Updated: Mar 30, 2020
By Philippa Oakes
It is estimated that up to 1.7% of the population is born with intersex traits. Germany’s current population is over 82 million, so it is possible that more than 1 million people living in Germany don’t fit neatly into the male/female binary. When filling in a form that requires a gender entry, this means that over 1 million people are unable to tick the option that accurately represents them.
Since 2013, those who cannot be categorised medically as either male or female have been allowed to leave the gender-entry section blank on official records up until the age of 18, at which point they have to decide whether to tick the ‘male’ or ‘female’ box. In November 2017, however, the Bundesverfassungsgericht (Federal Constitutional Court) ruled the existing regulation on binary gender to be unconstitutional, since it violates an intersex person’s right to positive gender recognition.
The government was ordered by the court to either come up with a third gender category (the ‘dritte Option’) or to abolish gender registration altogether. In their draft amendment to the law, the German government decided in favour of the ‘dritte Option’, and have proposed that a new gender category be introduced to personal status law, namely, the category of ‘divers’.
If the proposed changes to the law go ahead, as per court instructions, this ruling would make Germany the first European country to offer a third gender option for birth registration. In India, Nepal, the US, New Zealand and Australia, ‘third gender’ options are already recognised.
The German government seems to be finally accepting that gender is not binary. Sounds good, doesn’t it? But is this new law really as progressive as it seems?
One of the problems with the proposed law is that the ‘dritte Option’ will only be available to those with a medical diagnosis of an intersex condition (Artikel 1(3)), therefore preventing those who identify as transgender, non-binary or gender fluid from registering as ‘divers’ on official forms. Consequently, medical experts will be the gatekeepers of identity, deciding who does and doesn’t qualify for the ‘dritte Option’.
The new law assumes that gender-identity is related exclusively to genitalia and chromosomes, and that gender classification can be determined by a medical examination. Transgender activist groups, however, argue that gender-identity is formed independently of genitalia or chromosomes, and so we should not use these markers exclusively, if at all, to determine a person’s gender.
A further issue with having a medical inspection to ‘determine gender’ is that it is an incredibly invasive process. This kind of ‘gender assessment’ could be traumatic for members of the intersex community, especially for those with previous experiences of IGM (intersex genital mutilation). Some activists hope that the introduction of a third option will reduce IGM, but others fear that it will encourage parents to choose ‘normalising’ surgery to avoid their child’s genital development being made a public fact.
So, who should decide which gender appears on our official records? It makes sense that, if we are going to insist on having gender categories at all, we should let people self-identify. Surely nobody is in a better position to assess your gender than you are? This is the point that the trans-activist groups that were included the consultation process for the new law tried to get across to legislators, but their input was largely ignored.
The German government were given the opportunity to make history by abolishing gender registration altogether, but they chose not to. The ‘dritte Option’ isn’t going to change anything: who ‘qualifies’ for this category is decided by the state, and people in the non-binary, gender fluid and trans-communities still fail to be accounted for. The new law doesn’t go far enough in defending every citizen’s right to positive gender recognition, and I think the German government will be facing further complaints of unconstitutional gender regulation sooner than they were expecting.
Philippa Oakes is a German and Philosophy Finalist at the University of Sheffield