“Which one of you was in Berlin recently? There you can see the Latte-macchiato faction who are introducing toilets for the third sex. This is for the men who don’t yet know whether they can still stand while peeing or already have to sit. That’s what this toilet is for, in between.” (Annegret Kramp-Karrenbauer, carnival speech of 02.03.2019). What was most probably only meant as a joke to the carnival, shows however by the reactions, how polarizing the topic is. It is therefore important to provide comprehensive information about the introduction of the third sex and, above all, to think about appropriate measures to be taken in working life. A clear distinction must also be made between transgender and transsexual people, since they are often equated with the third sex.
The third sex is defined as intersexual people who deviate genetically from the norm and thus form both sexes. Their chromosomes, hormones, gonads and genitals have both female and male characteristics. Previously, these persons were assigned a sex at birth. Often, operations or hormonal treatments were carried out for this purpose, so that a clear assignment was possible. Even today, these operations are performed on 300 to 500 children in Germany every year. Causes for intersexuality are among other things a wrong genetic classification, faulty development in the womb, malformation of the genital organs or hormonal causes.
In contrast to intersexual people, transgender people do not want to commit themselves to either the female or the male sex. Although they have an assigned gender, they do not feel sufficiently or incorrectly identified with it. They therefore do not wish to be categorised by gender. In the case of transsexuals, in turn, the physical sex differs from the psychological sex. Biologically, gender can be clearly assigned, but transsexual people usually feel that they belong to the other sex than their biological counterpart and achieve an external alignment through surgical and hormonal forms of therapy.
With the introduction of the third sex, often referred to as “other” or “non-binary”, as a further gender category in the registry of civil status, legislators have not made any stipulations regarding the further handling of the third sex, e.g. by law. Rather, it has left them up to practice, which must find solutions within the framework of, or in compliance with, the General Equal Treatment Act, which already applies. Every employer, i.e. every company as well as every private or public institution, has an interest in ensuring that dealing with the third sex is legally secure. This poses several challenges to modern employers.
In Germany, employers must ensure in the recruitment process that job vacancies are kept gender neutral and supplemented by the third abbreviation “d” for German “divers” (various/other), in addition to the well-known abbreviations “m” for male and “f” for female. This ensures that the principle of gender-neutral job posting is adhered to. A simple designation of the position, e.g. accountant, is not possible, as it is always associated with the male gender.
Many industries also have dress codes that should be adapted to the third sex. The introduction of gender-neutral clothing regulations is therefore recommended. If this does not seem possible or sensible for some occupational groups, such as flight attendants, appropriate regulations must be made for intersexual people.
When hiring an intersexual employee, care must be taken in accordance with § 6 of the Workplace Ordinance to ensure that either gender-neutral toilets (unisex toilets, i.e. individual cabins accessible to everyone but lockable) are available or that an additional toilet for intersexual people is installed. The same would apply to changing rooms and washrooms.
In addition, recognition of the third sex does not only entail adjustment requirements for the employer, but also actual changes on the part of the men and women employed as employees, i.e. their colleagues. All those involved must learn to deal with the new situation in a positive way.
It is precisely because of the many new regulations, which employers in particular have to comply with, that many have not yet addressed this issue. It should be noted, however, that it has consequences for companies if an employee or applicant who is intersexual complains that he or she is disadvantaged or, unlike men and women, is not treated equally. In terms of the world of work, recognition of the third sex therefore means that both companies and public and private institutions should address diversity concepts.
Furthermore, it is to be hoped that the recognition of the third sex will mean that at least parents will no longer be exposed to the enormous pressure at the birth of their child to have an operation performed on their child so that it can be assigned to a clear sex. That alone would be an important step in the right direction.