BEYOND BINARY GENDER: RETHINKING THE RIGHT TO LEGAL GENDER RECOGNITION

Abstract

Western societies have traditionally recognized only two genders, male and female. However, as a recent judgment handed down by the German Federal Constitutional Court has shown, this is starting to change and the claim for legal recognition of gender by non-binary people has grown considerably. Based on the understanding of comparative law, this article argues that whether legal movements that go beyond binarism are desirable or not depends, in large part, on the logic that supports them, as well as examining numerous other possible justifications. At a minimum, the legal gender recognition of non-binary people should lend itself to promoting self-determination within a broad social fabric of existence, supporting non-binary people in everyday interactions by challenging gender binary self-evidence. Based on the case law of the European Court of Human Rights regarding transgender rights, the article examines whether this logic is already latent in European case law.