Third Gender Legislation in Germany: a primer in English.
By: Sarah Cordivano
Tags: Germany, Gender, Legislation, Discrimination, Nonbinary

In October of 2018, I came across the “Third Gender” Federal Resolution in Germany. I found some, but not much, critique and analysis in English. Because of that, I compiled my own research and review.

Photo by Iñaki del Olmo on Unsplash.

The Resolution

This excerpt summarizes the Federal Resolution: “Article 3 (3), first sentence, of the Basic Law also protects people who can not permanently be assigned to either the male or the female gender from discrimination based on their gender.” Essentially it states: just as you cannot discriminate based on binary Male/Female gender, it is now also illegal to discriminate based on a “third” (non-binary) gender. This resolution required the German government to pass a constitutional amendment. The amendment came in effect in December 2018.

Critiques

This is a big step forward for gender policy and legislation in Europe. But is this “Third Gender” legislation inclusive? Many critiques discuss this such as this one (or here in English).

I‘d also add my own review to the critiques: the language of “Third Gender” can be limiting and exclusionary. Fitting all non-binary genders into a single third category misses nuance and understanding of broader gender identity (and its flexibility and fluidity). The emphasis on birth certificate (or medical verification) is also unnecessarily restrictive (and conflates biological sex with identified gender). In it’s current form, the legislation is limited to those who are interesex which excludes a very large part of the non-binary community. I greatly hope that, in the future, this limitation is removed from the legislation. Though the legislation is technically forward thinking, it lacks inclusivity and awareness of real-world gender identification.

Understanding

This article by @Ger_Law_Journal was the most helpful in comprehensively reviewing the legislation and defining implications, further questions and considerations. A few notable excerpts from from the article:

“On the one hand, an alternative sex status is likely to group together a multiplicity of different — possibly oppositional — sex identities, becoming nothing more than a catch-all repository for every non-standard identification. On the other hand, however, a third sex will also continue to exclude those non-binary persons who experience a fluid or fluctuating gender, and for whom a third rigid classification is no more helpful than the existing male and female options.”

and

“…there is no sense from the Constitutional Court’s judgment as to how a third identity option would operate in practice. Legal sex does not exist in a vacuum. It is linked to numerous social, economic, and political systems throughout Germany — as it is in other jurisdictions — all of which operate on the basis of dichotomized, binary sex. It may not be particularly difficult for the German legislature to register non-binary individuals in a third sex. Nonetheless, for that alternative registration to have any practical meaning, all the other sex-related services and facilities in Germany would also have to expand their sexedlenses.”

What now?

Now that we understand (a bit) more about the legislation, how to pursue compliance? This article provides practical information. Tips include: adding M/F/D (D for Divers) in job titles, revising harassment and discrimination polices, and reviewing gendered dress codes and bathrooms.

I’d add a few more steps:

Do not just add /D to your job titles, but also look critically at the language you are using to remove needlessly gendered terms. Look at how you collect data internally, does an employee have the ability to identify as a gender other than Male or Female? Review your processes such as contract generation and automated communication. Is it based on binary gender? From an inclusion perspective: normalize the practice of learning and using everyone’s pronouns. Discuss openly about non-binary gender and how to be respectful of someone’s identified gender. Talk with your communication staff to inform them of the legislation so they are aware and can adapt. Make sure you have a process in place for employees to use a designated name instead of a legal name for accounts and communication. This is helpful to many employees, but especially those who are trans and/or non-binary and use a different name than what’s on their legal documents.

Need more help? Many organizations in Germany and Berlin offer resources and services to help with the interpretation and understanding of the legislation: for example bv-trans.de, dritte-option.de and fairlanguage.com.

Disclaimer: I am not a lawyer. Please only consider this post as a selection of resources and guides to review. Please consult legal counsel for serious considerations and implications.