Guest article “Smart women fighting for gender justice”

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

Gender diversity in law: We congratulate Professor Konstanze Plett on being awarded the Order of Merit of the Federal Republic of Germany, with a presentation speech by Dr. Jörg Woweries

Gender diversity and justice needs clever, fearless, committed, persistent and optimistic fighters. The jurist Prof. Dr. Konstanze Plett from the University of Bremen has been awarded the Order of Merit of the Federal Republic of Germany in recognition of her special services and commitment to the recognition of the rights of intersex people. Not least among her achievements is her successful launch of the “Third Option” constitutional complaint in collaboration with lawyer Katrin Niedenthal and jurist Prof. Dr. Friederike Wapler. This constitutional complaint brought before the Federal Constitutional Court in 2017, and the carefully prepared submission made by the three lawyers on which it is based, formed the legal framework for the introduction of an additional positive sex marker in German law in December 2018 (see blog post of 21 December 2018). Given this background, it is disturbing to read Martin Spiewak’s assessment in his controversial article „Diverse Missverständnisse“ published recently in DIE ZEIT (see DIE ZEIT of 9 May 2019, p. 39), that this was the result of “superficial research by the highest German court”. Continue reading “Gender diversity in law: We congratulate Professor Konstanze Plett on being awarded the Order of Merit of the Federal Republic of Germany, with a presentation speech by Dr. Jörg Woweries”

“Diverse” as entry in the birth register

On Thursday, 13 December 2018, just in time for the deadline set by the Federal Constitutional Court, the new law was passed allowing an additional sex marker entry, “divers”, for “gender diverse”, on the birth register. Altogether there are now not just three, but even four options to mark sex on the German birth register, namely “female”, “male”, “undefined/open” and “diverse”. This means that people with variations in physical sex characteristics can now also obtain a positive designation of their sex on the birth register. Children born since 2013 and registered with indefinite sex, and adults who had their sex entry changed to “undefined”/X after 2013, are now no longer forced to leave the entry open. The law can be seen as an important step towards the recognition of gender diversity.

However, there is also criticism, as the law is seen by some as a minimal solution. The requirement to have the body sex variation certified by a doctor in order to be able to enter “diverse” is too strongly linked to physical characteristics and therefore violates the right to sexual self-determination (cf. the article in the “Zeit” from 14 Dec. 2018, the “Neue Zürcher Zeitung” article from 14 Dec. 2018, and the “Süddeutsche Zeitung” article from 14 Dec. 2018). Nonetheless, an affidavit is a sufficient alternative to a certificate for those who have been traumatised by surgery or medical examinations, but this nonetheless still excludes others.

On the 3sat TV channel in Germany, the short documentary “Zwitter und Intersexualität” [Hermaphrodites and intersexuality] was broadcast on the occasion of the new legislation – with intercultural comparisons, references to the importance of gender in opera/music and competitive sports, and with an interview with the sexual scientist Dr Katinka Schweizer.

Intersex in sporting competition: The current state of debate

Since October 2017, there has been a debate in Germany about a third positive sex marker in the birth register, and a new law has now been in place in Germany for a few days. Nevertheless, the discussion about sex categories that has been going on for decades in international sporting competition seems to have remained untouched by this. As in 1966, it is limited to the question of whether and on what basis it is possible to exclude track and field athletes from international competitions if they have a variation in physical sex characteristics.

Continue reading “Intersex in sporting competition: The current state of debate”

Draft law on the third sex birth register entry: Second and third readings on 13 December 2018

On Thursday, 13 December 2018 at 15:40, the second and third readings of the Bundestag on the amendment to the sex data to be entered into the civil status registry will take place. The draft bill on this amendment will be discussed and voted on (see this PDF of the draft bill and blog post of 6 November 2018), as well as a proposal of the political party die LINKEN which calls for the following points, among others:

  1. Prohibition of deferrable, non-essential operations on children that aim to instate “gender non-ambiguity”
  2. Amendment to the Personal Status Code (PStG) to the effect that all persons may freely choose their civil status “without major obstacles”, which will repeal the German Transexuals Act (TSG)
  3. Prohibition of disclosure, i.e. access to the previous civil status of a person only permitted with his/her authorisation

The readings can be viewed live on Thursday at this link to the German Bundestag.

“Female, male and… diverse?” – Book Presentation and Panel Discussion at the IPU Berlin

MANN_INTER_FRAU (MAN_INTER_WOMAN) (Photo and sculpture: Fabian Vogler)

On 7 November 2018, a panel discussion and book presentation entitled “Female, male and… diverse?” took place at the International Psychoanalytic University (IPU) Berlin. The anthology and illustrated book “Die Schönheiten des Geschlechts: Intersex im Dialog” [The Beauties of Gender: Intersex in Dialogue], edited by Katinka Schweizer and Fabian Vogler and published this year by CAMPUS, was presented. It comprises a large number of inter- and transdisciplinary contributions to the title theme and numerous bronze works by the sculptor Fabian Vogler, as well as artistic interventions by other international artists. Continue reading ““Female, male and… diverse?” – Book Presentation and Panel Discussion at the IPU Berlin”

Public hearing – on the draft bill to amend the Personal Status Code (PStG) on 26 November 2018

On 26 November 2018, the Committee on Internal Affairs and Community (Internal Affairs Committee) held a public hearing on the draft law “Amendments to the information to be entered in the register of births”. The legal experts present were Dr Petra Follmar-Otto, Dr Anna Katharina Mangold and Prof. Dr Konstanze Plett, the doctors Prof. Dr Susanne Krege, Prof. Dr Anne Richter-Unruh and Dr Christian Spaemann, as well as Lucie Veith for the Federal Association “Intersexuelle Menschen e.V.” Other relevant disciplines, such as psychology and education, were not represented. You can view the video [in German] under this link.