SUBVERSION SUBVERTED:

DEVELOPMENTS IN GERMAN CIVIL STATUS LAW ON THE

RECOGNITION OF INTERSEX AND NON-BINARY PERSONS

JENS T. THEILEN*

1. INTRODUCTION
There is something oddly surreal in writing about legal gender recognition for intersex and non-
binary persons in a world that is so thoroughly gendered in binary terms. Our clothes, our
bodies, our gait, our voices: whether we like it or not, they are all signifiers that will be
gendered, and more specifically, at least in the West, read within and integrated into a binary
structure as male or female. Infant bodies that do not ‘fit’ the norms associated with ‘male’ and
‘female’ bodies are literally ‘corrected’ by way of surgical procedures in the name of what
Judith Butler aptly calls ‘a normative notion of human morphology’.1 Later on in life, even on
the rare occasions on which a person’s gender presentation differs so drastically from the
common norms that they cannot be easily identified as either male or female, they will
nonetheless be measured against that binary, leading to confusion at best or violence at worst.2
The possibility of intersex bodies or of non-binary or otherwise genderqueer identities3 is
simply not part of the dominant Western framework of thought.
Most legal systems likewise operate within this framework; they, too, are thoroughly gendered
in binary terms.4 However, developments across the globe have raised hopes that the gender
binary might also be challenged by and within law: Some form of recognition for those outside
the binary, however limited, has found its way, for example, into the legal systems of Australia,
Bangladesh, Canada, India, Nepal, New Zealand, Pakistan, and parts of the United States.5 With

*
Research Associate, Helmut-Schmidt-University, Hamburg. I would like to thank all those who offered feedback on this
chapter and the many drafts which preceded it, with particular thanks to Grietje Baars, Felix Bieker, Pieter Cannoot, Damian
Gonzalez-Salzberg, Kay Lalor, Katharina Wommelsdorff, and the two anonymous peer reviewers. This chapter has been
updated to include developments up to late January 2020.
1
J. BUTLER, ‘Beside Oneself: On the Limits of Sexual Autonomy’ in Undoing Gender, Routledge, New York and London
2004, p. 24; see further below, particularly sections 2.1. and 4.
2
See generally V. NAMASTE, Invisible Lives: The Erasure of Transsexual and Transgendered People, University of Chicago
Press, Chicago 2000, chapter 6, particularly at p. 144 on the gender binary.
3
I deliberately refrain from attempts at precise definitions or overly rigid use of only certain terms. The (openness of the)
appropriate terminology is itself part of the legal issues I will discuss: see below, note 107.
4
This is often the case even in contexts in which the gender binary is culturally less established (and indeed the notion of
“gender” differs from Western understandings), particularly where colonial laws introduced binary gender markers and were
not repealed.
5
For these developments, see as examples of much more wide-ranging commentary e.g. T. BENNETT, ‘‘No Man’s Land’: Non-
Binary Sex Identification in Australian Law and Policy’ (2014) 37 UNSW Law Journal 847; R. WALLBANK, ‘Australia’ in J.M.
SCHERPE (ed.), The Legal Status of Transsexual and Transgender Persons, Intersentia, Cambridge et al. 2015; A. HOSSAIN,

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various developments in Malta, Austria, Belgium, the Netherlands and Germany, the move
beyond the gender binary has now also arrived in Europe. The latter in particular has been the
focus of much discussion since legal developments included not only several legislative
amendments but also a potentially far-reaching judgment by the German Federal Constitutional
Court (Bundesverfassungsgericht, BVerfG).6 My aim in what follows is to introduce,
contextualise, and evaluate these developments.
I will begin by telling the story of how German civil status law moved beyond the gender binary
over the course of the last few years (2.). Note that this is only one of many ways in which that
story could be told, specifically one which focusses primarily on legal acts and legal discourse.
Accordingly, the three acts around which I will structure my narrative are the initial legislation
(2.1.), judicial responses to it (2.2.), and the reworked legislation as well as subsequent
developments (2.3.). My purpose here is twofold. First, I aim to provide an overview of the
developments within German law which are otherwise not fully accessible due to language
barriers, and have occasionally been misrepresented in Anglophone scholarship. Second, this
overview provides the basis for an evaluation of German law as it stands, and of the potential
and limits of legal gender recognition beyond the binary for a transformative politics. I approach
this issue through the lens of different rationale(s) for legal gender recognition, and take the
different stages of development within German law as examples for different, often overlapping
rationales (3.). The outlook offers some reflections on what the German experience might teach
us with regard to gender-related activism geared at legal change more generally (4.).

2. DEVELOPMENTS IN GERMAN CIVIL STATUS LAW

2.1. ACT ONE: LEGISLATION
Even if we are telling a story focussed on legal acts, we should begin it by acknowledging its
broader societal origins: the legal developments at issue are a consequence of tireless activism
by intersex persons. A certain incongruity immediately becomes apparent, however. Where
recent legislation focusses on civil status law, the primary and most urgent demand of most
intersex activists has been to end unnecessary surgeries on intersex infants.7 The German
association of intersex persons Intersexuelle Menschen e.V., for example, details five main

‘The Paradox of Recognition: Hijra, Third Gender and Sexual Rights in Bangladesh’ (2017) Culture, Health & Sexuality 1; A.
DUTTA, ‘Contradictory Tendencies: The Supreme Court’s NALSA Judgment on Transgender Recognition and Rights’ (2014)
5 Journal of Indian Law and Society 225; G. SWAIN, ‘Transgenders as the ‘Other’: The Politics of Transgender Community
after the Historic Supreme Court Verdict’ (2016) 2 International Research Journal of Multidisciplinary Studies 1; K. KNIGHT,
A.R. FLORES, and S.J. NEZHAD, ‘Surveying Nepal’s Third Gender: Development, Implementation, and Analysis’ (2015)
Transgender Studies Quarterly 101; J.A. REDDING, ‘From ‘She-males’ to ‘Unix’. Transgender Rights and the Productive
Paradoxes of Pakistani Policing’ in D. BERTI AND D. BORDIA (eds.), Regimes of Legality. Ethnography of Criminal Cases in
South Asia, Oxford University Press, Oxford 2015.
6
German Federal Constitutional Court, Decision of 10 October 2017, Appl. No. 1 BvR 2019/16; an English translation is
available at
<https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2017/10/rs20171010_1bvr201916en.html>;
however, since I find several phrases in that document to be rather misleading, all direct citations that follow are my own
translations.
7
See generally and with further references R. HUPF, ‘Allyship to the Intersex Community on Cosmetic, Non-Consensual
Genital “Normalizing” Surgery’ (2015) 22 William & Mary Journal of Women and the Law 73; for Germany, see G.
SCHABRAM, ‘“Kein Geschlecht bin ich ja nun auch nicht”: Sichtweisen intergeschlechtlicher Menschen und ihrer Eltern zur
Neuregelung des Geschlechtseintrags,’ <https://www.ssoar.info/ssoar/handle/document/54433> accessed 04.02.2019, 37.

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demands on their website:8 first place is given to the prevention of unnecessary surgeries, and
other demands relate to this primary goal by foregrounding the importance of standards of care
and education of (inter alia) medical personnel on intersex issues. Only as the last demand is
the incorporation of the term ‘intersex’ into positive law more generally and civil status law in
particular mentioned.
About a decade ago, several German organisations teamed up to bring the issue of unnecessary
surgeries on intersex infants before various treaty bodies of the United Nations; while their
shadow reports also touched on civil status law, preventing non-consensual surgeries, again,
was clearly the main focus.9 Amidst mounting pressure in light of said treaty bodies’
recommendations,10 the German government commissioned the Ethics Council – an expert
body that issues non-binding statements on questions of ethics, especially when related to life
sciences – to prepare a report on the situation of intersex persons in Germany. In line with this
broad mandate, the Ethics Council’s opinion dealt with a variety of fields and included
recommendations both on preventing surgeries on intersex infants and on the position of
intersex persons in civil status law.11 It was only the latter aspect, however, that was picked up
in the legislative response. The initial amendment to civil status law, in 2013, added the
following passage to the statute dealing with registration of legal gender at birth: ‘If the child
can be assigned to neither the female nor the male sex, then entry into the birth register is to be
made without any such specification’ (section 22 (3) Personenstandsgesetz, PStG).12
The legislation thus failed to take up all or even most of the issues that had been raised at this
point. For one thing, the problem of non-consensual surgeries continued to be ignored, thus
leaving aside the most insistently stated demand of intersex activists. In fact, some felt that the
new legislation exacerbated the issue, given that it takes the time of birth as its point of reference
rather than giving the option of choice upon coming of age: worries were voiced that this would
provide additional impetus to non-consensual surgeries so as to allow registration of one’s child
as male or female rather than face potential stigmatisation.13 These themes will resurface
below.14 To proceed with our story of the legal developments which followed, however, a
further aspect is of great importance: section 22 (3) PStG did not allow for the entry of a specific
term such as ‘intersex’ or ‘non-binary’ into the birth register – instead, it merely stated that the
entry be made ‘without specification’, i.e. the space should be left blank.15 This aspect was

8
See <http://www.im-ev.de/forderungen/forderungen5.php> accessed 04.02.2019.
9
The shadow reports (in German, with summaries in English) may be found at <http://intersex.schattenbericht.org/> accessed
04.02.2019.
10
Committee on the Elimination of Discrimination against Women, CEDAW/C/DEU/CO/6, para. 62; Committee on
Economic, Social and Cultural Rights, E/C.12/DEU/CO/5, para. 26; Committee against Torture, CAT.C.DEU.CO.5, para. 20.
11
GERMAN ETHICS COUNCIL, ‘Report on Intersexuality’ (2012), available in English at
<http://www.ethikrat.org/publications/opinions/intersexuality> accessed 04.02.2019.
12
Inserted by amendment of 7 May 2013, Bundesgesetzblatt 2013 I, p. 1122; the German original reads: ‘Kann das Kind weder
dem weiblichen noch dem männlichen Geschlecht zugeordnet werden, so ist der Personenstandsfall ohne eine solche Angabe
in das Geburtenregister einzutragen’.
13
See A.J.A. NEUMAN WIPFLER, ‘Identity Crisis: The Limitations of Expanding Government Recognition of Gender Identity
and the Possibility of Genderless Identity Documents’ (2016) 39 Harvard Journal of Law and Gender 491, 535; more generally
R. HUPF, ‘Allyship to the Intersex Community on Cosmetic, Non-Consensual Genital “Normalizing” Surgery’, 87-89.
14
See in particular notes 51-53, as well as more generally on non-consensual surgeries notes 63 and 133-137.
15
W. SIEBERICHS, ‘Das unbestimmte Geschlecht’ (2013) Zeitschrift für das gesamte Familienrecht 1180.

