When Comparative Law Walks the Path of Anthropology: The Third Gender in Europe

Abstract

Gender recognition is a crucial achievement for non-binary people. To better understand this right, this article combines comparative law with theoretical insights from anthropology to offer a discussion of non-binary recognition in European fundamental rights law. It identifies three approaches to such a right and critically assesses each of them. The first approach is denial, with the non-binary option being explicitly or implicitly rejected, as has occurred in French and Italian courts. The next approach is limited recognition, whereby a non-binary option is granted under specific limitations, such as when certain physical characteristics are present or when a claimant permanently identifies with the non-binary gender. This is the course of action that has been taken in German law. The third approach is gender self-determination, whereby individuals can obtain recognition on the basis of their declaration alone. This solution has been offered by the Belgian Constitutional Court. On the strength of findings from anthropology, the article argues that the first two models are incapable of genuinely engaging with gender diversity, while the third one offers more robust legal protection. The analysis presented here serves as an example of how anthropological insights can be effectively used to advance comparative law research.

The traditional path of anthropology …, beginning with the examination of the “other,”

leads us back to an examination of ourselves. ¹

All thirdness is not alike. ²

A. Introduction

On March 17, 2020, Anne Caron-Déglise, Advocate General to the French Court of Cassation, delivered an opinion on a tricky case concerning gender identity.³ A trans woman⁴ had lodged a claim to be registered as the “mother” on the birth certificate of the child whom she had begotten. Being recorded as the “father”—which would have traditionally been the case, given her role in the specific act of procreation—indeed clashed with the plaintiff’s female gender identity.⁵ The Advocate General’s carefully articulated reasoning supported the plaintiff. One passage is of particular interest for the purposes of my argument: Madame Caron-Déglise cited at length two prominent French anthropologists, Claude Lévi-Strauss⁶ and Françoise Heritier.⁷ She argued that the rules on the establishment of filiation vary from context to context, and that a plurality of social and cultural factors, and not biology alone, determines family ties.⁸ She relativized the rules on parenthood present in French law, showing different models from the one legally protected in the jurisdiction. In effect, the Advocate General arguably implied that there is no rulebook for the characteristics of a “mother:” Definitions shift across societies and cultures, and one can hardly affirm that the traditional way established by French law—or, for that matter, any way—is, so to speak, the correct one. Nothing is natural in one’s identity, she seemed to suggest. With her opinion, Madame Caron-Déglise hinted at the potential of anthropological theory—and, in general, of socio-legal enquiry—to advance legal arguments concerning personhood. By understanding how identities are defined and evolve across contexts, we can better comprehend, and possibly transform, the legal rules that govern them.

This article aims to expand on this use of anthropology to develop a comparative and critical analysis in the field of gender identity recognition, that is, the right to change one’s legal classification according to one’s inner-felt sense of gendered self. Although gender recognition, as a term, applies to both binary and non-binary changes, I concentrate on non-binary—also sometimes referred to as “third gender”—identities,⁹ and on the ever more frequently debated jurisprudence regarding their recognition.¹⁰ Combining the tasks of the comparative lawyer with those of the socio-legal scholar, I will thus first identify, and then discuss through an anthropological and legal lens, the different approaches to recognition of non-binary identities in Europe. In doing so, I intend to offer one example of how a public lawyer can engage in legal comparison in a multidisciplinary way. In essence, this article answers three questions: What are the different approaches to the addition of a third-gender legal status in European fundamental rights law? Are some forms of recognition more likely than others to protect non-binary people—who often face severe forms of discrimination? How can we use anthropology to develop a critique of the different solutions to this legal problem?

On the whole, three approaches can be detected in Europe. First, we encounter denial. This can be explicit, as is the case in France.¹¹ It can also be implicit, as happens in Italy,¹² where the right to gender recognition within the binary is subject to a set of preconditions aimed at preventing the recognition of “third” legal genders.¹³ Denial, I contend, has exclusionary effects. It frames diversity in the context of a supposed normality. These effects, as well as the rationales behind the rejection of non-binary identities, can be better understood when the law is read through an anthropological lens.

Second, demands for a third-gender legal category may encounter limited recognition. This was the approach followed, for instance, by the German Federal Constitutional Court (FCC) in 2017 and Parliament in 2018. They granted non-binary recognition to people with variations of sex characteristics ¹⁴—that is, arguably, intersex persons¹⁵—who permanently identify as non-binary.¹⁶ This approach is also not exempt from criticisms. It insists on associating non-binary identity with a certain physical embodiment. As I will show, this correlation has been convincingly falsified by anthropological enquiry.¹⁷ For this reason, I argue that, in reality, the fundamental right to non-binary recognition as designed by the FCC and Parliament is underinclusive. All non-binary people who do not have variations of sex characteristics are excluded from it. At the same time, a right structured in this way could also be overinclusive. Indeed, thanks to what can be defined as a “radiating effect,”¹⁸ this approach to non-binary recognition could, perhaps unwittingly, encourage the view that non-binary recognition is a political objective of the intersex community at large. However, as the ethnographic literature reveals,¹⁹ a segment of the intersex community has no interest in non-binary recognition, which they see as a distraction from their primary political objective, which is to stop involuntary genital surgeries on intersex infants, also called “intersex genital mutilations.”²⁰ This critique hints at one more advantage of the combination of law and anthropology, namely, the possibility of examining legal developments from the perspective of the user.²¹ This strand of socio-legal research not only highlights what is doctrinally problematic, but also what individuals perceive as a challenge.

Third, demands for non-binary recognition may be addressed in the form of gender self-determination. This was exemplified by the Belgian Constitutional Court in 2019.²² In this model, there are—at least in principle—no preconditions on non-binary recognition; it depends exclusively on the declaration of the applicant.²³ Again, anthropological literature sheds light on the potential of this right. Notes from the field show us that there is not a single non-binary identity, but many, and that they vary according to the concrete circumstances.²⁴ A right without preconditions can, therefore, be more accepting of the different forms of non-binary identity.

