), guarantees the free develop-■){ a person's abilities and strengths. Human dignity and the constitutional o the free development of personality demand, therefore, that one's civil .ic governed by the sex with which he is psychologically and physically identi-)ur law and society are based on the principle that each person is either iline" or "feminine," and that this identification is independent of any possi-lit.ilic anomalies. It is doubtful, however, that the theory of gender iramu-; determined by sexual characteristics apparent at birth, can be maintained k absolute certitude reflected in the decision of the Federal High Court of . Various forms of biological intersexuality are known to modern medicine. al research into the phenomenon of twin births has revealed a dissociation :n body and spirit that manifests itself most sharply, according to reliable d knowledge, in transsexuals.... >) The right to the free development of personality is protected only within its of the moral law. In the present case the moral law has not been infringed. er an operation, not therapeutically necessary, to change a person's sex should arded as immoral is not the issue here. According to the available expert ns, a sex change operation was deemed necessary by the complainant. Cur-edical research indicates that transsexuals are seeking not to manipulate their ty but rather to find some unity of body and spirit. Therefore the operation seen as a partial effort to achieve this goal. The anguish of the transsexual >ed in medical texts has been confirmed by the medical opinions presented in se. Accordingly, the sexual change secured by the complainant cannot be ered immoral___ office it to say that the ability of a man to conceive a child or of a woman to child is not a prerequisite for marriage. Under Article 6(1), marriage repre-iifelong union of man and woman in a basically indissoluble community. The ge partners form this community on the basis of their own ideas and expecta-It may be that many people reject the idea of a marriage between a male ;xual and a man as something deserving of moral condemnation. Such irra-cears, however, may not stand in the way of a marriage. This view is bolstered 332 Basic Rights and Liberties by available medical knowledge indicating that male transsexuals do not seek hi sexual relationships. Rather, they desire normal relations with a heterosexual ner and expect, in the aftermath of a successful operation on their genitals, to normal sexual intercourse with a male partner. (c) According to the decisions of the Federal Constitutional Court, the may regulate the private life of the individual insofar as his relations with his £ men are concerned, but it may not encroach on that inviolable and innermost sj of life. No public interest is served by the state's refusal to allow an official char the sex identification of the complainant that would justify an encroachment the basic right secured by Article 2 (i) in relation to Article 1 (1) of the Basic note: bodily integrity. Article 2 {2} declares: "Everyone shall have the rig] life and to the inviolability of his person." This provision is repeatedly invokt conjunction with the human dignity and personality clauses as a basis for impc constitutional restraints on criminal procedures. A person may be duty-bour submit to certain physical interventions if necessary to a judicial investigation. the action must be specified in precise terms by a judge applying the law in the of constitutional values.46 The intervention must, above all, satisfy the princip proportionality. Thus, in the Heinrich P. case (1956), the Constitutional C sustained the validity of a judicially ordered blood test to determine parentage paternity suit.47 Other federal courts have likewise sustained compulsory vao tion statutes and even corporal punishment in schools.48 The personal inviolal clause appears to bar all invasions of the body that would result in unusual phy pain, bodily disfigurement, sterilization, impairment of any bodily function, oi injury to a person's health.49 As the Spinal Tap case (1963) shows, the clause imposes severe limitations on the technical methods that can be employed in penetration of the body. In tht Pneumoencephalography case (i9ó3),S0 decided í weeks after Spinal Tap, the court invalidated a court-ordered puncture of a per; vertebral canal for the purpose of testing his personal responsibility for a crime. Federal Constitutional and Administrative courts have even invalidated the [ graph test in criminal investigations.51 To attach a person to a machine foi purpose of eliciting the truth, these tribunals have suggested, is an inadrnis invasion of a person's innermost self and a violation of human dignity. In short human person cannot be treated, consistent with the image of man advanced d in this chapter, as an object of experimentation of any kind. Efforts to apply the personal inviolability clause outside the criminal field been less successful. In the Widow's Child Welfare case (1951) the Constitute Court ruled that Article 2. (2) does not confer any subjective right to a specific s welfare benefit.52 In more recent years, however, particularly in the aftermath o ňtstAbortion case (no. 7.10}, constitutional litigators have been able to argue some plausibility that, as an objective value, the right to personal inviolability p Human Dignity and Personhood 333 e or