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challenged: an intersex person by the name of Vanja sought to enter ‘inter/divers’16 in the birth
register rather than merely accept the blank space.

2.2. ACT TWO: JUDICIAL RESPONSES

Vanja argued that the blank space constituted a ‘non-entry’ into the birth register which
rendered them invisible compared to the positively designated entries ‘male’ and ‘female’,
created an impression of uncertainty about their gender which did not reflect reality, and thus
discriminated against them.17 Since the alternate solution of entering ‘inter/divers’ was clearly
not foreseen within civil status law, their legal argument centred on constitutional rights which
could have led either to a reinterpretation or to an invalidation of section 22 (3) PStG. Yet the
registry office and all civil courts seized of the matter refused to follow either of these paths,
albeit with differing degrees of sympathy to the constitutional angle within their reasoning.
Thus, the Higher Regional Court admitted that, in light of constitutionally protected personality
rights, a legal order based entirely on the gender binary would be unconstitutional18 – already
a significant step which was largely unprecedented in German law at the time. However, the
court was of the opinion that there are many different ways in which the move beyond the
gender binary could be accomplished within civil status law, e.g. a category entitled ‘other’, a
categorisation as both male and female simultaneously, a blank space (as in section 22 (3)
PStG), or the elimination of gender classifications from the legal system in its entirety. Against
that backdrop, the Court felt that the legislators had fulfilled their constitutional duties by
choosing one of these options, and there was thus no right to a specific entry as ‘inter/divers’.19
The Federal Court of Justice reached the same result, albeit with more protracted reasoning.
Rather than taking up the constitutional argument in more detail, the court focussed throughout
on statutory law, which it construed as binary;20 by thus circumventing the non-binary potential
of a constitutional right to gender identity, it avoided facing the issue head-on.21
The Federal Constitutional Court, however, took a different position and found section 22 (3)
PStG to be unconstitutional when measured against the fundamental rights of the applicant. It
formulated three main conclusions. First, the general personality rights derived from the Basic
Law (article 2 (1) in conjunction with article 1 (1) Grundgesetz, GG) protect a person’s gender
identity – not only in the case of trans men and trans women, as had already been confirmed in
many earlier cases, but also for ‘those who permanently cannot be assigned to the male or
female gender’.22 Second, these persons also come within the scope of the protection against

16
‘Divers’ means both ‘various’ and ‘diverse’. I leave it untranslated throughout so as to not lose this ambiguity.
17
The initial application to the registry office is available at <http://dritte-option.de/wp-content/uploads/2014/07/Antrag.pdf>
accessed 04.02.2019.
18
Higher Regional Court Celle, Decision of 21 January 2015, Appl. No. 17 W 28/14, at 4.
19
Ibid., 5.
20
Federal Court of Justice, Decision of 22 June 2016, Appl. No. XII ZB 52/15, esp. para. 15.
21
For a more detailed critique, see J.T. THEILEN, ‘Intersexualität bleibt unsichtbar: Kritische Anmerkungen zum Beschluss des
Bundesgerichtshofs zu nicht-binären Eintragungen im Personenstandsrecht’ (2016) 69 Das Standesamt 295.
22
German Federal Constitutional Court, Decision of 10 October 2017, first headnote.

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discrimination based on gender (article 3 (3) 1 GG).23 And finally, more specifically with regard
to the case at hand, both of these fundamental rights are breached when civil status law demands
a registration of legal gender but allows for no affirmative entry besides male or female24 – a
blank space, in other words, is not sufficient.
The gist of the case, to my mind, lies in the fact that, unlike the civil courts, the BVerfG was
persuaded by Vanja’s argument that a mere blank space does not constitute proper gender
recognition. In a key passage, the Court held that the blank space
‘retains the exclusively binary model of gender and creates the impression that the
legal recognition of an additional gender identity is not an option, with the entry of
a legal gender instead being merely unsettled, unresolved, or forgotten about. This
does not constitute recognition of the applicant’s own experience of gender’.25
The legislator was instructed to adapt civil status law accordingly, until 31 December 2018 at
the latest. Renouncing the notion of legal gender altogether would be one permissible option;26
so long as it is retained, all current options (male, female, blank space) must likewise be
retained,27 as well as being supplemented by an additional ‘uniform affirmative designation’
(einheitliche positive Bezeichnung).28
The BVerfG’s judgment was largely welcomed as a landmark judgment shifting German law
beyond the gender binary, but several questions remained. One question which the court
explicitly left up to the legislator was the choice of terminology for the new affirmative
designation: in particular, it noted that the terminology which the applicant in these particular
proceedings aspired to (‘inter/divers’) was not the only possibility.29 Lurking behind this
ostensibly semantic issue, however, was a deeper ambiguity relating to the scope of the
judgment. The reliance on personality rights including the right to gender identity, as in
previous cases concerning trans rights, indicates that the scope might be broad, encompassing
not only intersex persons but also non-binary persons more generally: the focus is on identity,
not biology.30 This is mirrored in, or at least compatible with, the somewhat ambiguous

23
Ibid., second headnote; see in more detail on this aspect P. DUNNE AND J. MULDER, ‘Beyond the Binary: Towards a Third
Sex Category in Germany?’ (2018) 19 German Law Journal 627, 633-635 and 637-639.
24
German Federal Constitutional Court, Decision of 10 October 2017, third headnote (‘Personen, die sich dauerhaft weder
dem männlichen noch dem weiblichen Geschlecht zuordnen lassen, weden in beiden Grundrechten [dem allgemeinen
Persönlichkeitsrecht sowie dem Verbot der Diskriminierung wegen ihres Geschlechts] verletzt, wenn das Personenstandsrecht
dazu zwingt, das Geschlecht zu registrieren, aber keinen anderen positiven Geschlechtseintrag als weiblich oder männlich
zulässt’).
25
Ibid., para. 43.
26
Ibid., paras. 50, 52 and 65.
27
Ibid., paras. 51 and 65.
28
Ibid., para. 65.
29
Ibid.
30
Two caveats. First, my phrasing that the focus is on identity rather than biology is deliberate. It is sometimes said that the
BVerfG’s case-law has rendered any reliance on biological elements obsolete in the context of gender recognition; this is
(sadly) not the case, since the court has found the preconditions of sterilization or surgical treatment to be unconstitutional, but
explicitly allowed other preconditions relating to physical characteristics, such as hormone treatment: German Federal
Constitutional Court, Decision of 11.01.2011, BVerfGE vol. 128, 109 at 130 (obiter). Second, by contrasting identity with
biology (or, at other points, gender and sex), I am mirroring distinctions as they are commonly used in legal discourse on trans
rights and which, I think, may have heuristic value; but I do not mean to negate connections between them or naturalise either
side of the equation, particularly the latter; see generally J. BUTLER, Gender Trouble. Feminism and the Subversion of Identity,
Routledge, New York and London 1999; S.J. KESSLER, Lessons from the Intersexed, Rutgers University Press, New Brunswick,

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phrasing mentioned above which refers to ‘those who permanently cannot be assigned to the
male or female gender’.31 In the operative paragraphs of the judgment and elsewhere, the focus
on identity is confirmed by reformulating this as persons who ‘permanently do not assign
themselves to either the male or female gender’.32 However, the formal scope of the judgment
is then immediately narrowed down – at least on a prima facie reading33 – by restricting the
finding of a violation to the lack of affirmative designation available to ‘persons whose sex
development exhibits elements of variance compared to male or female sex development’, i.e.
by reverting back to biological aspects.34
The cumulative reference to both identity and biology, at a minimum, does give a relatively
clear indication that the third option should only be open to those who wish to make use of it,
thus avoiding the problem of ‘forced outings’ of intersex persons within civil status law.35
Beyond that, however, a certain ambiguity remains. On my reading, the reference to ‘elements
of variance compared to male or female sex development’, although hardly well-phrased,36
should be understood as a response to the case at hand, which did, after all, concern an intersex
person. Accordingly, the thrust of the BVerfG’s argument seems to me to carry the clear
potential for an affirmation of non-binary identities more generally.37 But the judgment also
remains open to a more restrictive reading by those opposed to the rights of non-binary persons.
This brings us to the next phase in the story: the political process following the BVerfG’s
judgment.