In short, I will explore a “strategic” employment of anthropology. I will use this discipline as a tool to better understand socially complex issues that need legal regulation.²⁵ This is not unprecedented in the law and anthropology literature. For example, Marie-Claire Foblets has drawn on kinship studies to argue in favor of the protection of family diversity.²⁶ She argues that we can look to anthropology to understand that family arrangements are a matter of social convention, that “diversity is nothing new,”²⁷ and that all families can provide a healthy environment for the development of the individual.²⁸ Likewise, Foblets deploys anthropology to complexify our understanding of the bodily modification of children, such as male circumcision and genital cutting. These insights have proved fundamental to a more informed understanding of this thorny and socially divisive problem.²⁹

For pragmatic reasons, in this article I concentrate on Europe, where challenging developments in legal approaches to gender diversity are taking place. To date, only three jurisdictions in Europe have granted a constitutional right to non-binary recognition: Austria, Germany, and Belgium.³⁰ Despite some doctrinal differences, Austria and Germany are relatively similar. They have both granted a right to non-binary recognition to intersex people only.³¹ Germany, however, has received more international attention. It is therefore a strategic choice on my part to engage with the literature on non-binary recognition in Germany. As for Belgium, it is currently the only country in Europe where non-binary recognition is granted on the basis of a simple declaration. As for “non recognition,” the French Court of Cassation has radically denied the possibility of any additions to the binary, making it a good case study. Italian courts also aimed at restricting gender to the binary. Thus, it is illustrative of the same trend, although in a different, and less apparent, form.

“Third gender” identities have fascinated lawyers for centuries.³² Yet it is only in the past few years that the debate on a human or fundamental right to non-binary recognition has taken off, thanks to the demands of intersex, trans, and non-binary advocates.³³ The number of jurisdictions worldwide that recognize “third” genders has increased, reaching at least fifteen as of this writing.³⁴ Since the Nepali Supreme Court broke new ground in 2007,³⁵ the right to a third gender category has now reached the status of constitutional right in no less than seven jurisdictions.³⁶ Europe is part of this global trend, where non-binary recognition has been discussed—although not always granted—at the legislative,³⁷ constitutional,³⁸ and supranational levels.³⁹ Currently, the question of the existence of a human right to non-binary recognition is pending before the European Court of Human Rights. The judges in Strasbourg will have to decide whether denial of a non-binary legal identity represents a disproportionate violation of Article 8 of the European Convention on Human Rights.⁴⁰ My investigation is, therefore, not only topical, but also innovative. Despite the growing interest in and increasing attention to the topic in recent years,⁴¹ the combination of anthropology and comparative law to understand the different approaches to non-binary recognition is new in the literature.

The remainder of the article is divided into five sections. After a brief overview of the right to gender recognition, I will highlight the main contributions of anthropology to the study of gender diversity in the law, Section B. I will then move to the discussion of the different approaches to non-binary recognition, starting with denial in France and Italy, Section C. The analysis of the limited non-binary recognition, as prominently developed in Germany, comes next, Section D. At this point, I will examine non-binary recognition based on self-determination, focusing on Belgium, Section E. In conclusion, after briefly summarizing the argument, I press for further research, Section F.

B. Simplistic Legal Categories Vis-à-vis a Complex Reality: The Contribution of Anthropology

I. The Importance of Gender Recognition and the Limits Imposed on It

Gender recognition—either within or beyond the male-female dyad—is a crucial achievement for trans and non-binary people. It is arguably a key to an inclusive society that accepts individuals as who they are.⁴² Despite the many different theoretical approaches, it is generally agreed that “recognition [including gender recognition] lies at the heart of social justice.”⁴³ As stated by the German FCC, gender recognition is essential to the development of one’s personality.⁴⁴ The Yogyakarta Principles, the authoritative and highly effective advocacy statement on LGBTQI+ rights, clearly state that “each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom.”⁴⁵ Lack of recognition—whether binary or non-binary—can cause frustration and unhappiness,⁴⁶ leading to increased discrimination, exclusion, and poverty.⁴⁷ It can be associated with considerable administrative and legal hurdles. Individuals who already experience particularly intense forms of vulnerability, such as racialized and poor people, may pay a particularly heavy toll.

Despite its importance for trans and non-binary people, the right to gender recognition has nearly always been restricted. Epochal changes are taking place at the national and international human rights levels,⁴⁸ but significant limitations remain. To begin with, gender recognition usually remains binary, excluding the possibility of any additions to the male–female dyad. Further preconditions have typically been imposed on applicants, including requirements to undergo psychological and medical supervision and treatments such as surgeries, sterilization, and hormonal therapy. For example, of the forty-one states in Europe and Central Asia where gender recognition is legally possible, only ten grant it without medical requirements.⁴⁹ Thirteen others require the sterilization of the applicant.⁵⁰ These limitations are usually justified on the grounds of the different public interests, which presumably rely on stable and binary gender categories in the law. In this view, the public interest includes the preservation of family law structures, the administration of public facilities, and gender equality, among others.⁵¹

Such limits have been criticized by human rights advocates. This is especially the case when they entail unwanted medical treatments, which have been described as cruel and even akin to torture.⁵² Given how important legal recognition is for trans and non-binary people, imposing such requirements has been contested as coercive, a Godfather-like “offer you can’t refuse.”⁵³ Such requirements and limitations clearly identify an ideal beneficiary of the right:⁵⁴ A type, or a subject, to which applicants must conform if they want their application to be successful. The exclusionary effects of such policies are evident. People who are unwilling or unable to fit this binary type are barred from recognition and its benefits. What is more, these requirements arguably have effects that suppress or contain diversity on the very body of trans and non-binary people.⁵⁵

In response, LGBTQI+ activists have argued that “[e]veryone has the right to obtain identity documents, including birth certificates, regardless of sexual orientation, gender identity, gender expression or sex characteristics. Everyone has the right to change gendered information in such documents” when they state the gender of the bearer.⁵⁶ Activists have, moreover, advocated for gender self-determination—binary as well as non-binary.⁵⁷

