Master
Reference
Gender: tra traduzione e giurilinguistica : Una riflessione
semantico-terminologica a partire dalla sentenza del 10 ottobre 2017 della Corte costituzionale federale tedesca e sul riconoscimento di
una terza opzione di genere
PORTIOLI, Eugenia
Abstract
Comment traduire l'expression d'une fracture profonde au sein d'une culture et la restituer dans une autre langue ? Cette étude se propose de confronter le texte de la décision controversée du 10 octobre 2017 de la Cour constitutionnelle allemande, portant sur l'introduction d'un troisième sexe, avec ses traductions partielles et non officielles, en anglais et en italien. Elle explore notamment, dans une optique multidisciplinaire, les concepts de genre, de sexe et d'identité, ainsi que leur transposition dans les différentes langues-cultures.
La recherche se concentre notamment sur les vides sémantiques dans les langues de la jurisprudence, les limites et les contraintes de la traduction juridique, et sur les choix traductifs. Le défi que représente la traduction d'un mot rencontre la tâche difficile, peut-être impossible, de donner une voix aux identités réduites au silence, et de reconnaître le désir des personnes concernées d'être reconnues, en tant que sujet de droit, dans leurs identités, au sein des autres espaces linguistiques.
PORTIOLI, Eugenia. Gender: tra traduzione e giurilinguistica : Una riflessione
semantico-terminologica a partire dalla sentenza del 10 ottobre 2017 della Corte costituzionale federale tedesca e sul riconoscimento di una terza opzione di genere. Master : Univ. Genève, 2019
Available at:
http://archive-ouverte.unige.ch/unige:126961
Disclaimer: layout of this document may differ from the published version.
Eugenia PORTIOLI
GENDER: BETWEEN TRANSLATION AND JURILINGUISTICS
A semantic-terminological analysis following the decision of the German Federal Constitutional Court of 10 October 2017 on the recognition of a third
gender option
Directrice : Annarita FELICI
Jurée :
Michelle COTTIER
Mémoire présenté à la Faculté de traduction et d’interprétation (Département de traduction, Unité d’italien) pour obtenir la
Maîtrise universitaire en traduction, mention traductologie
Août 2019
Université de Genève
Déclaration attestant le caractère original du présent travail
J’affirme avoir pris connaissance des documents d’information et de prévention du plagiat émis par l’Université de Genève et la Faculté de traduction et d’interprétation (notamment la Directive en matière de plagiat des étudiant-e-s, le Règlement d’études des Maîtrises universitaires en traduction et du Certificat complémentaire en traduction de la Faculté de traduction et d’interprétation ainsi que l’Aide-mémoire à l’intention des étudiants préparant un mémoire de Ma en traduction).
J’atteste que ce travail est le fruit d’un travail personnel et a été rédigé de manière autonome.
Je déclare que toutes les sources d’information utilisées sont citées de manière complète et précise, y compris les sources sur Internet.
Je suis consciente que le fait de ne pas citer une source ou de ne pas la citer correctement est constitutif de plagiat et que le plagiat est considéré comme une faute grave au sein de l’Université, passible de sanctions.
Au vu de ce qui précède, je déclare sur l’honneur que le présent travail est original.
Nom et prénom :
Eugenia Portioli
Lieu / date / signature :
Genève, le 28 août 2019
Contents
INTRODUCTION ... 1
1. PREMISES ... 4
1.1. Debated Concepts: From the First Feminist Thought to Queer Theories ... 4
1.1.1. Sex, Gender and Other Mysteries of Language: A Semantic Clarification ... 6
1.2. The Untranslatable and the Semantic Voids ... 7
1.3. Translatable at any Cost: Legal Translation, Jurilinguistics and
Juritraductologie ... 102. FROM THEORY TO PRACTICE: CONTEXT AND CONTENT OF THE DECISION OF THE FEDERAL CONSTITUTIONAL COURT OF 10 OCTOBER 2017 12 2.1. The Bundesverfassungsgericht: the German Constitutional Court ... 12
2.2. History and Developments of the Court’s Decision ... 13
2.3. Form and Content of the Judgment ... 14
3. TRANSLATING GENDERS: GERMAN, ENGLISH AND ITALIAN COMPARED 17 3.1 Terminological Issues ... 17
3.2. First Step: Original German Text and English Translation Compared ... 18
3.2.1. Extract No.1: English Language and Translation Notes (Section A.) ... 18
3.2.2. Extract No.2: Gender / Geschlecht vs gender / sex (Section A., I, 1, c) ... 20
3.2.3. Extract No.3: The Decision not to Translate (section A., I, 2) ... 21
3.2.4. Extract No.4: Medical Discrimination (Section A., I, 3)... 22
3.2.5. Extract No.5: “inter” and “divers” (Section A., IV, 8, 10, 15) ... 24
3.3. Second Step: Translation Choices in Italian ... 25
3.4. Results ... 26
3.5. Conclusions: Comparison of Terminological and Linguistic Spheres ... 32
4. TOWARDS A GENDER LEGAL RECOGNITION: A COMPARISON ON
SEVERAL INSTITUTIONAL LEVELS ... 34
4.1. International Law ... 34
4.1.1. The United Nations (UN) ... 34
4.1.2. The International Commission on Civil Status (ICCS) ... 35
4.2. European Union ... 35
4.2.1. The Council of Europe ... 36
4.3. National Legislation ... 37
4.3.1. Germany ... 37
4.3.2. Switzerland ... 38
CONCLUSION ... 41
APPENDIX I: The Constitutional Court’s decision of 10 October 2017 (original) ... 44
APPENDIX II: The Constitutional Court’s decision of 10 October 2017 (EN translation) 63 APPENDIX III: Glossary ... 75
Bibliography ... 100
TEIRESIAS.
So bin ich von Geburt: wie dir scheint,
ein Narr, in den Augen der Eltern aber, die dich zeugten, ein kluger Mann.1
1 Sophokles (2002). König Ödipus, Reclams Universal-Bibliothek, Stuttgart, p. 23.
INTRODUCTION
On the 10
thof October 2017, the First Senate of the Federal Constitutional Court of Germany ruled that people must be allowed to register themselves as neither male nor female, and ordered the introduction of a third gender option (BVerfG 2017a). The provisions of civil law dealing with gender identity were deemed unconstitutional by the judges for breaching the fundamental rights provided under Art. 2(1) and Art. 1(1) of the Basic Law (Grundgesetz, GG 2019) and the anti-discrimination provisions thereof (Art. 3,3 of GG 2019). The Civil Status Act (Personenstandsgesetz, PStG 2007a), § 22(3) of which did not provide for a third possible gender entry besides “female” or “male”, was for this reason considered to be violating the general right of personality, which protects everyone’s identity regardless of their gender assigned at birth. State authorities were ordered to enact the new provisions by 31 December 2018. Today, the ruling applies only to intersex people, i.e. to people who do not fit the biological definitions of male and female. However, in order to register as “divers” – the third gender option – a medical certificate is needed.
