BERLIN: Germany must create a third gender category for people who do not identify as either male or female or were born with ambiguous sexual traits, the country’s constitutional court ruled on Wednesday, finding that binary gender designations violated the right to privacy.
In 2013, Germany became the first European country to allow parents to register newborns as neither female nor male, if the child was born with characteristics of both sexes.
The new decision, by the Federal Constitutional Court, goes further, giving lawmakers until the end of 2018 to either allow the introduction of a third gender category or dispense with gender altogether in public documents.
The ruling arrives as society, medicine and law increasingly recognise the ways in which gender is socially constructed and not necessarily fixed or stable.
According to Lambda Legal, an American organisation that works for the rights of lesbians, gay men, bisexuals, and transgender people, at least eight countries — Australia, Bangladesh, Germany, India, Malta, Nepal, New Zealand and Pakistan — recognise more than two genders on passports or national ID cards.
Thailand recognises a third gender in its Constitution but has not yet made that an option on government documents.
In June, for the first time in Canada, a newborn was issued a health document without a gender: a health card that listed U as the gender, for unspecified or unknown. In August, Canada began issuing passports with a third gender option, designated with an X.
Several American states have offered residents gender-neutral options on drivers licenses, and last month, California passed a law that allows nonbinary and intersex people a nonbinary category on their birth certificates.
While much of the change worldwide has involved transgender people, the discussion has also focused attention on intersex people, those born with traits of both sexes.
“Children who are born with atypical sex characteristics are often subject to irreversible sex assignment, involuntary sterilisation, involuntary genital normalising surgery,” a 2013 report from the United Nations special rapporteur on torture found, noting that they were left “with permanent, irreversible infertility and causing severe mental suffering.” Human Rights Watch has condemned such procedures.
Hayley Gorenberg, general counsel at Lambda Legal, said the German ruling appeared to give parents of intersex children the option to wait until the child was old enough to determine which gender, if any, to identify with.
“It seems to be very clearly about not forcing people into a particular gender marker label, and I think that’s very important,” she said. “The fact is, just like any other personal characteristics, gender is on a spectrum and not everybody falls into the binary category of male or female.”
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The new decision comes in the case of German citizen born in 1989 who was identified only as Vanja, by Third Option, an advocacy group that supported the plaintiff.
The German Constitution guarantees the right to personal freedom, which protects sexual identity.
“The assignment to a gender is of paramount importance for individual identity; it typically occupies a key position both in the self-image of a person and how the person is perceived by others,” the court found. “It also protects the sexual identity of those persons who are neither male nor female.”
Current laws that require a person to register as either male or female interfere with that right and are discriminatory, the court found.
It added that the existing law’s limitation of binary gender options only to male or female was discriminatory.
The 2013 German law that allowed parents the right not to designate their child as male or female was based on a set of recommendations by the German Ethics Council that found that people who did not identify with a gender should not be forced to select one, and that people “people affected should be able to decide for themselves” about their gender.
In 2014, Vanja’s attempt to change her sex designation from “female” to “inter/diverse” was rejected by the registrar, who argued that such a designation was not recognized by law.
A local court also rejected Vanja’s attempt to challenge the regulation. On Wednesday, the Constitutional Court overturned the lower court’s ruling.
“For the first time in Germany, people who are neither male nor female are legally protected,” said Moritz Schmidt, a spokesman for the Third Option. “We hope that this success will be used to fight against discrimination wherever inter- and transgender people still suffer disadvantages due to their gender.”
A United Nations study estimated the intersex population at 0.5 percent to 1.7 percent of the global population. In the United States, according to one estimate, transgender people made up 0.6 percent of the adult population, according to the Williams Institute at the UCLA School of Law.
“I think it’s a really positive development in that it’s basically the state acknowledging that bodies are diverse, and that the shoehorning of bodies into pink or blue can do a kind of violence,” said Susan Stryker, an associate professor of gender and women’s studies at the University of Arizona and the author of “Transgender History: The Roots of Today’s Revolution,” said of the Germany ruling. “But I don’t necessarily see this ruling as something that’s a huge victory in the battle for gender liberation. It’s still very much about medicalization.”
Gorenberg said of the field, “It’s all moving in the same direction, but not fast enough.”
