diverse

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The gender entry diverse (from Latin diversus "unevenly, different") has been a third legal option in Germany since 2018 and in Austria since 2019, in addition to " female " and " male ", which can refer to intersex or, more generally, to a non-binary gender identity (cf. Third gender ). In Germany, the same rules also apply to people without a gender entry in the civil status registers (see third option in the Civil Status Act from 2013 ). In Austria, if the gender of the birth or intersex is unclear, there is the option of leaving the gender entry in the Central Civil Status Register (ZPR) open for the time being, so that the person is later able to decide for himself the legal gender that matches his or her gender identity .

Germany

The law amending entered in the birth register data allowed with effect from 22 December 2018 in the register of births to let the word "divers" Enter ( § 45b , § 22 para. 3 PStG). Together with people whose gender has been left open by law, they are considered to be "neither male nor female" according to the German Civil Status Act . The regulations listed below therefore apply equally to these two subgroups, unless they are individually named.

There are now a number of statutory and other legal regulations on gender assignment "diverse".

Entry at birth

The following applies to the original entry of the gender at birth: If the child cannot be assigned due to its external gender characteristics, "female" or "male" can still be entered, but the gender entry can also be left open or "diverse" can be entered ( PStG § 22 paragraph 3; compare Personal Status Act from 2013 )

Change of entry

A later change of the gender entry of people of different sexes is possible (PStG § 45b): Required are a declaration of the person concerned in front of the responsible registry office, as well as a medical certificate, from which it emerges “that a variant of the gender development exists”. Only if this is not possible or only possible through an unreasonable investigation, the person concerned can instead submit an affidavit. The first name can also be changed with the declaration.

Name for mother and father

The person who gave birth to the child is always entered as the mother of a child; A heterosexual person is only entered as a father if paternity has been determined by a court (determination of paternity ). In the case of an adoption (“adoption as a child”), such a person is not entered as a “ father ” or “ mother ”, but as a “ parent ” ( PStV § 42).

marriage

For a marriage with the participation of a diverse-sex person, the law of the register state applies as with a same-sex marriage (regulated in the EGBGB: Introductory Act to the Civil Code, Article 17b, Paragraph 4; a " conflict of law rule ").

Passport law

A German passport with an "X" (diverse) indicating the gender (2019)

The gender must always be noted in the German passport ; The entry “ X ” is intended for people of different sexes , according to the EU regulation on travel documents (2252/2004) which is directly applicable in Germany and which refers to document 9303 of the International Civil Aviation Organization .

The German Passport Act (PassG) does not yet provide for any express regulation for people of different sexes.

The identity card does not contain any gender entry.

Federal Registration Act and implementing regulations

The Federal Registration Act (BMG) does not yet have any express regulation for people of different sexes.

The data record used by the registration offices for the registration system (DSMeld) provides: “The gender must be indicated; The following keys are to be used: m = male - w = female - d = diverse - 1 = no information - In the area of ​​data transmission, an 'x' is transmitted for the key '1'. "

medicine

In the medical field, “Male / Female / Indefinite” is the intended gender; see guideline of the Federal Joint Committee to merge the requirements for structured treatment programs according to § 137f paragraph 2 SGB V (DMP-Requirements-Guideline / DMP-A-RL): "Appendix 2 Cross-indication documentation (except breast cancer): 12 Gender male / female / Indefinite ".

The background is explained in the “Basic reasons”. It is also pointed out there that the feature “X” is used on the electronic health card. On forms on which only the options “female” and “male” are provided, gender diversity can be indicated in the health area by ticking both boxes.

pension insurance number

The pension insurance number can only differentiate between “male” (serial number 00–49) and “female” (50–99); it is lifelong. In the case of people of different sexes, a number is assigned to “female” people, but the gender category is noted in the database.

