A First in Europe: Germany Recognizes Third Gender

Germany’s Federal Constitutional Court ruled on November 8 that Germany must amend its Civil Status Law to allow a third gender category for people who are born with inconclusive sexual characteristics or who do not identify themselves as either “male” or “female.” The court set December 31, 2018 as the deadline for the German legislature to set new provisions that will either add a third gender category or entirely eliminate the question of gender from official identifying documents. According to the Human Rights Watch, this upcoming set of guidelines will make Germany the first European country to allow a third gender designation in its birth certificates, following the steps of Australia, India, New Zealand and Nepal.

The decision settled the case of a German citizen, Vanja, who in 2014 requested the registry office to change the previously entered gender category in their birth certificate “female” to “diverse” or “inter-diverse.” Vanja’s request was denied by the registry office because it would violate    the Civil Status Law that forces citizens to strictly identify as either “male” or “female,” or opt not to make a gender entry at all.

According to Deutsche Welle, an estimated 80,000 people in Germany identify as intersex, meaning they do not display the gender traits of people generally described as "male" or “female.” Vanja, one among  thousands, embarked on a three year legal battle that culminated in November of this year.

Vanja filed against the registry office’s decision in Germany’s lower courts, arguing that the current Civil Status Law is “a violation of the general right of personality in conjunction with discrimination based on gender.” Vanja provided the court with genetic evidence that in fact, people who identify as intersex have a single sex chromosome, an X chromosome, rather than two X chromosomes, like women, or one X and one Y chromosome, like men.

In spite of Vanja’s arguments, the case was rejected continuously, until the Constitutional Court took it over, deliberated, and reached the following conclusions. First, the current Civil Status Law is discriminatory and interferes with the right of gender identity to be protected by the general right of personality that is of essence in the German Basic Law. Second,  if a third gender category were added, the addition would not represent a need for further clarifications that do not already exist with the no gender entry option under the current Civil Status Law.The final conclusion was that the legislature has the pressing responsibility of correcting these violations.

The Constitutional Court determined that the German legislature can address the same issue in two different ways. They can quit soliciting information on gender status in official documents altogether, or they can add a third gender identity. This new gender category would be a positive designation identifying an individual who is not male or female, or who is born with traits of both males and females. The official designation will be determined by the legislature, but it does not necessarily have to follow Vanja’s request to add a “diverse” or “inter-diverse” gender category.