Third sex in civil status law
No entry of an intersex person in the birth register as "inter" or "divers
BGH, decision of 22.06.2016, XII ZB 52/15 (previous: OLG Celle, decision of 21.01.2015, 17 W 28/14)
An intersexual person requests the correction of their birth record so that the sex indication "girl" is changed to "inter" or "divers" because they are neither a woman nor a man. Both the District Court of Hanover, the Higher Regional Court of Celle and the Federal Supreme Court have rejected the application for rectification. They stated that the recognition of intersexuality was indeed protected as part of the general right of personality under fundamental law, whereby the perceived sexuality of the persons concerned was relevant, but that family law was based on a binary gender system and that the legislature had decided to disclose the situation of intersexual persons in the register of births by making it possible to disclose the indication of sex. Thus, according to these decisions, only the disclosure or deletion of the sex indication would be possible, but not a change of the sex indication to "inter" or "divers".
Civil status law must permit further positive gender entry
BVerfG, Resolution of the First Senate of 10.10.2017, 1 BvR 2019/16:
In contrast to this, the BVerfG finally stated that § 22.3 Personenstandsgesetz is not compatible with the Basic Law to the extent that it does not offer a third possibility, apart from the entry "feminine" or "masculine", to register a positive sex. The general right of personality also protects the gender identity of those who cannot be permanently assigned to either the male or female sex. The civil status describes in central points the legally relevant identity of a person and is therefore of considerable importance. The refusal to recognise a person's sexual identity under personal status law therefore already jeopardises self-determined development. In addition, the applicable civil status law also violates the prohibition of discrimination under Article 3 (3) GG, insofar as the registration of another sex as "male" or "female" is excluded, because Article 3 (3) GG protects all people from discrimination based on their sex.
The encroachment on fundamental rights is also not constitutionally justified, since the Basic Law does not require that the civil status be regulated exclusively in binary form. A uniform third gender designation is an appropriate means to do justice to the interests of inter*sexual people.
The legislator must therefore create a new regulation by 31 December 2018. The previous standards may no longer be applied to inter*sexual persons if they create an obligation for them to indicate sex. On 15.08.2018, the Federal Government presented a draft law which, as a third option, makes it possible to indicate "divers" if an assignment to one of the two sexes is not possible. However, a medical certificate would be required for an application to register the so-called third option.