Abstract
In a recent judgment, the German Federal Constitutional Court held that it was unconstitutional to require every person's sex to be entered on the birth register, without providing for a third option for intersex persons. This article examines the intersex judgment in view of the Court's earlier jurisprudence on the rights of trans persons. It argues that this judgment was enabled, to a significant extent, by the fluid understanding of sex and gender identity shown in those judgments, and by the elaboration in those cases of the relationship between sexual freedom, human dignity and equality. It also comments on the possible relevance of the intersex judgment for South Africa, in view of some of the parallels and differences between German and South African constitutional jurisprudence.
 
Highlights
The GFCC's judgment in the third gender case is a milestone in the protection of intersex persons, which could have an important destabilising effect on binary conceptions of sex and gender
I have argued in this article that in certain respects the groundwork for this judgment was laid in a series of earlier cases on the rights of trans persons
These judgments introduced a degree of fluidity into the Court's understanding of sex and gender identity
Summary
In a judgment delivered in October 2017 (hereafter the "intersex judgment"), the First Senate of the German Federal Constitutional Court The article starts with a summary of the most salient aspects of the intersex judgment It considers the Court's understanding of sex and gender identity in that judgment and in the earlier trans cases. It examines the understandings of freedom, and of freedom's relationship with dignity and equality, which inform those judgments. After that, it comments briefly on the possible relevance of the intersex judgment for South Africa, with reference to some of the parallels and differences between German and South African constitutional jurisprudence. The article ends with tentative observations on the transformative possibilities – and limits – of the judgments under discussion
Sign-in/Register to view highlights & summary Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a callDisclaimer: All third-party content on this website/platform is and will remain the property of their respective owners and is provided on "as is" basis without any warranties, express or implied. Use of third-party content does not indicate any affiliation, sponsorship with or endorsement by them. Any references to third-party content is to identify the corresponding services and shall be considered fair use under The CopyrightLaw.
