Germany misses the chance for basing its 3rd gender marker law on human rights.
On December 13th Germany adopted the so-called 3rd gender marker law which establishes “diverse” (German: “divers”) as a third gender marker next to male and female. However, this option is restricted to intersex people and requires a medical certificate. On the positive side the law clarifies that choosing “diverse” – or leaving the gender marker open with intersex newborns as established in 2013 – is an option but not an obligation for parents.
“We congratulate Germany to the long overdue clarification for intersex newborns. This will take pressure away from parents who may have agreed to medical interventions in order be able to have the child registered as female or male”, says Miriam van der Have, Co-Chair of OII Europe.
“We are, however, perplexed that Germany did not take the chance to base this law on self-determination and by that make it complying to human rights standards”, adds Dan Christian Ghattas, Executive Director of OII Europe. “A lot of intersex people do not have access to their medical records and are in significant danger of re-traumatisation if they need to obtain a medical certificate. The law offers an exception to the medical statement and replaces it with an oath under “special circumstances”. There is no clarity yet about how these circumstances will be determined. German lawyers of the strategic litigation group DritteOption have already confirmed that this oath will have to refer to medical diagnoses and medical treatments and that this will exclude any intersex person who has no precise knowledge of the facts to be explained.”
“By limiting access to this third gender marker only to intersex people it clearly discriminates against trans people who do not identify as women or men. While there are many intersex people who would want access to a third gender marker then most intersex women and intersex men are happy with their gender marker. The way the legislation is formulated seems to indicate conflation of intersex and non-binary issues. This legislation can only be considered a first step towards human rights based legislation”, confirms Kitty Anderson, Co-Chair of OII Europe, and adds: “We also are waiting for Germany to take a clear position against unconsented surgeries and other interventions on intersex children”.
OII Europe has supported its member organisation OII Germany in advocating for a human rights based 3rd gender marker law, including a submission for an earlier version of the law of the draft from the Ministry of Interior, together with TGEU. The submission criticized the foreseen use of the term “other”, the pressure that the law placed on parents and the pathologisation and lack of self-determination inherent in the requirement of a medical certificate.