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Third Gender Soon to be Allowed in Germany?

(Blogmensgo, gay blogof August 22, 2018) On 15 August 2018, the Federal Government adopted a bill introducing a third sex for civil status certificates, in particular birth certificates. The text will have to be approved by the Bundestag by the end of the year. Germany would then be one of the first European countries after the Netherlands and Austria to offer an administrative and legal framework for intersexual people – even though a lot still needs to be improved.

A sign of diversity?

The Federal Ministry of the Interior, Building and Housing will submit the bill to the Bundestag. In the future, birth certificates shall contain three boxes for the sex of a child: male, female and “diverse”. However, a medical certificate must be presented in order to recognize this “third option” officially.

Baby with birth certificate

Boy or girl – or diverse? ©123RF/rioblanco

This third option has long been called for by the LGBTQI groups. Justice Minister Katarina Barley (SPD) emphasizes that it is “high time to modernize the Civil Status Act” and that “nobody should be discriminated against because of their gender identity”. However, the bill is still the subject of controversial discussion.

Federal Family Minister Franziska Giffey, also a member of the SPD, welcomes “an important step towards the legal recognition of persons whose gender identity is neither male nor female”.

According to Günter Krings, Parliamentary State Secretary for Relations with the Bundestag, the new law will be limited to intersexual people and will have no effect on transsexuals – which in part contradicts the prescriptions of the Federal Constitutional Court (BVG).

Compliance with legal requirements…

In fact, on November 8, 2017, the Federal Constitutional Court in Karlsruhe had ordered the legalization of a third “administrative” sex by December 31, 2018 at the latest, leaving the choice of concrete terminology on birth certificates and other official identity documents to the legislature: “Miscellaneous”, “inter” or another non-judgmental designation.

The BVG’s ruling overturned a previous ruling by the Federal Court of Justice (BGH), which had not found it necessary to amend the current regulations. Since May 2013, the German administrative system has already offered a half-hearted measure for people who were born intersexual, i.e. without a clear sexual identity: Parents can choose not to attribute a specific gender at birth. Later, such people can either choose one of the two genders or not.

Therefore, this “third option”, which does not require a value judgment or special formalities, makes sense even though a medical certificate is required.

…but not the slightest bit more than required

Current German law on intersexuals is not exactly progressive: although you do not have to clearly identify yourself as a man or woman (according to the judgment of the BVG), there is no clear legal, administrative and official recognition of intersexuality or of a third sex. In other words, it is neither total rejection nor genuine legal recognition.

In its judgment of November 2017, the Constitutional Court (BVG) stated that the judgment also applies to any other gender identity that may have developed contrary to the “discriminatory” provisions of current legislation. Unfortunately, the current bill still seems to be far from it, at least on this point.

The Greens are not happy

Not all politicians are particularly enthusiastic about the draft submitted to the Bundestag, especially not the progressive spectrum. The Greens immediately said in a statement that “the bill on the third option is a tragedy”. They see this text as the continuation of a policy of discrimination against transsexuals and intersexuals, although the Constitutional Court ruling called for a law that respects the rights and dignity of all citizens.

The statement by the Greens particularly denounces the fact that a medical certificate is still required for any change of the official gender and that “gender-reassignment surgery or hormone treatments on defenseless infants” remain permitted, although neither the lives nor the physical integrity of the children concerned are endangered.

“With its bill, the German government shows how little it understands gender diversity”, the Greens concluded. They promise parliamentary changes that respect people’s right to gender self-determination without pathologization, stigmatization, restrictions or condescension.

Without specifically addressing the new bill, the Federal Minister for Family Affairs is of the opinion that the current law on transsexuals must be repealed and replaced by a “modern law” that respects “gender diversity”. Franziska Giffey describes the psychiatric treatment of transsexuals as “quite simply obsolete”.

“Third Option” demands more courage

The professional associations are not particularly enthusiastic about the bill either. The “Third Option” group (“Dritte Option”), which advocates authentic and unconditional recognition of intersexuals, does not hide its disappointment.

The Third Option welcomes the choice of the term “diverse gender" over formulations such as “other gender”. On the other hand, the group does not accept that the government ignored the section on transsexuals and gender change only because otherwise the Bundestag would not have had time to vote on the bill within the prescribed time limits.

The Third Option calls for the beginning of a double legal reform in 2018, aimed at “banning medical interventions on intersexual children without their consent” and freeing transsexuals from their medical and administrative shackles.

Elsewhere in Europe and in the rest of the world

In the Netherlands, in May 2018, the court in Limburg granted an intersexual the right to obtain a birth certificate without reference to the male or female sex. The Regional Court said that it expected an unavoidable change in the legislation on civil status, which the legislature would have to confirm as soon as possible.

In Austria, the Constitutional Court invoked Article 8 of the European Convention on Human Rights (which protects everyone with an “alternative gender identity”) in June 2018 to demand the legalization of a third gender from the legislature. Here too, the Supreme Court left the choice of respectful terminology (“various”, “inter” or “other”) to the legislature.

No European country has yet definitively adopted legislation on the establishment of a third sex. Only a few non-European countries such as Australia, New Zealand, India and Nepal have already done so.

Frank-S / MensGo

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