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Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad

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Beyond Sexual Binaries? The German Federal Constitutional Court and the Rights of Intersex People

Henk Botha

Abstract


In a recent judgment, the German Federal Constitutional Court held that it was unconstitutional to require every person's sex to be entered on the birth register, without providing for a third option for intersex persons. This article examines the intersex judgment in view of the Court's earlier jurisprudence on the rights of trans persons. It argues that this judgment was enabled, to a significant extent, by the fluid understanding of sex and gender identity shown in those judgments, and by the elaboration in those cases of the relationship between sexual freedom, human dignity and equality. It also comments on the possible relevance of the intersex judgment for South Africa, in view of some of the parallels and differences between German and South African constitutional jurisprudence.


Keywords: German Federal Constitutional Court; intersex; transsexual and transgender; sex and gender identity; human dignity, equality and freedom; sexual minorities in South Africa.




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