5th request for an ‘X’ on a birth certificate granted by Dutch court

Rechtsstatelijkheid, hamer van rechter

On April 13, 2021, a Dutch judge again granted a request for a gender neutral designation. Researcher Marjolein van den Brink shows the implications of this news.

On 13 April 2021 a Dutch court granted a request for a gender neutral registration of sex / gender on a birth certificate. This was the fifth time such a request was granted. Dutch law does not expressly provide for such an option. Article 19d of book 1 of the Civil Code (Burgerlijk Wetboek, BW) allows for an “other” entry (rather than male or female), but only in case where the sex of a new born baby cannot be determined. In those circumstances, the entry will read: ‘sex could not be determined’. After three months this first, temporary birth certificate will be replaced by a final document, which indicates either M, F or ‘sex could not be determined’. In the latter case, it is always possible to subsequently change to M or F. However, at present, Dutch law does not provide for the option of obtaining a ‘could not be determined’ status where an individual is assigned a M or F at birth.

Procedure and approach followed by the court

In all published cases, the request for a gender neutral registration of sex / gender was granted, applying the aforementioned article 1:19d BW by analogy. The main difference so far lies in the procedure to be followed.

In the first decision, in May 2018, the court (rechtbank Limburg) ordered the registrar to draw up a new birth certificate. This line was followed by the court of Noord-Nederland in July 2019. However, in February 2020, the court of Midden-Nederland adopted a different solution, ordering the registrar to correct the existing birth certificate. Although such correction is is also not provided for under the current law, it is closer to the system envisaged by the Dutch Civil Code, in which birth certificates represent legally valid evidence. When a new certificate is made up, the old certificate ‘disappears’, leaving no trace of ‘personal history’.

This new approach was followed by the court of Gelderland in January 2021, and now again by the court of Den Haag.

Explicit reference to the legislator

New in this decision is the explicit reference of the court to the legislator. Whilst the court acknowledges that the task of setting rules to govern this area of law primarily belongs to the legislator, it nevertheless notes that the legislator has indicated several times that it is waiting for jurisprudential developments, before deciding on new legislation. In light of this ‘stagnant’ progress, the court feels that the individual interests at stake outweigh the public interest of strict law enforcement.

An issue that so far has received very limited attention regards the nature of the evidence that is needed to establish the necessary ‘conviction’ not to belong to either the male or the female sex. It is also not entirely clear who can successfully apply for an ‘X’. Although the reference to a ‘conviction’ suggests that the option is limited to people outside the binary, the quite vague language of the court in these five cases seems to indicate that the route of art. 1:19d BW is open to both trans and intersex individuals.

It is to be hoped that the legislator will now step in and provide for an easier, administrative procedure to to obtain a legal gender status beyond M and F. In light of the case law of the German Constitutional Court of 2017 another entry than ‘could not be determined’ or leaving it blank should definitely be considered. Furthermore, it is to be hoped that the option to choose for a neutral entry will be open to all, regardless of trans, cis, intersex or other gender status. That will help combat issues of pathologisation, prevent stigmatisation, and – hopefully – support a development in which people’s sex/gender becomes less, rather than more, important.

Case law:

  • Rechtbank Limburg, 28 May 2018; ECLI:NL:RBLIM:2018:4931

  • Rechtbank Noord-Nederland, 24 July 2019 (ECLI:NL:RBNNE:2019:3437)

  • Rechtbank Midden-Nederland, 10 February 2020 (ECLI:NL:RBMNE:2020:522)

  • Rechtbank Gelderland, 20 January 2021, ECLI:NL:RBGEL:2021:325

  • Rechtbank Den Haag, 13 April 2021, ECLI:NL:RBDHA:2021:3907