Symposium on the ‘Third Option’: ‘Not Man, Not Woman, Not Nothing’

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Anna Katharina Mangold

Humboldt University

It is a landmark decision (English PR) the First Senate of the German Federal Constitutional Court (FCC) released on November 8th, 2017 – of all days on Intersex Day of Solidarity. The decision will shake up the legal gender landscape, as much is already clear. People who so far have not been sufficiently acknowledged by legal gender regulation can follow up on the decision: Inter*, Trans* and Queer People. However, German democratic society itself may celebrate and take pleasure in the decision: It is a ‘highlight of enlightened liberalism’, as Heribert Prantl noted in the Sueddeutsche Zeitung, a beacon in politically stormy weathers pointing the way towards equality and freedom from discrimination, especially when it comes to the spectacular doctrine of equality in the decision, as Nora Mankard lucidly explains in her post. 

What is it all about?

The complainant was brought against the registry office who refused to change a legal gender status from ‘female’ into ‘inter/diverse’. The registry office justified the change, citing § 22(3) Civil Status Act (Personenstandsgesetz) which has been enacted in 2013. It states that the gender entry should be left nondescript ‘if a person cannot be assigned neither female nor male’.

The legal case is an encouraging example for strategic litigation in constitutional law starting to gain traction in Germany. Supported by the NGO ‘Third Option’, the complainant started legal proceedings and took the case through the instances to the FCC: The application to change their legal gender status was rejected by the Local Court (Amtsgericht) in 2014, the appeal by the Higher Regional Court (Oberlandesgericht) in 2015, the final legal appeal by the Federal Supreme Court (Bundesgerichtshof) in 2016. The courts wrote the same arguments each and every time: A legal gender entry as ‘inter/diverse’ was not possible as the law stood; § 22(3) Civil Status Act was constitutionally sound, hence a preliminary reference to the FCC not required. Upon constitutional complaint, the FCC begged to differ.

Inter*people as a legal nullity: § 22(3) Civil Status Act

Before 2013, all persons needed to fit into one of just two legal gender categories. According to an authoritative medico-biological metastudy by Anne Fausto-Sterling e.a. from 2000, around 2 % of all newborns cannot be easily assigned as female or male. So called gender-adjusting operations force infants and children into a ‘clearcut’ gender – ‘adjusted’ persons pay the price and suffer lifelong from the consequences of these cruel medical treatments. A topical and current study by Ulrike Klöppel statistically shows that such operations still are common practice in Germany even today.

After wide-ranging consultations, the German Ethics Council delivered comprehensive recommendations. The German legislative bodies minimally followed up on these much farther reaching recommendations, and only changed the Civil Status Act in a thoughtless, perfunctory manner which did not not consider any negative implications.

In 2013, § 22(3) Civil Status Act was enacted. The provision treats inter*people as legal nullity – their legal gender needs to be left nondescript. This may sound like a good idea for newborns; later, they can decide how the want to be assigned. However, the provision was neither intended nor designed nor suited to serve as a permanent solution – especially, since all ensuing questions concerning the legal status of ‘nondescript’ persons remained unregulated. Such an ensuing question arose in summer when marriage was opened up for same-sex couples, and the respective provision (§ 1353 Civil Code) now states that persons of the same or a different legal gender may enter into marriage for life. Legislators chose the line of least resistance, without any impact assessment, so as to hold up the binary legal gender order.

Line of least resistance – time and again

The legislative strategy of inertia and partial regulations when it comes to questions of legal gender recognition has led to a recurring pattern in Germany: Time and again, the FCC has stepped in to protect fundamental human rights of trans*people – and now inter*people, too. The claimants pay the price: Only after years of litigation can they bring their cases to the Karlsruhe Court.

