German residence now offering non-binary passport options for eligible individuals
In the ever-evolving landscape of gender recognition, two European Union (EU) member states, Germany and Austria, are setting precedents in their approaches to non-binary passport recognition.
Germany, in 2024, introduced the Self-Determination Act, a law that simplifies the process of changing one's gender entry to include non-binary ("X") options on official documents such as passports. Emil R., a 30-year-old non-binary individual from Austria who works in Germany, recently benefited from this legislation, with their passport entry being changed to "X" in Bochum.
However, Austria, unlike Germany, does not legally recognize non-binary genders internally. The country only permits gender registration as "male" or "female". Yet, due to a 2024 European Court of Justice ruling that mandates EU member states to recognize gender changes made in other member states, Austria was compelled to issue a passport with a non-binary "X" gender marker to a Viennese resident who had legally changed gender in Germany. This marked Austria’s first issuance of a non-binary passport, despite no domestic laws allowing it.
The recognition of non-binary passports in the EU is evolving through cross-border legal obligations rather than uniform national laws. This uneven evolution is reflected in the case of Emil R., who, despite having Austrian citizenship, had to travel to Germany to change their passport entry.
The new passport with the gender entry "X" is a significant relief for Emil R., but they express concern for others who do not have this opportunity and suffer as a result. The "Non-binary Association" in Austria has been advocating for a feasible solution and an end to discrimination, suspecting that bureaucratic errors may have occurred in some cases.
It is important to note that not all EU countries fully recognize the "X" marker, which can lead to complications in international travel, such as the U.S. often not accepting "X" passport entries.
Broader EU-wide harmonization remains limited, with the progress heavily depending on individual countries’ national laws plus EU-level judicial decisions rather than comprehensive EU legislation on non-binary gender recognition.
In Austria, it is not actually possible to have a passport with a gender entry "X", despite Emil R.'s successful passport change. The gender entry in the passport is derived from the entry in the civil status register, which is the responsibility of the MA 63 in Austria. For inter* persons, it is possible to change the gender to "inter", "divers open", or "no entry" in the civil status register, but this does not translate to a passport with a non-binary gender entry.
The exact basis for the issuance of passports with an "X" gender entry is not entirely clear, and the association has remained silent about cases where authorities changed the gender entry despite not having the authority to do so to prevent any proceedings against the applicants.
In summary, Germany has nationally legislated to support non-binary passport recognition, while Austria’s non-binary passport recognition arises from an EU court-imposed obligation to accept foreign legal gender changes. This reflects a growing but uneven evolution across the EU regarding non-binary gender recognition in official documents.
[1] Source: European Union Agency for Fundamental Rights (FRA) report on non-binary gender recognition in the EU (2022)
