German Federal Court of Justice on intersex
The recent decision by the German Federal Court of Justice (Bundesgerichtshof) on intersex – see here for a previous post in German and here for a few links – is making it to the English-speaking media. Have a look here for Reuters and AP, respectively.
What did the court rule? At first glance, nothing much. It upheld the previous decision of a regional appeal court (Oberlandgericht) that inter* people cannot register as ‘inter’, as the law did simply not offer this option. The Court also considered, but rejected the possibility that these rules were unconstitional. As the Federal Court of Justice is the highest court for civil justice, there is no appeal against its decision, but it is possible to bring the case to the Federal Constitutional Court (Bundesverfassungsgericht) to have the relevant legislation declared unconstitional. (The plaintiff has already indicated his_her intention to do so.)
So, nothing much new one might think, and nothing much to happen before soon (as constitional complaints take time and, statistically, are often unsucessful). However, let me briefly sketch the background of the decision and why I think the decision has wider implications.
In Germany, newborn babies have to be registered, and this includes the registration of Geschlecht which in this context, is both sex and gender: the law assumes that one’s sex is registered but once registered, it is your legal gender. There has been a change of law in 2013 concerning these rules, but contrary to what is frequently reported, the new rules did not introduce a ‘third gender’. The new law only stated that in cases of doubtful sex no entry was to be made; the idea was to give parents and experts more time to think, and to minimize pressure to act rashly. Human right groups have criticized the new law, not so much because it did not contain a third gender, but mainly because the question which sex a baby has was still mainly left to medical experts, and because no efficient means were taken to stop medically unnecessary genital surgery.
In any case, the law at a first glance seemed to apply to babies born after November 2013 (when the rules came into force), and seemed to assume that the missing entry was sooner or later to be added. However, the law did not state, but imply, that inter* people born after November 2013 and incorrectly registered as male or female may have a claim to have incorrect entries deleted – not to be replaced by ‘inter’ or ‘X’ or whatever, only deleted. Whether a similar claim existed for inter* born before late 2013, was quite unclear.
Here, the recent decision will make a difference. The Federal Court of Justice argued, inter alia, that the German rules on registration at birth did not violate the rights of inter* because it were possible to have wrong entries deleted. The court ruled so in the case of an adult inter* person who personally did not want this (but rather to register as ‘inter’), but by doing so may have established a right for all inter* people to have an incorrect entry deleted. Again, there is no ‘third’ legal gender, but this means that there will be a possibility for a third legal status of no sex registered; this status may be accessible to all inter* and potentially (if they want so) for their entire lives.
This is a new situation, I think, and comes a bit as a surprise (the plaintiff had not wanted this, and if the law said this, I failed to see it). In my opinion, it immediately raises another question which the Court seems to have taken a bit lightly: what would it mean to have permanently no sex registered? Effectively, I think, this is a third legal status, and it is not quite clear (not to me at least) which consequences it would have for people in question. After all, legal gender is binary, and in certain contexts, it does matter: marriage in Germany is defined as a bond between two persons of different legal gender (at least it can only be contracted between a man and a woman – later sex changes do not affect its validity), civil unions in contrast can only be entered by two persons of the same sex, and there still is conscription – even if it is suspended at the moment, the relevant law is quite clear that drafting is limited to the male part of the population.
So, binary legal gender still has important consequences in Germany, and it is not quite clear what it would mean to have permanently no legal gender; yet the Federal Court of Justice has propably made it possible to many, potentially to all, German inter* to have incorrect entries deleted.