N.J. 1998. Indeed, the BVerfG’s claim that hormone treatment should be considered a legitimate precondition for legal gender
recognition showcases quite clearly how ostensibly “biological” sex is in fact socially constructed: see critically M.
GRÜNBERGER, ‘Ein Plädoyer für ein zeitgemäßes Transsexuellengesetz’ (2007) 60 Das Standesamt 357, 362; more generally
J.T. THEILEN, ‘Beyond the Gender Binary: Rethinking the Right to Legal Gender Recognition’ (2018) European Human Rights
Law Review 249, 252.
31
Above, note 22; the German ‘Geschlecht’ can mean both ‘sex’ and ‘gender’; my translations aim to contextualise what I take
to be the BVerfG’s primary meaning in any given citation, but see the previous footnote on the limits of the distinction; for the
original German phrasing see above, note 24.
32
German Federal Constitutional Court, Decision of 10 October 2017, first operative paragraph, emphasis added (‘die sich
selbst dauerhaft weder dem männlichen noch dem weiblichen Geschlecht zuordnen’).
33
A broader reading is offered by A.K. MANGOLD, M. MARKWALD and C. RÖHNER, ‘Rechtsgutachten zum Verständnis von
“Varianten der Geschlechtsentwicklung” in § 45b Personenstandsgesetz’ (2019), available at <https://eufbox.uni-
flensburg.de/index.php/s/WwkHJkHaEaHpkQk#pdfviewer> accessed 28.01.2020; see further on their argument below, notes
73 and 122.
34
Ibid. (‘Personen, deren Geschlechtsentwicklung gegenüber einer weiblichen oder männlichen Geschlechtsentwicklung
Varianten aufweist’).
35
See generally on the threat of this scenario T. BENNETT, ‘‘No Man’s Land’: Non-Binary Sex Identification in Australian Law
and Policy’, 859; A.J.A. NEUMAN WIPFLER, ‘Identity Crisis: The Limitations of Expanding Government Recognition of Gender
Identity’, 514; J.T. THEILEN, ‘Beyond the Gender Binary: Rethinking the Right to Legal Gender Recognition’, 255-256.
36
The German original speaks of ‘Varianten’ (above, note 34), which not only implies pathologisation since it is taken from
medical discourse, but also reinforces (what is read as) male and female sex characteristics as ‘normal’: see D.C. GHATTAS et
al., ‘Inter* & Sprache,’ <http://www.transinterqueer.org/download/Publikationen/InterUndSprache_A_Z.pdf> accessed
04.02.2019; the official translation of the BVerfG’s judgment even speaks of ‘persons whose gender development deviates
from female or male gender development’ (emphasis added), which makes the normalisation of binary sex even more evident.
37
See also, in this vein, P. DUNNE AND J. MULDER, ‘Beyond the Binary: Towards a Third Sex Category in Germany?’, 641-
643; the more expansive reading of “variance in sex development” (above, note 33) reaches the same result.

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2.3. ACT THREE: LEGISLATION, REVISITED
Both during and after Vanja’s judicial proceedings, there was a flurry of political activity and
activism which produced manifold personal accounts, press releases, opinion pieces, and expert
reports to shape the political process. Some of the most important materials include repeated
commentary by the campaign group Dritte Option (‘third option’) which supported Vanja’s
claim from the beginning,38 and several reports published by Germany’s National Human
Rights Institution, the German Institute for Human Rights,39 as well as critical activist responses
to an early draft by the Ministry of the Interior.40 Despite the wealth of materials available to
draw on, it was not until the last quarter of 2018 that the federal government formally proposed
the draft law in parliament, leaving less than three months for further debate until the BVerfG’s
deadline of 31 December 2018.
These time constraints became one of the major topoi within the parliamentary process.
Representatives of the governing parties, particularly those of the conservative party
CDU/CSU, grasped onto the deadline set by the BVerfG and presented it as a justification of
the fact that the draft law proposed merely a ‘first step’,41 arguing that alternatives were ‘not
feasible’ within the deadline.42 This minimalistic aspiration was reflected in the draft law, which
activists deemed an ‘incomplete fragment’.43 In essence it proposed only a minor adjustment to
section 22 (3) PStG, allowing for the entry of ‘divers’ as well as the option of a blank space in
the case of those children who ‘can be assigned to neither the female nor the male sex’. A
further amendment to civil status law proposed the possibility for adults to likewise make use
of these options, i.e. to change an already registered legal gender – provided that they could
prove ‘a variance in sex development’ (eine Variante der Geschlechtsentwicklung) by means
of a medical certificate (section 45b PStG).44
The opposition parties rightly pointed out that the government had more than enough time to
prepare a more thorough reform since the BVerfG’s judgment,45 and that in any event the
remaining time until the deadline could be used to do so.46 The left-wing party Die Linke
formally submitted an alternative to the government’s draft law, suggesting that a new draft

38
See <http://dritte-option.de> accessed 04.02.2019.
39
G. SCHABRAM, ‘“Kein Geschlecht bin ich ja nun auch nicht”: Sichtweisen intergeschlechtlicher Menschen und ihrer Eltern
zur Neuregelung des Geschlechtseintrags,’ (above, note 7); N. ALTHOFF, G. SCHABRAM, AND P. FOLLMAR-OTTO,
‘Geschlechtervielfalt im Recht. Status quo und Entwicklung von Regelungsmodellen zur Anerkennung und zum Schutz von
Geschlechtervielfalt’ (Begleitmaterial zur Interministeriellen Arbeitsgruppe Inter- & Transsexualität - Band 8, 2017).
40
For an overview, see G. BAARS, ‘New German Intersex Law: Third Gender but not as we want it,’
<http://criticallegalthinking.com/2018/08/24/new-german-intersex-law-third-gender-but-not-as-we-want-it/> accessed
04.02.2019, with further references.
41
Plenary Protocol 19/71 (13.12.2018), p. 8338 D (Bettina Margarethe Wiesmann).
42
Plenary Protocol 19/55 (11.10.2018), p. 5989 A (Marc Henrichmann).
43
See the press release by dgti e.V. (Deutsche Gesellschaft für Transidentität und Intersexualität),
<https://www.dgti.org/images/pdf/Pressemeldung_Kabinettsentwurf.pdf> accessed 04.02.2019.
44
BT Drucks. 19/4669, ‘Entwurf eines Gesetzes zur Änderung der in das Geburtenregister einzutragenden Angaben’; the
possibility of adults making use of the blank space under the previous iteration of section 22 (3) PStG had been confirmed in
Higher Regional Court Celle, Decision of 21 January 2015, at 5; Federal Court of Justice, Decision of 22 June 2016, paras. 22-
23; see also S. GÖSSL, ‘Die Eintragung im Geburtsregister als inter oder divers’ (2015) 68 Das Standesamt 171, 172.
45
Plenary Protocol 19/55, p. 5992 A (Jens Brandenburg).
46
Ibid., p. 5993 A (Doris Achelwilm).

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with a significantly more holistic perspective should be developed.47 The key features they
proposed for such a reworked draft not only included a more thorough and expansive reform of
civil status law (e.g. broader scope of the third option, more flexibility in its designation,
possibility of repeated change of legal gender, lack of medical gatekeeping) but also of other
areas of law (e.g., most importantly, a prohibition of non-consensual surgeries performed on
intersex infants; but also issues such as health care for trans persons48 and non-discrimination
measures).49
This proposal did not gain sufficient support to reorient the parliamentary process, however:
the government’s minimalistic draft law remained the primary focus of discussion, and the
alternative submission by Die Linke was eventually rejected. Only two amendments were
achieved during the committee stage.50 The first pertained to the formulation according to
which entry into the birth register ‘is’ to be made in the form of a blank space or the term
‘divers’ when children can be assigned to neither the female nor the male sex. Following
criticism by activists,51 the potentially overdetermining ‘is’ was changed to the more permissive
‘may’. This is certainly a welcome change to avoid the kind of ‘forced outing’ mentioned above
and to take pressure of intersex children’s parents at birth. However, it still constitutes a
minimalistic approach which does no more than clarify what the BVerfG had already
established.52 More radical approaches – for example, to refrain from documenting a legal
gender at all until it can be self-declared at a later point53 – were not seriously considered.
The second amendment was similarly uninspired: Faced with criticism regarding the
requirement of a medical certificate so as to make use of the new category ‘divers’, an exception
was inserted according to which the medical certificate could be replaced by a kind of affidavit
(Versicherung an Eides statt).54 However, the declaration involved does not pertain to a
person’s gender identity, which would have significantly broadened the scope of the legislation
by making it accessible to non-binary persons.55 Rather, it must refer to one of two strictly
‘exceptional’ cases following prior medical interventions in the context of a ‘variance in sex
development’:56 either such a ‘variance’ can no longer be ascertained, or to do so would be

47
BT Drucks. 19/4828, ‘Selbstbestimmung, Gleichbehandlung, körperliche Unversehrtheit – Die Grund- und Menschenrechte
zur geschlechtlichen Vielfalt gewährleisten’.
48
See in more detail on the importance of a holistic approach in this regard (in the context of recent Danish law reform) C.
DIETZ, ‘Governing Legal Embodiment: On the Limits of Self-Declaration’ (2018) 26 Feminist Legal Studies 185.
49
BT Drucks. 19/4828, 2-4.
50
See BT Drucks. 19/6467, ‘Beschlussempfehlung und Bericht des Ausschusses für Inneres und Heimat’.
51
E.g. DRITTE OPTION, ‘Stellungnahme der Kampagnengruppe Dritte Option zum Referentenentwurf: Gesetzesentwurf
widerspricht in fast allen Punkten den Bedarfen der Betroffenen’, <http://dritte-option.de/wp-
content/uploads/2018/07/Stellungnahme-Referentenentwurf.pdf> accessed 04.02.2019.
52
See above, note 35, and more specifically German Federal Constitutional Court, Decision of 10 October 2017, para. 51;
indeed, the change was treated as a mere ‘clarification’: BT Drucks. 19/6467, p. 13.
53
See J.T. THEILEN, ‘Beyond the Gender Binary: Rethinking the Right to Legal Gender Recognition’, 256.
54
Critically on the implications of this option in light of the ambiguities of what constitutes a ‘variance in sex development’
and the possible criminal law sanctions: OII (ORGANISATION INTERSEX INTERNATIONAL) GERMANY, ‘Kennzeichen Divers – eine
verpasste Chance für eine offenere und freundlichere Gesellschaft für alle,’ <https://oiigermany.org/kennzeichen-divers/>
accessed 04.02.2019.
55
See the more detailed criticism by DRITTE OPTION, ‘Statement zur beschlossenen PStG-Reform: Ein Schritt nach vorn, aber
noch kein verfassungskonformes Gesetz’, <http://dritte-option.de/statement-zur-beschlossenen-pstg-reform-ein-schritt-nach-
vorn-aber-noch-kein-verfassungskonformes-gesetz/> accessed 04.02.2019.
56
The exceptional character is emphasised very strongly in Plenary Protocol 19/71, p. 8339 B (Bettina Margarethe Wiesmann).

