When the German Government accepted the Constitutional Court recommendation to recognise gender determination as a right, it became the first country in Europe to not require a statement of either male or female on birth certificates. Whilst there are still many legal issues unresolved, this is overall a positive step. Not just for the immediate benefit of not setting gender at birth, but also for the potential to move away from defining it at all.
Earlier this year the German Constitutional Court declared that it considered a person’s ability to bear the gender they had experienced and lived to be a human right. To ensure that this right was not infringed they recommended that gender not be assigned until a person chooses to have a gender. This recommendation was made law in May of this year, removing the requirement from November to complete the gender section on German birth certificates.
The immediate impact is that the parents of ambiguously gendered children will no longer need to choose a gender shortly after birth, with the consequent removal of early gender assignment surgery. This is of course a great change in and of itself.
Campaigners for transgender rights are celebrating this as a step toward legal rights. This is an even greater possible change.
However, to me the long-term impact seems much greater still. This is not, as commonly reported, the creation of a third gender; this is the removal of mandatory gender assignment at birth. Germany will be joining Nepal in having citizens who do not have a gender.
While many German legal scholars are, quite correctly, focused on the work required to rationalise this with legislation that refers to male or female, this change has the potential to show not just gender equality, but gender irrelevance. Once a nation functions without each citizen having a gender, as I believe both Germany and Nepal can, it will become that much more obvious that the best criteria for assessing someone is their personal capabilities, and not their membership of a broad category of humans.
In addition to the political leverage available from direct evidence that a nation can function without gender, the change in Germany (and to a lesser extent Nepal) will start to put pressure on other countries while the change is still in it infancy. A German of no gender is still a citizen of Germany, and thus of the EU; they are therefore entitled to the same rights as any other citizen of the EU. They are also covered by the European Convention on Human Rights. Any legislation restricting someone’s rights on the basis of gender in a party to either regime could be challenged on the grounds the limitation was not necessary.
Even if the idea of some rights being necessarily gendered does survive, it will raise the issue of whether the right is gendered because a particular gender is appropriate or because one is not: do you have a right to be searched by a police officer of your own gender, or a right not to be searched by one of the opposite gender?
Do you believe this is real progress, or only a blip?