Männlich, weiblich oder »weder noch«? Zur Deutungshoheit über das Geschlecht

Although the legal system is founded on the assumption that sex is binary, important perforations of this principle have already taken place. These perforations concern transsexuals on the one hand and intersexuals on the other. Transsexuals and intersexuals in particular are staking a claim to integration into the legal system. Moreover, they demand a right to self-determine their gender. The fundamental question that emerges regarding these claims is whether the subject of a fundamental right has the prerogative of interpretation or whether instead the state is to determine the respective contents. There are primarily two different options that could comply with the mentioned claims: the dissolution of gender categories (post-gender) and the legal recognition of a third non-specific or neutral gender. The dissolution of gender categories would not be in conformity with the constitution (Grund gesetz), but it could be achieved by its amendment. In particular, such an amendment would have to address Art. 3, 6, 12a GG. The recognition of a third sex would also imply legislative changes. Although the constitution only has two categories of sex – male and female – it is not barred from any further openings towards the recognition of a third gender. The recognition of a third gender would present major challenges to the legal system: civil status as well as passport regulations would have to be adjusted. Important changes to the law of descent and the matrimonial law would be required. In addition to the said amendments of law, another important aspect has to be considered: a third sex could be stipulated as mandatory for intersexuals or as mere option that complements the binary system. Whereas a mandatory requirement for intersexuals would not respect their general personal rights (Art. 2 para. 1 sentence 1 in conjunction with Art. 1 para. 1 of the constitution), an option to choose between several options (male, female and a third, unspecified or neutral gender) would have to be offered not only to intersexuals but also to male and female persons. The legal recognition of such a right of choice between several genders for everyone would have extensive consequences. There would be no objective criteria to determine the gender any longer. Only a burden of proof by providing evidence could be imposed to show the seriousness of the decision. The burden should distinguish according a person's sex: a clear sex does indicate the gender and exempts from any burden in the event that the person chooses the gender corresponding to the sex. In contrast, the burden increases in the event that the chosen gender does not correspond to the sex. When it comes to intersexuals, the third/unspecified/neutral gender is indicated by their physical appearance. To preserve their general personal rights considering that having an unspecified gender may have discriminating effects, choosing an option belonging to the binary system (male or female) has to be facilitated. In the end, it remains a political decision whether to allow self-determination concerning one's gender despite the loss of objectivity in the legal system.