Electronic copy available at: https://ssrn.com/abstract=3387365

unreasonable (particularly in those cases in which the necessary examination would lead to
additional trauma).57 Again, this achieves no major shift in the thrust of the legislation: it
remains tied to a ‘variance in sex development’ throughout.
Further details of the legislation as it was finally adopted58 – based on the federal government’s
draft, with the two amendments just mentioned – could be discussed, e.g. with regard to
requirements of age and nationality.59 For present purposes, let me simply summarise some of
its weak points as criticised during the parliamentary debates: first, the affirmative designation
of ‘divers’ as well as the option of a blank space follow the narrowest possible reading of the
BVerfG’s judgment since they are restricted to persons with a ‘variance of sex development’,
thus aiming to exclude non-binary persons who are not intersex;60 second, even intersex persons
can only access these options if they are willing to submit medical certificates or, in some cases,
an affidavit which likewise retains the focus on medical conditions and thus an element of
gatekeeping and pathologisation;61 third, the designation as ‘divers’ remains the only option
besides the blank space, with no possibility of further specification to accord with the diversity
of self-identified signifiers among trans and intersex persons;62 and fourth, the new law, like its
predecessor, restricts itself too narrowly to one issue among many in civil status law, as well as
leaving aside pressing issues in other areas of law such as the prohibition of non-consensual
surgeries on intersex infants.63
Further reforms of civil status law have been debated over the course of the last year or so; in
particular, a new draft legislation64 was proposed, though ultimately set aside. One ambiguously
positive aspect of that draft legislation worth noting is that it would have explicitly allowed
trans persons to register as ‘divers’ or to leave their legal gender blank.65 It would, in other
words, have moved in the direction of the broad reading of the BVerfG’s judgment advocated
for above, according to which that judgment affirms non-binary identities regardless of
biological characteristics – although it would also have undermined the openness of that
approach by imposing a legal distinction between trans and intersex applicants and regulating

57
See BT Drucks. 19/6467, p. 13.
58
Bundesgesetzblatt 2018 I, p. 2635.
59
For criticism in that regard, see TRANSINTERQUEER E.V., ‘Stellungnahme zum Entwurf eines Gesetzes zur “Änderung der in
das Geburtenregister einzutragenden Angaben” des BMI’, <http://www.transinterqueer.org/wp-
content/uploads/TrIQ_Stellungnahme_3.-Option.pdf> accessed 04.02.209, 6-7.
60
E.g. Plenary Protocol 19/55, p. 5992 D (Doris Achelwilm) and p. 5996 A (Susann Rüthrich); Plenary Protocol 19/71, p. 8335
A (Jens Brandenburg); see also DRITTE OPTION, ‘Stellungnahme der Kampagnengruppe Dritte Option zum Referentenentwurf:
Gesetzesentwurf widerspricht in fast allen Punkten den Bedarfen der Betroffenen’ (above, note 51), 2 on the difficulty of
drawing a stark line between trans and intersex persons; this restriction was also the main point of criticism raised in a petition
organised by the Bundesvereinigung Trans* (BVT*) which gathered 42143 signatures: see
<https://weact.campact.de/petitions/gleiches-recht-fur-jedes-geschlecht-stoppt-seehofers-gesetzentwurf-zur-dritten-option>
accessed 04.02.2019 and <https://www.bv-trans.de/unsere-arbeit/dritter-geschlechtseintrag/> accessed 04.02.2019.
61
E.g. Plenary Protocol 19/55, p. 5993 D-5994 A (Sven Lehmann).
62
See below, note 107.
63
On the latter point e.g. Plenary Protocol 19/55, p. 5993 A-B (Doris Achelwilm), p. 5994 A (Sven Lehmann) and p. 5996 A
(Susann Rüthrich); Plenary Protocol 19/71, p. 8334 B (Elisabeth Kaiser), p. 8335 C (Doris Achelwilm) and p. 8337 A (Sven
Lehmann).
64
Referentenentwurf des Bundesministeriums der Justiz und für Verbraucherschutz und des Bundesministeriums des Innern,
für Bau und Heimat: Entwurf eines Gesetzes zur Neuregelung der Änderung des Geschlechtseintrags,
<https://assets.documentcloud.org/documents/5994078/19-05-08-Referentenentwurf.pdf > accessed 11.05.2019.
65
Article 1 Nr. 1 of the draft, inserting a new section 19 into the Bürgerliches Gesetzbuch (BGB).

Electronic copy available at: https://ssrn.com/abstract=3387365

the procedures for changing one’s legal gender differently in light of that distinction.66 The draft
legislation also continued to pathologise both intersex and trans persons.67 For these reasons
and quite a few besides, 68 the response by various intersex and trans activist groups was
overwhelmingly negative,69 and no further concrete proposals for reform by the relevant
ministry have been made public since. The well-nigh unanimous rejection of this attempt at
reform is noteworthy in that it took a principled stance again a draft legislation which contained
a great many flawed elements, despite the fact that it also offered an arguable step ‘in the right
direction’ in the sense that recognition would explicitly have been broadened to non-binary
persons who are not intersex. This demonstrates not only that reform processes are complex
and non-linear,70 but also that the trans and intersex communities are willing in some
circumstances – rightly, in my view – to put a strong emphasis on certain overarching goals and
refuse short-term strategic gains in favour of a longer-term tactical outlook.71
The genesis of the 2018 law made abundantly clear that the government’s intention was to
restrict legal gender recognition outside of the binary to intersex persons by means of the
formulation ‘variance in sex development’;72 this is also confirmed by a subsequent circular of
the Ministry of the Interior as well as, e contrario, by the failed draft legislation. With a more
far-reaching legislative reform than the most recent proposal now seeming unlikely in the near
future, activist focus has shifted instead to the possibilities of a more emancipatory
interpretation of statutory law as it stands. This approach is paradigmatically in evidence in an
expert opinion authored by Anna Katharina Mangold, Maya Markwald and Cara Röhner at the

66
Ibid.: contrast sections 18 and 19 BGB according to the draft; for well-grounded criticism that this constitutes a form of
coerced classification as either trans or intersex, see e.g.. DRITTE OPTION, ‘Stellungnahme der Gruppe Dritte Option zum
Referentenentwurf des Bundesministeriums der Justiz und für Verbraucherschutz und des Bundesministeriums des Innern, für
Bau und Heimat – Entwurf eines Gesetzes zur Neuregelung der Änderung des Geschlechtseintrags,’ <http://dritte-
option.de/stellungnahme-zum-referentenentwurf-zur-neuregelung-der-aenderung-des-geschlechtseintrags/> accessed
11.05.2019.
67
For intersex persons, the requirement of a medical certificate was to be retained (with some modifications in phrasing and a
restrictive definition of what counts as the ‘variation of bodily sex characteristics’ which the certificate is to prove). For trans
persons, the current requirement of two ‘expert’ reports was to be softened somewhat, but the core implications of
pathologisation as well as gatekeeping by the medical profession would likewise have been retained.
68
These include potentially exclusionary effects of trying to define trans and intersex persons, the bizarre amalgamation of
counselling and gatekeeping, the paternalism and delay involved in making counselling a precondition for changing one’s legal
gender, the negative effects of the new counselling system on community-based counselling, the fact that court proceedings
remain a necessity for changing one’s legal gender and that spouses are proposed to play a role in them, the role of parents in
applications by teenagers over the age of fourteen, a waiting period of three years in between applications for changing one’s
legal gender, the limited possibilities for name changes in the case of intersex persons, the discriminatory rules governing trans
and intersex parenthood, and the continued lack of ways to enforce forced outings. Much-needed legislation to prevent non-
consensual surgeries on intersex infants is not mentioned in the draft at all.
69
A non-exhaustive selection: Statements by Dritte Option (above, note 66), Bundesvereinigung Trans* (BVT*) e.V.
<https://www.bv-trans.de/wp-content/uploads/2019/05/BVT-Stellungnahme-Referentenentwurf-BMIBMJV-10-05-2019-
1.pdf>, OII (Organisation Intersex International) Germany <https://oiigermany.org/stellungnahme-zum-gesetzentwurf-bmjv-
bmi-zur-neuregelung-der-aenderung-des-geschlechtseintrags/>, Trans Recht e.V. <https://trans-recht.de/wordpress/wp-
content/uploads/2019/05/2019-05_Stellungnahme_Trans-Recht_Final.pdf> all accessed 11.05.2019. It is worth noting that all
these groups were given only two days (!) to provide statements – a ridiculously brief period by any standard, but all the more
so in light of the topos of time constraints mentioned above.
70
J.T. THEILEN, ‘Pre-existing Rights and Future Articulations: Temporal Rhetoric in the Struggle for Trans Rights’ in ANDREAS
VON ARNAULD, KERSTIN VON DER DECKEN and MART SUSI (eds.), The Cambridge Handbook of New Human Rights.
Recognition, Novelty, Rhetoric, Cambridge University Press, Cambridge 2020.
71
See generally R. KNOX, ‘Strategy and Tactics’ (2010) 21 Finnish Yearbook of International Law 193.
72
Above, note 60.

