Germany, in a step designed to help infants of indeterminate sex, has paved the way for third gender recognition, but some critics have said this is only piecemeal progress. Why?
Starting November 1 this year, German parents, when registering the birth of their child on official documents, will be able to choose from three gender categories rather than the normative two, ticking male, female or, if their child presents with physical intersex characteristics, opting for “undefined” so that their child can self determine her gender later in life or never determine it if she should so choose.
Intersex conditions are distinct, though sometimes related, to transgender identity or transexual status. Trans individuals are already recognized under German law, though those laws on gender change have been criticized as violating human rights, unnecessarily intrusive, and hard to navigate. That is for our purposes a separate issue but is, in passing, always worth mentioning.
Intersex children, however, are usually classified by the fact they are born with obvious indeterminate physical sex characteristics, though this defines away a significant proportion of the true number of intersex people who may present with consistent sex characteristics on the outside while having partial or completely different internal sex organs, or may have a condition that in terms of chromosomes or genetic traits renders them outside the male/female sex binary, something that is in fact much more frequent. More on why this matters below.
Focusing just on obvious physical indeterminate sex, children born as such are often sex-assigned and usually by arbitrary standards, such as penis length, that have very little to do with the complexities of actual sex or even gender identity.
Physicians have historically sex-assigned children as an attempt to normalize them and therein prevent distress and what is known as otherization during childhood and adolescence. However, many born-intersex individuals who are sex assigned have later in life, and after periods of serious identity issues surrounding their gender, required emotionally and financially draining gender change intervention because their gender identity does not match the sex they were given.
This change, then, would allow intersex children, as their gender emerges, to choose how they wish to define themselves.
It is important to note that German legal experts have said lawmakers haven’t really intended to create a third gender, pointing out the blank category is meant only to cater for a narrow group of children. Others have noted, though, that there is no mandate for a child to choose or a time limit for how long they can remain in the “undefined” category. As such, this would seem to operate as a narrow third gender recognition even if it isn’t being called such.
The fact that this change specifically attempts to compartmentalize gender identity and sex assignment has been criticized, and perhaps most saliently for our purposes that while it will help some obviously intersex children, it will not help all intersex kids.
As Jane Fae explains in the Guardian:
Many of those who now proudly proclaim their maleness or femaleness would be shocked to learn that they aren’t indisputably one or the other. Which is why I have three issues with the German proposal. First, its reliance on physical characteristics. As above: you can’t tell just by looking. Second, it omits an entire world of non-binary: those who do not identify as either gender, irrespective of supposed defining physiognomy. The clearly intersex will now receive a helping hand. But a very large community of individuals who do not adhere to one binary gender or the other have been left behind. Again.
Finally, why do we continually return to gender as something of defining importance in our lives?
Fae does a reasonable job of arguing against gender labels, but the more meaty criticism — at least in terms of applications within the established schema — is perhaps that this act, while a good first step, will only help a small proportion of intersex individuals.
More significantly, there is yet no word on how or, in fact, whether this change will be recognized on other identity documents such as passports, and so this is not as yet a far reaching reform.
So, while Germany is indeed the first European country to allow for some form of de facto third gender recognition, this would appear a first step and by no means should German lawmakers think their work is done.
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