The recent decision of the Federal Constitutional Court certainly packs a punch.
It requires the German parliament to enact new, constitutionally valid legislation that establishes a third gender option beside male or female – or dispense entirely with gender entry in civil registers. This decision goes further than any previous legal ruling in all of Europe. How did this come about?
An intersex person named Vanja got the ball rolling by filing a constitutional complaint, and received support for their case from the Dritte Option advocacy group. Vanja’s request to change their entry in the birth register to something other than male or female or to have no assignment of gender was rejected at several levels. When the case landed before the Federal Constitutional Court in Karlsruhe, the court obtained statements from a dozen NGOs working in this area. Right in time for the global Intersex Day of Solidarity on November 8, and at a point in the exploratory talks and potential coalition negotiations that allows the future German government to incorporate measures to protect the rights of intersex and trans people in the coalition agreement, the Federal Constitutional Court has ordered parliament to come up with new rules by December 31, 2018 that violate neither the general right of personality of intersex, non-binary, and trans people nor the ban on discrimination guaranteed by Article 3 of Germany’s Basic Law.
The lower courts had rejected Vanja’s complaint on the grounds that “the German legal system was binary and did not allow a third gender option.” The Federal Constitutional Court clearly disagreed with this interpretation. It reasoned that the legal option of leaving the entry blank would also not suffice “as Vanja does not understand themself as sexless, but has a gender identity beyond male and female.” The court further opined, “The ‘no entry’ option leaves in place the binary concept of gender and creates the impression that the legal recognition of a third gender identity is not being examined and that this is solely because the issue of gender entry is still unsettled, still lacks a solution, or has been forgotten.”
“No one will be obliged to assign themselves to this third gender”
The court continued by stating: “The interests of third parties cannot justify that current civil status law does not offer a third gender option, allowing for a positive entry. The mere possibility of entering a further gender does not oblige anyone to assign themselves to this third gender.” The ruling will finally permit freedom of choice, without forcing anyone to do anything.
Ria Klug from TransInterQueer e.V., an NGO from which the judges sitting in Karlsruhe also obtained a statement, commented: “We view this decision as a clear signal to policy makers to finally act on their own initiative instead of shamefully having to take instructions from the Federal Constitutional Court. Now the next step, one which is long overdue, is to ban non-consensual normalizing interventions on intersex children. It’s also time to replace the German Transsexuals Act (TSG) – a law in need of reform and completely outdated in its medical, pathologizing stance – with a law on gender diversity.”
OII Europe, IVIM-OII Germany, Transgender Europe and the German Trans* Association issued a joint statement stressing: “We welcome this groundbreaking judgment as a beacon of hope for anyone outside the norms of sex and gender in Germany and Europe. There are more than two genders and sexes. It is high time to recognize the rights of every person not identifying as exclusively male or female, regardless of their sex characteristics. These individuals are particularly vulnerable to violence, discrimination, and inequalities in a system that only knows ‘male’ or ‘female’.”
Next step: Banning surgical intervention on infants
The report “Gender diversity in law,” prepared this year by the German Institute for Human Rights (DIMR), under commission from the German Ministry for Family Affairs, Senior Citizens, Women and Youth (BMFSFJ), provides an excellent basis for implementing the court’s order. In past legislative periods the BMFSFJ coordinated, for three years, the Working Group on Inter- and Transsexuality, in which the Ministry of the Interior and the Ministry of Justice also participated. The DIMR report’s recommends introducing a law on gender diversity to close the regulatory gaps that puts large obstacles in the way of intersex, trans, and non-binary people who seek adequate protection under the law.
As the Maltese experience shows, it is indeed possible to ban medical intervention on intersex infants. In Germany, the Transsexuals Act unfortunately still requires degrading psycho-pathologizing physical examinations that constitute a severe encroachment on gender self-determination – a completely outdated view of people’s lives and their right to self-determination.