Does Germany’s New Law About “No Gender” Babies Go Far Enough?

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?


Photo from Thinkstock


Jim Ven
Jim Ven1 years ago

thanks for the article.

Roberto MARINI
Roberto MARINI2 years ago

thank for sharing this important article

Mary L.
Mary L4 years ago

Typical arrogance. The only people who have the right to speak on the subject is those who are intersexed.

Trans gendered people feel they're in the wrong sexed body. Now that more and more children are choosing their sex why wouldn't people born with puzzle pieces not quite put together be able to do the same?

Everyone has the right to be who they are.

Nils Anders Lunde
PlsNoMessage se4 years ago


Caissg C.
Caissg C.4 years ago

Thanks for writing about this. The author briefly touched on the issue of intersex as adults with marriages and children. The current climate of lack of laws for intersex also extends to spouses and children of an intersex marriage. Every human has a right to an equal life and so should spouses and children of an intersex marriage. Hopefully, spread of awareness and education will ring in change for the better.

Cathleen K.
Cathleen K4 years ago

Thanks, Leslea H. for spelling that out for everyone. The amount of estrogen disrupters leaching into our food and water is going to make this a much more common problem going forward, so it will have to be dealt with by all of us, eventually. Germany is at least taking the first steps.

Barbara S.
Barbara S.4 years ago

I once heard of a couple who had twin boys (many years ago) and when the Rabbi was performing the circumcisions, his hand slipped on the 2nd twin boy; cosmetic surgery turned one twin boy into a girl, and he was never meant to be one. I think the birth certificate should just remain blank until the characteristics of the child manifest, naturally. It may take 15 years for the child to exhibit attractions to a particular sex. And even then, most surgeons will not do a sex change or manipulation until the person is 18 in some states, and 21 in others. It costs a lot of money - many thousands of dollars for total sex change operations, so if the child who is born with both male and female genitalia is left alone to find out who he or she needs to become. then surgery can be the choice of the child who has grown up.

It's not so much the children who need to have their needs met - it is we - the adults - who need to stop whispering that "there's something different" about them, and accept them as they are until they're old enough to make their own decisions. We also must teach our children and our neighbors that these children need to be treated the same as all others. They are not weird or confused unless we treat them as if they are, and isolate them or poke fun at them.

Nimue P.

Being born with both female and male reproductive organs to be described as "no gender" - I can only see more confusion by doing this.

Ganaisha Calvin
Ganaisha Calvin4 years ago

thanks for sharing

DIane L.
DIane L4 years ago

TY, not all that interested in this one.