II. The Contribution of Anthropology to Understanding (Non-Binary) Gender Recognition

Anthropology, I contend, can be particularly helpful to understanding such demands—especially that of a self-determined, non-binary option. To begin with, echoing Foblets, we must have clear that “[gender] diversity is nothing new.”⁵⁸ In fact, the study of the varying manifestations of gender across societies and geographical contexts features centrally in ethnographic accounts.⁵⁹ Lesbian and gay studies have been important in anthropology for decades,⁶⁰ at times anticipating some of the most central findings of queer theory.⁶¹ More recently, interest in identities that challenge the—predominantly, Western male–female binary has surged.⁶² This has happened most notably in the field of queer anthropology, which studies variations in the expression of sexuality and gender.⁶³ As anthropologist Serena Nanda has argued, “cross-cultural studies demonstrated such a wide variety of attributes of masculine and feminine roles and characteristics in different societies that the view of gender as a cultural construction, the content of which varies from society to society, is now widely accepted in the social sciences.”⁶⁴

In particular, ethnographic accounts have long contested the exclusive and universal existence of a male–female binary, whereby all other gender manifestations are reduced to—usually pathologized—deviations. Such a reduction ignores the great spectrum of identities which, across time and space, have been amply documented. “Third-gender” people—to use an all-encompassing expression incapable of conveying the differences among these identities—are present the world over, notably in Asia,⁶⁵ Europe,⁶⁶ and the Americas.⁶⁷ Despite the high level of discrimination that trans and non-binary people often experience, they have also been found to have important and even cherished roles within a given society.⁶⁸ Echoing Serena Nanda and her groundbreaking work on non-binary identities in India, if we look at how gender manifests itself in different societies, we are provoked “to reexamine the nature and assumptions of our own gender system”⁶⁹ and to conclude that “the Western views of sex and gender are culturally constructed and are not universal.”⁷⁰

Ara Wilson has argued, however, that anthropological research, and queer and feminist anthropology in particular, cannot be reduced to a chronicle of the various forms through which gender manifests itself.⁷¹ Its main contribution is not a cabinet of curiosities, but rather a set of sophisticated theoretical tools to understand the culturally dependent nature of identity.⁷² It points out the degree to which the assumption about the existence of universal identity norms are facile, contestable, and unrepresentative.⁷³

First, anthropologists have shown that identity is indeed interconnected with the body, yet in a way that is far from standardized. In other words, there is no established, one-to-one correspondence between bodily form and identity. As Rebecca Gowland and Tim Thompson have contended:

The construction of identity is complex, multidimensional, sometimes passive, sometimes active, relational and above all body-mediated, whether through individual agency or through the body’s capacity to respond dynamically and absorb the by-products of the social fabric. Identity as a concept is difficult to pin down, and teasing out the individual facets of a person’s identity (e.g. gender, ethnicity) is harder still, because in essence they are interwoven both biologically and socially.⁷⁴

Second, anthropology shows the dynamic and processual nature of how people navigate their lives and thus define and redefine themselves.⁷⁵ As Gayle Rubin famously put it, “sexual systems cannot be understood in isolation … but must take everything into account: the evolution of commodity forms in women, systems of land tenure, political arrangements, subsistence technology and so on.”⁷⁶ Incidentally, this insight has been very influential on subsequent queer theorizations.⁷⁷ In other words, gender identities—conventional or not—are lived differently in different “historical and cultural contexts.”⁷⁸ They are negotiated amid concrete circumstances such as sexuality, class, nationality, race, and immigrant status.⁷⁹ Narratives about the features that constitute proper trans or non-binary characteristics are therefore questioned.⁸⁰

For example, David Valentine, in his ethnography on the “transgender” category in New York City, demonstrated how identities develop at the interstices of institutional discourses—for example, of academics or NGOs—and individual demands.⁸¹ Gayatri Reddy, writing about the hijras of India, pointed out that third genders should be understood against the background of a wide range of differences, including “sexuality, religion, gender, kinship, and class.” In other words, she challenged an “essentialized vision of the third sex.”⁸² She demonstrated, as Lawrence Cohen put it, that “all thirdness is not alike.” Non-binary—as well as binary—gender manifestations are many and different.

Anthropological enquiry has not only contested generalized narratives of personhood, but also demonstrated their detrimental effects. Valentine underlined how these definitions may disadvantage “those people who do not understand themselves through these interpretive and institutionalized practices. [They] come to be unrepresentable in these politics in the terms in which they understand themselves.” Because of this, they may come to be subjected to violence and discrimination.⁸³ Aniruddha Dutta, focusing on the work of NGOs advocating for the rights of sexual minorities in India, has persuasively argued how globalized identity definitions may impact, transform, and discriminate against the vernacular diversity of gender by limiting access to resources and support.⁸⁴ The result is that some identities are rendered unintelligible, which further marginalizes them.⁸⁵ These findings are additional confirmation of the adverse effects that denial of recognition may have. They suggest that the criteria for eligibility to change legal gender may ultimately discriminate against those who do not or cannot conform to them.

Anthropological research also highlights how misrecognition may operate intersectionally.⁸⁶ If the standards of gender recognition are established on the basis of definitions that ignore the plurality of factors that actually determine individual identity, then it is likely that intersectional forms of discrimination might develop. Drawing from a related field of asylum and migration law, people who are motivated to seek asylum because of hostility against their sexual orientation and gender identity have often encountered significant difficulties in obtaining international protection because the lived experience of their diversity is unintelligible in contexts such as Europe, the United States, or Canada. Cases of asylum seekers deemed “not credible” because their sexuality or gender expression do not fit the image of the LGBTQI+ person in the Global North are far too common.⁸⁷ Communities of queer people who are descendants of migrants or who belong to minority religions also struggle to navigate the norms of recognition in the Global North.⁸⁸ This topic remains rather underinvestigated in the field of gender recognition, especially non-binary recognition. Although a thorough treatment of the intersectional effects of gender norms falls beyond the scope of this article, we must bear in mind how the establishment of general norms around specific forms of gender diversity can, at least in principle, operate against people who might already experience discrimination on other grounds.

