The court upheld the Orléans court’s decision, ruling that the distinction between male and female was “necessary to the social and legal organization, of which it is a cornerstone,” and that the “recognition of a neutral gender” would have “deep repercussions” on French law and would entail “numerous legislative changes.”
The judges did not detail what the repercussions would be. A prosecutor for the court wrote in a recommendation that it was not “up to the judge to create new legal categories of persons,” but that “such social issues necessitate a broad democratic debate.”
Bertrand Périer, Mr. Schmitt’s lawyer, called the ruling a “missed opportunity.” “I don’t see why France’s social or legal organization would necessitate gender binarism,” he said in a phone interview.
Unlike other sexuality-related issues, the question of whether a third category recognizing a neutral sex should exist has been subject to little debate in France.
In 2012 and 2013, the country clashed over whether to grant gay couples the right to marry, with millions of people, many of them conservative Catholics, protesting in Paris. Same-sex marriage was legalized in April 2013, after more than 100 hours of debate in Parliament.
There was little debate over whether transsexual people should be given the right to have their sex reassigned as a civil status. A 2016 law removed conditions denounced by transgender-rights organizations as hurdles in the legal process, including having to undergo medical treatment.
Mr. Schmitt was raised by his parents as a boy because his mother had wanted one, Mr. Périer said. In his mid-30s, as part of a treatment for the bone disease osteoporosis, he took hormones that gave him the appearance of a man.
About 200 babies are born every year in France with a medical condition of sex development disorder, or one in 4,000 births, according to a 2017 parliamentary report.
Since 2011, people born with a sex development disorder can have their sex assignment postponed, but only within a maximum period of two years.
A court in Germany last year rejected the creation of a third sex category. Only a few countries in the world have created such a category, including Australia, Nepal, India and New Zealand.