The Constitutional Court was hearing an appeal by Vanja – a German citizen who was born intersex but registered as “female” – who wished to change the gender entry on their
2identity documents. Vanja filed a request to replace the previous gender entry with
“inter/divers” or only with “divers”. Their initial attempts were first rejected by the registery office, then by the Local Courts (Amtsgericht). Thanks to the support of the gender advocacy group “Dritte Option”, they could eventually file a constitutional complaint, claiming a violation of the general right of personality and discrimination based on gender. After four years, the Federal Constitutional Court ordered the German government to change the provisions of civil status law and provide people with a third gender category for birth registration and identity documents. Thus, by giving it a name and a meaning, the German Constitutional Court recognised and legitimised a reality that until recently had not been formally included in the law: that of intersex people. This judgment could result in a long- lasting change in the customs and traditions of the gender-inclusive language (UN 2019).
The Federal Republic of Germany is the first country in the European Union to openly take a stand on this issue, leading the way towards a significant change whose consequences
2 In the context of this study I will use inclusive gender pronouns and grammatical forms (e.g. singular they).
will affect Germany and the international community simultaneously on a legal, social and linguistic level. In this sense, legal texts offer a broad spectrum of analysis of such a language, precisely because they are vowed to uncompromising clarity. The accuracy of the legislator’s word must guarantee equal treatment before the law and, in the context of this study, its understanding is decisive to grasp the inner complexity of the translating process. The ethical obligation a legal translation must live up to, faces one of the biggest challenges: the one of untranslatability. This work aims to investigate through the lenses of translation the intrinsic connection between the legal, the social and the linguistic study areas. The aim is to clarify linguistic and semantic realities within the German text of the Constitutional Court’s decision and to outline the aspects of their translative complexity. This paper will explore the limits of such a translation, when the target culture does not (yet) host the meaning of the message that must be translated.
This work is structured in the following way: firstly, I will provide a brief theoretical
introduction on gender, translation and legal translation studies. The approach is
multidisciplinary, since the object of examination lies between different disciplines such as,
law, social, linguistic and translation studies. The starting point of my reflections will be centred
within the framework of gender theories, moving from the latest feminist movements to the
most recent queer theories. Secondly, I will contextualise some of the linguistic-translational
problems that arise when interpreting and translating legal texts. Translation studies theories
from the second half of the nineteenth century onwards will provide us with the tools of analysis
to explore the difficulties of translational practice. Specifically, I will go as far as its most
extreme limit: the untranslatable. The last part of the first chapter will be devoted to language
and legal translation, where everything must necessarily be translated before the law: the
translatable at any cost. The second chapter will serve as a presentation of the text of the
judgment of the Federal Constitutional Court. Once the historical and cultural context has been
outlined, I will try to expose and analyse in detail the parts of which the text is composed. The
third chapter is the ideal centre of this study, in which I will present some language choices
adopted in German and compare them with the partial and unofficial English and Italian
translations. The chapter will be devoted to the analysis of the first part of the Court’s judgment
– the most descriptive and explanatory part – that is fundamental for a deep understanding of
the subject. The targeted analysis of a selection of passages will respectively be followed by
their English and Italian translations.
3Finally, in the last chapter I will deal with legal, social and linguistic realities affecting both Germany, Switzerland, the supranational and the international community. I will also try to present what this field of research might have in store for the future.
3 The partial English translation is published for information purposes on the website of the German Constitutional Court. The Italian translation is by Roberto de Felice, published in Articolo 29, edited by Francesca Brunetta d’Usseaux. The English summary of this study will focus on the comparison of the German text of the Court’s decision with its English translation. The English translation is reproduced entirely in APPENDIX II of this study.
The Italian translation is analysed instead in depth in the original Italian version of this study which contains also the entire translated version in its APPENDIX III.
1. PREMISES
1.1. Debated Concepts: From the First Feminist Thought to Queer Theories
Sex, gender, sexuality: the theoretical contextualization of these three notions is fundamental to understand the historical, cultural and linguistic value of the Constitutional Court’s decision and its consequences. These three notions have fed feminist ideas and theories over the years, and have become parameters of analysis for social inequalities, as well as the object of criticism and heated debates. Here, I want to briefly retrace the evolution of feminist theorization, from the second wave
4to the latest queer theories. The dialectical relationship established over time between the notions of sex and gender has been the foundation of feminist thought since its first wave between the end of the nineteenth and the beginning of the twentieth century, with the first women’s struggles for equality. While the first wave’s feminists claimed that women were discriminated based on their sex, second wave’s feminists, during the first half of the twentieth century, marked a turning point by defining the distinction between sex and gender (Oakley 1972, Kessler 1978). While sex continues to be understood in a biological sense, the parameters of definition and the meaning of gender roles are now put into question, both legally and politically. Second wave feminists began to theorize sexuality as a central part of patriarchal oppression and believed that gender and sexuality should be theorized together. Just like gender, sexuality has been interpreted as a social production (Jackson 2006: 38). According to this conception, sexuality and gender are not the result of inclusive social processes; on the contrary, they are the result of the dominant, androcentric power.
In some respects, this echoes in the approach adopted by scholars such as Michel Foucault. While not theorizing gender oppression itself, Foucault considers sex as an element produced by the discourse on sexuality (Foucault 1976). Foucault argues that sexuality is:
“l’ensemble des effets produits dans les corps, les comportements, les rapports sociaux par un certain dispositif relevant d’une technologie politique complexe” (Foucault 1976: 168). It is not an innate orientation, but a “point de passage”, a form of power reproduction: a historical construct rather than a natural feature. Sexuality is linked to what he calls “bio-politique de la population”: reproduction and marriage control, health system and moral (Foucault 1976: 183).
This view is shared by some, but harshly criticised by others.
4 The presentation of the first feminist wave, that of the first feminist struggles of the early nineteenth century, cannot be deepened in the limited context of this work. I decided to give priority to the last feminist and queer theories, from the second half of the twentieth century, much more relevant for the purposes of this study.
