Bundesverfassungsgericht [German Constitutional Court], 1 BvR 2019/16, 10 October 2017
The German Federal Constitutional Court (the Court) has ruled (7:1) that the existing law dictating binary gender options in the birth registry is unconstitutional. The Court found that sections 22(1)(3) and 22(3) of the Civil Status Act (Personenstandsgesetz – PStG) (the Act), that forced people to nominate as either "male", "female" or without a gender were a violation of the Basic Law for the Federal Republic of Germany (Grundgesetz – GG) (the Basic Law), specifically the general right to personality (Art 2(1) in conjunction with Art 1(1)) and the protection against discrimination based on sex (Art 3(3)).
At birth, the complainant was assigned to the female gender and entered as such in the birth register.
The complainant has the intersex variation of Turner syndrome and feels no association with either the female or male sex. Due to this, the complainant filed a request with the competent registry office to replace the previous "female" gender entry in the birth register with an "inter/diverse", or alternatively, "diverse" gender entry.
The competent registry rejected the complainant's request on the basis that sections 22(1)(3) and 22(3) of the Act require that a child is assigned to either the female or male gender, and where an assignment of that nature was not possible that no gender entry is made. The complainant then brought proceedings which were dismissed in each of the Federal Court of Justice, the Higher Regional Court Celle, and the District Court of Hanover.
The proceedings were then appealed to the Federal Constitutional Court.
The general right to personality
The Court stated that one of the tasks of the general right to personality is to secure basic conditions for an individual to be able to develop and maintain their identity in a self-determined manner.
The Court recognised that this general right to personality extends to the protection of what translates to English as “sexual identity” as this is a constituent aspect in the development of one's individual identity. The Court outlined the Lesbian and Gay Association’s opinion that enabling no entry to be made “is not sufficient to do justice to the personality right of the person complaining, since … the complaining person does not feel that he is “sexless” but that he is a person of the sex “intersexual”” (at [A][IV]).
It was held that, as the relevant provisions of the Act compel those who do not identify with the binary genders to either select a gender with which they do not associate, or opt for no gender entry at all, they interfered with an individual's general right to personality and were therefore unconstitutional.
The Court determined that this requirement was not supported by any legitimate purpose and was unjustified. This was found on the basis that the Basic Law does not formally require that gender be exclusively binary and there was nothing within it which opposes the recognition of a third gender.
The protection against discrimination
The Court found that the relevant provisions of the Act violated the protection against discrimination under Article 3(3) of the Basic Law as it specifically disadvantages individuals who are neither male or female by not allowing them the ability to register in accordance with their gender.
While intersex status is not expressly protected under discrimination law in Germany the Court recognised that the protection against discrimination covers people with intersex variations as it prohibits discrimination on the basis of sex.
The judgment discussed that third party interests cannot justify the fact that there is not a third gender option as the offering of a third gender does not oblige anyone to assign themselves to it. The Court stated that the additional bureaucratic or financial burdens or organisational interests of the state also cannot justify the fact that there is not a third gender option as the questions to be clarified with a positive entry of "inter/diverse" or "diverse" would be the same that already arise when an individual opts for no gender under the current framework.
As the relevant sections of the Act were found to be incompatible with the Basic Law, the Court found them to be invalid and provided the legislature with a deadline of 31 December 2018 to pass new legislation. The court did not specify how the Act should be reformed, noting that it could be legally structured in different ways and that the reform need not be limited to address the personal circumstances of the applicant in this case (at [C][I]).
This is a landmark case for the rights and equal treatment of intersex people in Germany.
Once law is passed by the legislature, Germany will become one of the first European countries to offer intersex people the option of identifying as a gender other than male or female.
Notably, Germany is not the first country to move away from the traditional binary understanding of gender. In the 2014 decision of New South Wales Registrar of Births, Deaths and Marriages v Norrie  HCA 11, the Australian High Court ruled that it is within the power of the NSW Registry of Births, Deaths and Marriages to record the gender "non-specific" for individuals who do not identify as either male or female. See the HRLC case note on this case here.
The full text of the decision can be found here.
Isabella Wildsmith is a Summer Clerk at Ashurst, Ray Mainsbridge is a Senior Consultant at Ashburst, and Courtney Chu is a Graduate Lawyer at Ashurst.