Germany has become the first country in Europe to allow parents to register a newborn who shows characteristics of both sexes as being neither male nor female. Under a new law that went into effect November 1, parents can opt not to indicate whether a child is “male” or “female” on a birth certificate, effectively creating an “indeterminate sex” category. Intersex advocates have voiced concerns that the law, which does not tackle the issue of controversial sex change surgery, could lead to discrimination.
“Honestly it’s been advertised like it’s a major step forward and that is not quite as we and the international intersex community that we work with see it,” Silvan Agius, policy director for ILGA Europe (the European chapter of the International Lesbian, Gay, Bisexual, Trans and Intersex Association), says to Deutsche Welle.
A Law That Doesn’t Go Far Enough
One in 1,500 to 2,000 children is born intersex. Germany’s new law is intended to take away pressure on parents who have been pushed into deciding quickly about controversial — and irreversible — sex-assignment surgery on a newborn baby. As a spokesman for the German Interior Ministry comments, the new law is “not adequate to fully resolve the complex problems of intersex people.”
A 2012 report from the German Ethics Council found that making it mandatory for parents to designate a child as male or female on a birth certificate was an unnecessary intrusion upon a person’s rights and their right to equal treatment. As the report specifically noted, “many people who were subjected to a ‘normalizing’ operation in their childhood have later felt it to have been a mutilation and would never have agreed to it as adults.”
A 2012 European Commission report also found that, in many European countries, operations on interest babies occur without the patients’ consent. Last month, the Council of Europe adopted a Parliamentary Assembly resolution, enjoining member states to “study the prevalence of ‘non-medically justified operations’” that could harm children and also to take steps to “ensure that no-one is subjected to unnecessary medical or surgical treatment that is cosmetic rather than vital for health during infancy or childhood.”
Banning cosmetic genital surgeries for newborns is really the issue that needs to be addressed, says Lucie Veith, an intersex person from Hamburg. As she notes, leaving gender undefined on birth certificates was “never the main lobbying point.”
The Prevalence of the “Gender Binary” in Society
As Agius says, a chid who is registered with indeterminate gender still faces plenty of prejudice and discrimination as most social institutions are structured by gender, with a gender binary. He points out that “schools have toilets for boys and toilets for girls. Where will the intermediate child go?” Sports, too, are also clearly set up along a gender binary, as revealed by the media circus that occurs when a girl joins a wrestling or football team.
Complications are also likely to arise for a child with indeterminate gender as they grow older. Germany’s current marriage laws define marriage as a union between a man and a woman, while civil partnerships are specifically reserved for couples of the same sex.
The new law “does not immediately create a space for intersex people to be themselves,” Agius comments. Few parents, he also says, are ready to ” fully understand the issues, or are ready to bring up their child outside the gender binary for a while.”
Del LaGrace Volcano of Sweden, who as a female for 37 years and “came out” as intersex in 1995, sums up the problem of thinking of gender only in terms of being male or female: “If you’re not male or female, what are you? You’re an ‘it.’ You remain a monstrosity.”
Slow, Rising Recognition
Recognition of intersex people has been very slow to occur. Countries outside of Europe have made the most progress: earlier this year, Australia began to allow people of any age to be identified as intersex on personal documents; New Zealand introduced a similar law in 2012. Nepal started recognizing a third gender on its census forms all the way back in 2007. India added a third gender category to voter lists in 2009. Pakistan made such an option available on national identity cards in 2011 and Bangladesh began offering an “other” gender category on passport applications in the same year.
In Thailand, transgender or intersex people have long been accepted and are officially recognized by the country’s military, though they do not have any separate legal status.
A Hopeful Story
One set of parents of a now 8-year-old intersex child are welcoming the new law. Katharina Berg (not her real name) tells Deutsche Welle that she and her husband “had never heard” of being intersex before their child was born. They opted to register their child as female but are ultimately leaving it up to their child to decide:
“We told our child that at first we didn’t know whether she was a girl or boy. We just said, ‘you had a few puzzle pieces of both and we didn’t know where to put you, so we put you with the girls, but really you are the one that has to teach us, you have to tell us who you are.’”
Now her child is eight years old, and has made it clear she doesn’t quite like being a girl.
“When people ask her, ‘Are you a girl or a boy?’ she says, ‘I’m both.’”
Berg and her husband think that their child will decide on their own gender. Not all parents of intersex children think this way: some members of a support group Berg attends for parents of intersex children have “condemned the law as a compulsory ‘forced outing’ of intersex children.”
As Berg underscores, being open and accepting about the “ambiguity of her child’s sex and gender identity has worked out better than she ever could have imagined.” While her child is registered as a female, she is allowed to use the boys’ bathroom and changing room. Some people call her child “he” and others “she”; Berg says that her “child can just be who she is in her community.”
Ultimately, isn’t that what parents should hope for a child, that they be just who they are in their communities?
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