Germany’s new third gender law becomes effective today, and has been hailed as a groundbreaking advancement for intersex people, but every intersex advocacy organization in Germany is opposed to it. Why? The answer is simple: the new law places intersex babies at risk for increased discrimination.

According to the law:

PStG § 22 Abs. 3: “(3) If the child can be assigned to neither the female nor the male sex, then the child has to be entered into the register of births without such a specification.”

As OII Europe, the European affiliate of the Organisation Intersex International (OII), elaborates, “Who determines that a child “can be assigned to neither the female nor the male sex”? According to current practice: only medicine. The power to define what sex is and who is assigned to which gender remains intact with the new regulation.”

So doctors, not parents, will make the decision whether to label an intersex baby “indeterminate”, and while parents do have the option of leaving their baby indeterminate or having them labeled male or female, the only way to attain a male or female designation is to employ so called “normalizing” genital surgeries which have been found to be so harmful that the U.N. Special Rapporteur on Torture (para. 76.77.) has condemned them.This is in contrast to the situation prior to the law, and in most countries today, where parents decide along with their physicians whether to label intersex babies male or female.

But isn’t giving intersex babies an indeterminate status until they are old enough to decide which sex they want to live as a good thing, you may be asking. In an ideal world free from discrimination: yes; but Germany, like most countries, has not banned “normalizing” surgeries, does not educate its citizens about the existence of intersex people, and does not offer intersex people legal protection from discrimination or even provisions for basic facilities such as rest rooms. While some parents may feel equipped to confront this, and will be open-minded enough to do so, many advocates fear they will be the minority. Instead, as Ins Kromminga, President of OII Germany, stated to me via email, the new law will likely pressure most parents to opt for “normalizing” surgeries “…even faster, since what parent wants to have no gender marker on their child with no other regulation that would protect this non-status?”

German and German speaking intersex advocacy organizations OII Germany, Zwischengeschlecht, and Intersexuelle Menschen (also known as the Federation of Intersex People in Germany) all agree that the law will place parents in a difficult position which may promote increased surgical violations against intersex babies. As OII Europe reports, “The risk of stigmatization would indeed be very large. Therefore… the new provisions could encourage the (potential) parents and doctors even more to avoid an “ambiguous” child at any cost (through abortion, prenatal “treatment” or so-called disambiguating [a.k.a. “normalizing”] surgical and / or hormonal interventions).”

Other members of the LGBTI community such as gays and lesbians have long stated that, like intersex people, they are born the way they are. Just imagine, however, if there was a way to detect this at birth, and that a law was enacted which forced doctors to label babies gay or lesbian on their birth certificates. Would this be helpful to them or their families? Would such a law even be viewed as ethical, given the bullying which gay and lesbian children already face without having their sexual orientation publicly declared on their IDs?

This is exactly the situation created by Germany’s new law. In fact, it makes intersex children even more vulnerable to discrimination than those in the analogy above, as Silvan Agius, policy director at ILGA Europe, a lesbian, gay, bisexual, trans* and intersex rights group, explains.“Schools have toilets for boys and toilets for girls. Where will the intermediate child go? …The law doesn’t change that. It does not immediately create a space for intersex people to be themselves.”

Given all this, it’s easy to see why intersex advocates in Germany do not see the new “options” as such a positive development. The ethical solution is to give intersex babies labels that afford them the rights and protections that all babies have, and allow us to make our own decisions about whether to irreversibly alter our bodies.  As OII-USA states, “… we believe that in most of today’s environments children would be challenged by not being identified as boys or girls. Thus, we recommend that intersex children be raised as males or females, with the awareness that, like all people, they may grow up to identify as a different sex.”

Some intersex adults, including myself, desire a legal designation other than male or female – which was successfully lobbied for by OII Australia and others in Australia recently. This is our prerogative, and it creates a visible identity for intersex youth to step into, if they wish, just as early lesbian, gay, bisexual and trans* activists paved the way for LGBT youth today. However, as with other members of the LGBTI community, this should be the individual’s choice, not something forcibly imposed on us, especially as vulnerable babies.

Intersex people across the globe have long agreed and declared that non-consensual cosmetic genital surgeries are a human rights violation. What we desperately need and most want are laws that ban the practice that is irreversibly harming intersex babies every day — not ones that ban babies from being given socially viable labels unless parents use the practice to attain them.


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