Headnotes

to the Order of the First Senate of 10 October 2017

– 1 BvR 2019/16 –

1. The general right of personality (Article 2(1) in conjunction with Article 1(1) of the Basic Law, Grundgesetz – GG) protects the gender identity. It also protects the gender identity of those who cannot be assigned either the gender “male” or “female” permanently.

2. Article 3(3) first sentence GG also protects persons who do not permanently identify as male or female against discrimination based on gender.

3. Both of these fundamental rights of persons who do not permanently identify as male or female are violated if the civil status law requires that the gender be registered but does not allow for a further positive entry other than male or female.

FEDERAL CONSTITUTIONAL COURT

– 1 BvR 2019/16 –

IN THE NAME OF THE PEOPLE

In the proceedings on

the constitutional complaint

of K(…),

– authorised representatives:

1. Prof. Dr. Konstanze Plett, LL.M., Gustav-Heinemann-Straße 33, 28215 Bremen,

2. Priv.-Doz. Dr. Friederike Wapler, Seidelstraße 6, 30163 Hannover,

3. Rechtsanwältin Katrin Niedenthal, Marktstraße 2 – 4, 33602 Bielefeld –

1. directly against

a) the order of the Federal Court of Justice (Bundesgerichtshof) of 22 June 2016 – XII ZB 52/15 –,

b) the order of the Celle Higher Regional Court (Oberlandesgericht) of 21 January 2015 – 17 W 28/14 –,

c) the order of the Hanover Local Court (Amtsgericht) of 13 October 2014 – 85 III 105/14 –

2. indirectly against

§ 21(1) no. 3 of the Civil Status Act (Personenstandsgesetz – PStG) in the version of Article 1 of the Act to Reform Civil Status Law (Civil Status Law Reform Act, Personenstandsrechtsreformgesetz – PStRG) of 19 February 2007 (Federal Law Gazette, Bundesgesetzblatt – BGBl I p. 122), § 22(3) of the Civil Status Act in the version of Article 1 no. 6 letter b of the Act to Amend Civil Status Law (Civil Status Law Amending Act, Personenstandsrechts- Änderungsgesetz – PStRÄndG) of 7 May 2013 (BGBl I p. 1122)

the Federal Constitutional Court – First Senate – with the participation of Justices:

Vice-President Kirchhof,

Eichberger,

Schluckebier,

Masing,

Paulus,

Baer,

Britz,

Ott

held on 10 October 2017:

1. § 21(1) no. 3 of the Civil Status Act (Personenstandsgesetz – PStG) in the version of Article 1 of the Act to Reform Civil Status Law (Civil Status Law Reform Act, Personenstandsrechtsreformgesetz – PStRG) of 19 February 2007 (Federal Law Gazette, Bundesgesetzblatt – BGBl I p. 122) in conjunction with § 22(3) of the Civil Status Act in the version of Article 1 no. 6 letter b of the Act to Amend Civil Status Law (Civil Status Law Amending Act, Personenstandsrechts-Änderungsgesetz – PStRÄndG) of 7 May 2013 (BGBl I p. 1122) is incompatible with Article 2(1) in conjunction with Article 1(1) and Article 3(3) first sentence of the Basic Law (Grundgesetz – GG) insofar as it imposes an obligation on persons to state their gender and does not allow for a positive gender entry other than “female” or “male” for persons whose gender development deviates from female or male gender development and who permanently identify as neither male nor female.

The legislature must enact provisions that are compatible with the Constitution by 31 December 2018.

2. The orders of the Federal Court of Justice (Bundesgerichtshof) of 22 June 2016 – XII ZB 52/15 –, of the Celle Higher Regional Court (Oberlandesgericht) of 21 January 2015 – 17 W 28/14 – and of the Hanover Local Court (Amtsgericht) of 13 October 2014 – 85 III 105/14 – violate the complainant’s fundamental rights under Article 2(1) in conjunction with Article 1(1) and Article 3(3) first sentence of the Basic Law (Grundgesetz – GG). The orders of the Federal Court of Justice of 22 June 2016 – XII ZB 52/15 – and of the Celle Higher Regional Court of 21 January 2015 – 17 W 28/14 – are reversed. The matter is remanded to the Higher Regional Court. The proceedings must be suspended until new provisions have been enacted.

