German Constitutional Court on intersex and legal gender
Yesterday’s publication of a supreme court ruling of the German Federal Constitutional Court (Bundesverfassungsgericht) on intersex and legal gender has quickly made it to the press, both nationally and internationally. Perhaps unavoidably, many press releases written at short notice and relying on third-hand reports failed to adequately report what the court had actually rules. Many (including the BBC, CNN and the New York Times) have claimed that Germany must introduce a third (legal) gender. This is not quite correct, so it is perhaps worth the while to briefly summarize both the current legal situation and the court decision in this post.
At the moment, there are but two legal genders, and the court has indeed declared the currect legislation unconstituional, telling lawmakers to come up with a new solution. The law in Germany was and still is that every child has to be registered quickly after birth, and the birth certificate registers legal gender. Only ‚male‘ and ‚female‘ can be registered, but recently it has to become possible to leave the entry blank. This was meant to reduce pressure on parents of intersex babies in particular, as not to hurry with the decision which legal gender their newborn belonged to and, by implication, to reduce the danger of surgically having the baby made fit to a legal gender that was determined in haste. This new law, introduced in 2012, also was interpreted as giving adult intersex persons the possibility to have their birth certificates corrected – that is, the wrong entry deleted *without* necessarily having the other gender entered. Effectively, this created the possibilty of having no legal gender (this at least was my interpretation; the situation changed so quickly that there was little legal scholarship on the issue I could take as a guidance) for all persons who could argue that neither ‚female‘ nor ‚male‘ was the correct legal gender for them.
It was this situation – that everyone was registered as either male or female, or had no legal gender registered – the Federal Constitutional Court declared unconstitutional (with 7 to 1 votes). According to the court, it violates the rights of people who identify as neither female nor male if they are forced to have a legal gender registered without giving them the option to have their gender registered. Consequently, the court told the lawmaker to mend this situation; having some kind of ‚third gender‘ is one possibility to so, having several gender options would also be possible – but the court also indicated another option: no longer to register legal gender at all.
Based on medical and genetic arguments, the court recognised that intersex was an unambiguous and permanent condition (‚eindeutig und dauerhaft‘). Indeed, the court accepted being intersex as a distinct gender, which was important enough for one’s personality to have it correctly registered (as long as there was a legal requirement to register gender at all) if even this had no substantial effect beyond the birth register. As the court argued explicitely, birth certificated did not only matter in so far the legal gender had legal consequences but also mattered for individual identity (‚wichtiger Baustein der Identitätsbildung des Individuums im sozialen Kontext‘), and therefore higher standards of anti-discrimination could be applied, rather that just demanding that the rules had no negative legal consequences for minorities.
If you read German, have a look here for the full text of the court ruling. For the pre-history of the case, have a look at the Federal Court of Justice’s covered by this post: https://intersex.hypotheses.org/3791.