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Germany: Personal Status Act Must Allow Third Gender Option for Intersex People

(Nov. 20, 2017) In a decision published on November 8, 2017, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) held that the Personal Status Act is incompatible with the German Basic Law, the country’s constitution, to the extent that it only allows the registration of a female or male gender at birth or no gender entry at all. It stated that forcing intersex people to register a gender but not offering a third positive option in addition to male and female violated intersex persons’ general right to personality and the prohibition on discrimination. (BVerfG, 1 BvR 2019/16, Oct. 10, 2017, BVerfG website (in German); Press Release No. 95/2017, Civil Status Law Must Allow a Third Gender Option (Nov. 8, 2017), BVerfG website; Personenstandsgesetz [PStG] [Personal Status Act], Feb. 19, 2007, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 122, as amended, § 21 ¶ 1 no. 3 & § 22 ¶ 3, GERMAN LAWS ONLINE; Basic Law for the Federal Republic of Germany (May 23, 1949), BGBl. I at 1, as amended, art. 2 ¶ 1 in conjunction with art. 1 ¶ 1, & art. 3 ¶ 3 sentence 1, GERMAN LAWS ONLINE (unofficial English translation).)

Facts of the Case

The complainant in the case has a condition called Turner syndrome, which results when one of the X chromosomes is missing, partially missing, or altered. In a person with Turner syndrome, female sex characteristics are usually present but are underdeveloped compared to an average woman. (1 BvR 2019/16, ¶ 10; Intersex Society of North America (ISNA), Turner Syndrome (last visited Nov. 13, 2017), ISNA website.) Currently, there are an estimated 160,000 intersex people in Germany. (1 BvR 2019/16, ¶ 10.)

The complainant’s birth certificate indicated the female gender. The complainant does not permanently identify as either male or female, however, and requested that the registrar’s office change the entry in the birth register to “inter/diverse” or simply “diverse.” The local registrar’s office rejected this request, stating that the Personal Status Act only allowed the registration of a male or female gender and that no entry was made if no gender could be assigned. (Id. ¶ 1.) The complainant’s appeals against the rejection were unsuccessful.  The complainant filed a constitutional complaint alleging a violation of the general right of personality (Basic Law, art. 2 ¶ 1 in conjunction with art. 1 ¶ 1) and discrimination based on gender (Basic Law, art. 3 ¶ 3 sentence 1).  (Id. ¶¶ 11-15.)

Decision

The Federal Constitutional Court held that the provisions of the German Personal Status Act at issue in the case violate the complainant’s general right to personality, which includes gender identity. It stated that the gender identity of persons who cannot be assigned either the male or the female gender is protected under this right. (Id. ¶ 36.) The Court reiterated that the general right to personality ensures that individuals may autonomously determine and develop their own personalities.  Gender identity is a “constituent part of someone’s identity,” the Court stated, and “gender assignment … typically plays a key role both in a person’s self-perception and in the way this person is perceived by others.” (Id. ¶ 39.) The Court further opined that gender assignment plays an important role in everyday life; for example, it determines legal rights and duties connected to gender and allows the identification of a person. (Id.)

The Court stated that as the Personal Status Act only allowed the option of registering a female or male gender and that no gender was registered if the child’s gender could not be determined, an intersex person had to accept an entry that did not correspond with that person’s gender identity. (Id. ¶ 42.) The Court added that the option of crossing out the female gender entry and then not making any gender entry at all also violated the complainant’s constitutional rights. The complainant does not permanently identify as either male or female, but also does not identify as genderless but rather as having a gender beyond male or female. (Id. ¶ 43.) In the Court’s view, civil status is not a marginal issue; rather, it determines the “position of a person within the legal order” and defines the central aspects of the legally relevant identity of a person. Denying individuals the recognition of their gender identity in itself therefore threatens the self-determined development of their personality, according to the Court. (Id. ¶ 45.)

The Federal Constitutional Court concluded that the infringement of the complainant’s constitutional right was not justified. (Id. ¶ 49). It explained that the German Basic Law did not require that personal status be binary in terms of gender, meaning it neither required that gender play a role in regard to personal status nor that a third gender option in addition to female and male not be recognized. It further stated that the fact that the Basic Law speaks of equal rights for men and women and that the Court itself has stated in earlier decisions that the legal order and social life are based on the guiding principle that every person is either male or female does not mean that the Constitution requires that gender options be binary; it only reflects the social and legal understanding of gender at the time of the Basic Law’s adoption and at the time that the Court rendered its decisions on the subject. (Id. ¶ 50.) The Court held that the possibility of registering a third gender does not force anyone to assign themselves that gender. (Id. ¶ 51.)

The Court further ruled that even though there might be a slightly increased bureaucratic and financial burden for the registrar’s office for an interim period, this does not justify denying someone the right to register a third gender that conforms to their gender identity. However, the Court emphasized that this right does not mean that a person may register random gender-related identity features as personal status information. (Id. ¶ 52.) In addition, the Court pointed out that allowing a third gender entry in addition to male and female raises the same questions that have to be asked under current law when no gender entry is made. (Id. ¶ 53.)

With regard to the prohibition on discrimination based on gender, the Court held that the provisions of the Personal Status Act at issue in the case also violated this principle. The Court reiterated that gender may not serve as a basis for unequal legal treatment. In this case, intersex people who do not identify with the female or male gender are treated unequally, because, unlike men and women, they have no possibility of registering a gender that conforms to their gender identity. (Id. ¶ 57.) The Court stated that the purpose of the equal treatment clause of the Basic Law is to “protect members of groups that are structurally prone to being discriminated against” and that “the vulnerability of persons who identify neither as female nor as male is particularly high in a society that is mainly based on binary gender.” (Id. ¶ 59.)

The Federal Constitutional Court declared the relevant Personal Status Act provisions incompatible with the Basic Law. It stated that the legislature could either completely abolish the requirement of registering a gender at birth or allow intersex people the option of registering a third gender. It pointed out that the legislature is not restricted to the terms “inter” or “diverse” suggested by the complainant. (Id. ¶ 65.) It set a deadline of December 31, 2018, for the amendment of the Personal Status Act. Courts and public authorities are henceforth enjoined from applying the current relevant provisions. (Id. ¶ 66.)