How queer is ‚diverse‘? Change in German civil status law concerning birth certificates


In December 2018 a change in German civil status law (Personenstandsgesetz, PStG 45b) has been introduced concerning sex_gender registration in the birth certificate. Under certain conditions (that is, with a doctor’s certificate confirming a “variation of sex development”) it is now possible to delete the obligatory registration as female (w) or male (m). Furthermore, there is the option to register as “diverse” (d). Yet, even though the law has been passed, the administrative regulations of putting it into practice (Regelungen und Ausführungsbestimmungen) remain vague and vary from city to city (district court to district court). In some cities it has been possible that transgender and nonbinary persons, who are ready to interpret themselves under the headline “variation of sex development”, make use of the law by, while in other cities a narrow interpretation of the § 45b as designed for intersex persons only, occurs. Due to the lack of clarity and a critique that the current version of legal regulation leads to legal inequality or, more precisely, legal discrimination, it seems that the application of the law has currently been (inofficially) suspended until there is a clarification how the so called transsexual law will be repealed and transferred into civil status law, too. Detailed information (in German language), also for persons who do not hold German citizenship, one finds on the website of the LSVD (Lesbian and Gay Association of Germany).

Wig Piece (I WANT), Pauline Boudry / Renate Lorenz, 2015, photographer: Annik Wetter

Clearly, it would have been much easier to abolish sex registration by the state altogether, an option also suggested by the constitutional court. However, since this is not (yet) the case, I would like to ask: Is there a queer potential to the option „diverse“ offered by the German civil status law since January 2019? Is the German „divers“ (diverse) comparable to what used to be called genderfluid, genderqueer, and is now mainstreamed as nonbinary? My answer would be: yes and no. According to most of the media coverage, „diverse“ is not captured as another option of classification but presented as a third gender. This, however, is narrowing down the option into a clear-cut, well defined category. As such, it might be fitting well with what the legislator had been hoping for, when trying to limit the legal option to inter persons. The Organisation Intersex International (oii germany), in contrast, insists that so called intersexuality captures such a wide spectrum of sex characteristics that it is impossible to subsume them to one and the same sex or gender. Furthermore, it is impossible to draw excluding lines against trans and nonbinary persons, particularly, if one takes seriously the ruling of the German constitutional court from 2017, which underlines self-perception as an irrefutable moment of sexual identity.

So, the question is whether ‘diverse’ holds another status than the categories ‘female’ and ‘male’? Does it contain a wider variety within, or a higher variability in time, or simply address people who self-identify as more genderfluid? Though, here one has to consider that on the one hand inter or trans persons might very well claim the categories ‘female’ and ‘male’, which makes these categories more variable and less cis than usually recognized. On the other hand, inter, trans, or nonbinary persons who opt for ‘diverse’ might also be claiming for themselves stable, inborn, and clearly defined sex_gender identities. Not least, it is quite remarkable that the term nonbinary as it is used today, lost much of its genderfluid or genderqueer flair; instead it is associated with a dimension of authenticity, is securitized through accusations of misgendering, and often declared an identity. In claims for gender equality it does, indeed, seem necessary to recognize nonbinary/diverse as categories in their own right as well as of equal rights as female and male.

Therefore, the problems of the logic of categorization are back on the table. For one thing, ‘diverse’, as is the case with ‘female’ and ‘male’, too, fosters the impression of a false homogeneity. Secondly, it tends towards a hierarchical binary: Here, this means clustering female and male as the norm (or ‘normal genders’), while designating a status of ‚deviant‘ or ‚other‘ to diverse. This is a significant problem, because it clearly undermines gender equality. For many activists and organizations the only consequent solution would consist in getting rid of any state defined gender designation whatsoever. However, is this the only possibility of reducing and removing gender inequality? What about positions arguing that a third category creates visibility? That it allows fighting discrimination and demanding recognition for genders (or sexed_gendered subjectivities and embodiments), which up to now have often been disavowed into non-existence? Does a third option necessarily lead into the logic of categorization and a hierarchical binary? The German constitutional court ruling introduces the formulation that a ‘positive’ characterization of one’s gender has to be available to everyone, since gender is part of ones personality right and a status named ‘neutral’, ‘none’, ‘deviant’ or ‘other’ could harm human dignity. The demand for a ‘positive’ formulation of a thrid option equates, at least formally, diverse, female, and male. It does, however, not result in queering the binary, but tends towards an additive logic. Therefore, I would like to suggest a different take on the option ‘diverse’:

My argument is that as long as male and female do not also lose their status as clear-cut categories, the status of diverse cannot be equated to them, but should be understood as carrying a queer potential. This potential evolves from ‘diverse’ creating an alternative to either ‘many’ (countable, categorized) or ‘no’ gender at all; or more precisely, shifting continuously between these options. Accordingly, to identify with the option diverse could mean understanding oneself as multifarious. Sex_gender dimensions of our embodied subjectivities could be perceived as carrying our various biographical experiences and relationships. Thus, change, be it continuous becoming or radical transformation, always also effects and encompasses our embodied sex_gender. For some, as I would say for myself, ‘diverse’ bodily experiences crisscross female options, sometimes touching though not comforting themselves in masculinities – experiences that include flirtation with butch and androgynous engenderings. For others, ‘diverse’ might take on completely different forms. Brain and hormones – due to their openness to environmental influences – are contributing though not determining sex_gender self-perception, and undergo change. No reason to see brains or hormones as being female or male rather than multifarious and diverse. Consequently, one could also free female and male from the status of clear-cut categories and see them as diverse in themselves. As such, §45b of German civil status law could become the entrance point for queer or genderfluid subjectivities and embodiments into the mostly cis gendered heteronormative public.

Antke_Antek Engel

* This text is not an exact translation of the original German blog post from August 2019, but a revised and restructured argument from November 2019.  Political and legal developments are in process; so look out for up-dates.

07.08.2019—13:49 h—Saal*Lun