Electronic copy available at: https://ssrn.com/abstract=3387365

request of a federal ministry, which provides a detailed and persuasive doctrinal argument in
favour of understanding a ‘variance in sex development’ in such a way that it accords with the
BVerfG’s take on fundamental rights, puts identity before biology, and hence includes not only
intersex persons but also trans and non-binary persons.73 Some lower instance courts have also
begun to take up this approach,74 and many further judicial proceedings are ongoing. One of
the most positive effects of an expansive reading of the current law, besides opening the ‘divers’
option for non-binary persons who are not intersex, is that it allows for a change of legal gender
between any of the available options via section 45b PStG and thus circumvents reliance on the
outdated statute geared specifically at ‘transsexual’ persons (Transsexuellengesetz).75
Despite the government’s best attempts at narrowing the scope of non-binary recognition, then,
a process of legal contestation and trans-friendly interpretation is already underway. So long as
the statutory basis for it remains unchanged and no high-level court has ruled on the matter,
however, more reactive rulings remain a distinct possibility as courts in different regions may
reach differing interpretations.76 Without a holistic legal reform, furthermore, many related
issues – for example, the gendered dimension of parenthood in German civil law – remain
unsolved.77

3. SHIFTING RATIONALES FOR LEGAL GENDER RECOGNITION

One way in which these developments within German law might be contextualised is by
discussing them through the lens of the rationale(s) undergirding legal gender recognition,
particularly insofar as civil status law is extended beyond the gender binary.78 It seems to me
that this is a crucial aspect to make explicit. For one thing, it provides a heuristic device by
means of which to evaluate different forms of providing legal gender recognition, i.e. we might
be in favour of some rationales but not others and discuss the consequences which follow from
them. For another, and more foundationally, it is increasingly open to challenge whether legal
gender markers should be retained at all – whether the ‘decertification’79 of gender might not
be the better way forward.80 For example, the activist group TransInterQueer argued before the

73
A.K. MANGOLD, M. MARKWALD and C. RÖHNER, ‘Rechtsgutachten zum Verständnis von “Varianten der
Geschlechtsentwicklung” in § 45b Personenstandsgesetz’, 12.
74
District Court Münster, Decision of 16 December 2019, Appl. No. 22 III 36/19.
75
A.K. MANGOLD, M. MARKWALD and C. RÖHNER, ‘Rechtsgutachten zum Verständnis von “Varianten der
Geschlechtsentwicklung” in § 45b Personenstandsgesetz’, 15.
76
The lack of legal certainty engendered by this is all the more egregious since criminal law is invoked against medical
personnel providing the relevant medical certificates: on this aspect, see ibid., 17-19.
77
See e.g. G. BAARS, ‘Queer Cases Unmake Gendered Law, Or, Fucking Law’s Gendering Function’ (2019) 45 Australian
Feminist Law Journal 15, 41-45; see also the issues mentions above, note 49.
78
I have developed this framework more generally in J.T. THEILEN, ‘Beyond the Gender Binary: Rethinking the Right to Legal
Gender Recognition’ (2018) European Human Rights Law Review, which I partly build on in what follows.
79
D. COOPER and F. RENZ, ‘If the State Decertified Gender, What Might Happen to its Meaning and Value?’ (2016) 43 Journal
of Law and Society 483.
80
See e.g. (with differing points of emphasis) O. TOMCHIN, ‘Bodies and Bureaucracy: Legal Sex Classification and Marriage-
Based Immigration for Trans* People’ (2013) 101 California Law Review 813; A.J.A. NEUMAN WIPFLER, ‘Identity Crisis: The
Limitations of Expanding Government Recognition of Gender Identity’ (2016) 39 Harvard Journal of Law and Gender; G.
BAARS, ‘The Politics of Recognition and the Limits of Emancipation through Law,’ <http://verfassungsblog.de/the-politics-of-
recognition-and-the-limits-of-emancipation-through-law/> accessed 04.02.2019; see also A. FAUSTO-STERLING, ‘The Five
Sexes, Revisited’ (2000) The Sciences 18, 23, describing the abolition of legal gender (perhaps somewhat prematurely) as an

Electronic copy available at: https://ssrn.com/abstract=3387365

BVerfG that introducing a rigid third option would constitute a ‘detour’ on the way to the true
goal of eradicating any form of registration for sex or gender.81 The BVerfG itself, as mentioned
above, does not take party for either option, but it does explicitly state that abolishing legal
gender would be one possible course of action within the German constitutional framework.82
If we are to gain a sense of why, if at all, it might be of benefit to retain gender markers within
civil status law, then we need a sense of the rationale(s) for providing legal gender recognition
in the first place, and of whether arguably beneficial rationales could be implemented in
practice.
Several general rationales for a regime of legal gender within State law may be adduced –
regulation, monitoring, and surveillance, for example – yet these do little to commend legal
gender, indeed they often form part of the argument against it. What about rationales adduced
more specifically for legal gender recognition of trans or intersex persons? Traditionally, one
major line of justification in cases concerning trans rights has been that legal gender recognition
allows trans persons to pass more easily as male or female – to achieve ‘the freedom, like
everyone else, to slip quietly into the crowd’.83 This is an important rationale, and slipping
quietly into the crowd should certainly be an option for those who wish it. Yet not only is this
possibility limited (by virtue of the paper trail left in various medical and legal documents,84 or
because the possibility of passing is complicated by race and class norms),85 it also builds on
the logic of the gender binary currently governing most (Western) societies. Against this
background, it is difficult to imagine what ‘slipping quietly into the crowd’ would mean for
non-binary persons: a gender marker outside of the gender binary such as ‘divers’, rather than
allowing them to pass unnoticed, highlights their difference from dominant gender norms. It
thus becomes, in a sense, the confirmation of a position of involuntary defiance in the face of
the gender binary.86

‘easy step’. The recently reworked Yogyakarta principles also reflect the trend towards advocating for abolition of legal gender:
while they do call on States to ‘[m]ake available a multiplicity of gender marker options’, this is only as a secondary point so
long as sex or gender continue to be registered; the primary appeal (as reflected in its position as Principle 31 A as opposed to
31 C on multiple gender markers) is that States should ‘[e]nsure that official identity documents only include personal
information that is relevant, reasonable and necessary as required by the law for a legitimate purpose, and thereby end the
registration of the sex and gender of the person in identity documents such as birth certificates, identification cards, passports
and driver licences, and as part of their legal personality’: Principle 31, Yogyakarta Principles plus 10 (YP+10),
<http://yogyakartaprinciples.org/principle-31-yp10/> accessed 04.02.2019.
81
German Federal Constitutional Court, Decision of 10 October 2017, para. 33; a strong statement against gender markers was
also made later in the political process by ATME e.V. (Aktion Transsexualität und Menschenrecht), ‘Keine Stellungnahme,’
<http://atme-ev.de/index.php/374-keine-stellungnahme> accessed 04.02.2019.
82
Above, note 26.
83
P. KAVANAGH, ‘Slipping Quietly into the Crowd - UK Transsexuals Finally out of Exile’ (2005) 9 Mountbatten Journal of
Legal Studies 21, 42.
84
Legal gender aligned with gender identity may thus help to pass in some situations in which gender is being scrutinised by
placing ‘the weight of the state behind the trans person’ (A.J.A. NEUMAN WIPFLER, ‘Identity Crisis: The Limitations of
Expanding Government Recognition of Gender Identity’, 541); but by virtue of the paper trail it creates, it also potentially
creates barriers to passing in other situations.
85
T. BEAUCHAMP, ‘Artful Concealment and Strategic Visibility: Transgender Bodies and U.S. State Surveillance After 9/11’
(2009) 6 Surveillance & Society 356.
86
Such defiance, I would like to emphasise, is not specific to non-binary people; my point is merely that gender markers besides
‘male’ and ‘female’ are conceptually more entangled with it given the current hegemony of the gender binary. On the problems
involved in building up a dichotomy between binary and non-binary trans persons, see T.J. JOURIAN AND Z NICOLAZZO, ‘Not
Another Gender Binary: A Call for Complexity Over Cis-Readability,’ <https://medium.com/@trans_killjoy/not-another-
gender-binary-a-call-for-complexity-over-cis-readability-69a568ca8e9> accessed 28.01.2020.