C. Denial: Rejecting Non-Binary Recognition

How can anthropological insights help understand the different approaches to non-binary recognition? We begin with “denial.” It can be explicit, for example when a court turns down an application for recognition, as happened in France when the Court of Cassation ruled that no third-gender category could be judicially established. Alternatively, denial can be implicit, as happens when requirements for gender recognition within the binary have the purpose, or the effect, of preventing the creation of a third-gender category. This characterizes the evolution of Italian law. Anthropological studies can help us not only understand the effects of the law’s restricted inclusion, but also provide an analytical explanation of the rationales underlying the denial of non-binary recognition. Ultimately, this helps us contest the assumptions that undergird the conclusions of the courts in these jurisdictions.

I. An Explicit Denial: Preserving the Societal and Legal Binary in France

In 2016, the law on gender recognition was reformed in France. With Law 2016-1547 (“J21”)⁸⁹ the French Parliament de-medicalized the right to gender recognition. Every person can now change their legal “sex,” on the condition that they prove, with multiple forms of supporting evidence, that they live in the gender that they claim.⁹⁰ They must, in other words, “possess the status” for which they are applying.⁹¹ In practice, they must demonstrate that they behave and are socially recognized in the gender that they demand. The law is silent on non-binary recognition, which was neither granted nor denied.

Despite passage of the new law, on May 4, 2017, the French Court of Cassation rejected an application to change the gender entry in the civil status from “male” to “neuter” or “intersex.”⁹² This was the last word from a domestic court⁹³ on a case lodged by an intersex person who had been registered as male at birth. The applicant had a masculine appearance due to health-related testosterone treatment but identified as non-binary. After having been granted by the Court of First Instance and rejected by the Court of Appeal, the claim reached the Court of Cassation.⁹⁴ The Court, on the one hand, acknowledged that Article 8 ECHR protects the right to gender identity. Yet, on the other hand, it also considered that preserving the gender binary is a legitimate public interest. The Court ruled that the binary is indeed a “necessary element in the social and legal organization.”⁹⁵ The introduction of a third gender would have, the Court continued, far-reaching consequences for the system, and the applicant was socially acknowledged to be a male. The mismatch between identity and legal gender was not deemed to violate the core of the right to recognition. This led to the rejection of the claim, de facto deferring to the legislature.

As for which specific aspects of “social and legal organization” could be affected, the French Supreme Court remained vague. The Advocate General Philippe Ingall-Montagnier held that the binary represents an existing reality in law and society. It is central, he contended, to the establishment of parent–child relations and to the achievement of equality between men and women.⁹⁶ The Advocate General echoed the Court of Appeal of Orléans, which had decided on the previous stage of the case. In rejecting the claim, the court had stated that “sexual identity is a necessary element in our legal and social organization, primarily in light of its effects on the law regulating family, filiation, and procreation.”⁹⁷

The reasoning of the Court of Cassation has been criticized by legal scholars, who have questioned its doctrinal rigor.⁹⁸ Leaving these contestations to the side, when the Court of Cassation underscored the importance of the binary as a social element, it ignored the existing diversity of gender manifestations. It erased them from the legal narrative, despite the great array of identities beyond the binary—so wide that, as Arnaud Alessandrin argued, even reducing them to a triptych could be considered an excess of systematization.⁹⁹ This judgment also demonstrates how legal identities are defined—in this case, by a Court—according to concrete circumstances and legal needs, very much confirming, from a legal standpoint, a central tenet of queer anthropology. In this specific context, the Court of Cassation rejected the third gender because only binary identities fit social and legal arrangements. Corinne Fortier saw in the denial of a third gender a demonstration of the difficulty of recognizing a new category that questions the established sexual order of society,¹⁰⁰ which, especially when it comes to the law, is linked to the heterosexuality of the family, as Daniel Borrillo has argued.¹⁰¹ This order, Fortier seems to suggest, is challenged by developments that are taking place in French families, for example, with trans parenthood.¹⁰² This leaves us with doubts as to whether the need to preserve the binary is actually reflective of societal needs. Granted, more research is needed in this field. At the same time, however, it is worth emphasizing that the protection of women’s equality has also been linked to the preservation of the legal binary. This underscores the plurality of factors and sensitivities that determine the definition of identities.

The role of filiation law in justifying the preservation of binary identities is also apparent in the jurisprudence on trans parenthood.¹⁰³ In 2020, the Court of Cassation ruled that a trans mother could not be officially registered as “biological parent” of the child whom she had begotten. Instead, the Court ruled that parents must always be registered as either “fathers” or “mothers” according to their role in the procreation process. As noted above, the controversy originated when the plaintiff, a trans woman, asked to be registered as the “mother” of her offspring. She complained that being registered as the “father” infringed on her right to gender recognition. The claim had been turned down by the Court of First Instance. The Court of Appeal rejected the claim too, but it ordered that the applicant should be designated as “biological parent.” This solution—which the applicant also opposed because she wanted to be recorded as “the mother”—would have opened family law to a neutral, or, in effect, a non-binary designation.

The French Supreme Court concluded that no such third category exists in the law. The applicant had to be registered as the father of the child. The Court, with this decision, clearly constructed parenthood in biologistic, binary terms. As mentioned above, the Court also ruled against the opinion of the Advocate General. Underlining the complexity of the relations of filiation, and the role of culture in their determination, she had suggested accepting the claim of the plaintiff, arguing that registration as the “mother” would provide the best protection for both the applicant and her child.¹⁰⁴

II. Implicitly Reinforcing the Binary and Erasing the “Third Gender”: The Normalizing Mechanism of Italian Law

A closely related, yet better disguised, denial of the third gender is represented by the case law of the Italian Court of Cassation and Italian Constitutional Court. These courts have erased non-binary identities despite never having rejected an application for non-binary recognition. To do so, they have established medical and social requirements to change legal gender within the binary. These preconditions have the stated purpose of avoiding any deviations from the male–female dyad. Paradoxically, these limitations have been imposed by rulings that were, ostensibly, legal victories for trans advocates. Critical socio-legal analysis, however, unmasks the contradictions within these decisions, as well as the erroneous assumptions underlying them.