The present legal situation evokes the picture of a Swiss cheese – with many holes. Of the original Transsexual Act (TSG) only a few provisions remain in force after constitutional scrutiny by the FCC, nonetheless the legislative bodies have not come up with a constitutional and up-to-date Act. Long before the ‘Marriage for alle’ entered into force, in 2008 the FCC introduced same-sex marriage for trans*persons because it infringes the Basic Law (Grundgesetz, GG, in German; in English) to request divorce before a trans*person was allowed to legally change their sex. These days, their are childbearing trans*men and fertile trans*women because it infringes the Basic Law to request sterilisation before a legal sex change. Nevertheless, legislative bodies continue with their ‘business as usual’ strategy – at the expense of those existentially concerned by the legal gender order. Currently pending before the FCC is the case of a trans*father who the authorities registered as the ‘mother’ of his child to whom he gave birth – just another case that burdens the lives of those affected with anxiety and insecurity for years and years.

Recognition of diversity

In its recent decision ‘Third Gender’, the FCC has deconstructed the binary gender in the Civil Status Act as what in fact it is: a mere legal fiction. Many may live with their assigned gender happily and without any problems, but those who do not fit into the binary scheme are excluded needlessly and recklessly. Shifting off these people into a legal grey zone by just leaving open the otherwise required legal gender status, infringes fundamental rights, namely their General Right to Personality (as Berit Volzmann describes in her post) and the constitutional non-discrimination guarantee (as Mankard points out).

The decision ‘Third Gender’ is sensational news, not only for inter*people but also for trans* and queer people – and all people who care for a liberal legal order that protects against discrimination. The legal gender order may no longer negate the multiple modes of gender existences but needs to explicitly recognise them. The legislature, as the FCC points out, may not remain inactive.

The FCC’s doctrinal innovations when it comes to the interpretation of Article 3(3) sentence 1 GG and its protection against discrimination has brisance far beyond sex discrimination. Remarkably, the FCC delineates the relationship between Article 3(2) and (3) GG which has been contested since the Grundgesetz was enacted. Most noteworthy, the FCC clearly shows that protection against discrimination demands to evaluate the real effects of legal regulations and practices. All these questions are explained in Nora Markard’s contribution to this symposium.

Options for legal renovation

The FCC requests a constitutional legal provision be enacted by December 31st, 2018. Considering the current state of political affairs in Germany (currently, an interim government is working at building a coalition but has not made any significant progress since the General Elections in September 2017), this deadline will prove to be quite demanding. Fortunately, then, legislative bodies do not need to come up with an Act from scratch but can build up on well-founded propositions:

A Symposium on the ‘Third Option’

For years and years, the binary legal gender order has been rumbling. All parts of the legal order are affected: civil status law, family law, law of descent, labour law, etc. etc.

It will not suffice to merely change the German Civil Status Act. According to the FCC’s decision, the legislative bodies may choose whether to add a ‘Third Option’ (which would follow the line of least resistance, again) or to abandon legal gender assignment altogether. Whichever solution the legislature will choose – the consequences will have a deep impact for the binary legal gender order that explicitly and implicitly presupposes and constructs exclusive bigenderism alleging that this was just ‘natural’. Bigenderism is presupposed and enforced at the same time.

It is high time for a permanent liberal and non-discriminatory legislative comprehensive solution. Well-founded analyses are in need: practical proposals of implementation, comparative perspectives (Elisabeth Grief explains the situation in Austria) and radical critique formulated by Grietje Baars.

The Online-Symposium ‘Not Woman, not Man, not Nothing’ on Verfassungsblog has started a public discussion taking into account various disciplinary perspectives some of which are translated from the original German into English and republished here on the Blog of the International Association of Constitutional Law (IACL). The Symposium hopes to initiate a constructive debate and invites constitutional law posts concerning the legal gender order in other jurisdictions.

By Dr Anna Katharina Mangold, of the Faculty of Law at the Humboldt University of Berlin. This post is part of a symposium on the ‘Third Option’  decision which was originally published on Verfassungsblog.