Man or woman? You have been able to choose your gender since January

From this year on, everyone can freely choose whether they are male or female. How long the categories of women and men will still exist is uncertain. The question is whether to introduce a third gender or to do without the sexes entirely.

The unisex toilets in the Hotel Anker in Lucerne on Monday, June 19, 2017.

Urs Flueeler / Keystone

New year, new luck, is the motto these days. For one or the other, the new year will also bring a new gender. Since January 1, 2022, you can easily go from man to woman or from woman to man in Switzerland. This is possible thanks to an amendment to the civil code that Parliament approved without much ado a year ago. From now on, it is sufficient to go to the registry office, where you can deposit your request for an official gender change.

Anyone can do this as long as they are firmly convinced that they are of the opposite sex. Medical certificates or medical evidence that you want to physically approach the new gender are not required. The change is possible several times: If you change your mind over time, you can reverse your decision.

The mother remains the mother

The gender change has no impact on family law relationships. Anyone who is married stays married; It does not matter whether the couple agrees to have a same-sex husband. The same applies to parenthood: a woman who has given birth to a child and later converts to the male sex remains its mother from a legal perspective and does not become the father.

How popular the gender change will be in practice remains to be seen. However, it can hardly be assumed that the registry offices will now be overrun by interested parties; the desire to change gender is likely to remain a marginal phenomenon. Perhaps one or the other man will try to take advantage of the new opportunity and quickly become a woman in order to avoid compulsory military service or to receive the AHV pension earlier. But such cases are likely to remain exceptions.

Nonetheless, the change in the law, which was carried out so leanly in Parliament, is spectacular from a social point of view. Because in the future, biology will basically no longer decide whether you are officially a man or a woman, but your inner conviction. This is a break with the traditional understanding that biological men are not the same as biological women and vice versa. It is a break with the deeply ingrained notion that gender depends on chromosomes, anatomy, and physical characteristics, and is not a matter of personal condition. The free choice of gender is likely to take some getting used to for large sections of the population, to put it cautiously.

The third gender as a new category

But you won’t dwell on it for too long. The debate is already turning, other questions are coming to the fore. For example, whether Switzerland should introduce a third gender. Numerous countries have already taken this step, for example Germany, where, in addition to men and women, there has also been the category of diverse for a few years.

In foreign legal systems, the third gender is often not only reserved for intersex people, formerly known as hermaphrodites or hermaphrodites. Rather, anyone who does not recognize themselves in the binary man-woman order can be officially registered as diverse, regardless of their physical attributes. The diversity of the non-binary is great: There are, to name just a few examples, the polygenders who have two or more genders, the gender fluids that change gender, the pangenders who identify with all gender identities, or the gender-neutral agenders.

The Federal Council wants to adopt a report on the introduction of the third gender on behalf of Parliament in the coming months. Even if not everyone should be equally enthusiastic about the idea of ​​giving up the traditional binary system with men and women: The resistance to the admission of the third gender will probably be manageable. If you can go from man to woman or from woman to man overnight, why not also become diverse? If what counts is what you feel and not what you are biological, why shouldn’t you be third-sex?

Linguistic challenges

The introduction of the third gender would require a number of legal adjustments. One would have to recognize the diverse – or what one wants to call the non-binary ones – as a fully-fledged category alongside men and women in order not to expose oneself to the accusation of gender discrimination. The question of how the third gender could be fitted into our binary legal system would, however, be tricky. For example, compulsory military service requires a clear assignment: Anyone who is a man must enlist or pay a replacement tax. Where would the miscellaneous figure? And what would apply to parentage law based on the concept of father and mother? What is a third-sex person who gives birth to a child?

Not only legally, but also linguistically, the creation of a third gender is likely to be a challenge, both in laws and in official documents. For example, one would have to agree on what the appropriate pronoun would be for non-binary people. However, that would not be unsolvable either. In France, for example, the dictionary “Le Robert” recently added the gender-neutral pronoun “iel” – a combination of “il” and “elle”. It can also be declined.

Right without gender

However, other paths are also open: Instead of becoming gender-diverse, Switzerland could do without gender entirely and no longer divide people into men and women (or non-binary). The law would no longer link any consequences to gender – instead of more diversity, a radical simplification. The Federal Council must also give its opinion to parliament on this possibility.

In legal doctrine there are quite a few voices that speak out in favor of “law without gender”. There is no reason why the legal system differentiates between men and women and why they should continue to do so, it is said. The idea of ​​completely abandoning gender as a category is particularly supported by more recent feminist jurisprudence. Right construct outdated role models. It is therefore argued that it could have a liberating effect if one refrains from entering the gender in the civil status register at birth. Even where there are clear biological differences, especially pregnancy and maternity leave, one does not necessarily have to focus on gender or womanhood, but can distinguish between people who are pregnant and give birth and others.

Sukkurs gets the genderless legal system from the National Ethics Committee. The binary structure is culturally deeply anchored and broadly accepted, the issue shows a high level of sensitivity, according to a statement from 2020. At the same time, the waiver of official gender registration is the preferable solution from an ethical perspective, the commission continues, not without pointing in a somewhat twisted manner to the social conditions that would have to be given in order to take such a far-reaching step.

Privileges on the brink

But the idea of ​​doing without the familiar categories of women and men is not always well received. Especially in traditionally conservative circles, some people think that the subdivision makes sense, and it still does. For example, a member of the center-parliament, who was concerned that the federal government wanted to abolish terms such as “mother” and “pregnant woman”, recently came to the National Council’s Question Time. Switzerland doesn’t have to take over every nonsense from the USA, he protested. The Federal Council reassured him that this is not an issue.

Resistance to the abolition of the sexes is to be expected not only from conservative contemporaries, but also from women. In women’s circles in particular, people will think twice about whether they want to disclose the category of “woman” and thus forego privileges in terms of military service or social security. And what about the quota system for management positions, for example, if there was only one gender?

Another question that should not be underestimated from a female perspective is to what extent the leveling of gender boundaries should be promoted in everyday life and Switzerland should become a gender-neutral society. If you want to overcome the conventional man-woman pattern and be inclusive, as is currently the trend, it would only be logical to keep all locations open to all people equally. But inclusion and privacy are only compatible to a limited extent. Not every girl and not every woman is likely to be enthusiastic about the prospect of suddenly having to share toilets, cloakrooms, saunas, hospital rooms and other things reserved for them with men.

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