Law 164 of 1982 grants to every individual the possibility of amending their legal gender “after the modification of sex characteristics.”¹⁰⁵ As the parliamentary debates and the early constitutional jurisprudence make clear,¹⁰⁶ the beneficiary of this right is the “transsexual person”: An individual who invariably longs to transform his or her—binary pronouns intended—body through medical and surgical interventions.¹⁰⁷ For more than three decades, the courts applied the law consistently.¹⁰⁸ They would grant recognition to applicants who had undergone surgical sterilization and transformed their secondary sex characteristics—breasts, body hair, voice, etc. Understandably, the surgical sterilization requirement attracted a barrage of criticisms, and numerous actions were taken to try to ban it.¹⁰⁹

In July 2015, driven by activists’ demands,¹¹⁰ the Court of Cassation ruled that surgical sterilization could not be a precondition for gender recognition. Under the pressure of European developments,¹¹¹ the Court determined that the sterilization requirement disproportionately affected the right to “sexual identity.” The Court nevertheless continues to insist on requiring the “serious” and “irreversible” medical transformation of the applicant—which, while no longer involving surgical sterilization, must still include secondary sex characteristics.¹¹² The Court stressed that these requirements are essential to preserve two clear “sexes,” and to avoid a “third gender” composed of the characteristics of both.¹¹³ This “third gender” would, in the Court’s opinion, introduce family forms that are not recognized in Italian law. Just a few months later, the Constitutional Court explicitly approved the doctrine of the Court of Cassation. It insisted that, while sterilization surgery cannot be a requirement for recognition, trans applicants must still irreversibly transform their “physical, behavioral, and psychological characteristics.”¹¹⁴

In 2017, the Constitutional Court reaffirmed this doctrine twice, demonstrating the hostility of Italian constitutional law to any deviations from the binary.¹¹⁵ In one such case in particular, the Constitutional Court rejected a preliminary reference filed by a Court of First Instance (Tribunale).¹¹⁶ The Tribunale had problematized the ban on the sterilization requirement.¹¹⁷ It feared that allowing recognition without surgery might open the door to gender self-determination. In turn, this would have allegedly endangered the “right of society” to maintain a clear gender binary. The referring Tribunale had argued that the muddling of the binary would clash with a “centuries-old tradition” of Italian society. Awkward consequences of this liberalization were envisioned. Embarrassment would accompany interactions in gender-segregated facilities such as schools and prisons, police searches, and life “at the beach,” where people wear – so to speak – revealing swimsuits.¹¹⁸

The Constitutional Court rejected this preliminary reference. It thus undeniably protected an achievement for trans people. Of particular interest, however, is the reasoning. The Constitutional Court confirmed the 2015 doctrine on gender recognition, which, despite banning surgical sterilization, still required irreversible transformations. This was seen, I repeat, as a necessary precaution to maintain two distinguishable genders.¹¹⁹ The Constitutional Court also ruled that the right to gender recognition, in its 2015 form, has precisely the purpose of balancing individual identity claims with the many legal relations that—allegedly—depend on the clear distinction between the two “sexes.” This Court also stated that the law does not protect—and, in fact, is intended to avoid—gender self-determination, which the referring judge saw as a threat to the binary. In simple terms, the preliminary reference was not rejected because the Constitutional Court disagreed in principle with the concerns of the Tribunale. Rather, the constitutional justices held that these worries were already taken good care of in the current state of the law.

This case law has been positively received in legal¹²⁰ and non-legal scholarship.¹²¹ Undoubtedly, by banning sterilization, it granted a very important demand to trans people. Yet a socio-legal, and in particular, an anthropological, reading immediately spots the inaccuracies and inconsistencies in these decisions. In the first place, the referring judge mentioned an alleged “centuries-old tradition” as a valid principle and a good reason to uphold the binary. The Constitutional Court did not disagree. In fact, it implicitly confirmed that such values could be a valid reason to deny gender self-determination. Leaving aside the argument over whether such a tradition could actually justify denying a third gender, the statement is, at best, inaccurate. Abundant anthropological research has documented the existence of non-binary identities in Italy possibly going back centuries. One prominent example are the femminielli of the city of Naples, individuals assigned to the male gender at birth but whose gender identity and expression transcended the boundaries of maleness and femaleness.¹²² In other words, if courts are limiting gender self-determination—and with it, reinforcing the binary—to preserve this “centuries-old tradition,” their reasoning is factually inexact. Of course, non-binary people have always represented a minority, most likely a small one, yet they have existed all along.

Furthermore, the ambivalent dimension of these rulings—on paper granting a right while in practice reinforcing the gender binary—comes to the fore if we look beyond doctrinal law. For example, Laurence Herault has argued that medical—and especially psychiatric—requirements may in fact rely on and reinforce binary conceptions of gender.¹²³ Furthermore, Simona Grilli and Maria Carolina Vesce, while acknowledging the empowering potential of the sterilization ban, also show how courts still require individuals to narrate themselves according to established—and, I add, obviously binary—patterns.¹²⁴ As I have argued elsewhere,¹²⁵ the requirements established by the Court of Cassation and the constitutional law favor the creation of a disciplinary apparatus, the ultimate effect of which is the definition of a binary subject of gender recognition.

D. Limited Recognition: Third Gender Identity and Intersex Embodiment

In 2017, the German Federal Constitutional Court (FCC) granted non-binary recognition to intersex people¹²⁶ who permanently identify as non-binary.¹²⁷ This was confirmed in 2018 by the German Parliament,¹²⁸ and – arguably – in 2020 by the Federal Court of Justice (FCJ).¹²⁹ Ostensibly, this seems to be a remarkable achievement for non-binary people; however, an anthropologically informed eye can see through the veneer to the underlying complexities. What the FCC and the legislature have done is establish a connection between a certain embodiment—intersexuality—and a specific—permanent—non-binary identity, thereby excluding from the scope of this right those non-binary people who are not intersex. Furthermore, in doing so they have become complicit, whether intentionally or not, in attributing a political objective to the entire population of intersex people—something that, we will see, some of them resist.

