This year saw a film released in Germany depicting the struggle of Ruth Bader Ginsburg for the equal rights of women and men in the USA: “On the Basis of Sex” (released in Germany as “Die Berufung – Ihr Kampf für die Gerechtigkeit“). Bader Ginsburg has been a US Supreme Court Justice for many years, and through her legal knowledge and skill she has fought against the closed ranks of men for equality, achieving a number of basic rulings – which are similar to the articles of German Basic Law.
Elisabeth Selbert should also be mentioned in this context as part of the history of the Federal Republic of Germany. After the war, she sat on the Parliamentary Council (Parlamentarisches Rat) to formulate what would become German Basic Law. In the face of all opposition and against a seemingly all-powerful world of men, she was able to ensure that German Basic Law explicitly included “Men and women shall have equal rights”. Nevertheless, there were several legal provisions that contradicted this. At that time, Section 1628 of the Civil Code (BGB), for example, prescribed that the father had the final word of authority in matters of education and upbringing. Ultimately, the patriarchy was granted a preferential right, in clear contradiction to the Basic Law.
Dr. Erna Scheffler was the only woman among the judges of the Federal Constitutional Court, which was established in 1951. With clever argumentation, she was able to overturn the unconstitutional wording of the paternal right to final decision. The court ruling of 1959 caused a storm of indignation among the supporters of a patriarchal family order. (Further reading in “Zeithistorische Forschungen” Online edition, 2 (2005)).
In recent years in Germany, the question has been raised whether people with the medical diagnosis “diverse sex development” (DSD), or intersex persons, should be independently recognised alongside female and male persons in the Personal Status Code (PStG). In a law of 2013, it was required that, apart from female or male, these individuals must be registered as “unregistered”, i.e. effectively without gender affiliation.
It is in this context that Prof. Dr. Konstanze Plett has rendered outstanding services to the legal recognition of intersex people. As the legal representative of an individual and with the collaboration of jurist Prof. Dr. Friederike Wapler and lawyer Katrin Niedenthal, she submitted to the Federal Constitutional Court (BVerfG) so many expert opinions and international statements that the BVerfG was compelled to rule in this person’s favour: With her clever argumentation, she succeeded in dismantling the binarity of the sexes, the legally defined gender binary. The rights of individuals who do not fit into the scheme of only man or only woman – the BVerfG spoke of the “third option” – were recognised by the BVerfG in 2017. This legal recognition of a third option is the crucial factor. It is independent of whether many people or only a few officially acknowledge the newly formulated status of “diverse”.
Platt’s decoration as Member of the Order of Merit, an honour which was conferred on her by the Federal Minister of Education and Science in mid-March 2019, was also a result of her many publications in the fight for the human rights of intersex people.
Jörg Woweries, Berlin
