Symposium: Tertium NON Datur: Gender Binary as a ‘Principle of the Austrian Legal Order’?

Elisabeth Greif

Johannes Kepler University Linz

In Austria, the decision of the German Federal Constitutional Court concerning the recognition of a “third gender” has been eagerly awaited. Before long, the Austrian Constitutional Court will have to decide a similar case: For the very first time, an intersex person – Alex Jürgen – filed an application that the legal gender status be changed to “inter” or “divers” or be cancelled at all.

Facts

About 30 children are born every year in Austria with sexual characteristics different from societal norms of “male” and “female”. Alex Jürgen is one of them: At birth, the doctors declared Alex Jürgen a boy – although his sexual characteristics were ambiguous. On the doctors’ advice, however, Alex Jürgen was brought up as a girl. Childhood and youth were characterized by hormonal treatment and surgery to replace the male genital by female genitalia. All along, Alex Jürgen’s legal gender status remained “male”.

As an adult, Alex Jürgen decided to have mastectomy to remove the female breast that developed as a result of hormonotherapy and adopted a gender neutral name. He sought legal recognition as intersex person: Alex Jürgen filed an application at the registrar’s office that his legal gender status be changed – or cancelled. The application was turned down – as was Alex Jürgen’s complaint with the Regional Administrative Court. Now, it is for the Constitutional Court to decide whether the Austrian Constitution requires the recognition of a third gender. The Regional Administrative Court has based his negative answer on the following two arguments: First, the opinion that gender binary is a central principle of the Austrian legal order, and second, that the legal recognition of intersex persons is not comparable to the legal recognition of transgender persons.

Gender binary as principle, or: What’s law got to do with it?

The Austrian Law on Civil Status (Personenstandsgesetz) demands that every birth of a child is registered in the register of births, deaths, and marriages within one week after the birth took place. Paragraph 11 (1) in conjunction with paragraph 2 (2) 3 Law on Civil status require that the gender of the child is registered as well. The gender of a child is determined by the doctor or the midwife at birth. Austrian law does not allow for the legal gender status of intersex people to be left open: When an intersex child is born the gender has to be registered. Neither the Law on Civil Status nor any other legal provision indicates of what can possibly be registered as legal gender status. This leads to the question whether the registration of a “third gender” is already possible in Austria.

Not if one follows the Regional Administrative Court. According to the Court, the Austrian legal order is based on the principle that “every human being is either male or female”: This principle can be derived from constitutional provisions like the rule of equality enshrined in Article 7 (2) of the Austrian Federal Constitutional Law (Bundes-Verfassungsgesetz).

It is true that Article 7 (2) Federal Constitutional Law mentions the “equal treatment of man and woman” but does not mention any other gender. Yet it is wrong to deduct a principle of strict gender binary from that provision. Article 7 (2) is not concerned with the determination of one’s gender but anchors the principle of material equality on a constitutional level. It is because of Article 7 (2) that affirmative action is permissible within the Austrian legal system and that equal treatment of men and women is considered a constitutional goal. Article 7 (2) Federal Constitutional Law does not say anything about the possible number of genders. Instead, Article 7 (1) which contains the general principle of equality and prohibits any form of discrimination on grounds of gender does not limit this principle to “man and woman”.

Can there be more than two genders?

In declaring gender binary a principle of the legal order the Regional Administrative Court also relies on a decision of the Supreme Administrative Court as of 1997. In that case the Supreme Administrative Court had to decide the gender status of a postoperative transgender person regarding the ability to get married. The applicant was a Thai citizen: While her birth certificate described her gender as “male”, the certified translation of the same document identified the applicant as “the girl W”.

Against this background the statement made by the Supreme Administrative Court that “every human being is either male or female” seems to be concerned with the fact that a person cannot be male and female at the same time. It does not necessarily mean that a person cannot be of a different gender all together.

Again: Tertium non datur?

