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Male – Female – Diverse: The “third option“ and the General Act on Equal Treatment

German civil status law was amended at the end of 2018, allowing intersex people in Germany the option of choosing “diverse” rather than “male” or “female” as their sex marker in civil status entries at the registry office, the so-called “third option” (General Act to Amend the Law on Entries in the Birth Register (Gesetz zur Änderung der in das Geburtenregister einzutragenden Angaben) of 18 December 2018, Federal Law Gazette I page 2635).

In October 2017, the First Senate of the Federal Constitutional Court upheld a complaint by an intersex person, ruling that entry of a positive designation beyond the binary gender model had to be possible.

Germany is now one of the few countries of the world to recognise in law the existence of more than two genders. The ruling by the Federal Constitutional Court not only has an impact on civil status law, but also has consequences for many other areas. In the context of the General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz, AGG), that primarily concerns protection against discrimination in working life.

FAQs on the third option

Frequently Asked Questions

  • In creating a third option for entries in the civil status register, the legislator was referring in principle to intersex people. Intersex or intergender people cannot be clearly categorised medically as male or female. First and foremost, that has to do with physical variations in (primary and secondary) sex characteristics.

    In order to be able to have their civil status amended to “diverse“, medical evidence must be submitted, attesting to a “variation in sex development”. The legislative intention behind this doctor’s certificate, which has been strongly criticised by many intersex and transgender groups, is to make the entry “diverse” exclusively dependent on physical sex characteristics. In exceptional cases, an affidavit may be sufficient. However, the legislator’s intention is for a person’s subjective gender identity not to be allowed to play any role in amending their personal status.

    Thus, in creating a “third option”, the legislator explicitly excluded transgender or non-binary people in its substantiation of the law. Transgender people are people whose gender identity does not correspond or only partly corresponds to the sex assigned to them at birth.

    In its ruling, the Federal Constitutional Court points out that a person’s belonging to a certain gender is determined not only by their physical characteristics, but essentially also by their subjective gender identity. Thus, it is not clear whether transgender people will also be able to have their civil status amended to “diverse” in the long term.

  • The General Act on Equal Treatment protects every individual against discrimination on the grounds of gender – any gender. Discrimination against transgender and intersex people, i.e. on grounds of gender identity, was initially placed in the “sexual identity” category in the General Act on Equal Treatment (cf. explanatory memorandum of the Bundestag, Bundestag printed paper 16/1780, page 31). The Court of Justice of the European Union (CJEU) considers transgender and intersex people to be covered by the principle of the equal treatment of the genders, however (CJEU, judgment of 30 April 1996, Case C-13/94 (P. v. S. and Cornwall County Council). Thus, unlike civil status law, anti-discrimination law already had an open gender term that includes transgender and intersex people before the judgment of the Federal Constitutional Court.

    The Federal Constitutional Court confirmed in its ruling that there are more than two genders and called on the legislator to recognise this under public law. The creation of the “diverse” category makes gender diversity institutionally visible, underlining the understanding of gender enshrined in European law.

  • The General Act on Equal Treatment requires job advertisements to be gender-neutral in principle. The wording of both public and internal job advertisements must therefore clearly indicate that all genders will be considered for the advertised job. The established practice therefore used to be to append the female form of occupations (for example, “Sachbearbeiter/in” or “Sachbearbeiter/Sachbearbeiterin”) or to append “m--männlich/w--weiblich” (i.e. male/female) in brackets.

    In the context of the Federal Constitutional Court decision, employers are now required to word job advertisements in a gender-neutral way that goes beyond the binary gender categories of men and women. There are various ways to do this:

    1. Gender-neutral wording: Job descriptions can frequently omit gender-specific terminology: “We are looking for a teacher/manager/service staff“, “We are looking for qualified additional staff in the area of …“, “Support required for our cleaning company“
    2. The gender gap (_) or gender star (*): Another way to make job advertisements gender-neutral in German is to use the so-called gender gap or gender star, for example by writing “Industriemechaniker_in” (industrial mechanic), “Finanzbuchalter_innen” (financial accountants), “Verkäufer*in” (salesperson) or “Jurist*innen” (lawyers). Like using a forward slash (/) to make men and women visible in German, underscoring or asterisks can be used to as a linguistic indication that transgender and intersex people are consciously included.
    3. Addition to the appended forms given in brackets: Job advertisements written in the German generic masculine form, to which the bracketed initials m/w/d (m/f/x) are appended, are legally compliant with the General Act on Equal Treatment: “Fachkraft (m--männlich / w--weiblich / d--divers” (i.e. Specialist, m/f/x) or “Ingenieur (m--männlich / w--weiblich / divers)” (i.e. Engineer, m/f/x). Note: Due to the special provisions contained in the equal opportunities laws of the Länder, job advertisements for public service in federal states and municipalities may require explicit mention of the male and female forms (an example is to be found in section 1 of the Equal Opportunities Act of North Rhine-Westphalia (Landesgleichstellungsgesetz, LGG)). A job advertisement using only the male occupational title would not fulfil these requirements. Acceptable variants in this case would be “Ingenieur, Ingenieurin, Ingenieur_in“ or “Ingenieur, Ingenieurin (m--männlich / w--weiblich / d--divers)“ (i.e. Engineer, m/f/x).
  • The Workplace Ordinance (Arbeitstättenverordnung) sets out the requirements employers must meet with regard to the provision of sanitary rooms, such as toilets, washrooms and changing rooms. To date, there has been no interpretation or amendment of the Ordinance on the part of the legislator or jurisprudence with regard to the “third option”.

    In principle, employers are required to provide toilet rooms and, if necessary, washrooms and changing rooms. Separate facilities for men and women must generally be provided. Small companies have the possibility of having toilet rooms for all genders, taking organisational measures to ensure they are used at separate times. Such an arrangement would also be possible for small companies with regard to the “third option”.

    A recommendable and legally secure solution is to provide additional gender-neutral toilets, so-called “unisex” toilets. To protect employees’ privacy, such toilets should be in individual cubicles that can be locked from the inside and are suitable for consecutive individual use.

  • The General Act on Equal Treatment places employers under an obligation to ensure a non-discriminatory working environment by implementing preventive measures and taking measures to protect employees concerned in specific cases. Of course, a non-discriminatory working environment also includes the way people interact in everyday life. When addressing people individually, that means using the right pronoun in direct contact with transgender and intersex people, particularly when the person concerned states that they would like to be referred to as “she“ or “he” or just be called by their first name, for example.

    In general communication, there are no linguistic rules governing the “third option“ or gender diversity, however. Nevertheless, there are various common ways of communicating in a gender-sensitive way, thereby avoiding discrimination.

    When writing to individuals, for example,  forms of address such as “Hello Andrea Müller“ or “Dear Kim Schmidt“ can be used. There are many gender-neutral general salutations for addressing groups of people, both in writing and orally. For example “Esteemed participants“, “Honoured attendants“, “Dear interested parties”, Dear colleagues“ or double variants such as “Dear Sir or Madam, dear interested parties”, or “Honoured colleagues and guests“.

  • The General Act on Equal Treatment also prohibits discrimination on grounds of gender in accessing goods and services, so-called mass business.

    As regards the decision of the Federal Constitutional Court, that may have implications in connection with personal data, for example when signing contracts or for online purchases. Often, the only choice available is between man and woman, or between Mr. and Mrs./Miss/Ms. If this information is required in order for a contract to be signed and the category “divers” (i.e. x) is missing, it may constitute an infringement of the General Act on Equal Treatment. Usually, however, it is possible in principle to omit a sex marker or form of address.

    The provision of toilet rooms also plays a role in the service sector. Event locations and many restaurants have an obligation to provide toilets for their customers. There are regional variations in the legal requirements governing lavatory facilities, however. There are often special rules concerning the provision of separate washrooms for men and women. In principle, the legal provisions are similar to those applicable to the field of work: amendments and interpretations by the legislator and jurisprudence have been lacking so far.

    Service providers do have the possibility to provide additional unisex toilets, however. In various areas where there are no statutory provisions concerning toilet rooms or gender separation for the sector concerned, gender-neutral toilets are already provided as a matter of course, for example for rail and air passengers.

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