German law has consented to changes in legal gender since the 1980 Transsexuellengesetz (Transsexual People Act).¹³⁰ Gender recognition is granted to “transsexual” people who do not identify according to their birth gender and have lived as another gender for at least three years. Gender recognition is granted by courts, which rely on expert opinions, including medical expertise,¹³¹ even though mandatory medical transformations and sterilization have been ruled unconstitutional by the FCC.¹³² Until 2017–2018, gender recognition for trans people was limited to the binary. Since 2013, however, German law had permitted leaving the gender marker blank in cases of newborns whose sexual anatomy did not allow for a clear gender assignment¹³³—not a “third gender” as such, but rather an acknowledgement of missing information in special cases.¹³⁴

The 2017 decision followed the application of a non-binary-identifying intersex person who wanted to be reclassified as “inter/divers” or “divers.”¹³⁵ They¹³⁶ complained that being legally required to have gender registered meant that they had to tolerate an entry that did not correspond to their true self. This affected their personal development and self-image. It made it very difficult for them to “move about in public and to be seen by others as a non-binary person.”¹³⁷ The possibility to be legally genderless, which the 2013 law protected, did not fit the plaintiff. They indeed were not genderless, but rather had a positive, non-binary, gender identity. After rejection by the administrative authorities and by lower courts,¹³⁸ the FCC eventually heard the case. First, the Court ruled that the law interfered with the right to identity, which is part of the more general right to free development of personality.¹³⁹ In light of the fact that the law required registration, the Court argued that it precluded from a positive registration those people with a “variation of gender/sexual development” and who “permanently” identified as non-binary. The option offered by the 2013 law could not amount to a positive recognition of the applicant’s identity.¹⁴⁰ The lack of a third gender entry was also deemed a violation of gender equality. Following the doctrine of the Court of Justice of the European Union, the principle of gender equality also covers discrimination based on gender identity.¹⁴¹ These limitations, the Court found, were not justified by the interests at stake, including equality of men and women and the containment of bureaucratic and administrative costs associated with the addition of a third gender category.¹⁴²

This ruling granted a “limited” non-binary category. The FCC’s decision was, admittedly, based on the specific facts of the case, but at no point did it explicitly exclude from recognition people who are not intersex or who do not permanently identify as non-binary.¹⁴³ Some parts of the decision are, moreover, phrased in broader terms, and seem to speak of a more general right to non-binary recognition. This holds especially true if the ruling is interpreted in light of the case law that the FCC has developed over the years.¹⁴⁴ Yet a narrow reading of this decision limits non-binary recognition to physically intersex people permanently identifying as non-binary.¹⁴⁵

This was certainly the understanding upheld by the legislature.¹⁴⁶ Under the 2018 law,¹⁴⁷ applicants must provide medical certification of their intersex condition. If the medical certificate is not available, or if the intersex condition can no longer be proved or can only be proved with an invasive evaluation, applicants can give a sworn oath about their original intersex condition.¹⁴⁸ The parliamentary debates related the necessity to define a non-binary identity according to such criteria to the role of gender in the legal system. The need for certainty of the civil status, the advancement of the rights of women, and an underspecified “regulation of family law” were mentioned as objectives, the effective pursuit of which required that any third gender be medically certified and supervised.¹⁴⁹

In April 2020, the Federal Court of Justice (FCJ) entrenched the restrictive reading of the fundamental right established with the 2017 decision and subsequently enacted by the legislature. The FCJ ruled that such form of non-binary recognition is exclusively “connected to the impossibility to assign a female or male gender considering physical characteristics.”¹⁵⁰ The FCJ moreover stated that the civil status is in its “entirety tied to biological sex,”¹⁵¹ thus making even more explicit the connection between legal identity and embodiment. The FCJ, I must mention, offered a different form of recognition to the applicant, a non-binary person who was not intersex – or, in the wording of the FCJ, with a merely perceived intersexuality. They could have their gender erased from the civil status or be recorded as “divers,” yet only relying on a different legal framework, namely the Transsexual People Act.¹⁵² Yet, this can hardly be reduced to a harmless technical difference. Despite undeniably representing a progress for non-binary people, this form of recognition has several shortcomings. At a more conceptual level, as Jens Theilen underlined, the 2020 judgement of the FCJ is imbued with “distrust” of trans and non-binary people. The FCJ essentially described the third option for non-intersex people as a (dangerous) exception to the system of gender classification, to be contained by the judicial procedures of the Transsexual People Act. This law, the FCJ made clear, is not only intended to protect trans people. It also has the purpose to safeguard the competing “rights, duties, and family positions”, to ensure permanence and certainty to the civil status. Hence, it allows recognition only under strict reasons.¹⁵³ This understanding – this creation of a different form of recognition for non-binary people who are not intersex – is far from being only conceptual. The procedures established by the Transsexual People Act may be longer, more expensive, and intrusive.¹⁵⁴ Unsurprisingly, the FCJ’s decision has been appealed before the FCC and the case is currently pending.¹⁵⁵ Be that as it may, at least for the time being, the fundamental right established by the 2017 decision of the FCC and regulated by the 2018 law has been narrowly constructed and tied to physical intersexuality.