3. The Federal Republic of Germany must reimburse the complainant for necessary expenses.

Reasons:

A.

The constitutional complaint concerns the question whether the challenged decisions and the underlying provision of § 21(1) no. 3 in conjunction with § 22(3) of the Civil Status Act (Personenstandsgesetz – PStG) violate the complainant’s fundamental rights. At birth, the complainant was assigned the female gender and registered as a girl in the birth register. They have an atypical set of chromosomes (so-called Turner syndrome) and permanently identify with neither the female nor the male gender [translator’s note: singular they is used as a gender-neutral pronoun throughout this text]. […]

[Excerpt from the press release no. 95/2017 of 8 November 2017]

The complainant filed a request with the competent registry office for correcting the complainant’s birth registration by deleting the previous gender entry “female” and replacing it with “inter/diverse”, alternatively only with “diverse”. The registry office rejected the request and pointed out that under German civil status law a child needs to be assigned either the female or the male gender in the birth register, and emphasised that – if this is impossible – no gender entry is made (§ 21(1) no. 3, § 22(3) PStG). The request for correction filed thereupon with the Local Court (Amtsgericht) was rejected; the complaint filed against this decision was unsuccessful. […].

[End of Excerpt]

I.

1. a) […] The two provisions of the Civil Status Act that are indirectly challenged read as follows:

§ 21 Entry in the birth register

(1) The following information is documented in the birth register:

3. the child’s gender,

§ 22 Missing data

(3) If the child can be assigned neither the female nor the male gender, that person’s civil status shall be documented in the birth register without indicating the person’s gender.

b) § 22(3) PStG was introduced in the context of the reform of civil status law in 2013. Previously, since 1875 there had been no legal provision on persons whose gender is not clearly female or male. The General State Law for the Prussian States (Allgemeines Landrecht für die preußischen Staaten – ALR) of 1794 still provided for gender classification of hermaphrodites: “If hermaphrodites are born, their parents determine in which gender they are raised” (§ 19(I) first sentence ALR). “However, after having turned eighteen, these persons are free to choose which gender they want to belong to” (§ 20(I) first sentence ALR). This provision was omitted without replacement when registry offices and birth registers were introduced by the “Act on Documenting Civil Status and Marriage” (Gesetz über die Beurkundung des Personenstandes und die Eheschließung) of 6 February 1875 (Reich Law Gazette, Reichsgesetzblatt – RGBl p. 23). A regulatory gap resulted that ultimately persisted until civil status law was reformed in 2013 (see Wacke, in: Festschrift für Kurt Rebmann, 1989, pp. 861, 868 et seq.; Kolbe, Intersexualität, Zweigeschlechtlichkeit und Verfassungsrecht, 2010, p. 81; Lettrari, Aktuelle Aspekte der Rechtslage zur Intersexualität, 2015, p. 6).

c) The new provision of § 22(3) PStG was preceded by the concluding observations of the Committee on the Elimination of Discrimination against Women of 10 February 2009 in which the committee requested the Federal Republic of Germany “(…) to enter into dialogue with non-governmental organizations of intersexual and transsexual people in order to better understand their claims and to take effective action to protect their human rights” (CEDAW/C/DEU/CO/6 para. 62).

In 2010, the Federal Ministry of Education and Research and the Federal Ministry of Health instructed the German Ethics Council to prepare an opinion on the situation of intersexual persons in Germany in dialogue with persons concerned by intersexuality. In February 2012, the German Ethics Council submitted its opinion. Its summary is as follows (Bundestag document, Bundestagsdrucksache – BTDrucks 17/9088, p. 59 [translation by the German Ethics Council]):

The German Ethics Council takes the view that personal rights and the right to equality of treatment are unjustifiably infringed if persons whose physical constitution is such that they cannot be categorized as belonging to either the female or the male sex are compelled by law to be designated in one of these categories in the civil register.

1. Provision should be made for persons whose sex cannot be unambiguously determined to register not only as “female” or “male” but also as “other”.

Provision should also be made for individuals’ sex not to be registered until they have decided for themselves. A maximum age for affected people to decide should be laid down in law.

2. In addition to the existing possibility of amendment of one’s registered sex under Section 47(2) of the Act on Civil Status (PStG), provision should be made for affected individuals to request amendment of their registered sex should the original entry prove to be incorrect.