Jurisprudence

According to a decision by the Higher Regional Court of Celle in May 2017 , the option of being registered as neither female nor male is also open to transident persons who cannot be assigned to the male or female gender despite their physical uniqueness. This decision was made before the enactment of Section 45b PStG ( see above ). At first it was unclear whether in this case, too, a doctor can now certify “that there is a variant of gender development”, so that a simple declaration to the registry office is sufficient, or whether a court decision is required. The Federal Court of Justice finally decided on April 22nd, 2020 that a person with clearly female or male physical characteristics can only obtain the determination by analogous application of the Transsexual Act that they are “neither female nor male”; This person can then choose whether the gender entry in the birth register should be deleted or changed to "diverse".

Laws relating to “gender”

Laws that refer in general to the term “gender” also apply to gender diversity, such as Art. 3 GG, or the AGG .

Actual use of the gender entry "diverse"

Since December 22, 2018, in Germany, in addition to “male” and “female”, “diverse” can be entered in the birth register. A survey by the dpa in several federal states in April 2019 so far showed low use. While there were no corresponding entries in Schleswig-Holstein, so far 2 entries have been made in Baden-Württemberg, 10 in Bavaria and 8 in North Rhine-Westphalia.

On May 9, 2019, the ARD reported on the basis of a parliamentary question that 69 people were registered as "diverse", 3 of them at birth. First name changes were made 355 times and 250 changes in civil status were reported from “male” to “female” and vice versa.

Austria

Due to the ruling by the Constitutional Court in June 2018, according to which a third “positive” gender entry must also be permissible, making the complaining party Alex Jürgen the first person in Austria to enter the gender entry diverse in the Central Civil Status Register (ZPR).

In order to restrict the implementation to intersex persons only after the knowledge , and only upon submission of a "relevant medical report", the Federal Ministry of the Interior (BMI), by order of the then Interior Minister Herbert Kickl ( FPÖ ), has to the offices of the state governments and to the Viennese municipal departments 35 and 63 sent a relevant decree ("Kickl decree"), with which the administrative authorities in coordination with the Federal Ministry of Labor, Social Affairs, Health and Consumer Protection (short: Ministry of Social Affairs) and the Federal Ministry for Constitution, Reforms, Deregulation and the judiciary behave as follows:

Establishment of care centers for the variants of gender development (VdG)

In point 1 of the above-mentioned decree, the BMI defines a variant of gender development (VdG) as follows:

“The term 'VdG' on which this is based is to be understood as the medically ambiguous assignment of a person to the male or female gender due to an atypical development of the biological (chromosomal, anatomical and / or hormonal) gender. A change in the entry to the term 'diverse' (and possibly back to male or female) is therefore only to be carried out on the basis of a relevant medical report. "

In order to “against the background of the complexity of the subject”, “to ensure uniformity of enforcement”, “[] interdisciplinary [] and multi-professional [] medical [] expert group [s], [...] so-called [] VdG boards (VdG = variant of gender development) ”. A list of these supply points for the variants of gender development was published in a list of the Ministry of Social Affairs. According to Helmut Graupner , Alex Jürgen's lawyer and President of the LAMBDA Legal Committee , in May 2019 these “VdG Boards” do not yet exist at this point in time.

Subsequent change of the gender entry to "diverse"

Upon application (also in accordance with point 1 of the BMI's decree), since the beginning of 2019, an affected person (a "person with VdG" ) can use the original gender entry male or female as part of an administrative procedure in accordance with Section 41 (1) PStG 2013 (= Personal Status Act). female to diverse in the central civil status register ( ZPR; formerly in the birth register ) can be subsequently changed in order to obtain the corresponding civil status documents. The prerequisite is the submission of a "relevant medical report" as described above.

In point 2 of the decree addressed to the executing authorities, it is expressly pointed out that "the entry of the gender variant 'diverse' directly on the occasion of the birth is out of the question", but on the other hand, in the opinion of the Federal Ministry of the Interior, "a change in the entry according to § 41 para. 1 PStG 2013 to 'open' ”(see below)“ legally not permitted ”.

Entry of gender on the occasion of the birth certificate

Since the Constitutional Court in its decision not only decided on the subsequent change in the gender entry, as requested by the person making the complaint, but also ruled on the entry of the gender on the occasion of the birth certificate, "that the obligation to protect the gender identity of people with a VdG also comes into play when a clear assignment to the male or female gender is not medically possible at birth ”the BMI had to find a solution for this case as well.

