Facts
The respondent C.B., born in 1989 in Switzerland with place of origin in the canton of Aargau, resides in Germany. On 30 April 2019, C.B. submitted a declaration before the German civil registry office in [W.] pursuant to § 45b of the German Civil Status Act (dt. PStG), requesting the deletion of the gender entry (resulting in "blank") and the change of first name to "A.", supported by a medical certificate regarding a variation in sex development (§ 45b para. 3 dt. PStG). The declaration was recorded on the same day.
On 2 June 2020, A.B. (the respondent) applied to the Swiss Embassy in [W.] to have the deletion of the gender entry and the change of first name made in Germany recognised in Switzerland. The application was forwarded to the Department of Economic Affairs and Internal Affairs (DVI) of the canton of Aargau. By decision of 18 November 2020, the DVI ruled that the deletion of the gender entry would not be recognised in Switzerland and would not be entered in the Swiss civil status and birth registers (operative part, item 1). The change of first name to "A." was, however, recognised and the corresponding entry was ordered (operative part, item 2).
A.B. filed an appeal with the High Court of the canton of Aargau, seeking the annulment of operative part, item 1 of the DVI’s decision and the recognition and entry of the deletion of the gender entry in the Swiss register. By decision of 29 March 2021, the High Court allowed the appeal, annulled operative part, item 1 of the DVI’s decision and ordered the deletion of the gender entry in the Swiss civil status and birth registers.
The Federal Department of Justice and Police (FDJP), acting through the Federal Office of Justice (FOJ), filed an appeal in civil matters on 11 May 2021, seeking the annulment of the High Court’s decision and the confirmation of operative part, item 1 of the DVI’s decision of 18 November 2020. The appeal was publicly heard on 8 June 2023. The Federal Supreme Court allowed the appeal.
Considerations
The Federal Supreme Court examined whether the deletion of the gender entry made in Germany should be recognised in Switzerland and entered in the Swiss civil status register. Pursuant to Art. 32 PILA, a foreign decision or document on civil status is entered in the civil status registers by order of the cantonal supervisory authority, provided that the requirements of Arts. 25–27 PILA are met. For the recognition of gender changes, Arts. 37–40 PILA apply mutatis mutandis pursuant to Art. 40a PILA. The decisive provision is Art. 39 PILA, which states that a gender change made abroad must be recognised in Switzerland if it is valid in the applicant’s country of domicile or nationality. The gender is then entered in the civil status registers in accordance with Swiss principles on register management (Art. 40 PILA).
The Federal Supreme Court found that the declaration made in Germany to delete the gender entry is valid in Germany. However, recognition and entry of this declaration in Switzerland is subject to compliance with Swiss principles on register management (Art. 40 PILA). These principles require that the gender be entered in the register as either "male" or "female". Under current Swiss law, a waiver of the gender entry or the registration of a third gender is not provided for. The introduction of Art. 40a PILA by the legislative amendment of 18 December 2020 confirms this legal situation and maintains the binary gender model. The legislator deliberately refrained from allowing the registration of a third gender or a waiver of the gender entry, reserving this issue for a future legislative decision.
The Federal Supreme Court emphasised that Swiss principles on register management encompass not only formal but also material aspects. The indication of gender in the civil status register serves the legal organisation and is a fundamental element of Swiss law. Recognition of the deletion of the gender entry would have far-reaching implications for the Swiss legal system, which is based on the binary nature of gender. With the introduction of Art. 30b CC and Art. 40a PILA, the legislator has deliberately maintained the existing binary…