The problems of recognition and denomination of female sexuality have been widely dealt with by the Belgian feminist scholar Luce Irigaray, who pays attention to the language and its evolution. Strongly influenced by psychoanalytic theories of Lacan and Freud, Irigaray criticizes the patriarchal system of law (Irigaray 1994: 14–18) and develops the idea of a system of law for women (Irigaray 1994: 19–63, 67–87). Legal change, in order to be effective, must be accompanied by a change in symbols and codes, such as language and religion (Irigaray 1994: 112) because: “the organisation of the law reflects that of the language and vice versa”
(Irigaray 1994: 41). Defining feminine sexuality, trying to give it a voice within the existing linguistic system is dangerous because to do so, one would have to speak “like men”, or speak in a system of signs made in their image (Irigaray 1985: 78). All the practical advantages that women have gained have been obtained thanks to their ability to reproduce male identity, to make themselves as similar as possible to men (Irigaray 1994: 79). According to her, that is not equality. In her work, she aims to create a language only for women, to make women speak not through men, but as distinct individuals.
Among scholars who were in favour of eliminating sexual difference, Monique Wittig is a person of reference for the feminist materialist debate, where she claims a lesbian perspective.
Concepts such as sex, gender, man and woman contribute to consolidating the typical oppression categories of what Wittig calls the “heterosexual economic system” (Wittig 1992:
77). She thinks it is necessary to eradicate the categories of sex and gender so that the linguistic system, and the construction of the subject within it, becomes gender neutral. The only way to achieve change is to dismantle the notions of sex and gender, without needing them to have a direct reference to biological characteristics (Wittig 1992, Butler 1990: 113). Meanwhile, with the fertile production of feminist theories on gender and sexuality, the concept of sex was long side-lined.
These evolutions in feminist thought have been partly determined by the advent of
postmodern and queer perspectives in the late 1980s that presuppose a pluralistic system rather
than a binary one (sex/gender vs. sexuality) and explore other conceptions of identity. Rather
than merely supporting the destruction of sex/gender notions and sexuality, the queer
perspective welcomes the vision of a multiplicity of sexes, genders and sexualities. This
multiplicity, however, does not necessarily reject identity categories. Judith Butler proposes a
radical reconceptualization (deconstruction) of these notions of sex, gender and sexuality
(Butler 1990: 110). Although the emergence of queer theories has experienced increased dissent
among feminist groups, which according to them tend to ignore feminist concerns about gender,
lesbian sexuality, race and heterosexuality (Walters 1996: 845–846, Jeffreys 1994: 167,
Samuels 1999, Ferguson 2004, Jackson 2006: 39). The question of universalism in relation to individual specificities emerges in the debates on transgender politics and gender pluralism (Monro 2005 and 2007). Contemporary transgender activism contests often the limited nature of categories of sexual orientation (Monro 2007). And so, like feminist theories, queer theory may also need to be rewritten continuously (Cowan 2013b: 21). Both have the potential to become a platform for making connections with other critical social theories. Perhaps, the future of feminism and queer theory may lie in the articulation of new ways of thinking about new forms of sexuality and gender (Richardson 2006: 36). It, however, keeps open the possibility of conceiving ways of being to which today we do not yet know how to give a name (Butler 2004: 74).
1.1.1. Sex, Gender and Other Mysteries of Language: A Semantic Clarification
Gender theories entered the international debate originating (or following) today’s trend on language inclusion policies. The quest for a more equal, inclusive and politically correct language has resulted in the production of several language guidelines, where English often appears as the language setting the standards for correct language use. As a matter of fact, English profits from a language structure which helps formulate and standardize concepts differently or in a way not yet conceived in other languages. Its neutrality facilitates the arduous task of passing on meanings not yet included in other languages.
5I will list below the definitions of sex and gender included in the United Nations High Commissioner for Human Rights’
guidelines presented at the 39th session of the UN Human Rights Council, from 10 to 28 September 2018 in Geneva.
6Sex is the sum of biological and physiological characteristics that typically define men and women, such as reproductive organs, hormonal makeup, chromosomal patterns, hair-growth patterns, distribution of muscle and fat, body shape, and skeletal structure. This publication will often refer to women, men and others to include binary and non-binary self-identifications of sexual identity.
The definition above refers to the classic distinction between men and women on the basis of their biological and physiological characteristics. The guide explains in the following part that sexual orientation is “a person’s physical, romantic and/or emotional attraction towards other
5 The peculiarities of English language cannot be developed in the framework of this work. However, I will refer to examples in English to provide for comparative models of translation of the German text of the Court’s decision.
6 Following definitions are taken from: OHCHR (2018), “Key terminology”, in OHCHR (2018: 7–9).
people”. From a linguistic point of view, the paragraph does not list all the notions relating to sexual orientation, which would be too complex to be included in such short list.
7Gender refers to the socially constructed identities, attributes and roles of persons in relation to their sex and the social and cultural meanings attached to biological differences based on sex. The meaning of such socially constructed identities, attributes and roles varies across societies, communities and groups and over time. This often results in hierarchical relationships between women and men and an unequal distribution of power and rights, favouring men and disadvantaging women and affecting all members of society. The social positioning of women and men is affected by political, economic, social, religious, ideological and environmental factors.
The foregoing definition of gender is divided into three levels: 1) gender is the set of identities, attributes, roles socially built on the reflection of the collective perception of biological and sexual differences; 2) the meaning of these identities varies depending on the place and the historical moment; and 3) people who do not identify with identities perceived as dominant are often faced with situations of social inequality.
Gender identity refers to a person’s deeply felt and experienced sense of their own gender, which may or may not correspond with the sex they were assigned at birth. It includes the personal sense of the body and other expressions of gender, such as clothing, speech and mannerism. Everyone has a gender identity. Transgender or trans are umbrella terms for people with a wide range of gender identities and expressions who do not identify with the sex they were assigned at birth. A transgender person may identify with different gender identities including man, woman, transman, transwoman, and with specific terms, including non-binary identities such as hijra, fa’afafine, two-spirit, among other terms. Cisgender is a term for people who identify with the sex that they were assigned at birth.
Gender and sex are two distinct notions. As a way of being “deeply felt and experienced”
there are as many gender identities as there are people in the world. Everyone has a gender identity that does not always coincide with the sex assigned at birth.
The notion of intersexuality has nothing to do with sexual orientation or gender identity.