If "for the doctor or midwife after the birth of the child a clear medical gender assignment is not possible", i.e. the child is apparently intersex, the entry and certification of the legal gender of birth can now be entered according to point 2 of the decree of § 40 Abs. 1 PStG 2013 can be temporarily left open. “This incomplete entry is to be shown in the Central Civil Status Register and in the birth certificate with the term 'open'.” However, it should be noted that “this is not a further (fourth) gender category, but only the conceptual representation of the incomplete Registration."

Pursuant to Section 41 (2) PStG 2013, the civil status authority has to add an incomplete entry as soon as the complete facts have been determined. Since the authority cannot judge the question of the child's gender itself, because it is a medical and not a legal issue, “this addition is not regularly made after a period set by the authority, but [only] on the basis of a appropriate information of the person concerned or his legal representative according to the medical development of the child should be possible. "However, it should be noted that for the subsequent addition of the gender entry - as for a subsequent change of the original gender entry on diverse (see above ) -" with regard to on the complexity of the underlying medical preliminary question ”, a specific report from a“ VdG Board ”according to point 1 of the decree must also be submitted. All three variants of the gender entry are permitted, i.e. not only male or female, but also the entry with diverse.

Gender equitable spelling in German

In November 2018, the Council for German Spelling (RdR) published a report and proposals on “ gender-equitable spelling ”. With regard to the legal introduction of the third gender option, the Council stated:

"That the general question of the way the textualization one third sex can not stand in the foreground for the Council because they did not know normative competence. In accordance with the task description in the Statute of the Council to make recommendations on the basis of the observation of the use of writing, it makes sense, however, to develop recommendations not only with regard to the forms of labeling masculine and feminine, but also further recommendations when observing gender-sensitive writing Include genders. […] The different areas and types of text in which the topic is relevant also play a role (e.g. contracts, letters to authorities, official texts such as laws, regulations, etc., lectures, speeches, literature, communication in public spaces like schools and universities). "

Many equality officer in government agencies, institutions and companies have from 2019 new or revised guidelines published for gender-neutral language to include to diver-sex persons ( inclusion ) and of diversity, social diversity to meet (see distribution of gender Sterns and list of current higher education guidelines ).

Salutation

At the latest since the introduction of the diverse-gender option, the question of how to correctly address the people concerned has been discussed in the German-speaking area, including in written correspondence. There are not yet any generally binding requirements from authorities or bodies that are de facto regulative such as the Duden editorial team. A frequent suggestion in handouts for gender-sensitive language is the address by full name: "Good day, Kai Mustermann, ...". Wherever possible, the German Federal Anti-Discrimination Agency recommends omitting the address as "Ms." or "Mr." and using first and last names (for example for the address).

job advertisements

In order to take account of the third gender option, for example in the sense of the German General Equal Treatment Act (AGG), in job advertisements , the addition of brackets "(m / f / d)" has often been used after the generic masculine since 2019 , where the d stands for "diverse": Salesperson (m / f / d) . This form of addressing is not legally binding, but the AGG “basically requires job advertisements with no specific characteristics”, as the Federal Anti-Discrimination Agency wrote in early 2019.

Several current language guides from city and university administrations also gender in their job advertisements or instead with an underscore , slash or a gender asterisk :

In May 2020, the job blogger Jochen Mai pointed out further abbreviations such as " (m / f / i / t) stands for male / female / intersexual / transsexual ", but also that people from this spectrum should be appropriately addressed and introduced to the company appropriate handling of them is to be guaranteed. This also applies to dress codes or facilities such as toilets.