Electronic copy available at: https://ssrn.com/abstract=3387365

This particularity of gender markers outside of the binary can be traced throughout the debates
surrounding section 22 (3) PStG. Vanja’s initial application for an entry of ‘inter/divers’, as I
mentioned above, was premised inter alia on the fact that a ‘non-entry’ into the birth register
rendered them invisible compared to the positively designated entries ‘male’ and ‘female’. I
find their phrasing very powerful: ‘If all humans belong to a category but I do not, that renders
me invisible. […] It is my wish to finally step out of this invisibility. For even if society acts as
though only men and women existed – that is simply not the case.’87 Invisibility becomes
associated with the lack of an affirmative designation outside of the gender binary.88
Conversely, then, the availability of non-binary gender options within civil status law becomes
a matter of visibility and of symbolic recognition.
This shift is reflected in the judgment of the BVerfG. Particularly the notion of an affirmative
designation (or ‘empowering terminology’, as an Australian report put it in a similar context89)
rather than a blank space makes the point of legal gender recognition outside the binary
particularly clear. The BVerfG further argued that the lack of such a designation ‘makes it more
difficult for those concerned to move in public and be perceived by others as a person of the
gender which they are’ and that it contributes, in day-to-day interactions influenced by legal
gender, to a lack of recognition with the same ‘self-evidence’ (Selbstverständlichkeit) as male
or female persons.90 An affirmative designation, it may again be deduced by way of contrast,
would be a step towards empowering those outside the gender binary by disrupting its self-
evidence – proactive recognition by the law ‘could have a powerful personally validating and
socially authorising effect’.91
A further oft-cited rationale is that of self-determination: the BVerfG, for example, noted that
so long as legal gender markers are retained, they contribute to shaping the legally relevant
identity of a person and, therefore, the lack of an affirmative designation outside of the gender
binary threatens the ‘self-determined development and protection of the personality’ of those
who do not identify as male or female.92 Other courts have similarly referred to self-
determination, or to related notions such as ‘personal autonomy’, as the basis of judgments
relating to gender identity.93 If there seems to be general agreement on the importance of self-
determination as a rationale for legal gender recognition, then much turns on how that concept

87
Above, note 17.
88
See also J.T. THEILEN, ‘Intersexualität bleibt unsichtbar: Kritische Anmerkungen zum Beschluss des Bundesgerichtshofs zu
nicht-binären Eintragungen im Personenstandsrecht’, 299.
89
AUSTRALIAN HUMAN RIGHTS COMMISSION, ‘Sex Files: The Legal Recognition of Sex in Documents and Government
Records’ (The Sex and Gender Diversity Project, Concluding Paper, 2009), at 3 and 33-34.
90
German Federal Constitutional Court, Decision of 10 October 2017, para. 48.
91
T. BENNETT, ‘‘No Man’s Land’: Non-Binary Sex Identification in Australian Law and Policy’, 866-867; see also D. COOPER
AND F. RENZ, ‘If the State Decertified Gender, What Might Happen to its Meaning and Value?’, 496; A.J.A. NEUMAN WIPFLER,
‘Identity Crisis: The Limitations of Expanding Government Recognition of Gender Identity’, 541; J.T. THEILEN, ‘Intersexualität
bleibt unsichtbar: Kritische Anmerkungen zum Beschluss des Bundesgerichtshofs zu nicht-binären Eintragungen im
Personenstandsrecht’, 299-300; G. SCHREIBER, ‘Geschlecht als Leerstelle? Zur Verfassungsbeschwerde 1 BvR 2019/16 gegen
die Versagung eines dritten Geschlechtseintrags’ (2017) Ethik und Gesellschaft 1, 22.
92
German Federal Constitutional Court, Decision of 10 October 2017, para. 45 (emphasis added).
93
E.g. ECtHR (GC), Appl. No. 28957/95 – Christine Goodwin v. the United Kingdom, Judgment of 11 July 2002, at para. 90;
ECtHR, Appl. No. 35968/97 – van Kück v. Germany, Judgment of 12 June 2003, at para. 73; ECtHR, Appl. No. 14793/08 –
Y.Y. v. Turkey, judgment of 10 March 2015, at para. 102; ECtHR, Appl. Nos. 79885/12, 52471/13 and 52596/13 – A.P., Garçon
and Nicot v. France, Judgment of 6 April 2017, at para. 93; IACtHR, Advisory Opinion OC-24/17, esp. at paras. 88 and 127.

Electronic copy available at: https://ssrn.com/abstract=3387365

is understood. Judith Butler has distinguished between two different conceptions of self-
determination: one that is ‘individualist, if not libertarian’,94 and one which is more sensitive to
societal context. She favours the latter, arguing that ‘we must be part of a larger social fabric of
existence in order to create who we are’,95 and that ‘self-determination becomes a plausible
concept only in the context of a social world that supports and enables [an] exercise of
agency’.96
Against this backdrop, we might return again to the idea that legal gender recognition outside
of the binary contributes to disrupting the ‘self-evidence’ of the gender binary in day-to-day
interactions involving gender markers. This approach builds on interactions of trans and
intersex persons with other people who have a particular understanding of gender, thus situating
them within a ‘larger social fabric of existence’. One aspect of this is the ‘personally validating
and socially authorising effect’ mentioned above, which is geared primarily at the immediate
social interactions at issue in everyday life. But there is a further, related aspect:97 If self-
determination is only possible within a ‘larger social fabric of existence’, then ‘changing the
institutions by which humanly viable choice is established and maintained is a prerequisite for
the exercise of self-determination’, and thus ‘individual agency is bound up with social critique
and social transformation’.98 In other words: if self-determination is dependent on societal
context, then it becomes crucial to change said context in such a way as to increasingly make
self-determination possible and this, too, involves challenging the ‘self-evidence’ of the gender
binary. Reading the BVerfG’s judgment in this light makes it a particularly powerful legal tool
of social critique, particularly when contrasted with other judgments on similar issues. For
example, the French Cour de Cassation recently denied an applicant the possibility of
registering as ‘neutral’ (sexe neutre) or ‘intersex’ (intersexe) by arguing that the gender binary
is necessary for social and legal organisation, of which it constitutes a foundational element,
and that introducing further legal gender options would have too far-reaching legislative
repercussions for judicial intervention to be legitimate.99 Clearly, this approach is diametrically
opposed to that of the BVerfG’s judgment in that it entirely eschews social critique.100
In sum, my point is this: If approached as a way of fostering self-determination within a ‘larger
social fabric of existence’, then legal gender recognition for those intersex and non-binary

94
J. BUTLER, ‘Undiagnosing Gender’, p. 85.
95
Ibid., 100-101.
96
J. BUTLER, ‘Acting in Concert’, p. 7.
97
For the relation between the everyday and social transformation, see generally e.g. C.T. MOHANTY, Feminism without
Borders. Decolonizing Theory, Practicing Solidarity, Duke University Press, Durham & London 2003, p. 5 on ‘the everyday
acts that constitute our identities’ as part of feminist practice; D. COOPER, Everyday Utopias. The Conceptual Life of Promising
Spaces, Duke University Press, Durham and London 2014, p. 30 on the importance of ‘small-scale progressive social sites’ for
transformative politics.
98
J. BUTLER, ‘Acting in Concert’, p. 7.
99
Cour de Cassation, Arrêt no. 531 of 4 May 2017 (16-17.189): ‘la dualité des énonciations relatives au sexe dans les actes
de l’état civil poursuit un but légitime en ce qu’elle est nécessaire à l’organisation sociale et juridique, dont elle constitue un
élément fondateur; […] la reconnaissance par le juge d’un “sexe neutre” aurait des répercussions profondes sur les règles du
droit français construites à partir de la binarité des sexes et impliquerait de nombreuses modifications législatives de
coordination’.
100
I have previously argued that the ECtHR’s case-law on trans rights, too, lacks elements geared at social critique and
transformation: See J.T. THEILEN, ‘Beyond the Gender Binary: Rethinking the Right to Legal Gender Recognition’, 254 with
further references.

Electronic copy available at: https://ssrn.com/abstract=3387365

persons who wish it might be taken, ideally, to both support them in day-to-day interactions in
which legal gender becomes relevant and, in doing so, to challenge the gender binary and bring
about societal change more generally. I do not mean to imply, here, that the arduous work of
social transformation should be placed primarily on the shoulders of intersex and non-binary
persons: Those who do not conform to gender norms are already well aware of the limits which
these norms establish so violently, and it is society as a whole which needs to become more
empathetic as well as socially, medically, and legally imaginative.101 And yet! Sara Ahmed
describes the situation as follows, based on two senses in which we do ‘diversity work’. It
includes:
‘the work we do when we aim to transform an institution (often by opening it up to
those who have been historically excluded), and the work we do when we do not
quite inhabit the norms of an institution. These two senses often meet in a body:
those who do not quite inhabit the norms of an institution are often those who are
given the task of transforming those norms. We can think of gender, too, as an
institution’.102
No surprise, then, that it is those of us who do not quite inhabit gender norms who bear the
brunt of their transformation by hammering away at them, bit by bit, by ‘trying to exist or trying
to transform an existence’.103 The idea behind legal gender markers, particularly those outside
of the gender binary, would be to at least assist somewhat in that task. Differently put, legal
gender recognition would be understood as constituting legal affirmation of intersex and non-
binary persons even as it recognises that their struggle for existence, which is also a struggle
for social transformation, does not end with law.104
In practice, however, the transformative potential of legal gender recognition, even of
affirmative designations besides ‘male’ and ‘female’, frequently remains limited; it is not by
accident that queer theorists are generally sceptical of engaging with law.105 The developments
in German law exemplify this. For one thing, while the BVerfG’s judgment is clearly
progressive compared to other legal acts within Europe and thus does constitute an important
resource for social critique, it also contains limiting elements. One might think, for example, of
its reference to a ‘uniform affirmative designation’.106 Why ‘uniform’? I do not think that the
phrasing is supposed to substantially limit the options available to the legislator: in particular,
many trans and intersex activists and some political parties have proposed that the third option
should be composed of an umbrella term (such as ‘divers’) in conjunction with the possibility

101
J.T. THEILEN, ‘The Long Road to Recognition: Transgender Rights and Transgender Reality in Europe’ in G. SCHREIBER
(ed.), Transsexualität in Theologie und Neurowissenschaften. Ergebnisse, Kontroversen, Perspektiven, de Gruyter, Berlin,
Boston 2016, p. 390.
102
S. AHMED, ‘An Affinity of Hammers’ (2016) 3 Transgender Studies Quarterly 22, 31-32, building on S. AHMED, On Being
Included: Racism and Diversity in Institutional Life, Duke University Press, Durham and London 2012.
103
S. AHMED, ‘An Affinity of Hammers’, 32.
104
See also P. CURRAH, R.M. JUANG, AND S. PRICE MINTER, ‘Introduction’ in P. CURRAH, R.M. JUANG, AND S. PRICE MINTER
(eds.), Transgender Rights, University of Minnesota Press, Minneapolis 2006, p. xxiii.
105
For a recent overview, see A. SHARPE, ‘Queering Judgment: The Case of Gender Identity Fraud’ (2017) 81 Journal of
Criminal Law 417, 422-425; more generally on queer legal theory e.g. B. COSSMAN, ‘Queering Queer Legal Studies: An
Unreconstructed Ode to Eve Sedgwick (and Others)’ (2019) 6 Critical Analysis of Law 23.
106
Above, note 28.

