Recent cases on the legal gender of intersex persons

Before births were registered by civil authorities, baptismal records would be used to document the name of the baptised child, the date of birth, names of the parentes, godparents and other details, but normally not “sex”. Baptismal records from mid-19th c. Sigmaringen. Source: https://commons.wikimedia.org/wiki/File:Tauf-Register_von_der_Pfarrey_Sigmaringen_1851_23-31.jpg. Public domain.

Relatively recently, three similar cases of intersex persons in France, Germany, and Austria to have their birth registers changed have come to my atention. I simply give a summary here and a few links to the sentences (with apologies in advance for any inaccurate translations of French and German legal terms into English):

• In France, an intersex person had applied to have the entry changed into “neutral” (sexe neutre) or, failing this, “intersex” (intersexe); a court of the first instance in 2015 had indeed granted this, but the cour d’appel Orléans in March 2016 reversed it. I am not aware of any further action in this case. The sentence can be found here: http://www.pitcho.fr/site/wp-content/uploads/2016/03/De%CC%81cision-anonymise%CC%81e.pdf; for context, see https://sexandlaw.hypotheses.org/23.
• In Germany, a similar case made to the German Federal Court of Justice (Bundesgerichtshof); there is no appeal against the sentence passed in June 2016, but the case will go to the Constitutional Court. As mentioned before on this blog, the court ruled that no entry other than male and female were possible BUT strikingly also interpreted a recent law on birth certificates as to grant to intersex person to have under certain conditions either entry deleted in their birth certificates, effectively establishing a “legal status of undetermined gender” (Status eines unbestimmten Geschlechts). I still find this very confusing, and we will see where this leads to; for details, see here: https://intersex.hypotheses.org/3791
• In Austria, an intersex person failed to have the civil register entry changed to “other”; however, the court (the Landesverwaltungsgericht Linz, a court of the first instance) in a recent decision of 10 October 2016 stated that the question was of fundamental importance, and explicitely allowed an appeal. See here for the sentence: http://www.lvwg-ooe.gv.at/15008_DEU_HTML.htm

In all three cases, the courts affirmed that only male and female gender were legally recognised, and mainly based their ruling on the absence of a non-binary option in the existing laws and statutes, while acknowleding that there was not much in the laws about binary gender either (namely, no definition of “sex”) and that bodily sex was actually not binary. So in a sense, nothing much has happened – none of the intersex plaintiffs was granted the change in the birth register they had wanted, and none of the courts thought any laws or statutes to be unconstitutional; yet at the same time, it is striking to see how relatively straightforward the courts stated that bodily sex was not binary. This, I think, would not have been possible 25 years ago, and still very unlikely a decade ago. Thus, I am very curious what will happen next in all three cases.

Christof Rolker

Prof. Dr. Christof Rolker, Historiker an der Universität Bamberg.

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