Civil status law must allow a third gender option

Press Release No. 95/2017 of 08 November 2017

Order of 10 October 2017

1 BvR 2019/16

The provisions of civil status law are incompatible with the Basic Law’s requirements to the extent that § 22(3) of the Civil Status Act (Personenstandsgesetz – PStG) does not provide for a third option, besides the entry categories “female” or “male”, allowing for a positive gender entry. This is what the First Senate of the Federal Constitutional Court held in an order published today. The general right of personality (Art. 2(1) in conjunction with Art. 1(1) of the Basic Law, Grundgesetz – GG) also protects the gender identity of those who cannot permanently be assigned either the “male” or “female” sex. In addition, civil status law as it currently stands also violates the prohibition of discrimination (Art. 3(3) GG) to the extent that it rules out the registration of an entry other than “male” or “female”. The legislature has to enact new provisions by 31 December 2018. Courts and public authorities may not apply the provisions at issue insofar as they impose an obligation on persons to state their sex if those persons’ gender development deviates from female or male gender development and they thus do not permanently identify as male or female.

Facts of the Case:

The complainant filed an application with the competent registry office for correcting the complainant’s birth registration by deleting the previous entry “female” and replacing it with “inter/diverse”, alternatively only with “diverse”. The registry office rejected the application, claiming that under German civil status law a child needs to be assigned either the female or the male sex in the birth register, or– if this is impossible – the entry is left blank (§ 21(1) no. 3, § 22(3) PStG). The application for correction filed thereupon with the Local Court (Amtsgericht) was rejected; the complaint filed against this decision was unsuccessful. With the constitutional complaint, the complainant claims a violation of the general right of personality (Art. 2(1) in conjunction with Art. 1(1) GG) and discrimination on the basis of sex (Art. 3(3) first sentence GG).

Key Considerations of the Senate:

1. a) The general right of personality also protects gender identity, which is usually a constitutive aspect of an individual’s personality. The official assignment of sex is of paramount importance for one’s individual identity; it typically occupies a key position both in a person’s self-image and in the way this person is perceived by others. The gender identity of those who cannot permanently be assigned either the male or female sex is also protected under this right.

b) As it currently stands, civil status law interferes with this right. It requires that sex be registered, but does not allow the complainant, who permanently identifies as neither male nor female, an entry corresponding to their gender identity. Even if the complainant chose the option “no entry”, it would not reflect that the complainant does not identify as without gender either, but rather sees themselves as gendered beyond male or female.

This specifically jeopardises the self-determined development of and respect for ones personality. Civil status is not a marginal issue; rather, it is the “position of a person within the legal system”, as stated in the law. Civil status defines the central aspects of the legally relevant identity of a person. Therefore, denying the recognition of felt gender identity in itself jeopardises the self-determined development.

c) The interference with fundamental rights is not justified under constitutional law. The Basic Law does not require that civil status be exclusively binary in terms of sex. It neither requires that sex be governed by civil status law, nor is it opposed to the recognition under civil status law of a third gender identity beyond male and female.

The interests of third parties cannot justify that civil status law does not provide for a third option allowing for a positive entry in the birth register. The mere possibility of a further entry category does not compel anyone to assign themselves to this third category. In a system that requires information on sex, the existing options for persons with deviating gender development to be registered as male, female or to leave the entry blank must certainly be preserved. Additional bureaucratic or financial costs or organisational interests of the state cannot justify the denial of a third standardised positive entry category either. A certain additional effort will have to be accepted. Yet the general right of personality does not give rise to a claim to the entry of random gender-related identity features as civil status information. Furthermore, allowing a positive entry for a third gender with a standardised third designation does not result in any difficulties in assigning sex that do not already exist under current law anyway. If a further positive entry is provided for, the questions to be addressed are the same that already arise when the sex entry is left blank, which is possible as the law currently stands.

2. In addition, § 21(1) no. 3 in conjunction with § 22(3) PStG violates Art. 3(3) first sentence GG. According to this fundamental right, unequal treatment under the law must generally not be based on sex. Art. 3(3) first sentence GG also protects persons against discrimination who do not identify as male or female, since the purpose of Art. 3(3) first sentence GG is to protect persons from being disadvantaged that are part of groups structurally at risk of discrimination. Yet § 21(1) no. 3 in conjunction with § 22(3) PStG does disadvantage persons, on the basis of their sex, who are neither male nor female, given that - unlike men and women - they cannot be registered in accordance with their sex.

3. Given the violations of constitutional law, § 21(1) no. 3 in conjunction with § 22(3) PStG is declared incompatible with the Basic Law, because the legislature has several options to remedy these violations. The legislature could generally dispense with a sex entry under civil status law. Alternatively, it could also create the possibility for affected persons to choose another positive designation of gender that is not male or female. In this respect, the legislature is not limited to choosing one of the designations put forward by the complainant in the proceedings before the ordinary courts.