In a recent decision, the German Federal Court of Justice (Bundesgerichtshof – BGH) ruled that the newly introduced section 45b and section 22(3) of the German Civil Status Act (Personenstandsgesetz – PStG) only applied to persons with a biological intersex condition and that “merely perceived intersexuality” was not covered by these provisions. The court thereby rejected the claimant’s submission to be registered as “non-binary” (“divers”) in line with their gender identity.

In the last seven years, German law has undergone significant change regarding a person’s legal gender. In 2013, the legislator first introduced a provision (section 22(3) PStG, old version) which provided for the possibility to leave the gender entry open where it was not possible to determine the biological sex of a child as either male or female. By contrast, the provision did not allow for a positive non-binary gender entry.

In 2017, the narrow scope of section 22(3) PStG was subject to a successful constitutional challenge. The German Federal Constitutional Court (Bundesverfassungsgericht – BVerfG) ruled that the general right to personality set forth in Art. 2(1) in conjunction with Art. 1(1) of the German Basic Law (Grundgesetz – GG) also protected the gender identity of those persons who do not identify as either male or female. Furthermore, the court held that the prohibition of discrimination in Art. 3(3) GG also protected non-binary persons from gender-based discrimination. The German legislator was therefore obliged to introduce a third positive gender entry option or to abolish mandatory gender registration altogether.

Since 2018, the legal gender of a new-born child can now also be registered as “divers” pursuant to section 22(3) PStG (new version), if the child’s sex cannot be determined as male or female. Furthermore, according to section 45b PStG, a person’s gender can also be changed at a later point in life if that person can present a medical certificate confirming “differences of sex development” (“Varianten der Geschlechtsentwicklung”).

While the new rules can be described as important steps in the right direction, many legal questions remain unanswered. One of the most important questions is whether the term “Varianten der Geschlechtsentwicklung” must be interpreted in light of a person’s self-perception and gender identity or whether a purely biological understanding should prevail.

In the abovementioned decision, the Federal Court of Justice (BGH) now opted for the latter approach. The court argued that the legal changes introduced to the PStG in 2019 were meant to only address persons with a medical intersex condition and thus did not apply to persons who solely identified as non-binary (referred to by the court as “merely perceived intersexuality”). The court further held that those persons could only change their legal gender according to the stricter rules of the German Transsexuals Act (Transsexuellengesetz -TSG) which requires mandatory court proceedings as well as two independent expert opinions.

The decision of the BGH is facing considerable criticism and a constitutional complaint is already pending before the BVerfG. And indeed, in light of the constitutional rights to gender identity and equal treatment, the biological approach taken by the BGH is not convincing.

Firstly, as the BVerfG has stressed in a number of decisions, a person’s gender cannot solely be determined by biological factors. Rather, a person’s gender significantly depends on their self-perceived gender identity. Furthermore, such a subjective understanding is also supported by several decisions of the European Court of Human Rights (ECHR). For instance, in Goodwin v The United Kingdom, the ECHR held that the right to respect for private life under Article 8 of the European Convention on Human Rights also includes the right to autonomously establish details of one’s own gender identity.

Secondly, it is more than doubtful whether the differential treatment between intersex persons and those with “merely perceived intersexuality” is in line with the constitutional right to equality under Art. 3(1)(3) GG. While the BGH argued that the compared groups were not relevantly alike, one can hope that the BVerfG will reject this line of argument together with the curious notion of “merely perceived intersexuality”. Nonetheless, the long-term solution can only be a comprehensive legal reform which puts a person’s gender identity at the heart of a new gender recognition act.