New German Intersex Law: Third Gender but not as we want it

Dr Grietje Baars (Senior Lecturer at The City Law School of University of London) thoroughly breaks down the issues surrounding the new draft law on gender registration, including issues of pathologization, gender self-determination, intersex genital mutilation (IGM), among others.

Last October, the German Constitutional Court found that an intersex person’s ‘right to positive gender recognition’ had been violated with the availability of only the M and F boxes combined with the obligation to tick one in the population register and many other places. In its decision – praised as ‘revolutionary’ by intersex activists and progressive lawyers – the court ordered the German Parliament to either come up with a third gender option, or abolish gender registration altogether. Last week, the German cabinet adopted a draft amendment to the personal status law, creating a third gender category: ‘divers’ which means ‘various’.

Since third gender categories are being considered, by the courts, the states or by stakeholders, in several European countries including AustriaEngland & WalesScotlandBelgiumThe Netherlands, many eyes are on Germany to see how it is taking on this challenge.

So, what precisely has been proposed and what is the response of the intersex and trans community in Germany?

The new law has overwhelmingly been decried as a missed historical opportunity, or even as counterproductive, for a variety of reasons. Those reasons are given in the statements published by intersex and trans organisations, both commissioned as part of the consultation process leading up to the amendment and press statements and mediainterviews following the draft’s adoption.

The main criticisms are that the third option does not fully recognize gender diversity as it will only be available to those with a medical diagnosis of an intersex condition, and also that the government failed to genuinely consider the alternative option presented by the Constitutional Court (CC) – that of scrapping sex/gender registration altogether. The latter is the option preferred by most intersex and trans organisations in Germany.

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