Binary or Blank: Germany Allows Parents to Refrain From Gender Assignment at Birth

Beginning this November, parents in Germany will be able to opt out of designating their children “male” or “female” at birth. The new law allows the gender field on birth certificates to be left blank, leaving it up to the individual to choose whether to identify as male, female or neither later on in life.

The German Federal Constitutional Court earlier ruled that being able to legally identify as one’s “deeply felt and lived” gender is a personal right.

Imagine all the colours we could have! (via Sutanta Aditya / AFP)

Imagine all the colours we could have! (via Sutanta Aditya / AFP)

While the law will primarily affect intersex people, it is likely to also have effects in areas of legislation affecting trans* people, including “comprehensive reform” of registration rules for other legal documents such as ID cards and passports that presently restrict gender options to “M” or “F.” German family law publication FamRZ has recommended the introduction of a third gender category designated by “X”, partly to circumvent difficulties intersex and trans* individuals might encounter travelling overseas.

Marriage law is another major area that has been identified as set for reform. Marriage in Germany is defined as between a man and a woman, while same-sex couples can apply for civil partnerships. Neither arrangement has provisions for non-binary-identified individuals.

Germany is the first country in Europe to make this step in recognition of non-binary genders. While Finland has similarly made “significant progress” in this area, no concrete legislative change has yet been made. Australia is commonly cited as the first country to allow passport holders to use “X” (meaning “indetermined/unspecified/intersex”) in 2011, followed shortly by New Zealand in 2012, though hijras in India and Pakistan have been granted legal recognition since 2005 and 2009 respectively.

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In June 2012, the European Commission released a report titled “Trans and Intersex People: Discrimination on the Grounds of Sex, Gender Identity and Gender Expression” which found that discrimination is still widespread in all EU countries, with “negative attitudes towards trans and intersex people […] often directly correlated to the importance that a determinate society places on the binary gender model.” It noted that the situation was made particularly complex as “legal recognition and rights afforded to this community are often intertwined with specific medical and psychological obligatory requirements,” and explored the dissonance between rigid laws and the actual lived experiences/choices of trans* and intersex people.

eutransintersexreport

Silvian Agius, a co-author of the report, has expressed his frustration with the EU’s lack of progress since then.

According to Silvan Agius, policy director at human rights organisation ILGA Europe – the European chapter of the International Lesbian, Gay, Bisexual, Trans and Intersex Association – the European Union is lagging behind on the issue. Though Brussels commissioned a report on trans and intersex minorities in 2010, and has since attempted to coordinate efforts to prohibit gender discrimination, progress has been halting.

“Things are moving slower than they should at the European level,” says Agius. “Though Brussels has ramped up efforts to promote awareness of trans and intersex discrimination, I would like to see things speed up.”

EU non-discrimination law still does not explicitly recognise gender identity or expression, though those who have undergone or are intending to undergo gender-confirming surgery may be protected by provisions on discrimination on the grounds of sex. Proponents of Germany’s new law, however, are optimistic that this move will place pressure on Brussels and perhaps other EU member-states to step up protections and provisions for trans* and intersex people.

Fikri has written 62 articles for us.

20 Comments

  1. I don’t think there’s anything particularly wrong with recognizing an apparent biological sex (I say apparent because we all know they only look at the external genitals and not internal or DNA and only sometimes hormones, and there are lots of aspects to sex), as little as I think it really matters, so much as thinking a gender is hardwired to a sex or sex is something to be medically dictated. I have no issue with this ruling; it may just help social norms loosen up and I def think someone’s gender (and even sex so much as they are able) should be left up to the individual. But, I just don’t like it when sex and gender are used interchangeably, it’s a peev of mine. My being female, for example, has little real baring on my gender, and it would have even less if society didn’t have set expectations. Still, this is a step in the right direction, for recognizing individual choice and that life isn’t as black/white/binary as so many people are taught to believe.

