Recognition of third gender in Germany: Social and legal revolution

Author : Heribert Prantl

Source : 112 Ukraine

Federal Constitutional Court of Germany ruled that there must be a third-gender option on birth certificates to allow for the registration of intersex babies, as part of their constitutional rights
11:39, 13 November 2017

Read the original text at Süddeutsche Süddeutsche Zeitung.


According to the biblical story of creation, God created man exclusively in the form of a man and a woman. However, this is not entirely true, since from time immemorial there are people who have both male and female sexual characteristics. Even a very religious person will not deny that intersexuals are the creations of God. Nevertheless, the fundamentalists strongly criticized the court decision in Karlsruhe, in which intersexuality is recognized as the third sex. They would prefer that intersex people be forced to adjust to one of the two sexes, as it has been for a long time. But the Constitutional Court definitively refuses this way. It recognizes the existence of the third sex.

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The Constitutional Court has already adopted many decisions that are considered unusual, sensational, innovative, or changing our views. The decision of the court in Karlsruhe, which unequivocally recognizes the existence of the third sex, deserves each of the above definitions - this decision is exceptional, sensational, innovative, and changing our perceptions. This decision, based on constitutional principles, states that there are not only men and women, but also representatives of the third, indefinite sex, and that this third sex is recognized by the whole legal system and must be respected by it. Thus, understanding of sexuality as of it has relation only to men and women, has come to an end, at least within the framework of German law. This means that there was a legal and social revolution.

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This revolution will have consequences that cannot be imagined at once. First of all, the law on the civil status (Personenstandsgesetz) must be amended, according to which the registration authorities put the letter "m" for the masculine gender, or "w" for the feminine gender, or “-“ on the basis of the changes introduced on November 1, 2013. "If a child cannot be attributed to either the female or the male sex, then the legal data corresponding to the family are not included in the metric book." For four years already the corresponding paragraph has been formulated. But such a gap does not suit the Federal Constitutional Court. It wants the third gender to be demonstrated in a positive light, that is, unambiguously, it should enter the registration books, and relevant changes in the laws should be made by the end of this year.

But that is not all. The legal order in general, including the so-called marriage clause for all, is set up so far for binary sexuality - man / woman, woman / woman, man / man. But there is still no clarity on the question of whether a person with vague sexual characteristics can marry a person with undefined sexual characteristics. There is no clarity on many other issues. The existing linguistic orientation of the legal system for the existence of two sexes must be changed, and the mental binarity is destroyed. The first is easier than the second. Alleged changes also affect the usual treatment "Dear ladies and gentlemen" - in the future, this greeting will be insufficient. If the existence of the third sex is now recognized, then it is probably necessary to say "Dear People" - or to think about using completely different formulas.

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Intersexuals are people with ambiguous bodily sexual characteristics, and before they were called hermaphrodites. Such intersexuality should be distinguished from transsexuality. Transsexuals are people who, from the point of view of the body, belong either to the male or to the female sex, but feel their belonging to the opposite sex and want to be recognized as such. For them, there is a law on transsexuals, which tries to regulate these problems, as well as create prerequisites for a legal solution to the issue of gender. It is about perceived and about real sexuality. As far as intersex people are concerned, they do not perceived this kind of unambiguity. The Federal Constitutional Court wants not only to relieve these people from unambiguous attribution of themselves to a particular sex, but also explicitly recognizes their uncertainty as a third sex.


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This is a crucial decision. So far, it has been built into a long series of decisions in which the court in Karlsruhe recognizes and extends the rights of minorities - prisoners, pacifists, homosexuals, transgenders, illegitimate children, and the poor in our society. The court in Karlsruhe has strengthened their rights. However, the decision on intersexuality goes beyond strengthening the rights of minor minorities. The court in Karlsruhe says: this is a matter of identity formation among the intersexuals, when they are treated not as sexual zeros, but seriously perceive and recognize their sexual identity. High judges are convinced that non-recognition of the intersex sex constitutes discrimination against these people. This is a correct and important decision. The First Senate (Der Erste Senat) tells lawmakers that it might no longer consider gender an important characteristic in documents on the civil status of a person. This corresponds to the logic of the decision taken. However, for a long time there will be friction in the face of reality, since the division into men and women exists not only in Germany but throughout the world, and so far it is a significant factor in determining the corresponding rights.

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