4. As a basis for future decisions on legislation, the purposes of compulsory registration as provided by current law should be evaluated. A review should be undertaken to determine whether the recording of a person’s sex in the civil register is in fact still necessary.

d) The Government’s Draft Act to Amend Civil Status Law (Civil Status Law Amending Act, Personenstandsrechts-Änderungsgesetz – PStRÄndG) of 25 May 2012 did not follow the recommendations of the German Ethics Council (Bundesrat document, Bundesratsdrucksache – BRDrucks 304/12; BTDrucks 17/10489, pp. 5 et seq.). In a statement of 6 July 2012, the Bundesrat called on the Federal Government to review the recommendations of the German Ethics Council on intersexuality, which the Bundesrat endorsed, in the context of the draft law (BTDrucks 17/10489, p. 56). In its reply, the Federal Government confirmed that it took the problems of those concerned and the opinion of the Ethics Council very seriously. However, according to the Federal Government, in this very advanced stage of the legislative procedure, the complex problems, particularly when taking into account medical aspects, cannot be solved in the short term. Comprehensive consultations with persons concerned and experts would have to be held before new provisions could be enacted, the Federal Government argued. In this respect, it would also be necessary to review which amendments to other laws would be required (BTDrucks 17/10489, p. 72; Bundestag Minutes of Plenary Proceedings, BT-Plenarprotokoll 17/219, p. 27222). The Bundestag Committee on Internal Affairs recommended adopting the current § 22(3) PStG (BTDrucks 17/12192, pp. 3, 11). In the second and third deliberations, the Committee’s proposal was adopted unanimously (cf. Bundestag Minutes of Plenary Proceedings 17/219, pp. 27217 et seq.). For the time being, further provisions should be subject to further discussions in the expert committees (cf. Bundestag Minutes of Plenary Proceedings 17/219, p. 27222).

e) In the coalition agreement for the 18th legislative term of 27 November 2013, the coalition parties committed to evaluating and extending the changes in civil status law for intersexual persons that had been enacted in the meantime. They also committed to “focussing on the special situation of transsexual and intersexual persons” (cf. coalition agreement among CDU, CSU and SPD, 18th legislative term, p. 105). For this purpose, an interministerial working group “Intersexuality/Transsexuality” was established, which was due to submit its report in the first half of 2017. This has not happened yet (cf. reply by the Federal Government to a minor interpellation of the parliamentary group BÜNDNIS 90/DIE GRÜNEN, BTDrucks 18/7310, p. 14).

2. […]

3. From a medical perspective, exclusively binary designations of gender are not maintained. In 2015, upon the recommendation of its scientific advisory board, the German Medical Association (Bundesärztekammer) submitted its opinion “Healthcare for children, youths and adults with differences/disorders of sex development (DSD)” (“Versorgung von Kindern, Jugendlichen und Erwachsenen mit Varianten/ Störungen der Geschlechtsentwicklung”). In its opinion, the association states that disorders of sex development are heterogeneous deviations in gender determination or differentiation. Deviations in gender development include congenital variations in genetic, hormonal, gonadal and genital dispositions of a person due to which a person’s gender does not unambiguously correspond to the biological categories of ‘male’ or ‘female’. Equating this with a malformation or disease is not appropriate, the association holds […]. The 2016 “Guidelines by the German Society of Urology (DGU) e.V., the German Society of Paediatric Surgery (DGKCH) e.V., the German Society of Paediatric Endocrinology and Diabetology (DGKED) e.V.”(Leitlinie der Deutschen Gesellschaft für Urologie (DGU) e.V., der Deutschen Gesellschaft für Kinderchirurgie (DGKCH) e.V., der Deutschen Gesellschaft für Kinderendokrinologie und -diabetologie (DGKED) e.V.) note that the traditional prescriptive idea of men and women needs to be revisited in order to ensure adequate psychological and medical care for and treatment of persons with deviating gender development, due to the biological context and the experiences of these persons. Deviating gender development is not a disease. It is not possible to think about its “curability”, the guidelines maintain. No medical or psychological intervention will change the ambiguous state per se. How people handle deviating gender development is in principle a socio-political issue and must be considered in the context of society as a whole […]. In addition, according to the opinion, medical and psychosocial science largely agree that gender cannot be determined, let alone created, by genetic, anatomical and chromosomal features alone, but is also dependent on social and psychological factors […].

