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Developments in German Civil Status Law on the Recognition of Intersex and Non-Binary Persons: Subversion Subverted

Published online by Cambridge University Press:  11 February 2021

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Summary

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’. 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. The possibility of intersex bodies or of non-binary or otherwise genderqueer identities 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. 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. With 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). The aim of this chapter 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 (Section 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.

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Publisher: Intersentia
Print publication year: 2020

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