F / M / Diverse / Blank: The Sex Marker

According to the German Civil Status Act (Personenstandsgesetz), newborns must be registered with their name and sex. Since 2013 it has been possible to leave the sex marker blank, and since 2018 it is also possible to choose the option “diverse”. How does a person obtain and/or change their respective official sex? 

How does a sex marker or no sex marker come about?

Maternity hospitals, midwives and parents must submit required information for the birth registry to the appropriate register office (Standesamt) within one week. In most cases, the sex of a newborn is determined by their external genitals. If a child can “neither be assigned female nor male” at birth, the child’s parents decide whether to register them as female, male, diverse or leave the sex marker blank.

Can I change my sex marker later on in life?

As a teenager or adult there are currently two options to change your sex marker: 

1. Individuals referred to as “persons with variant genital development” within the Civil Status Act, can change their sex marker to “female”, “male”, “diverse” or leave it blank. They must present a medical certificate or a declaration on oath before the register office (Standesamt). The medical certificate does not have to include a recent date or a diagnosis. LGBTI organizations can offer additional information on the matter.

These options are available to German citizens as well as people who live in Germany and are seeking asylum, refugees and non-German citizens whose country of origin does not have a comparable ruling.

Children and teenagers under the age of 14 must have their legal guardian submit the declaration. This also applies in the event of legal incapacity. With their legal guardian’s consent teenagers who are 14 years or older can submit the declaration on their own. If necessary, a family court can also provide consent.

2. According to the “Transsexual Law” (Transsexuellengesetz) people who are transgender can change their sex marker from “male” to “female” or from “female” to “male”. 

In 2017 a person without any physical characteristics that are considered intersex and who identifies as neither a man nor a woman was the first to succeed in removing their sex marker.

What legal problems can a blank sex marker or the marker “diverse” bring about?

Regulations based on the gender binary cannot be directly applied to individuals who have a blank sex marker or the marker “diverse”. If this results in discrimination a claim – possibly a legal claim – needs to be filed. Services offered by The Federal Anti-Discrimination Agency (Antidiskriminierungsstelle des Bundes) may be helpful in such cases and also offer support in the event of an amicable settlement. 

What criticisms have been raised in connection with the sex marker?

The option “diverse” for “persons with variant genital development” is the result of a court decision implemented by the Federal Constitutional Court. Similarly to the “Transsexual Law” (Transsexuellengesetz), this legislation has brought about the following critique: Changing a sex marker is only available to a very limited amount of people and requires a medical certificate. 

The call for a person’s human right to make an autonomous decision about their sex marker has therefore not been addressed and requires further discussion. The question regarding appropriate address which results from this court decision must also be part of the discussion.