Intersexual people have physical and biological characteristics that do not fall into the binary categories of female or male classification. The definition of intersex included in the guidelines of the United Nations High Commissioner for Human Rights of 2016 is also given below (OHCHR 2016: 19):
Intersex people are born with physical or biological sex characteristics including sexual anatomy, reproductive organs, hormonal patterns and/or chromosomal patterns that do not fit the typical definitions of male or female. These characteristics may be apparent at birth or emerge later in life, often at puberty. Intersex persons may have any sexual orientation and gender identity.
1.2. The Untranslatable and the Semantic Voids
7 For further information on the variety of terminology mentioned, see: OHCHR (2016).
The translation of a word, such as the adjective “divers”, cannot be limited to a simple linguistic transfer, it must deal with the language-culture in which this word will be translated, accepted and used in the same way as its original version. In this sense, “divers”, “inter”, “sex”, “gender”
are translation units
8that must be taken into consideration in their entirety, without depriving them of the cultural context in which they originated. How to translate notions that do not have an exact equivalent in the target languages?
9To say it in Georges Mounin’s words: is translation possible? (Mounin 2016:13)
In 1949 Edwar Sapir wrote that human beings are constantly influenced in their daily lives by the language their society has adopted as a means of communication (Sapir 1949: 69).
It would be an illusion to think that a person could integrate into a society – Sapir continues – without using its language and that this language would only be an incidental means aimed solely at solving the immediate problem of communication between individuals. Georges Mounin, one of the founders of modern translation studies, introduces with his work “Les problèmes théoriques de la traduction” (2014) a new way of dealing with linguistic problems linked to translation activity. According to him, the activity of translation represents a theoretical problem for contemporary linguistics: “si l’on accepte les thèses courantes sur la structure des lexiques, des morphologies et des syntaxes, on aboutit à professer que la traduction devrait être impossible” (Mounin 2014: 8). Yet, translators exist, and we all benefit from their work. One could even go so far as to say: “Que l’existence de la traduction constitue le scandale de la linguistique contemporaine” (Mounin 2014: 8). Mounin refuses both to condemn the theoretical possibility of translating in the name of linguistics and to doubt the value of linguistic theories in the name of translation activity. Instead, he suggests tackling the analysis from another perspective: one that does not deny what functional and structural linguistics entails, nor the work of translators. If, on the one hand, Mounin comes to terms with the acceptance that “la traduction n’est pas toujours possible” (Mounin 2014: 273–274), he does not, on the other hand, share Sapir’s thesis that languages determine inexorably our experience of the world (Mounin 2014: 274). If there is a dialectic of the relationship between language and life, then there is also a dialectic of the historical-temporal relations between languages, as well as within the same language (Mounin 2014: 277).
In translation, the notion of realia was developed in 1970 by the Bulgarian translators Vlakhov and Florin. The term realia defines words and collocations proper to a language, which
8 A translation unit is the smallest segment of the statement whose signs are so cohesive that they should not be translated separately (see Ballard 1993).
9 “Voids or semantic voids / lacunes (French) / blank spaces or gaps” (Shuttleworth 1997: 196).
denote local objects, concepts and phenomena, linked to a very specific historical moment, social condition, nation, country, and which do not have equivalents in other languages (Shuttleworth 1997: 140). According to them, translation should be carried out with the intention of maintaining and reproducing “some local colour without encumbering the reader with an excess of new, frequently impenetrable lexical items” (Shuttleworth 1997: 140). The difficulty of this task is such that the theory of realia is often associated with that of the
“untranslatable”. Countless debates have taken place over the last century among those in favour of the translatable at any cost and those accepting the untranslatable as a fact. “On the ideal level, all translation is distortion, and all translators are traitors”, this is how James Holmes presents the problematic in the first part of his publication “Translated!” (1988: 9). According to him, the semantic field of a word, its complex network of meanings, can never exactly correspond to the semantic field of any other word in any other language. In his work “Qu’est- ce que traduire?” (2006) Marc de Launay also explores the limits of language and its
“intraduisibles”. According to de Launay, translation inevitably involves the loss of intrinsic components of the substance of the original, both because it involves a semiotic and semantic destruction/reconstruction, and because it implies a remake of the grammatical and syntactic structure that cannot be transposed completely, and because the history of language is unique and unrepeatable and cannot be dissociated from that of the work in translation (de Launay 2006: 41–42). He defines two fundamental antagonistic principles: 1) nothing is translatable, and 2) everything is translatable. The first idea calls into question the very concept of translation and frustrates the work of professional translators from the outset (Ladmiral 2019). Lance Hewson in his article “L’intraduisible, le traduisible et le traduit” examines the apparent opposition between untranslatable and translatable in translation activity where “tout se traduit ou presque” (Hewson 2000: 33). Hewson stresses that the preponderance of the translatable in today’s discourse on translation is inevitable. This corresponds to the need and necessity of a translation market that seeks the “translated”, the finished product: “ce qui nous avons appelé l’illusion du traduisible correspond à un besoin et à une nécessité” (Hewson 2000: 40). What Hewson calls “l’idéologie du traduisible” (Hewson 2000: 33) is based, in fact, on the existence of the translatable, of the multitude of translated texts that replace the originals, without any reference to the translation process, its difficulties and its limits. “Bad translations” do not constitute the proof of untranslatability. This must be sought elsewhere, for example, in the relationship between linguistic and cultural aspects, in the singularity of every social reality:
“ce n’est pas parce que tout se traduit, parce que le traduit existe, que l’on a la preuve du
traduisible […] ce n’est pas non plus l’existence d’innombrables mauvaises traductions qui
demontrerait la réalité de l’intraduisible” (Hewson 2000: 37). Hewson adds that the desire to support one of the two theses at all costs – on the one hand, the one that celebrates the certainty of the translatable and, on the other hand, the one that supports its non-existence – is no longer justified (Hewson 2000: 37). The theoretical foundation of the untranslatable remains and will remain of great topicality because it has always been a constituent part of translation activity:
“tout produit de l’activité traduisante conserve les traces de l’intraduisible à travers le traduit”
(Hewson 2000, 40). The untranslatable appears precisely through the awareness of the fundamental differences and incompatibilities existing between different languages and cultures (see Sapir 1949). These differences can encompass the entire vision of the world, because the structure of the language encloses, each time, a different way of deciphering and understanding reality. In short, the untranslatable is not the same as the impossibility of carrying out a task, such an a priori would invalidate from the very beginning any reflection on translation and the translators’ work itself. Hewson argues that the untranslatable represents the gap between expectations and finished translation product (Hewson 2019: 33). One of the essential features of the translation activity is the translators’ creativity and the real task of translation is to keep questioning its own limits (Hewson 2019: 34).