This form of limited recognition is worth investigating. On the one hand, it opened a door to a long-marginalized minority.¹⁵⁶ In a way, it can be seen as positive result of decades-long intersex activism in Germany, which had several successes along the way.¹⁵⁷ However, some aspects of such a right are concerning. The FCC and the legislature protected one form of non-binary identity, based on a specific embodiment. Non-binary people who are not intersex are excluded from the scope of this right. Yet, as observations from fieldwork – and, in fact, the very application that led to the 2020 decision by the FCJ – indicate, “not all thirdness is alike”: Not every non-binary person has intersex characteristics, and not all intersex people are non-binary. Identity, as we have seen, is body-mediated but also “interwoven both biologically and socially.” Certainly, it cannot be reduced to the sole physical component.¹⁵⁸ Interestingly, this was also in apparent contrast to the demands of intersex activists. In large part they did indeed demand non-binary recognition, but not for the benefit of intersex people only.¹⁵⁹ Similar concerns were voiced among scholars, especially about the 2018 law and 2020 decision of the FCJ.¹⁶⁰

The decision of the FCC is, moreover, silent on the issue of involuntary medical interventions on intersex infants, which is what remains the central demand of intersex advocacy.¹⁶¹ Admittedly, the FCC had not been called on to decide on involuntary medical treatments, which were anyways arguably limited with a 2021 law.¹⁶² Nevertheless, an obiter dictum could have been issued and perhaps would have been symbolically significant —as the Constitutional Court of Austria did in a similar case in 2018.¹⁶³ This is not to say that the ruling, being more accepting of intersex identities, might not have strategic value in changing the social perception of intersex medical treatments in the longer run. Socio-legal scholars have underlined that case law can have a political impact that goes well beyond the doctrinal dimension.¹⁶⁴ As Mark Galanter put it, rulings may have “radiating effects,” conveying a “whole set of messages that can be used as resources in making (or contesting) claims, bargaining (or refusing to bargain), and regulating (or resisting regulation).”¹⁶⁵ Indeed, NGOs saw this judgment as an opportunity to gain visibility, increase acceptance, and diminish violence—including involuntary medical treatments—against intersex people.¹⁶⁶ Yet a more explicit pronouncement might have been positive.

Another, and possibly less welcome, “radiating effect” of these legal developments might be the implicit—and most likely inadvertent—yoking together of intersex demands and non-binary recognition. The combination of the decision and of the 2018 law might, perhaps unwittingly, turn non-binary recognition into an intersex issue. This is not a doctrinally necessitated consequence. In the end, the FCC only granted an option to those intersex people who wish for it. However, as intersex people are the only beneficiaries of the right—no matter that this can be explained by the circumstances of the case—it is not too far-fetched to foresee that a correlation between identity and physical non-binariness may well be drawn. In fact, the correlation between identity and embodiment, if anything, has been further strengthened by the 2020 decision of the FCJ.

However, it should be pointed out here that non-binary recognition is not a unanimous demand among intersex advocates.¹⁶⁷ As the anthropologist Katrina Karkazis argued, some intersex people reject the idea of being intersex. They may regard their diversity as a matter of a “condition,” something that they “have,” rather than who they are. Furthermore, “the goal of many people with an intersex condition is not to deconstruct or eliminate gender, or to advocate for a third sex or no sex, but rather to change treatment practices and improve the well-being of others with these conditions.”¹⁶⁸ Relatedly, some intersex activists distance themselves from LGBTQ+ movements.¹⁶⁹ Morgan Carpenter contended that the inclusion of intersex people in queer movements presents the risk of misunderstanding intersex needs, potentially reducing them to more sensitive use of honorifics, pronouns, and toilets. Not only does this approach obscure issues of medicalization and bodily autonomy, but it also presumes intersexuality to be a gender identity issue, which it may not be.¹⁷⁰ Making intersex demands a part of “LGBTIQ activism” might thus be a “misrepresentation.” Advocates subscribing to this view argue that, even though medical activity and social values often overlap, violence against intersex people happens in medical settings, where identity recognition may not come into play.¹⁷¹ The reception of this decision by intersex organizations deserves more empirical research and anthropological analysis, but it is interesting to note that some intersex activists hurried to qualify the FCC’s decision as addressing what they describe as a “non-existent” or “marginal” issue for most intersex people.¹⁷² As such, it contributes to a debate that could in fact divert attention away from what they see as the more important issue—that of intersex surgeries—and might, therefore, do “more harm than good.”¹⁷³

In short, if read within an anthropological framework, non-binary recognition “German-style” might be at best a bittersweet victory for all stakeholders. The right that the FCC laid the ground for, and which the legislature designed, rests on gender standards that clash with the variability and situatedness of gender diversity. Such a right established a questionable connection between body and identity that ultimately, in the words of Valentine, makes “those people who do not understand themselves through these interpretive and institutionalized practices … unrepresentable.”¹⁷⁴ Non-binary people who are not intersex might be – and, as the case currently pending before the FCC demonstrates, are – dissatisfied. They are indeed excluded from the scope of the 2017 fundamental right, not only with symbolical, but very practical, disadvantages. The correlation between identity and embodiment, moreover, is obviously at odds with all anthropological findings. Likewise, intersex persons advocating non-binary recognition were left wanting, as they do so for the benefit of everyone regardless of their sex characteristics. Finally, intersex people who want to distance themselves from identity demands might fear political appropriation; they might feel dragged into a battle they do not care for and which ultimately diverts attention away from their primary political goals.

E. Recognition as Self-Determination

The last approach to non-binary recognition in Europe can be identified as the self-determination model. In 2019, the Belgian Constitutional Court granted non-binary recognition solely on the basis of the declaration of the person. Neither physical requirements—such as intersex physical characteristics—nor a stable identification were demanded.¹⁷⁵ The decision profoundly changed the 2017 Gender Recognition Act—also called the “trans* act” (loi trans*)—which had indeed introduced self-determination in Belgium.¹⁷⁶ The 2017 act was the result of the mobilization of several associations for LGBTQI+ rights, in cooperation with the government. It was mostly intended to overcome the sterilization and psychiatric diagnosis requirements contained in the previous 2007 law.¹⁷⁷

The 2017 act does not impose medical or behavioral preconditions. At the core of the law is the self-declaration of the applicant. They must state to the registrar their “mature conviction” to identify according to the gender in which they claim recognition. This statement must be repeated after a three-to-six-month interval. Meanwhile, the Public Attorney is informed and can raise objections if they envision a threat to public order. Before the judgment of the Constitutional Court, recognition was limited to the binary. Furthermore, it was in principle irreversible. In practice, applications following the first one were subjected to a judicial process and not to the quicker and less burdensome administrative procedure. These limitations were seen as a compromise. Legislators were indeed afraid of going too far and passing a law for which the country was not ready.¹⁷⁸

