Right to identity: recognition / affiliation of people of the same sex; knowledge of the child's origins in adoption cases

The constitutional complaint concerns the question of whether the challenged decisions and the underlying § 21.11 and 3 in conjunction with § 22.3 of the Personal Status Act (PStG) violate the complainant's fundamental rights. According to this, the sex must be entered in the civil status register when a person is born. If the child can be assigned neither to the female nor to the male gender, the indication may remain blank.
The complainant was assigned to the female gender at birth and entered in the birth register as a girl. The complaint latersubmitted a chromosome analysis and applied for the correction of her birth entry from female to "inter/diverse". The local court rejected the application for correction because the registration was not possible. The Act to Amend Civil Status Law only provides for registration as female or male or no registration. The appeal against this judgement was dismissed by the Higher Regional Court, and the appeal on points of law against this dismissal was rejected by the Federal Court of Justice. Both courts referred to the wording of § 22 of the Act to Amend Civil Status Law. The interpretation that there is a third gender "inter/diverse" in addition to female and male is not necessary. § 22 was said to be not unconstitutional. Constitutionally, it makes no significant difference whether an entry is omitted or one is made that cannot be assigned to an existing gender. An entry as "inter/diverse" would contradict legal certainty and clarity.
The complainant believes that this violated her fundamental rights under Article 2.1 of the Basic Law in conjunction with Article 1.1 of the Basic Law and Article 3.3 sentence 1 of the Basic Law. The forced assignment obliges the complainant to fit into a binary system that does not correspond to her own sense of identity. She only had the choice of either classifying herself in an inaccurate category of female or male or leaving the entry open, which meant a "nullum". Although it makes no material legal difference, the gender entry is an important component of identity formation. The possibility of registering as "inter/diverse" could create a collective designation for all persons who cannot be assigned to either the male or the female gender, but who also do not want to be permanently registered as "genderless".
Furthermore, the complainant claims an inadmissible unequal treatment, as male and female persons could be entered in the register as their sex, but there was no legally registerable designation for intersex persons. 
The FCC held that § 21.1 and 3 of the Act to Amend Civil Status Law in conjunction with § 22.3 of the Act to Amend Civil Status Law was unconstitutional insofar as it forced the registration of gender under civil status law, but did not allow any other positive gender entry in addition to the gender entry male or female. 
The general right of personality also protects gender identity, which is an essential aspect of personality. The gender identity of persons who are neither male nor female is also protected. The civil status law forces people to register their gender, but did not allow a gender entry under civil status law that corresponded to their gender identity. 
The open gender entry did not reflect the fact that the person does not see themselves as a man or a woman, but also not as genderless. The obligation to register one's gender, without the possibility of a further positive gender entry that is neither female nor male, therefore constituted an encroachment on the scope of protection of the general right of personality. 
The Basic Law does not require that the status of persons be regulated exclusively in binary terms. Although Article 3.2 sentence 1 of the Basic Law speaks of men and women, this does not result in a final determination on two genders. 
By opening a third possibility to have a gender positively entered in the register of persons, the existing status of men and women would not be affected, so that the interference cannot be justified by third party concerns. Also, the creation of the possibility would not create an unreasonable bureaucratic and financial burden. The lack of the possibility of a positive registration was therefore not justified.
Article 3.3 sentence 1 of the Basic Law prohibits discrimination on grounds of sex, the purpose of which is to protect members of groups that are structurally susceptible to discrimination from disadvantage. The wording "gender" allows without problems that gender can also be beyond male and female. Although it is unlikely that the constitutional legislator had the inclusion of a further gender in mind, in view of today's knowledge, further gender identities are to be included in the protection against discrimination. 
The discrimination was also not justified. The lack of the possibility of a positive registration infringes the complainant's general right of personality under Article 1.1 of the Basic Law in conjunction with Article 2.1 of the Basic Law, and the existing provision violateed the prohibition of discrimination under Article 3.3 sentence 1 of the Basic Law.