    • This is definitely something I considered, but while researching this I learnt that the German language does not differentiate between “sex” and “gender” (which is actually pretty common in the languages I know/am exposed to) and so it wasn’t possible to fully translate the wording of this law and its implications. The German-based English sources I consulted used them interchangeably.

      I completely get where you’re coming from — this used to be a pet peeve of mine too. But a lot of the discussion on the Trans*Scribe series here (especially in the comments!) as well as decolonial thought in gender & sexuality elsewhere has made me reconsider whether sex & gender are really distinct concepts or if this is even a useful framework for understanding these issues. This is still something I’m very, very new to/have constantly evolving thoughts about, so it’s not something I’m going to speak definitively about in any capacity, but I do believe now it’s not as simple as sex vs gender.

      • Yeah, there isn’t a distinction between sex and gender in German, but using the English word “Gender” is becoming increasingly common. This is also really interesting considering German is a highly gendered language with a strict system of adjective endings depending on the case and gender of nouns. Not sure if anyone else speaks/is familiar with German but I’m wondering how gender-neutral pronouns and language would work if the parents chose not to label their child’s gender at birth (maybe the neuter pronoun “es”? Although that sounds like “it” to me…)

        As for the sex vs. gender distinction, I also am fairly new to the issue and not qualified to speak on it with authority, but trans* and intersex activists are increasingly stressing that sex can be just as much of a construction as gender.

        • I’m a German native speaker.
          Well, “child” is a neutral word in German. So you could call it “das Kind” though to me that sounds a bit distant or not very emotional. The word for “boy”, “Junge”, is masculine. The word for “girl”, “Mädchen” is neutral, too, by the way. As far as pronouns are concerned neutral pronouns have this strange ring to them in German, much like turning persons into things, “das Auto”, you know? “Es” is “it”.
          I heard that there is a new gender neutral pronoun in Swedish. Maybe coming up with new pronouns would help. I do not believe in categorizing people as neutral things when they are living, feeling persons.
          After all it is “der Mensch” (m), not “das Mensch”. ;)

        • I think English speakers often over-estimate how “high gendered” languages with inflected nouns actually are? Most of the time, grammatical gender is just a convention, after all, there’s no reason why nouns ending in “ung” are more feminine, it’s just easier to explain the rule that way.

      • Ah, well, good to know. Maybe they need to add another word, or words, to their language, but one thing at a time. By far my larger issue is with the binary, and this is a step away from that.

        In terms of the sex vs gender concept, I’ve enjoyed reading the trans*scribe articles and they’ve definitely brought some considerations to the floor I hadn’t yet considered. I’m interested to continue learning about other people’s perspectives. But, the whole concept is so intertwined into whatever society we’ve been born into that I believe its impossible so separate our individual experiences with the larger mind set. Most conditioning isn’t even conscious, after all, be it gender expression or religion or anything else. Yet even the concept of sex is way more complicated than most people think, and in many cultures there was no separation of sex vs gender but they were combined into various forms of identity. Our current concept of what is a sex and what is gender, them being linked vs separate, is all social. They are just human-made labels, after all, just like anything else. But, in this particular society of binary, binary is wrong in either case. I personally still see a rather clear distinction, in our current society, between sex and gender, but I also recognize that if I had been born in, say, a more traditional indigenous culture, there could be 5 or perhaps even more distinct “identities” to exist in. I think our larger problem is that we as a society insist on limiting individual expression with set labels and preexisting expectations, regardless of who they really are, or have the potential to be, as people.

      • I’m not sure that’s a fair characterisation of the issue here. While there is a lot that is problematic about sex as a legal category as it stands now, there is still reason for it to exist. Documenting sex/gender allows us to understand how this impacts populations at a macro level: for example, demographic data allows us to identify gender disparities in birth rates (hinting at sex-selective abortions/infanticide), lifespans (women tend to live longer than men where I am, which has implications on gendered poverty rates late in life) and so on.

