A couple of parents wanted the registry office to enter the gender of their newborn child in the birth register as “without”. After § 22 Abs. 3 PStG – like the entry “diverse” – is basically possible. However, the prerequisite is that the child cannot be assigned to any gender.
Since the infant was born at home, there were no medical records about him. The midwife had checked “without” for gender on the form, but had not expressly stated that an assignment was impossible. She did not answer questions, citing her obligation to maintain confidentiality. Therefore, the registry office refused to register the birth according to the parents’ wishes. Their complaint was unsuccessful.
The Munich judges (decision of September 1st, 2023 – 31 Wx 210/23 e) did not accept the parents’ argument that they had to protect their child’s gender identity. The newborn has no idea of its gender. Whether the parents saw it as diverse or genderless was irrelevant. There is also no right to keep the entry open until the child makes a later decision.
According to the Higher Regional Court, only the physical characteristics are relevant. Neither the parents nor the midwife provided any information about this. The court pointed out that for questions of civil status according to the Bavarian midwife regulations (§ 6 Abs. 3 BayHebBO) there is no obligation of confidentiality.
to Munich Higher Regional Court, decision of September 1st, 2023 – 31 Wx 210/23
Editorial team beck-aktuell, Michael Dollmann, November 27, 2023.
Related Links
From the beck-online database
Mangold, Gender self-determination required under human rights, ZRP 2022, 180
Wellenhofer, overview of case law on parentage law (2021-2022), NZFam 2023, 346
Fehr, birth register correction in the event of incorrect gender entry, NJW-Spezial 2022, 580
Schinkels, speech act under civil status law about one’s own gender identity, ZRP 2022, 222