1.3. Translatable at any Cost: Legal Translation, Jurilinguistics and
JuritraductologieLegal translation is particularly problematic when it involves the transposition of a statement that has legal force into another language, as in the case of European supranational institutions or in certain national contexts such as Switzerland, Belgium, Canada, etc. On the other hand, when the purpose of the legal translation is to inform, it loses its original legal force and is granted greater freedoms (Dullion 2007: 20). Christiane Nord defines the function (skopos) of a translation by distinguishing first two distinct types of text: documentary (dokumentarische Übersetzung) and instrumental (Instrumentelle Übersetzung) (Nord 1989: 102–103 and 1997a:
51). Some authors have contested Christiane Nord’s skopos theory, as it is difficult to apply to
translation practice and specialized translations (Šarčević 1997: 18–19 and 2000: 331). On the
contrary, Valérie Dullion considers Nord’s distinction a valid tool for analysis. In the context
of this work, in fact, this distinction provides an instrument to frame the text of the decision of
the German Constitutional Court and its translations. While the text of the decision has a clear
instrumental function, its translations have a documentary one. Even if they do not have force
of law, they might be used for comparative purposes and serve specialists to deepen their knowledge of foreign law systems.
10Translation studies (Traductologie), the science of language historically devoted to the study of translation of literary texts, today focuses increasingly its research on specialized translation. In the 1960s, Georges Mounin was one of the first to announce linguistics’ central role in specialized translation and in legal translation (Preite 2011: 408). Chiara Preite, in her article “Jurilinguistique e Linguistique juridique: due varianti diatopiche per una disciplina di frontiera” (2011), underlines, in fact, how from the 1970s the idea emerges that law must be studied “in quanto linguaggio, in quanto sistema di segni linguistici riferiti ad un certo tipo di relazioni sociali […] come in ambito francofono” (Preite 2011: 408). In the 1980s, the study of legal language had not yet reached a status of autonomy but continued to be understood as a branch of applied linguistics (Preite 2011: 410). Canadian linguists were the first to deal with the study of legal translation’s problems in a translational context and the reason for that was Canada’s dual legal and linguistic culture. Canada must deal with the simultaneous presence of two legal systems (Droit civil and Common law) and two official languages (French and English) (Preite 2011: 411). In this context, translations take on official legal value and cannot just be “adeguamenti o calchi del testo originale in un testo d’arrivo” (Preite 2011: 411). The term jurilinguistique was introduced in the 1980s by Quebecois scholar Jean-Claude Gémar (Preite 2011: 411). In France, in the 1990s, the notion of linguistique juridique appeared thanks to the work of scholar Gérard Cornu (Monjean-Decaudin 2019: 153, Preite 2011: 413). In Switzerland today, the use of the two terms coexists (Preite 2011: 416). The twentieth century therefore marks the appearance of legal translation as a new separate and interdisciplinary field of study: legal translation studies or juritraductologie (Monjean-Decaudin 2019: 154).
11Legal translation studies (juritraductologie) are also devoted to legal untranslatables. Monjean- Decaudin defines the notion of untranslatable as the observation of the impossibility of translating into another language and another legal system (Monjean-Decaudin 2019: 155). But is it “true” that a legal text cannot be translated? How to apply an untranslatable law? She believes that the globalized world in which we live, the daily practice of international organizations, the product of the work of professional translators are proof of the translatability of law.
10 See the distinction between “traduction-document” and “traduction-instrument” by Dullion (2007: 34), referring to: “dokumentarische” and “instrumentelle Übersetzung” by Nord (1997a and 1997b).
11 Sylvie Monjean-Decaudin founded in 2012 in Paris the Cerije (Centre de Recherche Interdisciplinaire en Juritraductologie), the first centre dedicated exclusively to this new interdisciplinary field.
2. FROM THEORY TO PRACTICE: CONTEXT AND CONTENT OF THE DECISION OF THE FEDERAL CONSTITUTIONAL COURT OF 10 OCTOBER 2017
2.1.The Bundesverfassungsgericht: the German Constitutional Court
The Constitutional Court of the Federal Republic of Germany acts both as a court and as a constitutional body
12. It consists of two bodies (Senates), each of which consists of eight judges.
Each Senate has its own powers, but always decides on behalf of the Federal Constitutional Court. The competent Senate is determined by the law on the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz) and by a decision taken by the Plenum, i.e. by the totality of the 16 judges (BVerfG 2019b). The 16 members of the Federal Constitutional Court are elected half by the Bundestag (the German Federal Parliament) and the other half by the Bundesrat (the German Federal Council), who in turn also appoint the President and Vice- President. In order to ensure a balance between the two Senates, a two-thirds majority is required for each election. At least three members of each Senate must come from the highest federal courts (including the Bundesgerichtshof, the Bundesverwaltungsgericht, the Bundesfinanzhof, the Bundesarbeitsgericht and the Bundessozialgericht) (BVerfG 2019d). As a constitutional body, unlike specialised courts, the Federal Constitutional Court is not subject to official control by a ministry (BVerfG 2019b). The Court monitors the compliance with the German Constitution – the Basic Law for the Federal Republic of Germany (Grundgesetz). All State authorities are obliged to respect the Basic Law, and, in the event of a dispute, the Constitutional Court may be seised and its decision is final. All other State bodies are bound by its jurisdiction. The Court is not a political body, it only determines the constitutional framework within which politics can operate. However, its work can have political effects, especially in cases where the Court declares a law unconstitutional (BVerfG 2019a). The Federal Constitutional Court has always considered itself to be part of the international legal order and the world community of constitutional courts. It therefore maintains institutional contacts and professional exchanges with national and international courts. To promote international exchange, the Court of Karlsruhe publishes translations of its decisions and press releases in English, and sometimes also in French, on its web site (BVerfG 2019c).
12 The five permanent constitutional bodies at federal level are: the Bundestag, the Bundesrat, the Federal President, the Federal Government, the Federal Constitutional Court. (BVerfG 2019b).
