Germany moves to approve third gender option, but does it go far enough?

Germany’s Cabinet has approved adding a third gender option for intersex people, but activists argue it does not offer a solution for all.

Wednesday’s decision aims to allow intersex Germans who do not identify as male or female to apply to be categorised as ‘divers’, which means ‘miscellaneous’ or ‘other’.

The move follows a ruling by the Federal Constitutional Court in November last year in favour of an intersex individual. Under existing law, intersex people who don’t identify as male or female can opt to have no gender identification; the description being left blank.

The court, however, said this was not sufficient and ordered the government to amend the “discriminatory” legislation before the end of 2018 to accommodate intesrsex people who wish to have some other form of sex identification. The law must allow for “another positive designation of their sex that is not male or female,” said the court.

According to AFP, Justice Minister Katarina Barley said that the new ‘divers’ category would give intersex people a greater sense of “dignity and positive identity”. The move must still be approved by Parliament before coming into effect.

Some LGBTIQ activists, however, say that a medical certificate will be required in order to apply for the new categorisation. It may also only apply to individuals who are biologically intersex, not necessarily those who are transgender or gender diverse.

While, in 2011, the German Constitutional Court ruled that a person did not need either sex reassignment surgery or sterilisation in order to legally change their gender to male or female, transgender people who do not identify as male or female may not qualify for the new category.

Richard Koehler, a policy advisor for Transgender Europe, told the Thomson Reuters Foundation that those applying for the “diverse” category could be forced to undergo medical tests. “Those who cannot or do not want to submit themselves to such invasive medicalisation will remain excluded and without legal recognition. This is discriminatory,” he said.

Markus Ulrich, a spokesman for the Lesbian and Gay Federation in Germany, added: “For trans people, nothing has changed regarding the obstacles they face to change their registered name and gender.”

Intersex people are born with some natural biologically variation – that could include chromosomes, genitals or other factors – that “do not fit the typical definitions for male or female bodies”.