LGBTQI+ NGOs experienced this undeniable advancement as a “half-victory.”¹⁷⁹

Hence, they soon mobilized and started constitutional litigation.¹⁸⁰ On one hand, the Constitutional Court found that precluding non-binary recognition violated the Belgian constitution; on the other hand, it conceded that the gender binary is central to the legal system. Yet this in and of itself did not constitute a valid reason to deny recognition to non-binary people. Despite references to the binary in the constitutional equality clause,¹⁸¹ the Constitutional Court rejected the argument that protection of the principle of equality between men and women should prevent a third legal category. In fact, the Court clarified that non-binary people are discriminated against on gender grounds when they are not granted self-determination. A different matter, however, was how such a right should be granted. The Court envisioned two options: First, by adding a third gender category; second, by erasing gender from the civil status altogether. The decision regarding how best to implement the right, however, is a matter that should be left to the discretion of the legislature.¹⁸² In the same decision, the Constitutional Court also recognized a right to change one’s gender multiple times without restrictions imposed by the law. It reasoned that gender-fluid people—needing to change their legal status more than once—cannot be discriminated against vis-à-vis individuals with a more “fixed” gender identity.¹⁸³ The Belgian government has announced the intention to enact the ruling of the Court with ad hoc legislation, yet, at the time of writing, such law has not been approved yet.¹⁸⁴

Theoretical contributions coming out of anthropology help to highlight the innovativeness of the “Belgian way.” First, non-binary identities may be many and different, and can vary across contexts and historical circumstances. By forgoing criteria for non-binary recognition, the Belgian Constitutional Court created space for the different forms through which non-binary identity may develop. At a more abstract level, the Belgian model defines an identity without a pre-existing beneficiary—an empty and formless container, so to speak. It offers a flexible mode of inclusion for whomever desires recognition. Its positive consequences are only too obvious, especially if we take to heart an insight from queer anthropology, namely, that any attempt to establish gender norms is bound to be exclusionary and is doomed to failure. The risks of unintelligibility and exclusion that Valentine emphasized are therefore prevented when gender identities are not defined—and therefore not restricted—in the law. Admittedly, more empirical research is needed on the practical operations of this right. As highlighted by Pieter Cannoot, the Public Attorney might use their power to oversee applications in a biased way and, ultimately, limit gender self-determination beyond—as well as within—the binary.¹⁸⁵ This is indeed a real risk, and more anthropological research could go a long way toward assessing it and suggesting workable solutions.

F. Conclusions

This article has drawn on socio-legal literature, and especially on queer anthropology, to develop a deeper understanding of non-binary gender recognition in Europe. As such, it makes two principal contributions, the first substantive and the second methodological. As for the substantive one, I have identified the different approaches to this issue, and criticized them in light of their capacity to effectively ensure protection to identity. I have argued that asserting the impossibility of granting non-binary gender recognition, as French and Italian courts have done, amounts to the explicit or implicit rejection of third genders. This approach ignores what social sciences—and especially anthropology—have been preaching all along: That non-binary identities are common across cultures, that non-binary people have important and respected social roles in some societies, and that this can and should be true in European societies as well. In a way, the first lesson anthropology offers is one in “modesty”: Amid the richness and diversity of human experiences regarding gender, amid its complexity and variability, assuming that the binary is the one true and correct expression of gender seems questionable and, in fact, presumptuous. Denial of non-binary identities dismisses, and therefore belittles, this complexity. It imposes and enforces one model, arguing that the binary reflects entrenched social norms, even though these norms are far more complex than most courts have been willing to concede. The multidisciplinarity underpinning this article is also useful to understand why the law continues to insist on and preserve the presumption of binary identities: It is responding to concrete needs, primarily the maintenance of kinship as it has been historically constructed through the law.

This critique does suggest that some form of recognition is fundamental. The examination of the German developments provided more detail as to the difficulties that a specific connection between identity and corporeality may present. Anthropology again offers a lesson regarding the substance: There is no specific or definitive correlation between physical diversity and non-binary identity. Ignoring this fact, non-binary individuals who are not intersex are excluded from the recognition based on the 2017 decision of the FCC. Second, German law runs the risk of attributing, if not an identity, at least a political objective to intersex people, despite the clear divisions within intersex movements on that matter. All these shortcomings, it must be emphasized, are found in relation to a decision that is nonetheless a legal victory for non-binary people. Socio-legal investigations allow us to understand not only what is doctrinally problematic, but also what might be perceived as a challenge by the persons concerned. Finally, the Belgian decision offers a solution to the problems presented by the other approaches to non-binary identity. Drafting a right without a specific right-holder, the Belgian Court succeeded in opening up the possibility of recognition, at least in principle, to all variations of gender identity, to all embodiments and cultural manifestations.

The second contribution of this article is more methodological. It exemplifies how a comparative public law scholar can engage in socio-legal research and draft legal arguments based on it. To do so, I have applied to the field of non-binary recognition anthropological theory that has important precedents in the literature and in legal practice, as the opinion of the Advocate General to the French Court of Cassation shows. Anthropology, and social sciences in general, offer valuable insights when diversity and identity are at stake. Methodologically, public lawyers, despite not being required to undertake empirical research, can draw on the abundant literature in this field to advance their arguments. Admittedly, this methodology is not without its difficulties. It requires a degree of multidisciplinary literacy, which is generally not provided in law school curricula. This, however, is an issue that is beyond the scope of this article.

Finally, as a coda, I believe that I must push for further research, and specifically for more empirical research. This would be extremely helpful for understanding how non-binary recognition operates on the ground. First, it would be important to learn how the right designed by the German FCC has been navigated in practice by non-binary people. Data are also needed to understand how non-binary recognition relates to intersex demands, and its effects on intersex individuals. More empirical research might also be of great use to better understand the operations of the right to non-binary recognition in Belgium. Even though the “law in the books” seems to be empowering, knowing more about its application would help to better understand its practical dimensions. What is certain is that anthropological enquiry, with its methodological toolbox and theoretical potential, can certainly be a fruitful complement to doctrinal investigations.