The Federal Constitutional Court of Germany today 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.
It gave the government until the end of 2018 to pass a law offering a third registration choice for those who are born neither male or female. The UN estimates that up to 1.7% of the world’s population is intersex, meaning that they have chromosomes or reproductive anatomy that don’t fit with the typical binary definitions of the female or male sex. Intersexuality is distinct from sexual orientation or gender identity.
The court said the current birth-registration documents discriminate against intersex people, and suggested the new category be called something like “inter,” noting that it must be a “positive description” of the third gender.
Dritte Option, a German activist group for intersex recognition called the ruling “a small revolution” and tweeted that they were “completely overwhelmed and speechless.”
The Federal Anti-Discrimination agency hailed it as a “historic decision for the equal treatment of intersex people.”
The decision means Germany is set to be the first country in Europe to officially recognize those who identify as intersex. The Australia, New Zealand, Nepal, and India already do, and as of October, the US state of California.
Since 2013 in Germany, intersex newborns can registered as male, female, or nothing—the box can be left blank. Many viewed the “blank” option as a way to sidestep the fact that there was no recognized civil status for German citizens born intersex.
The Constitutional Court was ruling on an appeal brought by an intersex person, who was registered as female although a chromosome analysis proved the plaintiff to be neither. After trying unsuccessfully to have their legal gender changed to “inter” or “various” in the German birth registry in lower courts, the person’s case finally reached the highest court in the country.