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of a self-declared term.107 The BVerfG’s phrasing does not, I think, stand opposed to this option.
It does, however, perhaps indicate that the regulatory function of civil status law still occupies
a prominent place within its reasoning.108
The same is true for the element of stability or permanence which appears throughout the
BVerfG’s reasoning: the judgment is limited to those who ‘permanently do not assign
themselves to either the male or female gender’,109 and the possibility of changing between
different gender markers is explicitly not within its scope, with the ‘permanence of civil status’
cited approvingly as a countervailing factor.110 Emily Grabham has shown how this kind of
temporal demand invokes racialised notions of citizenship as well as requiring ‘trans citizens
to perform (and produce) gender permanence in a way that non-trans citizens are not required
to do’.111 This not only actively excludes those whose experience of gender is more fluid, it
also reinforces and reproduces the notion that gender is or should be in some sense singular,
coherent and stable.112 In Judith Butler’s evocative phrasing, ‘we have to present ourselves as
bounded beings, distinct, recognizable, delineated, subjects before the law’.113 Again, the aspect
of regulation comes to the forefront even in an otherwise progressive judgment.
Although the BVerfG challenges the gender binary, then, the subversive potential of its
judgment remains limited.114 Furthermore, the political process following the judgment
showcases how easily any remaining elements of subversion are themselves subverted: the
rationale of fostering self-determination within a larger social fabric of existence and its socially
transformative implications are quickly made to fade into the background in section 45b PStG,
not least by tying the third option to a ‘variance in sex development’. Not only was this intended
to exclude trans persons; the very phrasing also draws a line around what passes as non-variant

107
See the draft law contained in N. ALTHOFF, G. SCHABRAM, AND P. FOLLMAR-OTTO, ‘Geschlechtervielfalt im Recht. Status
quo und Entwicklung von Regelungsmodellen zur Anerkennung und zum Schutz von Geschlechtervielfalt’, at p. 69; as well as
e.g. BT Drucks. 19/4828, p. 2; DRITTE OPTION, ‘Stellungnahme der Kampagnengruppe Dritte Option zum Referentenentwurf:
Gesetzesentwurf widerspricht in fast allen Punkten den Bedarfen der Betroffenen’ (above, note 51), 3-4. This form of open
self-declaration seems to me to be a sensible approach, for it avoids or at least mitigates the problem of creating a new category
(or even several categories) which lead to renewed exclusion: see generally E.B. TOWLE AND L.M. MORGAN, ‘Romancing the
Transgender Native: Rethinking the Use of the ‘Third Gender’ Concept’ in S. STRYKER AND S. WHITTLE (eds.), The
Transgender Studies Reader, Routledge, New York 2006, p. 677.
108
See in particular German Federal Constitutional Court, Decision of 10 October 2017, paras. 53-55 on regulatory interests
(‘Ordnungsinteressen’) of the State; the court is at pains to emphasise that merely adding a uniform third option would not
impact negatively upon such interests.
109
Above, note 32.
110
German Federal Constitutional Court, Decision of 10 October 2017, para. 55.
111
E. GRABHAM, ‘Governing Permanence: Trans Subjects, Time, and the Gender Recognition Act’ (2010) 19 Social and Legal
Studies 107, 109.
112
See generally L. GRENFELL AND A. HEWITT, ‘Gender Regulation: Restrictive, Facilitative or Transformative Laws?’ (2012)
34 Sydney Law Review 761, 761 on ‘the law’s impulse to use categories and draw lines to understand and simplify complex
concepts, including social and sexual identity’.
113
J. BUTLER, ‘On the Limits of Sexual Autonomy’, p. 20.
114
I am deliberately invoking Butler once again with the notion of ‘subversion’. As she has argued, judgments on what
constitutes subversion ‘cannot be made out of context’, including the temporal embeddedness of contexts themselves: J.
BUTLER, Gender Trouble, p. xxii. My point is to draw attention to the importance of a contextualised approach to the possible
value of certain legal developments, but perhaps also – by virtue of the implicit contrast between the legal acts discussed here
and the rather differently situated acts of parody which Butler introduces as a possible basis for subversion (e.g. ibid., p. 189)
– to gesture towards the limits of the legal form. N. MENON, ‘Is Feminism about ‘Women’?: A Critical View on Intersectionality
from India’ (2015) 50 Economic and Political Weekly 37 suggests (independently of the Butlerian framework) that ‘[t]he
functioning of legal discourse tends to subvert the ethical impulse of subordinate groups and to reassert dominant values’.

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male or female sex and presents this binary as the ‘normal’ contrast to ‘variance’;115 that
‘variance’, furthermore, has to be assessed through the lens of medical certificates. As Doris
Achelwilm (Die Linke) put it just before the new legislation was adopted: the BVerfG’s
judgment constituted a ‘major breakthrough’, but the legislative reaction boxed up much of the
hope which it generated.116
The parliamentary debates demonstrate that neither fostering meaningful self-determination nor
social critique and social transformation are the primary rationales intended to underlie the 2018
legislation. Unsurprisingly, this becomes particularly clear in statements made by
representatives of the conservative CDU/CSU. Not only do they take it for granted that legal
gender should be retained,117 they also defend the requirement of a medical certificate by
emphasising the importance of a ‘serious and valid gender marker with evidential value based
on objective criteria’.118 Sven Lehmann (Bündnis 90/Die Grünen) quite rightly noted the
element of ‘mistrust’ towards trans and intersex persons which this implies,119 and it is easy to
connect it to the well-known and much-criticised figure of the ‘deceptive’ trans person whose
gender flexibility must be monitored, regulated and controlled so as to prevent fraud: the
‘dangerous, deviant terrorist in gendered disguise’.120 The emphasis on medical evidence thus
illustrates the ‘legislator’s anxiety about losing control’,121 which in turn highlights with
dispiriting clarity the lack of transformative intent behind sections 22 (3) and 45b PStG (as well
as more recent drafts for further reform): their rationale is not to subvert dominant gender norms
but rather, despite their move beyond the gender binary, to reinforce them.
As noted above, the phrase ‘variance in sex development’ to which the third option was tied
has since been interpreted in a way which eschews reliance on biology and includes trans and
non-binary persons, rather than being restricted to intersex persons.122 I read this interpretative
move as part of an emancipatory project aiming to provide trans and non-binary persons with a
chance at the most far-reaching forms of self-determination possible within the current legal
framework. As such, it is worthy of support, and my analysis here is not intended to contradict
it – to the contrary, understanding the BVerfG’s judgment and the subsequent legislation as
based on different rationales for legal gender recognition highlights the need to interpret the
latter in light of the former to avoid unconstitutionality, and thus lends credence to expansive
interpretations of statutory law as it stands. If my emphasis has been more on the negative

115
See above, note 36; the more recent draft legislation mentioned above would at least have shifted the terminology from
‘variance’ to the arguably less stigmatising ‘variation’, but would not have challenged the underlying image of what is normal
and what is not.
116
Plenary Protocol 19/71, p. 8335 D (Doris Achelwilm).
117
See very clearly Plenary Protocol 19/55, p. 5988 A (Marc Henrichmann); Plenary Protocol 19/71, p. 8339 B (Bettina
Margarethe Wiesmann); at least some representatives of other parties (e.g. the SPD) seem more open to debate: Plenary
Protocol 19/55, p. 5990 D (Elisabeth Kaiser).
118
Ibid., p. 5988 B-C (Marc Henrichmann); for similar points in the context of the more recent draft legislation for further
reform, see the reasons given for it (above, note 64), pp. 16 and 23-24.
119
Plenary Protocol 19/71, p. 8336 D (Sven Lehmann).
120
T. BEAUCHAMP, ‘Artful Concealment and Strategic Visibility: Transgender Bodies and U.S. State Surveillance After 9/11’,
362; see also on the tropes of fraud and authenticity e.g. A. SHARPE, Transgender Jurisprudence. Dysphoric Bodies of Law,
Cavendish, London and New York 2002, pp. 69-70.
121
Plenary Protocol 19/71, p. 8336 A (Doris Achelwilm) (‘Gesetzgeberangst vor Kontrollverlust’).
122
Above, notes 73-74.

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aspects of legal discourse than on possible positive readings, it is due to the conviction that we
need to retain an awareness of the cisnormative structures which shape law and of which law
forms part – structures which tend to move out of focus when the goal is a benign interpretation
of the legal status quo. There is a tension between the interpretative project which emphasises
potentially trans-friendly elements in law and the more analytical or structural project
highlighting cisnormativity and other forms of oppression, but I do not think they need be
mutually exclusive. Indeed, in a sense navigating this tension constitutes the bread and butter
of activism geared at fundamental social transformation while engaging with piecemeal legal
reform – whether legislative or judicial – as one imperfect avenue of reaching it.