A constitutional complaint is a remedy that allows citizens to assert their fundamental right against the State. This is not an extension of specialised court jurisdictions, but an extraordinary appeal in which only violations of constitutional laws are examined. In general, an appeal to the Constitutional Court is only admissible if the situation has first been submitted in full to the specialised regional courts and all legal remedies have been exhausted. The Federal Constitutional Court may decide that an act of public authority is unconstitutional, revoke an unconstitutional decision and refer the matter to a competent court, as well as declare a law invalid (BVerfG 2019e).
2.2.History and Developments of the Court’s Decision
The decision of the Federal Constitutional Court indirectly responds to the Council of Europe’s motion for a resolution on 27 April 2016 (CoE 2016) and its resolution 2191 (CoE 2017), which called on its Member States to promote human rights and eliminate all forms of discrimination based on gender differences. The decision of the Constitutional Court of Karlsruhe is, therefore, part of an increasing awareness of realities whose existence was practically unknown until recently. Germany becomes the first European country to legally recognise a third gender option and to include it in the civil status registration procedure.
On the 1
stof November 2013, the German Civil Status Act (PStG 2007a) was amended
following the publication of the opinion of the German Ethics Council on intersexual persons
(Ethikrat 2012) giving to possibility to intersex people to decide not to register their sex in the
birth register. In fact, the Council had stressed the need to reform the existing legislation which,
by not providing a third gender entry to persons not belonging to any of the binary gender
categories, was detrimental to their individual rights and to the right to equal treatment before
the law. The plaintiff, whose case was finally decided by the Constitutional Court in October
2017, had first applied to the lower courts for the opportunity to correct her entry in the register
of births. The Court of First Instance (Amtsgericht Hannover 13. Oktober 2014 -85III 105/14)
rejected the request, arguing that the law already allowed the possibility of changing the
indication of sex, i.e. deleting it definitively from the register office. In its decision of 10
October 2017 (file number: 1 BvR 2019 / 16), the Federal Constitutional Court ruled that the
general right of personality also protects the gender identity of those who cannot be permanently
assigned to either the male or female gender. The judgment of the German Constitutional Court
held that the then existing civil status law violated the right to the free development of personal
identity, as set out in Articles 1(1), 2(1) and 3(3) of the GG, on the inviolability of human
dignity, on the right not to be discriminated because of gender. In its decision, the German legislature was instructed to create a new provision by the end of 2018 to make the possibility of a third possible gender designation a reality. The decision on the possibilities for alternative names, while providing for a twofold option of terms – the use of “inter” or “divers” –, did not necessarily have to include one of the two, but at least one such positive designation. Published on the 21
stof December 2018 in the Official Gazette, the new law (Gesetz zur Änderung der in das Geburtenregister einzutragenden Angaben, Bundestag 2018b) officially enters into force on the 22
ndof December 2018 (Bundestag 2018a). This new legislative act announces a major change in the German Civil Status Act (PStG) of 19 February 2007 by amending Article 22 and the addition of Article 45b.
On Thursday, the 13
thDecember 2018, the Bundestag, the Federal Parliament, adopted the draft law on the amendment of the information to be entered in the birth register (Gesetz zur Änderung der in das Geburtenregister einzutragenden Angaben 19/4669 [Bundestag 2018b], 19/5422 [Bundestag 2018d], 19/5647 [Bundestag 2018e]). On the 22
ndof December 2018, the Bundestag formalised the introduction of a third gender option, and the entries “male” and
“female” are now accompanied by the gender entry “divers” for intersex people. The previous obligation to assign a person either to the male or the female sex is now considered a violation of the right of personality and the prohibition of discrimination. For persons who cannot be clearly assigned to either male or female sex, the other entry is now officially envisaged as a possible option for registration in the civil status register (Bundestag 2018g).
The events in Karlsruhe are part of a legal and social development that goes beyond national borders.
13The events follow one another, without stopping. The adoption by the European Parliament on the 14
thof February of the resolution on the future of the list of actions in favour of LGBTI people (2019-2024) is an example of this fact (EP 2019).
2.3.Form and Content of the Judgment
The Constitutional Court’s decision is a specific type of text, responding to different functions:
descriptive, argumentative and prescriptive. The text of the Decision consists of: 1) an introduction (Rubrum); 2) the core of the decision (Tenor); 3) a list of facts and reasons on which the decision is based (Entscheidungsgründe); and 4) a conclusion..
13 Countries have legally recognized (or are in the process of recognizing) non-binary forms of identity, including Nepal (2007), Pakistan (2009), Australia (2013), India (2014), Canada (2017), Austria (under development since 2018). (see Althoff 2017; Holzer 2018).
1) Rubrum
The text opens with a short presentation on the first page in which the Leitsätze are summarized in a very concise way – the essence of the judicial act. It also mentions the first Senate of the Constitutional Court, in favour of the judgment, which can be traced by the file number 1 BvR 2019/16 (BVerfG 2017a).
14Point 1 mentions the Persönlichkeitsrecht, which is constitutionally guaranteed under Article 1(1) and Article 2(2) GG. Point 2 introduces the right not to be discriminated in accordance with Article 3(3) GG. Point 3 serves as a conceptual conclusion and gives reasons for the Court’s decision. This is followed by the mention of the Bundesverfassungsgericht, the names of the parties, the judges and the date on which the decision was delivered, and the hearing closed: 10 October 2017.
2) Tenor
The text presents the final decision of the Court. At first, it displays the legislative bases. It is followed by the explanation of why the current legal system is unconstitutional and, finally, the delivery of the judgment. The second point of the operative part of the judgment sets out the decisions by lower instances (Amtsgericht Hannover, Oberlandesgericht Celle and Bundesgerichtshof) and revokes them. The third point stresses that the right of every citizen to file a constitutional complaint before the German Constitutional Court is also financially taken care of and accompanied by the reimbursement of the appeal’s costs.
3) Entscheidungsgründe
This is the richest and most complex section of the document. This central part is divided into sections A, B, C, and D, where each section is divided into several subsections.
Section A: I.) presentation of the plaintiff and his specific case; presentation of the legal provisions on civil status; II.) medical and expert advice; III.) detailed presentation of the specific case of the applicant; IV.) presentation of the point of view of bodies and organizations.
Section B: I.) presentation of the legislative procedure and legal bases for the recognition of intersexual persons; II.) presentation of the reasons why the Civil Status Act (PStG) is considered unconstitutional.
Section C: I.) statement of the unconstitutionality of the civil status law (PStG); II.) presentation of the measures to be implemented and announcement of the suspension of the
14 For a direct comparison, please refer to the text reproduced in APPENDIX II and II.
procedure until the law (Neuregelung) is amended; III.) announcement of the invalidity of the legal decisions by lower instances; IV.) details procedure and costs.
