If a child cannot be clearly assigned as either male or female at birth, according to § 22 para. 3 civil status law (PStG), the gender entry can either be left blank since 2013, or be registered as ‘divers’ since 2018. With the extension of § 22 para. 3 PStG by the ‘Law on the amendment of information to be entered in the natal register’. In 2018 the decision of the Federal Constitutional Court of 10 October 2017 was implemented. The German state recognises the existence of more than two genders. The term ‘divers’ is used as a collective term to give the person concerned the possibility of gender identification besides the genders male and female.

Section 22 para. 3 PStG is a discretionary clause. Therefore, a child can also be registered as ‘female’ or male’ even if the gender body of a child cannot be clearly assigned to the binary gender system. An older version, § 22 para.3 PStG, only allowed leaving the gender entry blank. Below you will find a summary of the judgment of the Celle Higher Regional Court (OLG) of 12 May 2017 which was submitted as a template for the judgment of the Federal Constitutional Court  ref.no.: 1 BvR2019/16 of 10 October 2017.

OLG Celle of 12.05.2017, ref.no.: 17 W5/17
Situation: The claimant has been registered as male in the natal register at birth. Due to an application according to the Transsexual Law (TSG) in 2013, the gender entry was changed from ‘male’ to ‘female’ by the district court of Hamburg. In 2016, the applicant found out that they still do not identify as male, but also not as female. In self-perception and in the perception of others, contradictions arise
between the male sex and the gender identity as non-binary Therefore, the applicant now would like to leave the gender entry blank. However, the registrar found that the applicant does not have the option of leaving the gender entry blank. § 22 para. 3 PStG refers to intersex people, who already have both sex characteristics at birth and for whom biologically neither a male nor female gender can be assigned. However, according to the available documentation, the applicant is biologically clearly assigned as male. A feeling itself is not enough to leave the gender entry blank in the natal register. The TSG only provides the possibility of changing the gender from male to female or the other way around. The TSG does not provide sexlessness.

Judgment: The Higher Regional Court of Celle ruled that the complaint of the registry office was null and void. The gender identity of a person is part of the general right of personality (art. 1 para. 1 in connection with art. 2 para. 1 GG). The gender according to the civil status law should equal the gender identity. However, in the complaint of the registry office, § 22 para. 3 PStG was interpreted in such a way that the gender entry can only remain blank if a person could not be assigned as either female or male. Therefore, the complaint is invalid. If the deletion of the gender entry would depend on biological characteristics, the right to self-determination would be sufficiently taken into account, as intersex is about the identity of the ‘perceived gender’ and not the ‘apparent gender’. This sensation is independent of biological characteristics. § 22 para. 3 PStG must therefore be interpreted in such a way that a gender identity solely based on subjective feelings are sufficient to justify a deletion of the gender entry.