literature

Web links

Individual evidence

  1. ↑ various. In: Duden online . Retrieved June 15, 2020. Meaning: “3. intersex; not clearly showing female or male gender characteristics - usage: official language ”.
  2. ↑ various. In: Digital dictionary of the German language . Retrieved on June 15, 2020 Meaning: “4. clearly belonging neither to the female nor to the male sex ”.
  3. ↑ a b PStG § 22 In: gesetze-im-internet.de. Federal Office of Justice (valid from December 22, 2018).
  4. ↑ PStG § 45b In: gesetze-im-internet.de. Federal Office of Justice .
  5. ↑ PStV § 42 In: gesetze-im-internet.de. Federal Office of Justice .
  6. ↑ EGBGB : Article 17b paragraph 4. In: gesetze-im-internet.de. Federal Office of Justice .
  7. ↑ Regulation (EU) : Council Regulation (EC) No. 2252/2004 of December 13, 2004 on standards for security features and biometric data in passports and travel documents issued by the member states. In: EUR-Lex .
  8. ^ Newsletter of the Rehm-Verlag, General Administration, Passport, ID and Registration Law, Issue 10, October 2013: The gender that has not yet been defined: A (silent) revolution - not only in civil status! ( rehm-verlag.de PDF: 196 kB, 4 S).
  9. ↑ Pass Law In: gesetze-im-internet.de. Federal Office of Justice .
  10. ↑ Bundesmeldegesetz In: gesetze-im-internet.de. Federal Office of Justice .
  11. ↑ Data record for the reporting system. (PDF: 2.2 MB) Coordination Office for IT Standards , accessed on July 5, 2019.
  12. ↑ DMP requirements guideline. (PDF: 1.2 MB, 124 pages) In: g-ba.de. Retrieved June 29, 2019.
  13. ↑ Basic reasons for the decision of the Federal Joint Committee on an amendment to the DMP requirements guideline: Amendment of Annex 2 - from November 27, 2015. (PDF) In: g-ba.de. Retrieved June 29, 2019.
  14. ↑ Identification of the indeterminate gender on the eGK. In: Dialogpartnerinnen - The network of medical professionals. Retrieved June 29, 2019.
  15. ↑ BMFSFJ : Expert Opinion: Gender Diversity in Law. Status quo and development of regulatory models for the recognition and protection of gender diversity. (PDF) footnote 99, accessed June 29, 2019.
  16. ^ Higher Regional Court of Celle : 17 W 5/17, 51 III 13/16 Local Court of Stade: Decision. May 12, 2017 ( PDF scan: 5.3 MB, 10 pages on lsvd.de).
    Also published in Das Standesamt (StAZ), issue 4/2018, p. 121 ( table of contents as PDF: 66 kB, 2 p. ( Memento from January 5, 2019 in the Internet Archive ) on vfst.de).
  17. ^ So Bruns, Manfred, in the magazine " Das Standesamt ", 2019, page 97 ( issue 4/2019 ).
  18. ↑ So Sieberichs, Wolf, in the " Journal for the entire family law ", 2019, page 329 ( issue 5 ).
  19. ↑ BGH, decision v. April 22, 2020, XII ZB 383/19 .
  20. ↑ BVerfG decision of October 10, 2017 , accessed from the website of the Federal Constitutional Court on January 4, 2019.
  21. ↑ Do not discriminate in job advertisements - Wanted: People , accessed from the Legal Tribune Online website on January 4, 2019
  22. ↑ Announcement: Personal status law: Very few applications: gender “diverse” hardly used. In: Queer.de. April 7, 2019, accessed May 21, 2019.
  23. ↑ Message: Intersexual people: Gender “diverse” - No applications in SH. In: Kiel News . April 6, 2019, accessed May 21, 2019 .
  24. ↑ Message: Third gender option: Only a few want to be “diverse”. In: Tagesschau.de. May 9, 2019, accessed May 21, 2019 .
  25. ↑ Finding G 77 / 2018-9 of June 15, 2018 (PDF) on the website of the Constitutional Court, accessed on January 28, 2019.
  26. ↑ a b c Constitution: First documents with third gender issued. The designation "Inter" had to be enforced in court. In: Wiener Zeitung / APA , May 14, 2019, accessed on July 5, 2019.