Section D: Presentation of the results of the vote by the Judges of the Court (7:1).
4) Signature and Date (missing in the version available on the web site)
3. TRANSLATING GENDERS: GERMAN, ENGLISH AND ITALIAN COMPARED
In this third chapter I will focus on textual analysis of a limited corpus.
15I will refer to the original German version and its partial translations: the English one is published on the website of the Bundesverfassungsgericht, the Italian one is by Roberto de Felice. The comparatist translation work aims to trace the choices and the translation difficulties deriving from the presence of semantic and cultural voids: those of gender and its new manifestations.
163.1 Terminological Issues
Sexual orientation, sex and gender are concepts which are often confused. The International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) is the worldwide federation of national and local organizations committed to achieving equal rights for lesbian, gay, bisexual, transgender and intersex people (LGBTI*). On the 21
stof September 2018, during the 39
thsession of the UN Human Rights Council, ILGA hosted a Side Event on LGBTQI* Human Rights Global Research, which brought together speakers from ILGA and Transgender Europe (TGEU) to discuss methodologies, policies and contexts of current research. During the Side Event, Lucas Ramón Mendos (research manager and translator, ILGA) stressed how important it is to define construction of knowledge in the translation of a text: if we talk about legal recognition of this kind, we cannot forget how knowledge is produced. In this regard, the Trans Legal Mapping Report (ILGA 2017) was prepared in order to investigate the issue of gender recognition before the law in different regions (and languages) of the world. Quantitative language data must be implemented by qualitative data. A rigorous methodology must be put in place to discover and correctly define the terminology of gender identities. Ramón Mendos believes that this methodology can influence results, and that language choices can affect the way in which law can be implemented. There is a gap in the research: we do not know what the result of a misunderstood word is.
17The regulatory effectiveness of a law requires clarity in the
15 The versions of the original text of the judgment (APPENDIX I), its partial translation into English (APPENDIX II) and Italian (APPENDIX III) can be consulted among the documents in the appendix to this English summary or the Italian study.
16 See also glossary, APPENDIX IV.
17 Ramón Mendos, having translated the Trans Legal Mapping Report, was able to emphasize the ease that is typical of the English language to include in a neutral and egalitarian way the different gender perspectives and the difficulty of operating in the same way with Spanish. Similar observations will be made here too, using English and Italian as comparison languages contrast to the German of the original.
communication of its legislative message to the target audience which may not necessarily be informed in the matter. One of the main intentions of the legislator must be to clearly identify the regulatory issues introduced by the legislative text. When the legislation applies to everyone, the gender of a person is (or at least should be) irrelevant. However, language is built on gender specificities and is inevitably centred on it. If law does not include all these specificities, its language is not clear. In an effort for inclusion, editors use linguistic means that are intrinsically gender-specific. Inclusion as an expression of clarity is still an academic innovation and will need time before it is fully absorbed into practice. If the transition from gender specificity to gender inclusion is to be achieved, a cultural change is needed which, in due course, will also guide the language. Drawing attention to gender inclusion can raise awareness of a new ethics of inclusion, and, at the same time, contribute to language transition.
183.2.First Step: Original German Text and English Translation Compared
In this first step of the analysis, I will investigate the textual differences that can be traced between the German and English versions, the advantages and disadvantages of the two languages.
19I will discuss following topics, taken from the first part of the judgment, section A:
- Extract No.1: English Language and Translation Notes - Extract No.2: Gender / Geschlecht vs gender / sex - Extract No.3: The Decision not to Translate - Extract No.4: Medical Discrimination - Extract No. 5: “inter” and “divers”
3.2.1. Extract No.1: English Language and Translation Notes (Section A.)
BVerfG, Beschluss des Ersten Senats vom 10. Oktober 2017
BVerfG, Order of the First Senate of 10 October 2017
G r ü n d e: R e a s o n s:
18 Notes inspired by the lecture by Prof. Dr. Helen Xanthaki at the conference held on 25 January 2019 at the University of Geneva on the “Rédaction législative et administrative inclusive. La francophonie entre impulsion et résistances”, organised by the Centre d’étude, de technique et d’évaluation législatives (CETEL), under the direction of Professor Alexandre Flückiger.
19 See the Italian translation and its analysis in original the Italian version of this study.
A.
Die Verfassungsbeschwerde betrifft die Frage, ob die angegriffenen Entscheidungen und der zugrunde liegende § 21 Abs. 1 Nr. 3 in Verbindung mit § 22 Abs. 3 Personenstandsgesetz (PStG) die beschwerdeführende Person in ihren Grundrechten verletzen. Die beschwerdeführende Person wurde bei der Geburt dem weiblichen Geschlecht zugeordnet und als Mädchen in das Geburtenregister eingetragen. Sie verfügt über einen atypischen Chromosomensatz (sog. Turner-Syndrom) und fühlt sich dauerhaft weder dem weiblichen noch dem männlichen Geschlecht zugehörig. Sie beantragte die positive Eintragung der Geschlechtsangabe
“inter/divers”, hilfsweise “divers” in das Geburtenregister. Das zuständige Standesamt lehnte dies ab, weil § 21 Abs. 1 Nr. 3, § 22 Abs. 3 PStG eine solche Eintragung nicht zuliessen. Die beschwerdeführende Person hält die Regelungen für verfassungswidrig.
A.
The constitutional complaint concerns the question whether the challenged decisions and the underlying provision of § 21(1) no. 3 in conjunction with § 22(3) of the Civil Status Act (Personenstandsgesetz – PStG) violate the complainant’s fundamental rights.
At birth, the complainant was assigned the female gender and registered as a girl in the birth register.
They have an atypical set of chromosomes (so-called Turner syndrome) and permanently identify with neither the female nor the male gender [translator’s note: singular they is used as a gender-neutral pronoun throughout this text]. […]
[Excerpt from the press release no. 95/2017 of 8 November 2017]
The complainant filed a request with the competent registry office for correcting the complainant’s birth registration by deleting the previous gender entry
“female” and replacing it with “inter/diverse”, alternatively only with “diverse”. The registry office rejected the request and pointed out that under German civil status law a child needs to be assigned either the female or the male gender in the birth register, and emphasised that – if this is impossible – no gender entry is made (§ 21(1) no. 3, § 22(3) PStG). The request for correction filed thereupon with the Local Court (Amtsgericht) was rejected; the complaint filed against this decision was unsuccessful. […].
