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After a gender reassignment the former first name must be crossed over but not cancelled and the one registered

In the commercial register the managing director's name of a company has to be changed in case of gender reassignment. The BGH decided that the managing director cannot pretend the complete cancellation of his former name in the archives of the commercial register. (BGH, in a ruling from February 03, 2015, reference number II ZB 12/14).

The other party of the proceedings was born as a man. In 2009 he founded a company and his name and last name, as a managing director and sole proprietary were entered in the commercial register.  He has undergone male-to-female gender reassignment surgery. In 2012 it was established that she belonged to the female gender. The now female managing director and sole proprietary submitted a request of correcting her first name to the court of registration. The court of registration reddened the former registration of the first name and added below the first name of the female managing director. The female managing director then asked that her former male first name should be cancelled definitely. According to her only her new female name should be entered in the commercial register and the change of name should not be entered as a new entry in the commercial register. She refers to article § 5 of the law of changing the first name and the statement of the gender in specific cases (transsexual law– TSG). There is regulated that after a legal change of name the former first name cannot be revealed against the will of the name carrier unless there is a specific reason of public interest. The registration court refused the applicant's request. The appeals court confirmed the ruling. In his decision the appeals court sent the case to be tried before the FSC (Federal Supreme Court).

The FSC decided that the managing director cannot pretend that her former male first name will be cancelled definitely from the commercial register.

In the first place the FSC, by publishing the first name in the commercial register, seriously doubts you also 'reveal' them according to art. 5 TSG. The FSC is not convinced that the reader of an excerpt from the commercial register due to the same last name and date of birth comes to the conclusion that it is one person only. It is very unlikely to presume something like that due to structure of population (the percentage of transsexuals among the population is very low). It might also be a case of twins or triplets.

Even if a new entry in the commercial register might be considered a 'revelation' according to paragraph 5 TSG there is not violation of paragraph 5 TSG. Due to specific reason of public interest the former first name must be registered in the commercial register. The main purpose of the commercial register has led to this decision taken by the FSC.  Potential business partner of a company that is registered in the commercial register should be able to get information about the legal representative of another company. To guarantee a flow of information in all business transactions the registrations in the commercial register must be coherent. This would not be the case if an extract from the commercial register according to the date and time of the printout contains different information.  It is in the interest of the public that all registrations are complete and that former registrations will not be modified or even cancelled. The general interest predominates the personal interest of a managing director.

To read the whole text of the ruling click here.

To read the whole text of the decision in the first instance click here: RSC Schleswig, decision from April 17 14, reference number 2 W 25/14

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