4. […]

II.

[…]

III. 

With the constitutional complaint, the complainant claims a violation of their general right of personality under Art. 2(1) in conjunction with Art. 1(1) of the Basic Law (Grundgesetz – GG), discrimination based on gender under Art. 3(3) first sentence GG and a violation of the principle of equal treatment under Art. 3(1) GG.

[…]

IV.

[…]

B.

The admissible constitutional complaint is well-founded. § 21(1) no. 3 in conjunction with § 22(3) PStG is unconstitutional insofar as § 21(1) no. 3 PStG requires a gender entry under civil status law, but § 22(3) PStG does not allow for a further positive gender entry for persons whose gender development deviates from female or male gender development and who permanently identify with neither the male nor the female gender. The decisions challenged in the constitutional complaint are based on these provisions. They violate the complainant’s general right of personality (Art. 2(1) in conjunction with Art. 1(1) GG) and the prohibition to disfavour a person because of gender (Art. 3(3) first sentence GG).

I.

§ 21(1) no. 3 in conjunction with § 22(3) PStG violates the general right of personality (Art. 2(1) in conjunction with Art. 1(1) GG) in its manifestation as protection of gender identity. The general right of personality also protects the gender identity of persons who can be assigned neither the male nor the female gender (1). Their fundamental right is interfered with because current civil status law requires that gender must be registered, but does not allow a gender entry other than female or male (2). This interference with fundamental rights is not justified (3).

1. The general right of personality protects the complainant’s gender identity.

a) Art. 2(1) GG grants every person the right to free development of their personality. In addition to the general freedom of action, this fundamental right includes the general right of personality (Art. 2(1) in conjunction with Art. 1(1) GG). As a so-called “unspecified” fundamental freedom, the latter right complements the special (“specified”) freedoms, which also protect constitutive elements of the personality (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 54, 148 <153>). One of the purposes of the general right of personality is to guarantee the basic conditions enabling individuals to develop and protect their individuality in a self-determined way (cf. BVerfGE 35, 202 <220>; 79, 256 <268>; 90, 263 <270>; 117, 202 <225>). However, the general right of personality only protects those elements of development of one’s personality which – without already being covered by the specifically guaranteed freedoms under the Basic Law – are equal to these freedoms in terms of their constitutive importance for personality (cf. BVerfGE 79, 256 <268>; 99, 185 <193>; 120, 274 <303>; established case-law). Hence, it does not guarantee protection against anything that could in any way impair the self-determined development of one’s personality; in any case, no person is able to develop their individuality independent of external conditions and affiliations. However, where the self-determined development and protection of personality is specifically threatened, it is covered by the protection of the general right of personality, which serves to close legal gaps (BVerfGE 141, 186 <201 and 202 para. 32>).

b) Accordingly, the general right of personality also protects gender identity (cf. BVerfGE 115, 1 <14 et seq.>; 116, 243 <259 et seq.>; 121, 175 <190 et seq.>; 128, 109 <123 et seq.>), which is regularly a constitutive element of an individual’s personality. Under the given circumstances, the assignment of gender is of paramount importance for individual identity; it typically occupies a key position both in a person’s self-image and in the way this person is perceived by others. Gender identity plays an important role in everyday life: In part, gender determines entitlements and obligations provided for by law; furthermore, it often forms the basis for the identification of a person, and gender identity is also significant in everyday life irrespective of legal provisions. To a large extent it determines, for instance, how persons are addressed or what is expected of a person in terms of their appearance, upbringing or behaviour.

The gender identity of persons who can be assigned neither the male nor the female gender is protected as well. These persons might be able to develop their personality more freely if less significance was attributed to gender assignment in general. Yet under the given circumstances, gender assignment is a particularly relevant factor for how persons are perceived by others and for how they see their own personality. The complainant emphasises the practical importance of gender assignment, too, and argues that under these circumstances, gender identity is a constitutive element of their personality.