[End of Excerpt]
This first extract refers to the introduction of the judgment (section A) and introduces some of
the key concepts on which the presentation of the facts will be based. The English translation
does not exactly reproduce the German version but introduces a whole explanatory paragraph
(BVerfG 2017d). It is even more important to note this aspect when one observes that the
English translation usually has a tendency towards synthesis, where in some cases it even leaves
out entire passages. Another aspect deserves attention: the translator’s note. The notes to the
translation are paratextual elements in which the voice of the translator is revealed, renouncing
their position of invisible writer to address the public reader directly. Together with other
paratextual components, the notes to the translation accompany the text and influence the final
interpretation. As part of a descriptive and historical translation study, the analysis of notes to
translation, as well as other types of paratextual forms, can provide a privileged source of
information for the contextualization of translation processes and the reconstruction of
translation standards and policies in force at a given time in history (Buendía 2013: 149). In
addition to this, the translator inserts a stylistic clarification to which they will refer throughout
the text: “singular they is used as a gender-neutral pronoun throughout this text” (my
emphasis). The English language allows much more ease than the German or Italian to express itself in a neutral language, where gender markers are neutralized. English has managed in its recent language history to take control of a freedom of language, allowing inclusion, which is still difficult to think of in other languages, such as in German or Italian.
203.2.2. Extract No.2: Gender / Geschlecht vs gender / sex (Section A., I, 1, c)
BVerfG, Beschluss des Ersten Senats vom 10. Oktober 2017
BVerfG, Order of the First Senate of 10 October 2017
“Der Deutsche Ethikrat ist der Auffassung, dass ein nicht zu rechtfertigender Eingriff in das Persönlichkeitsrecht und das Recht auf Gleichbehandlung vorliegt, wenn Menschen, die sich aufgrund ihrer körperlichen Konstitution weder dem Geschlecht weiblich noch männlich zuordnen können, rechtlich gezwungen werden, sich im Personenstandsregister einer dieser Kategorien zuzuordnen.
1. Es sollte geregelt werden, dass bei Personen, deren Geschlecht nicht eindeutig feststellbar ist, neben der Eintragung als “weiblich”
oder “männlich” auch “anderes” gewählt werden kann.
Zusätzlich sollte geregelt werden, dass kein Eintrag erfolgen muss, bis die betroffene Person sich selbst entschieden hat. Der Gesetzgeber sollte ein Höchstalter der betroffenen Person festlegen, bis zu dem sie sich zu entscheiden hat.
2. Es sollte über die bestehende Möglichkeit der Änderung eines Eintrags nach § 47 Absatz 2 PStG hinaus geregelt werden, dass die Betroffenen eine Änderung des Eintrags verlangen können, wenn sich die bisherige Eintragung als unrichtig herausgestellt hat.
4. Als Grundlage für künftige Entscheidungen des Gesetzgebers sollten die Zwecke, die mit der Pflicht zur Eintragung nach derzeitigem Recht verfolgt werden, evaluiert werden. Es sollte geprüft werden, ob eine Eintragung des Geschlechts im Personenstandsregister überhaupt noch notwendig ist.”
“The German Ethics Council takes the view that personal rights and the right to equality of treatment are unjustifiably infringed if persons whose physical constitution is such that they cannot be categorized as belonging to either the female or the male sex are compelled by law to be designated in one of these categories in the civil register.
1. Provision should be made for persons whose sex cannot be unambiguously determined to register not only as “female” or “male” but also as
“other”.
Provision should also be made for individuals’ sex not to be registered until they have decided for themselves. A maximum age for affected people to decide should be laid down in law.
2. In addition to the existing possibility of amendment of one’s registered sex under Section 47(2) of the Act on Civil Status (PStG), provision should be made for affected individuals to request amendment of their registered sex should the original entry prove to be incorrect.
4. As a basis for future decisions on legislation, the purposes of compulsory registration as provided by current law should be evaluated. A review should be undertaken to determine whether the recording of a person’s sex in the civil register is in fact still necessary.”
The word “gender”, which until the end of the twentieth century had only a linguistic- grammatical definition has undergone a deep change of meaning. Gender started being understood as a social construction, as an ideological imprint and as not overlapping with the
20 The Italian language has a different structure and allows different kinds of inclusive choices compared to other languages: e.g. the invariable adjective (plural).
biological gender. Gender Studies has been having significant success since the 1970s. From this moment on, “gender” and “sex” were considered in this academic context as constructs derived from the evolution of society, with its representations, constraints, prejudices and stereotypes, and the consequent symbolic violence, injustices and stigmatization of inequalities between men and women, but also between heterosexuals and homosexuals, or transsexuals – preferably called transgender (Yaguello 2014: 91–92). In Italian as in other Romance languages, “gender” is not presented as a grammatical reflection of the natural organization of human society, but merely as grammatical classification. German operates a different level of distinction between gender and sex. “Geschlecht” can eventually refer to both grammatical and social-biological category. E.g.: the notion of “Gender” reported by Duden (Diewald 2017: 7) refers to social gender roles and characteristics of “man” and “woman”, stereotypically attributed by the context in which a person is placed. In the extract mentioned above, the Deutscher Ethikrat refers exclusively to the biological sex of intersexual persons and its registration in the birth register. As I observed in previous chapters, the opinion of the German Ethics Council has strongly influenced the ruling of the German Constitutional Court in favour of the introduction of a third gender option. In the English text I observe once again the intrusion of the translator, who specifies that the translation is the work of the Ethics Council itself. This note is relevant for the analysis of the translation choices of “Geschlecht”, in most part of the English translation the term “sex” is mostly avoided, and instead “gender” is chosen. In this specific case, therefore, the different gender identities are not included. The Deutscher Ethikrat refers specifically and only to biological features. Here, however, I cannot fail to mention the currently recordable trend in the use of English and German of the terms “gender” and
“Geschlecht” as hyperonyms, incorporating increasingly both gender identity and biological sex.
213.2.3. Extract No.3: The Decision not to Translate (section A., I, 2)
In this section (A., I, 2) the English translation is missing. Though, this part in German proves to be one of central relevance for a better understanding of the context and the terminology to be used. The usefulness of the pieces of information contained here reflects the specific reality of the German social and bureaucratic daily life and perhaps for this reason it was not included.
This is another aspect of the English translation published on the website of the Court of
21 For “biological sex”, Duden recommends the use of “Biologisches Geschlecht” (Diewald 2017: 25).
