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Austria Issued First Third Gender Documents

15 January 2019

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Following its June 2018 Constitutional Court´s landmark judgment recognizing the non-female/non-male gender identity of intersex persons Austria now has issued the first documents displaying a third gender. Sucessful plaintiff Alex Jürgen received a passport with the gendermarker "X"  and a birth certificate with "divers". Rechtskomitee LAMBDA (RKL), Austria lgbti-rights organisation, expresses delight over the historic moment and deplores persistent violations by the Minister of Interior.  

For passports European Union legislation, in conformity with guidelines of the International Civil Aviation Organisation (ICAO), prescribes the gendermarker "X". For the birth certificate Upper Austria´s Administrative Court, (upon a Minister of Interior´s appeal) confirmed by the Adiministrative High Court (VwGH 14.12.2018, Ro 2018/01/0015), ordered the gender marker "inter" (LVwG OÖ 03.07.2018, 750369/46/MZ). In contempt of this final court judgment the city of Steyr had to follow an order by the Minister of Interior and issue a birth certifice with the gender marker "divers", instead of the court ordered "inter", which is the applicant´s prime option. Alex Jürgen now again has to turn to the courts to get the final court judgment (!) enforced and receive the gender marker the court ordered. 

Obligatory assessment by non-existent boards  

In June 2018 Austria´s Constitutional Court ruled that persons have to accept only state sex assignments which correspond to their gender identity. The state has to accept individual decisions for or against a certain gender. The constitution protects individuals from heteronomous sex assignment, in especially persons with alternative gender identity. There is no constitutional obligation to register sex, the Constitutional Court said, but the constitution does neither ban the registration of sex. If the state opts for registration it makes a central and intimate aspect of private life publicly visible, which is why the state is under the obligation to guarantee that the sex entries do reflect individual gender identy and it must allow to refrain from an entry until the persons, in especially children, autonomously assign their gender.

The Constitutional Court allowed any kind of gender entries, requested by an applicant, which have a real relation to social life and are not imaginary. "Inter", "divers" and "open" the Court declared as such admissible, as long as the third option gender marker will not be restricted to certain terms by a duly published statute or executive order (VfGH 15.06.2018, G 77/2018).

Nevertheless Minister of Interior Herbert Kickl in December 2018 ordered the civil registry offices to allow solely the term "divers", to register the gender of new-borns with just "male", "female" or "open" and to grant the third gender option only after positive assessment of a biological intersexuality by so-called Variety-of-Gender-Development-Boards, which have not even been established yet (!) (order of 20.12.2018, BMI-VA1300/0528-III/4/b/2018). This order violates the Constitutional Court´s judgment and the law on adniministrative procedure which does not restrict evidence. The order binds the civil registry offices but not the courts.  

"We are delighted over the historic issuance of the first documents certifiying a third gender", says Dr. Helmut Graupner, counsel of Alex Jürgen und president of Rechtskomitee LAMBDA (RKL), "At the same time we deplore that the Minister of Interior orders the civil registry offices to break the law and forces intersex persons to turn to the courts again".

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