Nonbinary people have won an unprecedented spate of legal victories lately, with Oregon creating a nonbinary marker on its state driver's licenses and California's decision to add a nonbinary option to birth certificates and state ID cards. Now comes another victory for nonbinary people: A recent ruling by the German Federal Constitutional Court has officially made Germany the first European country to legally recognize nonbinary people.
Germany's ruling comes out of a 2013 case brought to the courts by an intersex person who wanted to be recognized as neither male nor female on Germany's registry of birth. The court's original decision was to allow folks the option to leave gender blank in the registry, but the new decision ruled a blank option "was not sufficient," Business Insider reported.
Lawmakers have until December 2018 to decide on a third sex option and implement the changes. Deutsche Welle reported that some potential solutions include adding "'intersex,' 'diverse,' or another 'positive designation of sex,'" and that another possibility is to get rid of sex markers entirely.
According to Deutsche Welle, the basis for the ruling is that the lack of an option for people who identify as neither male nor female is a violation of the general right to the protection of personality according to Germany's Basic Law. The fact that German courts must find a validating solution beyond having a blank space in the registry is a huge step forward for nonbinary people, whether they have a nonbinary sex or a nonbinary gender identity.
The German group Dritte Option, which has been advocating for a third option in the registry, tweeted on Nov. 8, "We are completely overwhelmed and speechless. This borders on a small revolution in the area of gender," as translated by NPR.
In the midst of coverage written by folks who either don't know or don't recognize the distinction between sex and gender, it is important to note that sex and gender are not the same. Sex is biological, while gender is psychological and societal. Germany is allowing for a nonbinary sex marker, not a nonbinary gender marker, and the person who brought the case to the courts was intersex, not transgender. According to Business Insider, "While the ruling and forthcoming legislation only affects those born intersex, advocates hope that this will lead to greater challenging of the gender binary in Germany." And of course, something as simple as being able to change their sex markers to something like "diverse" would be a huge boon to transgender people in Germany.
California's October 2017 ruling included both intersex people and folks with nonbinary genders, aiming to not only add nonbinary options, but to make it easier for nonbinary people to make use of those options by retroactively changing birth certificates and ID cards. California defined "nonbinary" as an "umbrella term for people with gender identities that fall somewhere outside of the traditional conceptions of strictly either female or male."
This language encapsulates both nonbinary gender and sex identities, allowing people who have a nonbinary gender identity, such as genderfluid or the indigenous identity two-spirit. And both California and Germany's rulings specifically show support for intersex people, many of whom are still subjected to nonconsensual "correctional" surgery in the U.S., Germany, and many other places around the world.
Considering an estimated 1.7 percent of children are born with bodies that diverge from typical male or typical female, and that surgeries to make them more binary "can inflict permanent harm on intersex children," according to Human Rights Watch, more legal protections for intersex people are vital. Legal recognition of intersex people is the first step toward more thorough protections, both for them and for transgender people who don't fit in the traditional masculine or feminine gender binary.
Maja Liebing, a queer rights expert at Amnesty International in Germany, told CNN, "This judgment is a very important step for intersex people in Germany. We hope it can lead to a rethink in society, to a realisation that there are more than two genders."
NPR reported that official documents in Australia, India, New Zealand and Nepal already recognize intersex people. Hopefully, Germany's ruling will encourage more European countries to finally give intersex and transgender people recognition the same protections binary and cisgender citizens have always had.