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Austria: Court Allows Intersex Individuals to Register Third Gender Other Than Male or Female

(July 6, 2018) On June 15, 2018, the Austrian Constitutional Court (Verfassungsgerichtshof Österreich, VfGH) held that intersex individuals have a right to register in the civil status register a gender other than male or female that conforms to their gender identity. It stated that forcing intersex persons to register a male or female gender but not offering an additional option violated their right to respect for private life as protected by article 8 of the European Convention on Human Rights (ECHR), which has constitutional status in Austria. It held that the interpretation of the term “gender” in the Austrian Personal Status Act must not be restricted to binary gender and the provision in question may therefore remain in force. (VfGH, June 15, 2018, Docket No. G 77/2018 (VfGH G 77/2018), VfGH website (in German); Personenstandsgesetz 2013 [PStG 2013] [Personal Status Act 2013], Bundesgesetzblatt [BGBl.] [Federal Law Gazette] I No. 16/2013, as amended, § 2, para. 2, no. 3, Rechtsinformationssystem (RIS) [Legal Information System]; Convention for the Protection of Fundamental Rights and Freedoms [European Convention on Human Rights, ECHR], Nov. 4, 1950, 213 U.N.T.S. 221, art. 8, ECtHR website.)

Facts of the Case and Decision

The reason for the VfGH’s examination of the provision of the Personal Status Act was the application of an intersex individual to change the current male gender entry in the central civil status register to “inter,” “other,” “X,” “undefined,” or a similar term, or to strike the gender entry in its entirety. (VfGH G 77/2018, at 1.) The request was denied by the registrar in charge and the State Administrative Court of Upper Austria on the grounds that there was no right allowing one to register a gender different from male or female. (Id.) When the applicant filed a complaint with the Constitutional Court, the VfGH decided to examine the constitutionality of the provision of the Personal Status Act on its own initiative (ex officio), because it would have had to apply the law in addressing the pending complaint by the applicant. (Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Law], BGBl. No. 1/1930, as amended, art. 140, RIS; VfGH, Prüfungsbeschluss [Examination Order], Mar. 14, 2018, Docket No. E 2918/2016-29, VfGH website.)

The VfGH in its decision stated that article 8 of the ECHR awards everyone the right to respect for private and family life. It protects the human personality in its identity, individuality, and integrity as well as all its different expressions. Gender identity and a right to self-determination fall within the personal sphere protected by article 8 of the ECHR. (VfGH G 77/2018, at 17.) The Court concluded that the right to respect for individual gender identity includes that an individuals must only accept a gender description that conforms to their gender identity or be free to not declare a gender at all. (Id. at 18 & 23.) The VfGH cited examples of other terms that could be used, such as “diverse,” “inter,” or “open,” but ultimately left open which term may be used. (Id. at 37 & 38.) It stated that public authorities are allowed to examine whether a chosen term adequately expresses what it intends to convey. In the opinion of the Court, article 8 of the ECHR does not require an arbitrary choice of terms to describe one’s gender. (Id. at 39.)

In November 2017, the German Constitutional Court had ruled on a similar issue and held that the provisions of the German Personal Status Act at issue in the case violated the complainant’s general right to personality, which includes gender identity, as they only allowed the registration of a female or male gender at birth or no gender at all. It concluded that the Personal Status Act must allow a third gender option for intersex people that conforms to their gender identity. (Jenny Gesley, Germany: Personal Status Act Must Allow Third Gender Option for Intersex People, IN CUSTODIA LEGIS (Nov. 20, 2017).) The Austrian Constitutional Court referenced that decision and stated that it was of particular importance as pointed out by the German court that “gender assignment … typically plays a key role both in a person’s self-perception and in the way this person is perceived by others.” (VfGH G 77/2018, at 31, citing BVerfG, Oct. 10, 2017, Docket No. 1 BvR 2019/16, BVerfG website.)