Non-Binary Gender and Binary Legal Thinking: The Birth of a New Legal Mindset?

The Babylonian Talmud states that “The one Law has become two laws” – a saying probably caused by an increasing number of disputations among legal scholars. During the 18th century, science also changed its theoretical understanding of gender from a “one-sex” to a “two-sex” model and henceforth “one sex became two sexes”. Today, however, there are several jurisdictions, like Canada, Germany and Austria, where courts have begun to legally recognize a non-binary conception of a so-called third gender. Based on the ruling by the Austrian Constitutional Court in June 2018 and other cases, the present paper therefore asks to what extent “two laws” are now on the verge of becoming “three”? This paper understands “three laws” as referring to a possible the trend toward a gradual deviation from a purely binary mode of reasoning in line with bivalent logic in law and in life. Put briefly, it speculates to what extent it forebodes the (necessity for the) birth of a new legal mind-set.