My gender marker is my business
Before the Federal Constitutional Court, we are fighting for self-determined and non-discriminatory legal gender recognition.
In 2018, Germany introduced the so-called "third option" following a corresponding decision by the Federal Constitutional Court. Since this reform of the Civil Status Act, individuals can change their gender marker to "male," "female," or "diverse" or have it removed altogether by making a declaration at the registry office. However, it is controversial who is allowed to use this process and whether a medical certificate is necessary in order to do so.
The GFF wants to help clarify this issue conclusively and sides with those who are fighting for self-determined gender recognition for all individuals. We therefore support the constitutional complaint of Prof.ens Dr.ens Lann Hornscheidt. Lann Hornscheidt identifies as neither female nor male and would like to have the gender marker in the birth register deleted. After the Federal Court of Justice refused to do so, Lann Hornscheidt, together with the GFF, Professor Dr. Anna Katharina Mangold and the lawyers Friederike Boll and Katrin Niedenthal, is bringing this case to the Federal Constitutional Court.
The general right of personality and the prohibition of discrimination guarantee an accessible and non-discriminatory process for self-determined gender recognition. There must be no unreasonable or disproportionate obstacles to that. An external assessment of gender identity and differing legal treatment depending on physical characteristics is incompatible with that. Our goal is to enable all people to correct or remove an incorrect gender marker by their own declaration, regardless of their body and without medical certificates.
Currently unclear: Who is allowed to correct an incorrect gender marker - and is a medical certificate required to do so?
It is currently unclear under which conditions individuals can correct their gender markers by applying to the registry office, i.e. according to the law on civil status. The law defines that it must not be possible to assign a male or female gender/sex (German: Geschlecht)* to the person in question or that they must have a "variant of gender/sex (German: Geschlecht)* development" (§§ 22 para. 2, 45b para. 1 PStG). Since then, it has been disputed in case law as well as in the literature how exactly these requirements are to be understood and whether the requirement of a medical certificate could or even must be dispensed with.
The crucial question is whether everyone can correct or remove an incorrect gender marker by making a declaration at the registry office - or whether this only applies to individuals who present a medical certificate of an intersex body.
Currently, many individuals who cannot or do not want to present a medical certificate are being referred by courts and registry offices to the controversial procedure of correcting gender markers under the so-called Transsexuals Act (TSG), which has already been declared unconstitutional in large parts.
General right of personality guarantees a self-determined gender marker
The controversial term "variant of gender/sex (German: Geschlecht)* development" originates from a medical context and refers to an outdated and pathologizing medical definition of being intersex. However, the Federal Constitutional Court has repeatedly clarified in its case law on the general right of personality that the decisive factor for an individual's gender and hence for the entry in the register of civil status must not be the person's body, but rather their gender identity. In light of this case law, we therefore believe that the term "variant of gender/sex (German: Geschlecht)* development" should be understood to mean that all individuals have their (own) "variant of gender/sex (German: Geschlecht)* development" (see expert opinion for the BMFSJ by Mangold/Markwald/Röhler).
Ambiguity leads to unconstitutional discrimination based on gender
Currently, many registry offices and courts, including the Federal Court of Justice, assume that civil status law provides for a change of gender entry only for intersex people. This leads to a blatant and factually unjustifiable unequal treatment and thus to prohibited discrimination based on gender (Article 3 (3) GG). Depending upon medical evaluation of their body, some individuals may correct their gender entry only via a detour to the so-called Transsexuals Act (TSG). However, according to its wording, the TSG only provides for a binary change of gender marker from "male" to "female" and vice versa, but no deletion and no "diverse" marker. Proceedings under the TSG also require two psychological, highly intimate expert opinions in court proceedings. Overall, these procedures are lengthy, costly, and degrading.
Lann Hornscheidt's constitutional complaint, supported by GFF, is not the only one of its kind. In 2014, a person called Vanja applied to the registry office for a gender marker that was neither male nor female. Vanja successfully took the proceedings, supported by the 3rd Option group, to the Federal Constitutional Court (decision of 10.10.2017, 1 BvR 2019/16). Lann Hornscheidt filed the application to remove the wrong gender marker in the same year. Both Vanja and Lann Hornscheidt dared to take this courageous step on their own to claim their rights and no longer remain invisible in their identity.
These first, individual applications have been followed by numerous similar applications. After the Federal Constitutional Court ordered the legislature to find regulations for individuals who are neither "male" nor "female," more than a hundred people applied for their own self-determined gender marker at the registry office as part of the campaign "Aktion Standesamt 2018" even before the law was reformed. After the registrar's offices ignored or rejected these applications, some of these people are trying to obtain entries matching their identity in court. They are supported by dedicated lawyers. Even after the entry into force of § 45b PStG, further people have gone to court because of the unclear legal situation, which also violates fundamental rights.
We are currently waiting for a decision from the Federal Constitutional Court.
*The German term "Geschlecht" means both sex and gender.