According to the Regional Administrative Court recognising a legal gender status other than “male” or “female” would render many provisions of the Austrian legal order inapplicable. But this concern is only partly justified. In most cases the Austrian legal order follows the principle of formal equality. Only a few provisions treat people differently according to their gender – and their number is decreasing continuously. With the Austrian Constitutional Court’s decision that the distinction between marriage (for opposite-sex couples) and registered partnership (for same-sex couples) violates the principle of equality according to Article 7 (1) Federal Constitutional Law the importance to determine one’s gender became even less important: The repeal will take effect as of the end of December 31st, 2018. If there is no legislative action couples can choose between marriage and registered partnership from this day on regardless of the gender of the two people involved.

The recognition of a third gender option would not change the fact that Austrian law only obliges male citizens to military service; it would not change the fact that the first name must not contradict a person’s gender (but need not be gender specific either). The different retirement age for men and women, however, is already on its way out: For all people born after June 2nd, 1968, the same age of retirement will apply. Only for those born before this date, a clarification would be needed which age of retirement applies if their legal gender status is changed to “inter”.

It is probably the law of descent that poses the greatest challenge. On the other hand, since medically assisted reproduction is also available to (female) same-sex couples in Austria, the legal order not only acknowledges “mother” and “father” but also the “other parent”. Maybe it is time now for mothers and fathers generally to become “parents”: For sure, the purpose of laws of descent is not to determine the gender of the people involved in an act of procreation. Rather, it is the aim of the law to make sure that from the very beginning there is at least one person who has child custody.

Recognition of gender identity as a human right

As for Austria, an obligation to legal recognition of the gender identity of intersex people stems from the right to privacy according to Article 8 ECHR. Austria incorporated the ECHR fully into its constitutional legal order. The Convention has the rank of directly applicable federal constitutional law. The Austrian Constitutional Court has to ensure compliance with the rights stipulated in the Convention. Starting with Christine Goodwin/UK the ECtHR repeatedly ruled that the recognition of the gender identity of transgender people is an important aspect of personal identity and is protected by Article 8 ECHR. Member States have a positive obligation to guarantee the right to respect for private life: Although Member States have a margin of appreciation concerning the requirements for legal recognition of transgender people, the ECtHR ruled in A.P., Garçon and Nicot/France that the condition of compulsory sterilization or treatment violated Article 8 ECHR.

As for the Regional Administrative Court, however, these rules shall not apply to intersex people since transgender people only change from one legally accepted gender to the other while intersex people demand a further gender status. But the Court doesn’t seem too consistent in differentiating intersex from transgender cases: A few paragraphs later, the Regional Administrative Court itself cites Hämäläinen/Finland, one of the more recent ECtHR’s judgements on transgender rights. Here, the ECtHR came to the conclusion that a discrepancy between one’s legal gender status and one’s gender identity does not always violate Article 8 ECHR.

The Regional Administrative Court was not aware that Hämäläinen was not about whether or not the Member States have a positive obligation to recognize the gender identity of transgender people but only about the margin of appreciation. This does not mean that Article 8 ECHR does not protect the gender identity of intersex people as well.

The Austrian Constitutional Court as an engine for minority rights

The judicial review of laws is of great importance for the protection of minority rights. In a democracy based on majorities it is for judicial review guided by fundamental and human rights to make sure that minority interests are taken into account. The opening of marriage for same-sex couples by the Austrian Constitutional Court as the last step (so far) provides a perfect example of the way courts act as engine for minority rights.

Concerning the legal gender status of intersex people, so far the Austrian Bioethics Commission, the Austrian Ombudsman Board and the opposition parties already asked for the recognition of a third gender. For any bill to become law, however, the votes of at least one of the parties in power are necessary. For the time being this does not seem very likely to happen. So it is (again) for the Constitutional Court to take a hand in protecting the fundamental rights of a minority group: The Court’s decision is to be expected within the first half of the year 2018.

By Associate Professor Elisabeth Greif, Professor of Legal Gender Studies at Johannes Kepler University Linz. This post is part of a symposium on the ‘Third Option’  decision which was originally published on Verfassungsblog.