WASHINGTON, November 5, 2013 — Germany became the first European country to legally recognize intersex children on November 1. Australia, India, Pakistan and Nepal already have some form of legal recognition of a third gender on legal and official documents.
The new German law, intended to ease the pressure on parents and prevent hasty decisions regarding newborn sex-assignment surgery, allows parents to leave gender blank on birth certificates.
The German Interior Ministry also announced that the law will also create a third designation for gender in German passports; alongside “F” and “M,” Germans will soon be able to choose “X.”
Previously described as hermaphroditism, intersexuality describes a group of conditions where an individual’s chromosomes, genitalia or anatomical sex differs from the generally accepted definitions of male or female.
Each year an estimated 2,000 babies are born intersex, a set of over 60 different conditions that fall under the diagnosis of “DSD” (Differences/Disorders of Sex Development), occurring more often than Down syndrome or cystic fibrosis. DSD, however, is not a diagnosis, but an umbrella term used to describe various differences.
While sex-assignment surgery has been performed on intersex infants in the U.S. since the 1950s, the ethics of the practice have been questioned in recent years by advocates and some clinical practitioners.
In cases where children are born with mixed or ambiguous markers of biological sex (chromosomes, gonads, internal reproductive system, genitalia), current medical authority supports assigning a child a gender but not performing surgery until the child is old enough for gender identity to emerge and the child and guardians can make the appropriate decisions regarding surgery. This also includes the choice whether to have any surgery at all, since surgery involves the risk of sterilization and elimination of sexual function.
However, sex-assignment surgery on newborns is still practiced in the U.S. and the rest of the world—many times with potentially devastating physical and psychological effects on the individual. According to several sources, a person with CAH, a type of DSD, will generally have surgery before the age of two; a majority of those born with AIS, another type of DSD, will have undergone a gonadectomy before completing their teens.
Lawsuits have begun to arise, as surgery is increasingly seen as a choice that should be left to the individual once they are old enough to make it. In the case of M.C., for example, the adoptive parents of an intersex child sued the state for consenting to assignment surgery when M.C. was an infant and under custody of the South Carolina Department of Social Services. In a 2009 case, a German court awarded damages of over 100,000 Euro to an intersex individual, raised as a boy, whose uterus and womb were removed as a teen.
“I think any measure, legal or otherwise, granting a parent of any child more time to carefully consider how best to honor and preserve their child’s emotional and physical health is encouraging,” wrote Jim Bruce, a 36-year-old writer and intersex individual, to ABC News.
However, many activists say the German law does not go far enough. According to a 2011 report filed with the European Commission, intersex individuals face unique and especially complex barriers and discrimination in their legal, social and medical lives.
Many claim that this law does not address the most pressing problems faced by the intersex community, namely surgery on infants and discrimination.
“That we forbid cosmetic genital surgeries for newborns, that is our first demand,” Lucie Veith, leader of the Association of Intersexed People in Germany, said to AFP.
The group, which supports a ban on sex-assignment surgery until the age of 16, said that while the law is a step in the right direction, it is unlikely to put an end to surgery on infants.
Nelson Jones of New Statesman equates medically unnecessary cosmetic surgery on an infant to the broadly condemned genital mutilation of girls for religious or tribal reasons.
“Surgical or hormonal treatment for cosmetic, non-medically necessary reasons must be deferred to an age when intersex people are able to provide their own free, prior and fully informed consent,” said Silvan Agius, policy director for ILGA Europe, the European chapter of the International Lesbian, Gay, Bisexual, Trans and Intersex Association, to Deutsche Welle. “The right to bodily integrity and self-determination should be ensured and past abuses acknowledged.”
Others believe the law will invite further discrimination of intersex individuals.
“We think a better process is assigning male or female sex, then waiting,” Anne Tamar-Mattis, executive director for California-based legal group Advocates for Informed Choice said to ABC News. “Adults should be able to make their own decisions about legal gender. German law is about assigning it at birth. That is not a battle young children should have to take up at this point. When they are grown, they can make decisions about their own bodies.”
Others fear that the law is creating and assigning a label without providing adequate antidiscrimination legislation that will protect these individuals and educate the community.
Other activists recognize that while it is commendable that Germany is at least attempting to address intersex issues, the result of this new law remains to be seen.
“Whilst this law may be seen to have been enacted from the best of intentions, it doesn’t really address the deeply embedded medical protocols that shadow many of our lives. It doesn’t change how those are engaged at all, but it does give space for parents to learn,” a UK intersex advocate said to Communities. “On the other side of the coin, this law change lays a platform for having an open and honest debate about what happens to us, and issues of self determination and bodily integrity. It gives a greater urgency for the need to educate parents, and wider society about our existence.”
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