As of Nov. 1, German babies who are born with both sexual organs will no longer be defined as male or female on their birth certificates. Rather, because of the country’s new third gender law, both boxes will remain unchecked, and the infant will be legally declared intersex by being placed into a third gender category. Because the law provides a legal recognition of intersex individuals, it was initially perceived as progressive. However, as more light has been shed on the legislation, intersex advocates have expressed their disdain. The law is far from a step in the right direction. Instead of furthering the rights of intersex citizens, it raises a litany of issues for the intersex community.
For instance, the assignment of the third gender is not a choice. The law does not offer the parents of intersex newborns the choice to designate their child’s gender on the baby’s birth certificate. To be deemed male or female in the eyes of the law, an infant must physiologically belong to one of the two genders, meaning those who do not fit neatly into either group are stuck in the third gender category until their bodies physically meet the qualification.
Under this law, the child is documented based on their sexuality, which can lead to discrimination, especially in a country where public awareness of intersexuality is not widespread. Additionally, it denies basic rights and services to intersex citizens. For example, the use of public restrooms in banned because German public facilities are only made available to those who are identified as male or female. Third gender individuals also have no access to health care and cannot obtain marriage licenses because Germany only provides these services to males and females.
The law does not foster an environment in which intersex infants can grow into their genders, rather, it pushes parents to subject their child to gender surgery, which will ultimately lead to the normalization of such surgeries. Gender surgeries are not only synonymous with sexual mutilation, but they also restrict the ability of an intersex individual to decide what gender they truly want to be. The surgeries have been deemed so harmful that the United Nations Special Rapporteur on Torture recently called for member states to ban them. The intersex community has been fighting gender surgeries for years on these grounds, and Germany’s new law will only increase their struggle.
If German legislators want to make the law truly helpful to the intersex population, they should model it after Australia’s third gender law, which was enacted a few months ago and discourages gender surgeries and discrimination by allowing intersex individuals to declare themselves as a separate gender, gender X, when they are an adult. Germany’s law is discriminatory and should be revised. Sexuality should never affect equality.
