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The freedom-rights based reasoning of the German Constitutional Court in its ruling on the third option
By Dr Berit Völzmann of the Goethe University, Frankfurt. This post is part of a symposium on the ‘Third Option’ decision which was originally published on Verfassungsblog.
Gender diversity is also legally more than binary, according to the German Constitutional Court in its decision on the “third option”: the current law on civil status is unconstitutional, insofar as it requires the registration of a gender, but does not allow a positive entry other than female or male. Just as revolutionary as the result, is the reasoning: for the first time the senate not only derives the protection of gender identity from the general law of personality (Article 2 (1) in conjunction with Article 1 (1) basic law – Grundgesetz – GG), but also from the prohibition of discrimination (Article 3 (3) sentence 1 GG). In the context of the symposium, this contribution looks at the freedom rights based reasoning and examines why it is important not to consider freedom and equality rights in isolation.
The German Constitutional Court: the right to gender identity for intersex persons
Since its first so-called transsexual-judgment in 1978 (BVerfGE 49, 286), the German Constitutional Court recognises a protection of gender identity and roots it in the general law of personality (Article 2 (1) in conjunction with Article 1 (1) GG). With its first judgment on intersex persons, the German Constitutional Court also expressly recognises the protection of gender identity to include persons that are neither male nor female (paragraph 40). Their right to gender identity is not only violated by the incorrect assignment as “man” or “woman”, but also by the statutory option provided under the current law of “missing information” (section 22 (3) German civil status registration law Personenstandsgesetz – PStG) (paragraph 43). The latter does not express that the complainant does not identify as a man or a woman or a sexless person, and that instead they identify as a gender outside male or female (paragraph 43).
The judgment is the culmination of the German Constitutional Court’s rulings, which early on questioned the basic assumption of the binary-nature of gender and increasingly mitigated it. Once again, the German Constitutional Court proves itself to be the champion for the establishment of rights and the elimination of discrimination and thus ahead of the social and political discourse. The fact that it not only focuses on the right to gender identity, but also on the specific prohibition of discrimination in Article 3 (3) sentence 1 GG (the dogmatic development of which has been explored by Nora Markard for this symposium) adds another positive aspect to the decision. This is due to the ambivalence of the freedom rights: while they can describe, secure and further develop freedom, they also run the risk of being blind to marginalised groups and societal inequalities.
The freedom right as the motor of progress
Freedom rights are the basis of a liberal legal system. They are necessary and effective as they explicitly name the respective right: the right to freedom of opinion, the right to freedom of religion or – as here – the right to gender identity. Each right is thereby named and is filled through interpretation and application both in practice and academia.
This is of particular importance for marginalised groups: the granting or even development of freedom rights often only establishes certain rights for them, formulates them expressly and provides them with an effective tool: in the fight to enforce these rights, for further rights as well as the recognition of themselves by societal majorities.
An example of this is the right to gender identity. Since its development by the German Constitutional Court in 1978, it has formed the basis for the fight of trans-identity people for rights and societal recognition.
The risks of solely freedom rights based protection
A solely freedom rights based protection carries risks. This is definitely the case for social minorities. Exemplary thereof, are the decisions of the German Constitutional Court on gender and sexuality. The exclusive focus on freedom rights always carries the risk that the respective freedom right is restricted with regard to the sensitivities of the societal majority – such as in the “homosexual judgment” of the German Constitutional Court: “same-sex activity clearly violates the moral law” (BVerfGE 6, 389, 434). In its so-called first “transsexual decision” the court also emphasised that the right to free development of personality is limited by the moral law (BVerfGE 49, 286, 299) – and extended the protection to transsexual persons by distinguishing them from other “sexually disturbed persons”. Well worth reading is Laura Adamietz’s analysis of this “sanitisation” of transsexual people.
In addition, there is always the risk that the respective freedom right will become a special (minority) right (in this case: the right to gender identity) – leading to a discussion about whether or not the minority (whose distinction is thereby only emphasised) is entitled to it. Furthermore, whether it should even be granted to them. While this approach may be considered outdated in a liberal society, it nonetheless makes an appearance every now and then, even with progressive contemporaries. Very paternalistic, as for instance, expressed by Klaus Hempel (Consortium of public broadcasters in Germany – Arbeitsgemeinschaft der öffentlich-rechtlichen Rundfunkanstalten der Bundesrepublik Deutschland – ARD),
“This protection of basic rights cannot be denied to intersex people, just because they are in the minority or we are struggling with them. But then it is only logical and consistent that we all given them their own, third gender.”
This leads one to ignore the fact that the majority already has the negotiated right – and therefore the minority must be equally entitled to it: be it legal consensual sexual intercourse with other adults, marrying other adults or in fact, the right to gender identity and thus the right to register one’s own gender in the civil status register.
The combination of freedom and equality rights
Although equal rights also allow differentiation, in contrast to the sole application of freedom rights, if the discrimination prohibitions are applied correctly, at the very least they always require a comparison with the societal majority and therefore the justification of any inferior treatment of the minority. Only through the combination of freedom and equality rights is it possible to extricate oneself from the “ordinary citizen” perspective and uncover the unequal distribution of freedom rights, thus avoiding paternalism and hierarchies.
In its decision on the “third option”, the German Constitutional Court does this very well. This may also be the case, because the decision is based on the freedom right as well as on the prohibition of discrimination. The Senate does not discuss whether intersexuality is a disease (BVerfGE 49, 286 – Transsexualität I), nor does it typify intersex people as victims (BVerfGE 49, 286 – Transsexualität I, BVerfGE 115, 1 – Transsexualität III). Rather, the starting point is the universal protection of all persons under the general right of personality. This rights also provides protection for,
“gender identity, which is generally a fundamental aspect of one’s own personality. Under the given circumstances, the assignment of a gender is of paramount importance to the individual identity; it is typically key, to both the self-image of a person as well as to how the person is perceived by others.” (paragraph 39).
Thereafter it is very succinctly concluded that,
“also the sexual identity of those persons who are neither categorised as male nor female [is protected].” (paragraph 40).
In its reasoning, it merely states that,
“[…] under the given circumstances the gender assignment [is] a particularly relevant aspect of others’ perception as well as the understanding of one’s own personality.” (paragraph 40).
It is noteworthy that the meaning of gender assignment in society as such is explored – for members of any gender and therefore also for people who define themselves as neither male nor female. In particular, the point of reference is not the specific need of a minority. Rather, the equality dimension within the freedom right based reasoning is already apparent here: if gender assignment is important, then the recognition of each gender according to one’s own identification must be equally possible for all. Consequently, the solutions suggested are: either registration options for everyone or for no one. Precisely: the same freedom for everyone.