Bye Bye Binary – The Political Making of a Third Gender in Germany and The Netherlands

Sex is one of the most fundamental ways we categorize human beings, separating them into categories of male and female. But increased visibility and advocacy of individuals with intersex characteristics has caused a category crisis, exposing the heteronormative criteria upon which rights and recognition are unevenly distributed. Germany and the Netherlands are now the first countries in Western-Europe to introduce a third option for registering gender. The legal recognition of gender beyond the binary is remarkable, given the deeply rooted perception of gender as static, natural and essentialist. This paper investigates how it was possible for these fundamental categories to change. Using court and parliamentary documents, activists’ statements and media reports, it empirically maps the trajectories leading up to the introduction of the third option. We find that intersex activists successfully reframed the right to register gender as a human rights issue, riding a wave of international legal development in gender legislation. The resonance of this frame with pre-existing ideas of national identity created the possibility for a third legal gender. By showing how the third category was politically made, this paper contributes to our understanding of the complex relationship between sex and gender and its importance to political analysis.