S05: Normative implications of human rights of persons with DSD in a non-binary legal world

The project seeks to improve the understanding of the situations, needs and views, to identify issues, and to (re)formulate legal norms and regulations in such a way that the human rights of people with DSD and non-binary gender identities are fully recognized and respected. The team will use qualitative social research methodology, a hermeneutic-phenomenological approach to empirical ethics, and critical legal gender analyses and the methodology of comparative law.

Principal Investigators:

Mangold, Anna Katharina, Prof. Dr. jur, LL.M. (Cambridge), Europa-Universität Flensburg, Abteilung Europa- und Völkerrecht, Auf dem Campus 1, 24943 Flensburg
anna-katharina.mangold@uni-flensburg.de

Rehmann-Sutter, Christoph, Prof. Dr. phil., dipl. biol., Universität zu Lübeck, Institut für Medizingeschichte und Wissenschaftsforschung, Königstraße 20, 23552 Lübeck
christoph.rehmannsutter@uni-luebeck.de
 

The project puts persons with DSD and non-binary persons centre stage. The decision by the German Federal Constitutional Court (FCC) of October 2017 on a “third legal gender category” has potentially far-reaching consequences for both gender-categorised law and the norms of medical practice, in particular those norms that regulate the treatment of children and adults with differences of sex development (DSD). The human rights-based approach of the FCC signifies a fundamental shift in how the state defines the social categories that constitute gender relations: an exclusively binary legal gender category matrix ignores the human rights of some citizens and must be given up. Their gender identities beyond the gender binary are now also legally recognised. Henceforth, the human rights of “persons who perceive themselves as neither male nor female” have to be respected, both in law and in medicine.

Based on and informed by the experiences and demands of persons with DSD and non-binary persons and taking a biographical perspective, we seek to improve the understanding of their situation, needs and views, to identify issues and to (re)formulate German legal norms and regulations in such a way that the human rights of people with DSD and non-binary gender identities are fully recognised and respected. We will use qualitative social research methodology, a hermeneutic-phenomenological approach to empirical ethics, and critical legal gender analyses.

Aims of this project are: first, to identify the most pressing areas of norms in law and in medical care that need to be changed so as to recognise and respect the human rights of persons with DSD and non-binary persons according to the FCC ruling (de lege lata); second, based on the experiences and aspirations, desires, demands and requests of persons with DSD and non-binary persons, then to develop a comprehensive legislative programme to change the current gender-binary law and medical regulations in a way that best promotes the human rights of persons with DSD and non-binary persons (de lege ferenda).

The project is organised into three work packages that will run concurrently: (1) A qualitative interview study of persons with diverse DSD conditions and non-binary persons, using an empirical bioethics approach in a hermeneutic-phenomenological perspective. (2) Legal comparisons with countries that have already started to develop a legal framework beyond the gender binary; international conference with legal experts and community members from countries more progressive in their approaches to legal gender regulation. (3) Exploration of the German legal framework set out by the FCC and of the existing legislation and medical regulations; identification of problems and areas of German law and medical practice in need of immediate change de lege lata; development of a legislative programme de lege ferenda.

Job description of staff:

1. PhD student in law. The doctoral researcher should have a background in law and an interest in gender studies. The candidate should demonstrate a strong interest in collaborative research with a qualitative empirical study. 
2. PhD student in empirical ethics. The doctoral researcher should have a background in philosophy and social sciences, with an interest in gender studies. A degree in psychology is also possible, although experience in philosophy, law and the humanities should be present. The candidate should demonstrate a strong interest in collaborative research. S*he will do qualitative interview research with a focus on sex diversity.