        Sex/gender (or the lack thereof) are realities which impact our lives and experiences, and so legal & political systems must evolve to reflect this as accurately as they possibly can. The challenge, then, is to create systems that are accommodating & flexible enough for individuals while robust & comprehensive enough to study — and act on — population-wide issues. For example, I would be in favour of scrapping gender as a field on ID cards altogether because it’s not something I feel we should be personally identified by on a day-to-day basis, but I wouldn’t recommend removing out of consideration from legal/political systems altogether.

  2. I know it’s not ideal in restricting things to three options, but I think this is a great step forward at least for the parents of intersex babies, they won’t feel pressure to assign a sex to their child which might have to be changed later on.

  3. How great to find out about this via Autostraddle, not via the German media I´m exposed to every day. ;-)

    Though I´m really proud of the progress my country is making, I really wish legislation would finally move in a direction that de-emphasises gender in everyday contexts… This will only ever affect intersex people or people with already gender-sensitive parents. Why not drop the gender catgegory from our passports/birth certificates entirely? As has already been mentioned, German is a highly gendered language, and I think we would really benefit from legislation that takes some of this emphasis out of everyday experiences. Plus, a move towards non-gendered legal documents would affect everyone (at the very least when they have to renew their passports/IDs), so maybe, just maybe more people would begin to think about why exactly they think gender is such a crucial bit of information in the first place.

  4. I really think it should be mandatory to not name your child’s sex or gender at birth. Let the child decide for themselves, and let them know that whatever they identify as is awesome. Even sex isn’t within a binary as there are a lot of variations on that. It seems really unconsensual to label a child without permission from the child.

    • I’m pretty sceptical about whether “letting the child decide for themselves” is a realistic option because I think it would just put children under a lot more gender scrutiny and expose them to more rigid gender norms – since gender non-conforming children are scrutinised more closely and held to more rigid standards. But generally I’m just annoyed by the fact that it’s increasingly widely held that gender is a decision you get to make – some sort of conscious choice about whether you look better in dresses or trousers, pink or blue. This erases the fact that most people, cis and trans, experience gender as a series of very strong emotions which we don’t choose, which simply happen to us for complicated reasons – and while we should acknowledge that gender, that is, the language society gives us to translate these strong emotions into (external) choices (of, for example, what to wear) is incredibly biased and very imperfect – that doesn’t mean we should deny the inateness of gender – the fact that you don’t decide to identify as a woman – you just feel yourself to be a woman.

      • I think “letting the child choose for themselves” here does not apply so much to the gender, but the representation of gender on paper. Ideal, in my opinion, would be to let children discover the way they feel about their own gender-representation, and then, if it absolutely has to be marked on legal documents, let them choose at a later point which gender they would like to see on their passport etc. For Germany, I guess a suitable point to do that would be at 14 (when you gain certain legal rights and responsibilities) or at 18 (when you become a legal adult). Possibly 16, when people are allowed (under certain circumstances) to get married and drink alcohol (btw. it´d be interesting to ask whether there´s a connection here…).
        Anyway, of course, in a highly gendered society like ours, that might be too optimistic, but I think not requiring people to be marked as one specific gender does not necessarily have to put them under more scrutiny. It might also help to de-emphasise gender as a relevant category.

  5. Hi Germans! Nice to see there are some of us queers @autostraddle.
    About the topic: It also irritates me not to have heard about it earlier… You know, the way homosexual rights were discussed, the aggrassiveness towards the so called “gender mainstreamers” or the hate about the “Frauenquote in Führungspositionen”… The discurses exist for some years now, remember the backlash of “#aufschrei” as the latest ongoing discussion (or has it died yet?).
    So it troubles me that this new law about the possibility to choose a neutral gender (can we call it that?) isn’t discussed at all! What’s going on?!

  6. New Zealand definitely allowed an X in passports prior to 2012, I think the change that took place then was removing some of the hoops in order to change the stated gender from M to F or vice versa.

    I’m not sure how the use of X applies to intersex or genderqueer people now as previously it was an option for people who were living as their true gender but had not fulfilled certain medical/surgical requirements in order to completely change the gender in their passport.

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