4. OUTLOOK
The shifting rationales for gender markers within German civil status law exemplify that legal
gender recognition, even if it concerns affirmative designations beyond ‘male’ and ‘female’, is
far from being a panacea for those interested in a transformative politics: any subversive sparks
which are lit are in immediate danger of being extinguished. Where does this leave us? It is
important, I think, to neither discount nor overgeneralise the German experience. On the one
hand, it clearly teaches us that attempting to use the law for emancipatory purposes is a risky
endeavour, and it constitutes a stark reminder that legal gender recognition which truly
challenges the gender binary without immediately reinstating static and coherentist notions of
gender has yet to be achieved. On the other hand, the particularities of the current political
landscape in Germany, especially the centrist-cum-conservative government, should be taken
into account: against that background, a less minimalistic legislative response would have been
welcome but rather unexpected. Finally, for all its limitations, law is not static, and processes
of further legal contestation and (re-)interpretation are already underway, even on the basis of
the rather unsatisfying statutory basis.
It should also be noted that, in large part in response to the legal developments canvassed above,
the discourse surrounding (legal) gender in Germany has shifted dramatically. Whatever the
limitations of sections 22 (3) and 45b PStG, they do put the self-evidence of the gender binary
in question to some extent. Consider, for example, the now quite widespread use of ‘m/w/d’
(‘männlich/weiblich/divers’: male, female, divers) in job postings. This practice is no doubt
driven in large part by corporate interests – partly the avoidance of anti-discrimination
proceedings, partly the opportunity to piggyback onto progressive causes without making
material changes to the working conditions of queer employees, let alone to broader capitalist
structures.123 It is thus far from being subversive – and, incidentally, it fails to make reference

123
Queer theorists have long since unmasked and criticised the way in which queer themes are deradicalized and used to
legitimise various oppressive structures, e.g. by introducing the notions of pinkwashing, homonormativity, ‘Equality, Inc.’,
homonationalism, homocolonialism, or happiness scripts; see e.g. L. DUGGAN, ‘The New Homonormativity: The Sexual
Politics of Neoliberalism’ in R. CASTRONOVO AND D.D. NELSON (eds.), Materializing Democracy: Toward a Revitalized
Culture, Duke University Press, Durham and London 2002; L. DUGGAN, The Twilight of Equality? Neoliberalism, Cultural
Politics, and the Attack on Democracy, Beacon Press, Boston 2003; J.K. PUAR, Terrorist Assemblages. Homonationalism in
Queer Times, Duke University Press, Durham and London 2017; J.K. PUAR, ‘Rethinking Homonationalism’ (2013) 45
International Journal of Middle East Studies 336; A. GROSS, ‘The Politics of LGBT Rights in Israel and Beyond: Nationality,
Normativity, and Queer Politics’ (2015) 46 Columbia Human Rights Law Review 81; M. RAHMAN, ‘Queer Rights and the

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to the whole range of legal gender markers currently possible in Germany since it neglects to
mention those who prefer to leave a blank space rather than accepting the term ‘divers’. Still,
the use of ‘m/w/d’ in job postings might also be taken to both demonstrate and further contribute
to the incipient changes in the societal understanding of gender.124 More importantly, it provides
a basis for further contestation in other fields where employers and other actors have been less
keen to move beyond the binary, including e.g. forms of address, gender options in online
forms, and of course the never-ending toilet debate. On the basis of legal and factual changes
which have already taken place, mounting challenges to various cisnormative practices on the
basis of the German Constitution or anti-discrimination law (Allgemeines
Gleichbehandlungsgesetz) has become more feasible.
More generally – and more importantly still – it is worth noting that many politicians,
academics, institutions, and some political parties now support trans and intersex rights in a
strikingly more far-reaching form than the current law admits, and despite the cissexist vitriol
predictably spread by the far-right party AfD, the parliamentary debates on the third option
were rightly deemed to constitute a ‘small revolution’.125 Indeed, one might say that the formal
legal result of the developments canvassed above, i.e. the reworked version of section 22 (3)
PStG and the insertion of section 45b PStG, is not even the main achievement of the activism
which brought it about: rather, the process has also led to a dramatic broadening of epistemic
possibilities with regard to the gender imaginary within political and legal discourse.126
A related point is that the process of challenging civil status law has forged new activist bonds,
and in particular strengthened the ties between trans and intersex activists. It is this kind of
‘bottom-up coalition building and soul-searching’ that often forms ‘one of the most enduring
legacies’ of activism formally geared at legal change:127 as Sara Ahmed has put it, we ‘happen
upon each other’, and we ‘witness the work each other is doing, and we recognize each other
through that work’.128 Campaign groups such as Dritte Option129 or the more recently formed
Aktion Standesamt 2018,130 as well as many older activist organisations, not only played a
crucial role in prompting and accompanying the developments so far; they can also build, and
are in fact building, on the momentum thus gathered to further challenge the status quo. This
goes for reforms and re-interpretations of civil status law beyond the current minimalistic
implementation – a project for which the disconnect between the BVerfG’s judgment and the
subsequent legislation, as demonstrated above by reference to the different underlying

Triangulation of Western Exceptionalism’ (2014) 13 Journal of Human Rights 274; C. WEBER, Queer International Relations.
Sovereignty, Sexuality and the Will to Knowledge, Oxford University Press, Oxford 2016, especially chapter 5; S. AHMED, The
Promise of Happiness, Duke University Press, Durham and London 2010; see also, specifically in the context of gender and
law, G. BAARS, ‘Queer Cases Unmake Gendered Law, Or, Fucking Law’s Gendering Function’, 61.
124
Contrast J. KOHLER, ‘Post Gender Trouble - oder: Ein Lehrstück über die Not notwendiger Konsequenz’ (2014) Juristen-
Zeitung 459, 461, who still spoke of such job postings with the air of an absurd hypothetical.
125
Plenary Protocol 19/55, p. 5992 C (Doris Achelwilm).
126
See also J.T. THEILEN, ‘Intersexualität bleibt unsichtbar: Kritische Anmerkungen zum Beschluss des Bundesgerichtshofs zu
nicht-binären Eintragungen im Personenstandsrecht’, 300.
127
F. MÉGRET, ‘The Human Rights of Older Persons: A Growing Challenge’ (2011) 11 Human Rights Law Review 37, 65 (on
the process of adopting international human rights treaties).
128
S. AHMED, ‘An Affinity of Hammers’, 33.
129
Above, note 38.
130
See <https://aktionstandesamt2018.de> accessed 04.02.2019.

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rationales for legal gender recognition, provides ample ground – and for other elements of
gender in law such as cisnormative visions of legal parenthood,131 as well as for societal and
legal transformation more generally.132
In light of the latter point, let us end where the story I told above began: with the problem of
unnecessary and non-consensual surgeries performed on intersex infants. I have already
mentioned that the lack of attention paid to this issue during the reform of civil status law led
to heavy criticism from activists and opposition parties.133 The response was that the legislation
under discussion constituted only a ‘first step’ in light of the ostensible time constraints due to
the deadline set by the BVerfG. It was argued that it is not ‘righteous’ to criticise this approach
as ‘lacking ambition’ or ‘otherwise somehow limited’, since the government was explicitly
committed to further reforms in the future.134 The self-congratulatory tone of some conservative
parliamentarians in this matter obscures not only the urgency of the underlying issue, but also
the element of power involved in making people wait – waiting, as Bourdieu has noted, ‘implies
submission’.135 To my mind, the casual disregard for the demands which intersex activists have
been raising for decades strongly reinforces the power asymmetries involved. The prevention
of non-consensual surgeries is discursively produced as a gift to be bestowed upon intersex
persons at some point in the future136 – albeit now perhaps in the foreseeable future137 – rather
than understanding it in the way which activists have long since suggested: as a pressing form
of redress to gross violations of fundamental rights.

131
Above, note 77.
132
G. BAARS, ‘The Politics of Recognition and the Limits of Emancipation through Law’ has, to my mind, captured the central
issue very aptly as ‘what kind of society we want to build together’.
133
Above, note 63.
134
Plenary Protocol 19/71, p. 8338 D (Bettina Margarethe Wiesmann).
135
P. BOURDIEU, Pascalian Meditations, trans. R. Nice, Stanford University Press, Stanford 2000, p. 228.
136
See S. AHMED, Living a Feminist Life, Duke University Press, Durham and London 2017, pp. 221-22: ‘the signs of […]
struggle are neutralized by being represented as a gift. […] [W]hen recognition is understood as a gift from the straight world,
our collective labor and struggle are forgotten’.
137
As this volume is in the process of being finalised, a first draft (Referentenentwurf) for a law to prevent surgeries has finally
been published: ‘Draft law for the protection of children from sex-changing surgical interventions’, available at
<https://www.bmjv.de/SharedDocs/Gesetzgebungsverfahren/Dokumente/RefE_Verbot_OP_Geschlechtsaenderung_Kind.pdf
?__blob=publicationFile&v=2> accessed 28.01.2020. This is, for now, a draft by one ministry which does not yet represent the
position of the government as a whole, so its further development is unclear and I will not consider it in detail here. It should
be noted, however, that it has already been criticised by trans and intersex groups, e.g. for overreaching in its scope at the
expense of trans and intersex youth who desire surgery and for the lack of compensation offered to intersex persons who have
been victims of unnecessary surgeries (see e.g. the press release by dgti e.V. at
<https://www.dgti.org/images/pdf/PE_2020_01_15_OPVerbot_Inter.pdf> accessed 28.01.2020). The latter point, in particular,
brings back once more the sense of a gift bestowed rather than redress finally offered for a rights violation.

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