2. The provision of § 21(1) no. 3 in conjunction with § 22(3) PStG interferes with the general right of personality in its manifestation as protection of gender identity (a) and specifically threatens the development and protection of the complainant’s personality in their gender identity (b).

a) The provisions indirectly challenged interfere with the general right of personality in its manifestation as protection of gender identity. Civil status law requires that gender must be registered, but does not allow the complainant, whose gender development deviates from female or male gender development and who permanently identifies with neither the male nor the female gender a gender entry under civil status law that corresponds to their gender identity (on the existence of an interference see BVerfGE 49, 286 <298>; 60, 123 <132 et seq.>; 116, 243 <259 et seq.>; 121, 175 <190 et seq.>; 128, 109 <124>). Under civil status law, a person’s gender needs to be documented in the birth register pursuant to § 21(1) no. 3 PStG. The only positive options available for this are the gender “female” and the gender “male”; there is, however, no further option for a gender entry. This follows from § 22(3) PStG (“missing data”), according to which the gender entry in the birth register should be left blank if the child can be assigned neither the female nor the male gender. In this case, no positive entry can be made in the birth register. Accordingly, the complainant must tolerate an entry that does not correspond to their constitutionally protected gender identity.

Pursuant to § 22(3) PStG, the complainant has the option of deleting their female gender entry in the birth register. However, this does not eliminate the interference with fundamental rights: The complainant’s gender identity is not only impaired by their incorrect assignment to the female gender, but also by the currently stipulated choice of the legal alternative “missing data” (§ 22(3) PStG). The missing gender entry would not show that, while indeed not identifying as a man or a woman, the complainant does not identify as genderless either and sees themself as having a gender beyond male or female. The “missing data” option does not alter the exclusively binary pattern of gender identity; it gives the impression that legal recognition of another gender identity is ruled out and that the gender entry has simply not been clarified yet, that a solution has not been found yet or even that it has been forgotten. This does not amount to recognition of the complainant in their perceived gender. From the complainant’s view, the entry remains inaccurate, because just deleting a binary gender entry creates the impression of not having a gender (cf. Althoff/Schabram/ Follmar-Otto, loc. cit., pp. 24, 44; see also Vöneky/Wilms, Stellungnahme zur Situation von Menschen mit Intersexualität in Deutschland im Deutschen Ethikrat, 2011, p. 3; Sieberichs, FamRZ 2013, p. 1180 <1181>; Gössl, NZFam 2016, 1122 <1123>).

b) If civil status law requires a gender entry, but at the same time denies persons recognition of their gender identity under civil status law, it specifically threatens the self-determined development and protection of these persons’ personality:

aa) Under the given circumstances, the recognition of gender under civil status law has an identity-building and expressive effect. Civil status is not a marginal issue; rather, it is the “position of a person within the legal system”, as stated by the law (§ 1(1) first sentence PStG). With civil status, a person is measured according to the criteria provided for by law; it defines the central aspects of the legally relevant identity of a person. Thus denying the recognition of gender identity under civil status law in itself, i.e. irrespective of the consequences associated with the gender entry outside of civil status law, specifically threatens the self-determined development and protection of a person’s personality.

The entry under civil status law in itself only takes on specific significance for gender identity because civil status law requires that a gender must be stated in the first place. If it did not require a gender entry, it would not specifically threaten the development and protection of personality as the specific gender identity of a person would not be recorded under civil status law. […]

However, pursuant to § 21(1) no. 3 PStG, civil status currently also includes a person’s gender. Despite several reforms of civil status law, the legislature has maintained the registration of gender as an identifying feature under civil status law. As the legislature regards gender as so crucially important for describing a person and their legal status by way of civil status law, the recognition of a person’s specific gender identity under civil status law has an identity-building and expressive effect in itself, with the material and legal consequences of the civil status entry outside of civil status law being irrelevant in this respect (on the independent fundamental rights relevance of the register entry in the case of transsexuality see BVerfGE 49, 286 <297 and 298>; on naming see also BVerfGE 104, 373 <385>; 109, 256 <266>; 115, 1 <14>). If, under these circumstances, the gender identity of a person is not recognised under civil status law, it specifically threatens the self-determined development and protection of their personality.

bb) In particular, the requirement of a gender entry under civil status law in combination with the limited entry options make it difficult for those concerned to move about in public and be seen by others as the persons they are with regard to their gender. Yet the way a person is depicted and perceived in public and by others is significant for the free development of their personality and may result in specific threats [to fundamental rights] (cf. BVerfGE 99, 185 <193>; 114, 339 <346>; 119, 1 <24> […]). Civil status law requires a gender entry, but does not allow those concerned a gender entry in the birth register which is in line with their self-image. This contributes to the fact that their individual identity is not perceived and recognised in the same way and as naturally as that of female or male persons. The complainant plausibly argues that an individual often cannot just pass over their gender entry under civil status law when appearing in public.

