Male conscription is a form of misandry

Postgender! For a right without gender

Today the Bundestag is discussing the first reading of the draft law “to change the information to be entered in the birth register” (19/4669). Accordingly, in addition to the existing three variants “female”, “male” and “no information”, a fourth authentication option is now to be created for entering the gender: “diverse”. The cabinet draft has already been criticized as a "tragedy for gender self-determination" (Greens) and as "unconstitutional" (Aktion Standesamt 2018). Grietje Baars has summarized the criticism of the trans * and inter * community here. In fact, with the introduction of the so-called third option, the much less radical path of the two alternatives presented by the Federal Constitutional Court is being taken. The decision has been discussed in detail here.

Whether changes to the previous civil status law can be justified is not the subject of this article. Rather, the following question - the other way around - is to ask why gender is recorded as a legal category at all - and whether the reasons for this are (still) valid.

The legal recording of “gender” as a problem

A rigid, exclusively binary gender system, which requires two clearly distinguishable gender bodies (“male” and “female”), links them to different gender roles and classifies people into one of these characteristics for life, is actually an all too much simplification in view of the diversity of human gender . By linking legal regulations to such a system, they confirm this distinction and consolidate the norm of bisexuality. They create inclusions and exclusions and fuel the need to adapt - up to and including gender reassignment operations on young children. The law also becomes a factor in the construction of gender. Since the gender assignment is of central importance for the personal self-image as well as for the social life of the individual (so explicitly the Federal Constitutional Court, marginal 40), legal regulations with a view to "gender" must be as cautious as possible and carefully with simplifications and bypass categorizations. With a view to the self-determination protected by the general right of personality, Art. 2, Paragraph 1 in conjunction with Art. 1, Paragraph 1 of the Basic Law and the prohibition of equality and discrimination from Art “Of gender” through a legal category of “gender” and finite expressions such as “male” and “female” are highly problematic and in need of justification. Are there still any legal reasons that can justify a gender stipulation under civil status law?

Dwindling relevance of gender in family and parentage law

The recording of gender has long been a relevant feature for the position of persons within family law and thus a necessary part of the civil status, Section 1 (1) PStG. This particularly concerned the distinction between marriage and civil partnership. Since the introduction of the so-called “marriage for all”, the gender of the people involved is irrelevant for entering into a marriage. In the law of parentage, gender still exists. However, the recognition of rights for homosexual and trans-identical people as well as the developments in reproductive medicine have already led to a diversification of family forms and, as a result, to distortions in the gender-binary family law system. Neither for the biological nor for the social assignment of parenthood is it necessary to record gender in accordance with civil status law. With regard to the biological assignment, a direct link to the (anyway, ultimately referred to) reproductive contribution is particularly possible.

Diminishing relevance in other areas of law

The gender category can still be found in other areas of law, but it has drastically lost its importance. While gender used to be of central importance for the right to vote, work bans and housework days, and more recently for access to service with a weapon, retirement age and insurance benefits, the gender category is now of diminishing importance. What remains are norms for the protection of the intimate and sexual area, anti-discrimination law, norms for identification, sports law, constitutional law and international requirements. However, it is only partially linked to the gender recorded under civil status law. Such a connection is not absolutely necessary in these cases either.

The reasons for this can be roughly classified into four groups:

(1) First of all, there are standards that need to be revised anyway. This includes, for example, the protection of only female minors from morally endangering activities (Section 1 (1) and (2) JArbSchSittV). In this case, the link to gender should in any case be completely omitted in favor of comprehensive youth protection. Art. 12a GG, with its strict differentiation between men and women, is also in need of reform: According to the current wording of the constitution, people without or with a third gender entry would not be obliged to do military service or to provide civilian defense services. The content of the norm should also be reconsidered with a view to the fact that, according to it, women are completely independent of physical abilities and limitations per se are worthy of protection - based on gender. Even the purely binary requirement to separate the sexes in the penal system (Section 140, Paragraph 2, Sentence 1, StVollzG) does not do justice to either social or legal reality. At least one should focus here on the socially lived gender, and thought should also be given to protecting other vulnerable groups.

(2) In some cases, it is not necessary to record gender under personal status law because it can be linked directly to other specific facts. This is also more expedient, especially when trans-identical people are affected. This applies, for example, to gender-related protection standards. An example of how it can be done without gender is provided by Section 1, Paragraph 4 of the MuSchG: “This law applies to every person who is pregnant, has given birth or is breastfeeding.” Also under Section 183 of the Criminal Code, exhibitionists occur Actions do not have a decisive impact on the male civil status (which even a non-operated trans man can have), but on the bare penis.

