In Germany as in virtually all other countries persons have to identify themselves as “male” or “female” in official contexts, and parents are expected to have their newborn babies identified as boys or girls. While this does not cause any difficulties in most cases, some persons cannot identify themselves in either of these gender categories because they are intersexual. In Germany, at a rough guess, around one hundred thousand persons are affected by this situation (it has to be noted that the statistical numbers about intersex persons are a highly political issue). As long as they do not have a third option this causes severe problems for their social life, participation and recognition. At least this has been the case until the recent judgement (1 BvR 2019/16) by the German Constitutional Court.
In this judgement, published in October 2017, the constitutional court decided on the case of an intersexual person (https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/DE/2017/bvg17-095.html). This person, Vanja, had been registered as “female” in the register of births and requested to have the registration changed into “inter” or “diverse”. This request was denied both by the registrar’s office and by the courts, which referred to the exclusive binary male/female in the German legislation and administrative practice. So the person brought the case before the constitutional court as a matter of their basic civil rights.
The court’s judgement has now changed the situation: the legislation has to revise the civil status law in order to allow persons with no clearly male or female sexual or gender identity to identify themselves as “inter” or “diverse” or with another term that positively represents their gender identity. The lawgiver has to find a solution in terms of language for official registration purposes (apart from the necessity to develop official language the new legal situation may provoke a new public discussion on gender-sensitive language).
The core claim answered by the court’s decision refers to the ethical insight that nobody must be forced to be registered in a way that is against this person’s “nature” or to exist “sexless”. In Germany the only way to avoid the binary of male and female was to give no information on one’s sexual identity at all and thus to be in fact registered “sexless” (and even that was only possible on birth certificates, and only since the first milestone decision of 2013). Without a third option, intersex persons have long been forced to hide who and how they are in terms of sexual or gender identity - or, to put it the other way round, they could not but pretend to be other than they are in order to find a place in society and to avoid social stigmatization. Considering this situation the new judgment has to be seen as an important step towards the full realization of the personality right of all citizens without exception. It helps to overcome a situation of legal and social discrimination of persons whose gender identity does not fit into the categories of male and female.
The court’s decision does not precisely define a “third gender” (though this was erroneously assumed to be the case in much public debate). Rather, it offers a new identity category for persons with bodies that are not easily classed as “male” or “female” without forcing anybody into this new category. It is a matter of respect and of recognition of each individual person insofar as their individuality is not least an expression of their sexual and gender identity.
In the public debate some voices argued that because relatively few persons are affected it is not proportional to make a new legislation for such a small sexual minority. From an ethical as well as from a human rights point of view this is, of course, not a valid argument. The personal dignity and the basic human rights of each and every person need to be respected, protected and fulfilled, no matter how few or how many persons are affected by a certain violation on the level of norms or practices. Thus legislation that prevents some persons from having their personality rights fulfilled must be changed.
This normative claim is in full accordance with a Christian understanding of the person and of human dignity as rooted in the conviction that every human being is God’s creature and a child of the heavenly father. A Christian perspective will also rely on the religious conviction that every human person is addressed by the salvific activity of the incarnation, passion and resurrection of Jesus Christ. Within this horizon of understanding, contemporary Christian ethics will explicitly acknowledge the deep bodily dimension of personhood and personal dignity. This of course includes the sexual and gendered dimension of human life and identity. From an ethical point of view the existing plurality of natural dispositions of human life has to be taken into account. One has to recognize that there are natural varieties of human sexuality. A variation that does not fit to the binary of male and female must not lead to discrimination and exclusion from full participation in society.
Official voices of both the Roman Catholic and the Lutheran Church, as well as prominent theologians and especially theological ethicists commented positively on the decision of the German Constitutional Court and affirmed the right of intersex persons to official representation. The spokesman of the Catholic German Bishops’ Conference, Matthias Kopp, made the following statement: “If a human being cannot clearly be assigned to the binary order of man and woman, this person must not be forced by legal order or social custom to assign oneself against the individual perception to one of these sexes that do not fit.” (translation mine). Representatives of the Evangelical Church in Germany (EKD) had similar comments on the court’s decision.
In my opinion it is a hopeful sign that the official reaction of the Catholic Church has recognized this claim to realize the personality right of intersex persons. This has to be emphasized especially considering that such a reaction could not be expected in the context of the controversies about gender-issues in recent times, such as the dogmatic use of rigid, scientifically inaccurate, binary classifications of the sexes in Vatican texts, which have resulted in rather harsh and uncompromising statements of the magisterium.
For further ethical reflection and development of the Catholic teaching on the issues of sex, gender and gender identities it will be helpful to take into account theological arguments and judgements from other fields of social ethics: For example, the normative aims of inclusion (especially of handicapped persons) have been clearly confirmed by the German Bishops (as well as by the Central Committee of the Catholic Lay people). The commitment not to exclude persons because of specific bodily or mental dispositions has been clearly stated as a matter of human dignity as well as of Christian love. And it has been emphasized that this claim also challenges Catholic institutions, for example schools (http://www.katholischeschulen.de/Portals/0/PDF/DBK_Dokumente/DBK_Inklusiv.pdf).
We can also refer to the strong and constant commitment of Pope Francis to an inclusive pastoral engagement - his pastoral of mercy, as unfolded in the encyclical letter Amoris Laetitia and in other texts. He vividly argues against exclusion and disregard of persons - be they migrants or refugees, poor people or prisoners or other persons at the margins of the society or community. Time and again he performs symbolic actions in order to urge inclusion of the marginalized. This practical engagement and its theological foundation should strongly encourage the necessary debate within the Church on how to deal with sexual diversity. Unfortunately, the magisterial statements on these issues still sound quite different, as do various speeches by Pope Francis on the question of gender. They seem not to fit well to the pastoral style Pope Francis promotes otherwise. To promote change in these areas, the use of “nature” as a pattern of argumentation needs to be thoroughly revised (which is, of course, not a new claim in theological ethics).
The cautious but encouraging statements of the Christian Churches with regard to the judgement of the German constitutional court may be read as a hopeful impulse for a necessary (and from many sides long-awaited) discussion on the issues of sexual diversity and an ethics of intimate relationships.
To promote these ethical issues in the context of Catholic Social Teaching and of Christian theological ethics is of high importance with regard to social responsibility. The Churches are religiously and ethically ambitious social actors with a message that puts the human person at the center. Thus they have to take on the responsibility to promote the recognition of each and every person regardless of their individual conditions. Obviously, it is a highly challenging social task to create a positive sense of diversity both within the society and the church as social community. Our modern societies are manifold and heterogeneous. Heterogeneity often provokes uneasiness and sometimes resistance, because it challenges traditional rules and certain borders, and it requires tolerance for strange and unfamiliar situations or habits. To live together under the rule of recognition and respect is never an easygoing project. Recognition is not only required with regard to sexual diversity, but also with regard to ethnic and religious plurality and heterogeneity. Therefore the President of the German Ethics Council, Lutheran Ethicist Peter Dabrock, was perfectly right when he connected the specific question of a third category of legal sex with the general challenges of social cohesion in the recent public debate in Germany. Basically it is one aspect of the ongoing process to define and redefine our self-understanding as a society: How do we want to live? Who are we? Who belongs to ‘us’? The German Constitutional Court not only set up a legal task for the lawgiver (as soon as Germany has a new government) to solve by the end of next year. It also defined a huge educational task for the society as a whole - which will challenge us (and many others) for much longer time.