3. The interference is not justified. The court decisions are based on an unconstitutional legal provision, because compelling persons to have a gender entry under civil status law while denying them a further positive entry other than “female” or “male” is not based on a legitimate aim for which the provision would be suitable, necessary and appropriate.

a) The Basic Law does not require that civil status be exclusively binary in terms of gender. It neither requires that gender be governed as part of civil status, nor is it opposed to the civil status recognition of a third gender identity beyond male and female. It is true that Art. 3(2) first sentence GG refers to “men” and “women”. However, a conclusive determination that the term “gender” only means men and women does not arise [from this wording]. It follows from the requirement of equal rights under Art. 3(2) GG that existing social disadvantages between men and women need to be eliminated. The purpose of this provision is mainly to eliminate gender-based discrimination against women (cf. BVerfGE 85, 191 <207>), but its aim is not to enshrine gender identity in civil status law or to rule out introducing another gender category in addition to “male” and “female. […]

b) The interests of third parties cannot justify that § 22(3) PStG does not offer a third option allowing for a positive entry in the birth register. The status of men and women under civil status law remains unaffected by a further entry option. The same also applies to persons with deviating gender development who still identify with either the male or female gender and who are and want to be registered accordingly. The mere possibility of entering a further gender does not oblige anyone to identify with this third gender. […] In a regulatory system that requires information on gender, the existing options for persons with deviating gender development to be registered as male or female or omit the gender entry altogether need to be preserved.

c) The fact that the introduction of a third positive entry may be associated with bureaucratic and financial costs during a transitional period does not justify denying the option of a further gender entry. At first, the formal and technical preconditions necessary for registering another gender of course need to be created. However, the additional effort associated with allowing for a standardised third gender designation would have to be accepted, given the interference with fundamental rights that arises from being ignored by law in one’s own gender identity. The general right of personality does not, however, grant a claim to the entry of random gender-related identity features as civil status information. Besides, the legislature is free to completely dispense with a gender entry in matters under civil status law.

d) Organisational interests of the state cannot justify the denial of a third standardised and positive entry option, either. Insofar as the legal identification of persons is de lege lata carried out on the basis of their gender and individual legal obligations and claims are attributed based on gender under current law, the registration of gender under civil status law contributes to an accurate and unambiguous identification and attribution (cf. BVerfGE 128, 109 <129 and 130>). However, this does not justify that under § 22(3) PStG no gender other than male or female can be entered in the civil register.

Allowing a positive entry for a third gender with a standardised third designation (for suggestions see, e.g., the opinion of the German Ethics Council, BTDrucks 17/9088, p. 59) does not result in any assignment difficulties that do not already exist under current law anyway. Uncertainties may occur where a provision outside of civil status law is linked to gender and presumes that a person is either female or male. In that case it would indeed be unclear how a person assigned to a third gender should be treated. However, the same issue exists already under current law if the gender entry is left blank pursuant to § 22(3) PStG. In this case, assigning a person to the male or female gender is not possible either: In this respect, material law neither regulates which gender-based provisions apply, nor has the legislature created specific provisions for persons without gender entry. If a further positive gender entry is allowed for, the questions to be clarified are thus the same as those that already arise when opting for no gender entry, which is possible de lege lata. In fact, the positive entry of a third gender could provide greater clarity given that it does not – unlike a gender entry that is permanently left blank – convey the wrong impression that the entry was left blank inadvertently.

The permanent nature of civil status is not affected by the option of a third gender entry, either, because just creating another entry option is not a statement on the requirements for changing civil status.

II.

Insofar as § 21(1) no. 3 in conjunction with § 22(3) PStG excludes a gender entry other than “male” and “female”, it also violates the ban on discrimination of Art. 3(3) first sentence GG. The provisions that are indirectly challenged disadvantage persons who are neither male nor female and who permanently identify with another gender (1). Article 3(3) first sentence GG protects not only men and women against discrimination based on gender, but also persons who do not permanently identify with these two categories (2). The disadvantaging is not justified (3).

