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German Bundestag Allows Third Sex, but with Conditions
(Blogmensgo, gay blog of December 23, 2018) On December 13, 2018, the German Bundestag passed a law that allows any person to require the use of the terms “male”, “female” or “diverse” in birth certificates and other official documents. The bill followed a decision of the Federal Constitutional Court of 10 October 2017 (published on 8 November 2017) calling on the legislator to amend the administrative provisions for transgender and intersexual persons. However, the deputies introduced conditions that were not initially required by the supreme federal court.
The law passed by the Bundestag
In order to respect self-determination, equal treatment, physical integrity, fundamental rights and human rights for gender diversity, the Bundestag representatives have passed a law allowing “male”, “female” or “diverse” entries in the birth register and on birth certificates.
The term “diverse” now allows transgender, intersexual or genetically undefined persons a third term for gender.
People who wish to register “diverse” as their gender (or their parents in the case of minors) must present a medical certificate.
This means that anyone who chooses the term “diverse” is humiliated by this approach, which is especially difficult for transgender people.
Since 2013, the German authorities have allowed anyone not to indicate a gender on civil status documents, i.e. not to tick either “male” or “female”, and this possibility remains.
The precedent of the Federal Constitutional Court in Karlsruhe
The decision of 8 November 2017 allowed the German parliament to enact, by 31 December 2018, a law enabling the indication of a third sex in birth registers and on birth certificates.
The judges in Karlsruhe gave the legislator the choice of the most suitable designation for this third sex, such as “diverse” or “inter”.
The court decision of 2017 came after the “Vanja” case. This person, who had come of age in 2017, had appealed to the constitutional judges. From birth, Vanja only had one X chromosome, while boys are born with XY and girls with XX chromosome pairs.
The judges decided, on the basis of the Vanja case, that a civil status law that provides only for the terms “male” and “female” is unconstitutional. They proposed either to delete the reference to sex in civil status law or to allow a new “positive” and not degrading indication, such as “diverse” or “inter”.
The Federal Constitutional Court had already ruled between 1982 and 2011 by seven successive decisions that certain restrictive provisions on gender identity or on changing the first name were unconstitutional. Most of the provisions of the Transsexual Law had thus been repealed by the guardians of the constitution.