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Monday, 18 July 2016

Until very recently the legal gender of a person in all jurisdictions had to be recorded as either male or female, despite the fact that in some cases this gender binary is incapable of reflecting the actual reality of a person’s gender identity. The laws simply did not allow for any other option. Interestingly, the earliest German codifications such as the Allgemeine Preussische Landrecht of 1794 and the Saxonian Code of 1865 already contained provisions dealing with ‘hermaphrodites’, yet subsequent German and other European codifications such as the Austrian ABGB of 1811 and the German BGB of 1900 did not. But in 2013 Germany became the first country in the world in modern times to introduce legislation which allows for the gender of persons to be recorded as ‘indeterminate’ at birth and thus give them a legal gender status other than male/female. Germany therefore is a trailblazer (again), some 220 years after the first legal rules on intersex persons were enacted and applied in Germany. While the new legislation may be a step forward in some respects, many argue convincingly that it is not going far enough and that the binary nature of the legal gender system must be reformed and particularly that the ‘medicalisation’ of the issue needs to come to an end.

In the workshop, organised jointly by Prof. Anatol Dutta (Regensburg), Prof. Tobias Helms (Marburg) and Dr Jens Scherpe (Cambridge), participants will present on and discuss the current German law, its obvious shortcomings and which next reform steps need to be taken – in Germany and elsewhere. Papers include the legal history of intersex, ‘national reports’ from several jurisdictions on the current law, medical and theological views on intersex as well as international human rights perspectives.

The issue is highly topical, as the consequences of persons not having a legal gender of either male or female certainly are not restricted to Germany. Apart from their potentially being human rights obligations to recognise gender identities other than male or female, other jurisdictions in any event soon will face legal issues such as who a (German) person of ‘indeterminate’ gender can marry; whether they can be the legal mother or father of a child; which pension rights they acquire; how to classify them for insurance purposes etc. The extremely wide consequences of not having a legal gender of male/female so far are underexplored and – even in Germany – not regulated at all. The aim of the workshop is to discuss whether the legislative steps taken in Germany have been successful, whether further reform is needed and what the rest of the world can learn from the German law reforms.

For more information, see the workshop website.