  27. ↑ a b c First documents with third gender issued. (Subtitle: Mandatory review by non-existent boards. ) In: Website of the Legal Committee LAMBDA , May 14, 2019, accessed on July 5, 2019: “'We are very happy and are celebrating the historical exhibition of the first third-gender certificates,' says Dr . Helmut Graupner, lawyer of Alex Jürgen and President of the Legal Committee LAMBDA (RKL), 'At the same time we regret that the Minister of the Interior instructs the registry offices to break the law and forces intersex people to assert their basic rights before the courts'. "
  28. ↑ a b c d e f Carina Rumpold: Third gender: BMI decree for practice with a list of the VdG boards. The Ministry of the Interior has issued a decree on the so-called "Third Gender". This is now also provided with the list of the so-called VdG boards (January 4, 2019). The aforementioned decree of the Federal Ministry of the Interior of December 20, 2018, reference number BMI-VA1300 / 0528-III / 4 / b / 2018: Administrative matters - other; Civil status - decision of the Constitutional Court of June 15, 2018, G 77 / 2018-9, on § 2 para. 2 no 3 PStG 2013 - implementation of variants of gender development ("3rd gender"). Full text online (PDF) . Both on the website of kommunalnet.at. Kommunalnet E-Government Solutions (Ed.), Accessed on July 5, 2019.
  29. ↑ Austrian supply centers for the variants of gender development. Federal Ministry of Labor, Social Affairs, Health and Consumer Protection (Ed.), Undated, Vienna 2018/2019. ( Full text online (PDF; 780 kB, 13 pages) on the Ministry's website, Sozialministerium.at , accessed on July 5, 2019.)
  30. ^ Council for German Spelling (RdR): Report and proposals of the working group "Gender Equitable Spelling" for the meeting of the Council for German Spelling on November 16, 2018 - Revised version ... Mannheim, November 16, 2018, p. 1 ( PDF: 455 kB, 11 Pages on Rechtsschreibrat.com).
  31. ^ Ministry for Family, Women, Youth, Integration and Consumer Protection Rhineland-Palatinate (MFFJIV), Section Same-Sex Lifestyles and Gender Identity: Handout “Gender- Equitable Language”. October 2019, p. 4: How can individuals be addressed in a gender-equitable manner? ( PDF: 235 kB, 8 pages at mffjiv.rlp.de ).
  32. ↑ Federal Anti-Discrimination Agency : Man - Woman - Divers: The “Third Option” and the General Equal Treatment Act. In: Antidiskriminierungsstelle.de. April 8, 2019, accessed November 9, 2019.
  33. ↑ Federal Anti-Discrimination Agency : Man - Woman - Divers: The “Third Option” and the General Equal Treatment Act. In: Antidiskriminierungsstelle.de. April 8, 2019, accessed June 12, 2020.
  34. ^ Freiburg im Breisgau , Gender & Diversity office: Gender & Diversity in words and pictures: Forms of anti-discriminatory language acts. Guideline 2019. 3rd, revised and expanded edition. Freiburg im Breisgau, June 2019, pp. 46–51: Diversity in job advertisements and job descriptions , here p. 51 ( PDF: 5.2 MB, 75 pages on freiburg.de).
  35. ↑ University of Cologne , Equal Opportunities Office: Convincing Language: Guide to a gender-sensitive language. 6th, revised and expanded edition. Cologne, February 2020, p. 25: Job advertisements ( PDF: 1.1 MB, 32 pages on uni-koeln.de).
  36. ↑ Technische Universität Berlin , Coordination Office for the Advancement of Women and Equal Opportunities: Gender-Sensitive Language - A Guide. 2nd updated edition. Berlin February 2020, pp. 22–23: Job advertisements ( PDF: 946 kB, 28 pages on tu-berlin.de).
  37. ^ University of Vienna , call for tenders: IT developer / IT quality assurance in the central IT service facility. In: univie.ac.at. 2020, accessed June 15, 2020.
  38. ↑ Jochen Mai : (m / f / d) in job advertisements: What does that mean? In: Karrierebibel.de. Own job blog , May 15, 2020, accessed on June 12, 2020.