1. § 21(1) no. 3 in conjunction with § 22(3) PStG disadvantages persons based on their gender who are neither male nor female and who permanently identify with another gender. Under Art. 3(3) first sentence GG, gender may generally not serve as a basis for unequal legal treatment. This holds true also in the case that a provision does not actually aim at an unequal treatment which Art. 3(3) GG prohibits, but primarily pursues other goals (BVerfGE 85, 191 <206>; established case-law). § 21(1) no. 3 in conjunction with § 22(3) PStG treats persons who are neither male nor female unequally and disadvantages them on the basis of their gender insofar as these persons cannot be registered in accordance with their gender, unlike men and women. § 22(3) PStG explicitly only allows for entries in the categories female or male. Under current civil status law, other persons must accept that they are either incorrectly assigned to one of the two above-mentioned genders or have an entry that creates the impression that they have no gender at all.

2. Article 3(3) first sentence GG protects not only men against discrimination based on their male gender and women against discrimination based on their female gender; it also protects persons who do not permanently identify with these two categories against discrimination based on their gender, which is neither exclusively male nor exclusively female […].

The purpose of Art. 3(3) first sentence GG is to protect persons from being disfavoured that belong to groups structurally prone to being discriminated against (cf. BVerfGE 88, 87 <96> […]).Persons who identify as neither female nor male are particularly vulnerable in a society primarily organised according to binary gender patterns. The wording of Art. 3(3) first sentence GG readily permits including them in its protection. Art. 3(3) first sentence GG generally refers to “gender” without stipulating any restrictions in that respect; [the reference to “gender”] may thus also mean a gender other than male or female.

There is no systematic contradiction to the requirement of equal rights under Art. 3(2) GG, which only refers to men and women […].The wording of Art. 3(3) GG, unlike Art. 3(2) GG, does not refer to men and women, but to gender in general. Above all, Art. 3(2) GG is of distinct relevance and independent of Art. 3(3) first sentence GG, which explains the narrower wording of Art. 3(2) GG. The regulatory content of Art. 3(2) GG exceeds the prohibition of discrimination under Art. 3(3) GG; it sets out the requirement of gender equality and applies it to social reality (BVerfGE 85, 191 <206 and 207>). Since 1994, Art. 3(2) second sentence GG emphasises the actual enforcement of equal rights between the genders.

The legislative history of the provision does not run counter to the assumption that Art. 3(3) first sentence GG includes the prohibition of discrimination based on a further gender, either. While the constitutional legislature (Verfassungsgeber) did not have persons of another gender in mind in 1949 when drawing up Art. 3(3) first sentence GG, this does not preclude interpreting the Constitution in such a way that these persons are included in the protection against discrimination, given today’s knowledge of other gender identities.

The decision of the constitution-amending legislature not to include the element of “sexual identity” in Art. 3(3) GG does not run counter to a broad interpretation of the element “gender” – irrespective of differences of meaning between gender identity and sexual identity. Most recently, an insertion of the element of sexual identity was declined not because of concerns linked to the content of the protection of sexual identity against discrimination. Rather, it was argued that this protection had already become a legal reality. Further it was claimed that, according to the case-law of the Federal Constitutional Court, the protection against discrimination based on sexual identity under Art. 3(1) GG by now corresponds to the protection under Art. 3(3) GG (cf. BTDrucks 17/4775, p. 5).

Moreover, the Court of Justice of the European Union has also defined protection against gender-based discrimination broadly by including discriminations that are linked to a person’s gender reassignment (fundamentally ECJ, Judgment of 30 April 1996, P v S and Cornwall County Council, C-13/94, ECR 1996, I-2143, para. 20).

3. The disadvantaging is not justified. As shown above, there is no valid reason for it (see I 3 above).

C.

[…]

D.

This decision was taken with 7:1 votes.

Kirchhof   Eichberger   Schluckebier

Masing   Paulus   Baer

Britz   Ott

Bundesverfassungsgericht, Beschluss des Ersten Senats vom 10. Oktober 2017 1 BvR 2019/16

Zitiervorschlag: BVerfG, Beschluss des Ersten Senats vom 10. Oktober 2017 1 BvR 2019/16 – Rn. (1 – 69), http://www.bverfg.de/e/ rs20171010_1bvr201916en.html

ECLI: ECLI:DE:BVerfG:2017:rs20171010.1bvr201916