Man or woman – by official consent

Swiss law assumes that there are men, women, and no one else. But in purely legal terms, other options are perfectly possible. By Susanne Wenger

(From "Horizons" no. 107, December 2015) ​​​

In the eyes of the state, we can remain nameless for a maximum of 72 hours, and for the same length of time we may remain devoid of gender. But within three days of its birth, a baby has to be registered with its full particulars. That’s what the Civil Registry Ordinance demands. “Gender may not be left open”, says Andrea Büchler, the Chair of Private Law and Comparative Law at the University of Zurich. The Civil Registry only knows male and female. Büchler calls this the “legal compulsion to unambiguousness”. This gender dualism can be traced through the whole of the law, from maternity insurance to compulsory military service to marriage and quota regulations. The law, says Büchler, is founded on certain assumptions: that gender can be determined clearly, and that gender identity corresponds to the physical body. These supposed certainties are upset by people whose bodies are between the sexes, and by transsexuals who wish to live in the opposite gender. “Transgender identities bring into question the very fundamental convictions of the law”.

Changing one’s official gender at a later date is a correspondingly complex process – even though the jurisprudence reflects a cautious degree of liberalisation in this respect. A judgement made by the Zurich High Court in 2011 is regarded as a milestone in this field. The Court allowed a change in the Civil Registry from male to female, even though no sex-change operation had taken place. Despite this, the judges ruled that the necessary requirement of the change being irreversible had been fulfilled. The person had achieved her “desired female gender”, and hormone treatment had rendered her infertile as a male. Büchler finds this an interesting point regarding sex changes, because a man who used to be a woman can’t bear children either. It is simply impossible to avoid fixing oneself in a specific gender. “Whoever would like to avoid it simply comes up against the boundaries of gender categorisation that are set by law”.

Do we need two genders?

Other countries go about these matters with a greater degree of differentiation. Since 2013 it has been possible in Germany to omit stating the gender of children who at birth are not unambiguously either male or female. The Süddeutsche Zeitung wrote of a “revolution”. In Australia, intersexuals can place an ‘X’ in their passport where they are otherwise required to state their gender. In 2014, the Indian Supreme Court recognised the transgender hijra communities as a neutral, third gender with access to minority rights.

In Switzerland, it does not seem practicable to offer a third category. In 2012, the National Advisory Commission on Biomedical Ethics argued in favour of the right to self-determination among people of divergent sexual development. But it refused to recommend introducing a non-specific category, claiming that those affected would only be stigmatised all the more because gender dichotomies are “deeply anchored in our society and culture”. As a compromise, ethicists now recommend making it easier to change the gender entry in the Civil Registry, and making legal proceedings unnecessary to bring about such changes.

Nor is Büchler much convinced by the idea of a third category: “Such a catch-all solution could not do justice to the sheer variety of transgender identities and of physical gender traits that exist”. She thinks we should instead be asking if the law really needs the category of ‘gender’ at all. Categorisation is in itself injurious to the personal rights of those who do not fit the binary gender order: “Young people are often under great mental pressure, and they would be free of their burden if we were no longer officially registered as either male or female”.

Why should the state be interested in our gender at all? This is Büchler’s radical question, and it is one that is bound to provoke controversy. But in pragmatic, political terms, not even a less radical solution has a chance of becoming a matter of priority. When a proposal was made to the Swiss Federal Parliament in 2013 that children of uncertain gender should not be entered as either male or female in the Civil Registry at least until adulthood, it was dropped without even being discussed.

Susanne Wenger is a freelance journalist based in Bern.