(3) In anti-discrimination law in particular, the gender category is used without the legal assignment to one of its characteristics being important. In Article 3, Paragraph 3 of the Basic Law as well as in the AGG, “gender” should already be understood further and in no way limited to the expressions “male” and “female”. In addition, protection against discrimination on the basis of frowned upon characteristics does not require the prior definition of these characteristics. As long as gender and its characteristics remain a relevant category of social reality, it is neither “dissolved” nor abolished, even without an entry under civil status law. As with protection against racist and homophobic discrimination, it is about protecting individuals from disadvantages that they experience as members of a group to which they are assigned based on an actual or alleged characteristic. What is decisive is the disadvantageous treatment because of their actual or only supposed belonging to a categorically specific group of people.

The principle that physical examinations and searches should only be carried out by members of the same gender or by doctors (Article 1, Paragraph 1 of the Basic Law, expressed in simple law in § 81d and §§ 102, 103 StPO) does not need to be looked at the legal civil status. In particular, those affected have a right to choose (Section 81d Paragraph 1 Sentence 2 StPO).

(4) Finally, there remain isolated areas in which certain expressions of gender are still linked. Here, too, the registration of gender under civil status law does not always play a role. Nowhere is it absolutely necessary.

The gender is to be indicated - also according to the guidelines of the International Civil Aviation Organization (ICAO) - in international travel documents (but not in the identity card, for example), § 4 Abs. 1 Nr. 6 PassG; the entry is based on the population register. Whether this is still necessary for identification seems doubtful in view of technically simpler and more precise methods such as face recognition and biometrics (which of course are also worthy of criticism, but are unlikely to be stopped by maintaining gender information). The international requirements, which already allow the three variants female, male and X for “indefinite”, do not result in the need to record gender in terms of civil status law in Germany. The entry of the gender in the (travel) passport could also be based on self-designation - with the three options mentioned being available to choose from. This is already common practice in other countries (Canada, New Zealand, Nepal).

Classification according to self-designation is now also being discussed in sport as a better alternative, for example to testosterone tests (for example here and here), after the recourse to gender according to personal status has long since ceased to be considered sufficient for transident and intersex athletes.

Promotion of women: Self-assessment is preferable

Measures to promote women are expressly only open to women. For such support measures, however, the gender recorded under civil status law has so far not been decisive. Rather, people already feel addressed by support measures because they feel they belong to the group of women. Even without personal status registration, most people will continue to identify as either a man or a woman. In any case, positive measures based on other discrimination features can often only be linked to self-designation, for example if people with a migration background are to be promoted. Why this should be more problematic in the case of the “gender” category, which is why a legal fixation of the respective affiliation would then be necessary (in the civil status law, too), is not revealed.

The exclusive connection to self-designation may harbor the risk of abuse: Men could pretend to be women in order to increase their chances of receiving certain funding. However, it seems doubtful that this danger is particularly great in reality: The social ideas about the differences between the existing (two) gender groups are still too rigid. Even if men pretend to be women: The admission to networks, the admission to qualifying programs, the award of scholarships, internships, apprenticeships and, last but not least, the recruitment all take place within social spaces in which people usually gender themselves and others "read". Within these spaces, gender attributions that do not correspond to previous ideas of “man” and “woman” will lead to irritation and research. An abusive attempt not only threatens social ostracism, but also legal consequences, depending on the design. The connection to being read socially is not unproblematic in view of the risk of entrenchment of social ascription practices. As long as women are actually structurally disadvantaged, there is still a need to promote women and protect women. However, this does not require gender to be recorded under civil status law. Self-attribution is sufficient.

Conclusion: gender remains legally relevant, even without personal status registration

Postgender in the Right? For the answer, a differentiation has to be made: "Gender" as a category has by no means become obsolete in law, but the definition of its characteristics under civil status law is definitely. The legal fixation of finite expressions of the category gender is too far-reaching and therefore disproportionate intervention. Where expressions of the gender feature still seem necessary, the following must apply: self-designation instead of external attribution!


SUGGESTED CITATION Völzmann, Berit: Postgender! For a right without gender, VerfBlog, 2018/10/11, https://verfassungsblog.de/postgender-fuer-ein-recht-ohne-geschlecht/, DOI: 10.17176 / 20181012-131350-0.