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  • Belgian runway model Hanne Gaby Odiele raised awareness of neutral gender issues this year by revealing she is intersex.

    Belgian runway model Hanne Gaby Odiele raised awareness of neutral gender issues this year by revealing she is intersex. | Photo: AFP

Published 8 November 2017

The ruling, hailed as "historic," marks a major shake-up for gender policies in Europe's biggest economy just a month after same-sex marriage was legalized.

Germany's highest court has ordered parliament to recognize a "third gender" from birth, potentially making it the first European country to offer its citizens the option of identifying as something other than male or female.

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Current regulations on civil status discriminate against intersex people, the Federal Constitutional Court said, noting that an individual's sexual identity should be protected as a basic right.

By the end of 2018, legislators are now expected to pass new regulations offering a 'third gender' option in birth registers, the court noted, ruling in favor of an appeal brought by an intersex person. 

In the ruling, it was also noted that courts and state authorities should no longer compel intersex people to choose between identifying only as male or female.

The appeal was launched after several lower courts had ruled against a bid to introduce the gender options "inter" or "various" in the birth register. The plaintiff was registered as female, but a chromosome analysis found them to be neither male nor female.

Intersex is a broad term encompassing people who possess sex traits, such as genitals or chromosomes, that do not entirely fit with a typical binary notion of male or female. Such individuals have features that are neither wholly female nor wholly male, nor a combination.

Berlin pledged to follow through with the ruling, with interior ministry spokesman Johannes Dimroth saying that the government "stands ready to implement it."

The Federal Anti-Discrimination Agency called the court ruling a "historic decision for intersex people" and urged lawmakers to "carry out a comprehensive reform of current legislation towards a modern gender-identity law."

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The call was echoed by the pressure group German Institute for Human Rights, which said parliament should overhaul current rules to "improve legal protection and recognition of the diversity of physical gender developments, gender identities and gender expression."

Welcoming the ruling, activist group Third Option said on Twitter that it was "completely overwhelmed and speechless. That's a small revolution in the gender area."

Under current rules, Germany allows babies born with characteristics of both sexes to have their gender option left blank on official documents.

The law is intended to remove pressure on parents to make snap decisions about controversial sex-assignment surgeries for newborns, but many advocates say it does not go far enough.

According to the United Nations, between 0.05 and 1.7 percent of the global population is intersex: about the same percentage that has red hair.

Sometimes this is apparent at birt; at other times, it only becomes noticeable during puberty.

People who identify as intersex are already recognized on official documents in other non-EU countries, including Australia, India, New Zealand and Nepal.

New York, America's largest and most liberal city, last year issued the first U.S. birth certificate marked "intersex."

But in May, France rejected "neutral sex" on official documents when the country's highest appeals court ruled against a request by a person born with neither male nor female sex organs.

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