Germany: High court rejects 'intersex' as third gender category

Germany's high court on Thursday said it rejected the creation of a third gender category of "inter" to describe people born with a reproductive or sexual anatomy that does not fit the typical definitions of female or male.

In a challenge to strict binary definitions of gender that evokes other court cases on both sides of the Atlantic, a panel of the Federal Court of Justice ruled against a lawsuit filed by a German citizen who was born as a female in 1989. The person now identifies as "intersex" and submitted a genetic analysis showing they were neither man nor woman.

The panel ruled that German law would not allow entry of a third option of "inter" or "diverse" in the birth registry, and saw no reason to refer the matter to the German constitutional court. The high court said it found no violation of the plaintiff's basic rights since intersexual people had been able since 2013 to leave the gender entry in German birth registries blank.

Germany was the only European country to offer a third alternative until 2015, when a French court recognised the option of "neutral gender". A US Navy veteran who identifies as neither male or female sued the US State Department in October 2015 after being denied a passport for refusing to select a gender on the application. The suit claimed it was a constitutional violation to force an "intersex" person to pick a gender.

The decision by the German high court was made in June, but only made public on Thursday. A group called "Third Option" said the plaintiff would file a constitutional court challenge in September. The government in Berlin estimated in 2013 there were 8,000 to 10,000 intersexual people in Germany. Interest groups say the number could be close to 80,000.