The Swiss activist group Zwischengeschlecht (“Between Genders”) has provided an astute analysis of the legislation, noting that, rather than the “option” heralded by the media, the new legislation prohibits the registration of children as male or female and mandates their entry “into the register of births without such specification.” In other words, if a child’s anatomy does not, in the view of physicians, conform to the category of male or the category of female, there is no option but to withhold the male or female labels given to all “normal” children.
Rather than decrease the likelihood of normalizing surgeries—which appeared to be the genuine intent of the 2012 German Ethics Council report that inspired the change in legislation—the new legislation may end up promoting the surgeries that have been the subject of unprecedented criticism over the last year. Criticism came not only from the German Ethics Council, but also from the Swiss National Advisory Commission, and a report by the United Nations Special Rapporteur on Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. The German Ethics Council proposed in its opinion a sex category of "other" in order to address what it described as the "infringement" of the rights to medical treatment of those who "cannot be categorized as belonging to the female or male sex [and] are compelled to register in one of these categories.
The Ethics Council condemns normalizing interventions in strong terms: “Irreversible medical sex assignment measures in persons of ambiguous gender infringe the right to physical integrity, to preservation of sexual and gender identity, to an open future and often also to procreative freedom.” But the effect of the law that recently went into effect in Germany bears little resemblance to the original proposal made by the Ethics Council, which made clear that the provision of a category of “other” was meant to defer sex assignment “until [individuals] have decided for themselves.”
But instead of individuals deciding for themselves at maturity, decisions concerning sex assignment are made in infancy by physicians, and perhaps also by the parents who accept or decline normalizing procedures. These decisions have significant implications for the most intimate areas of individuals’ lives, including romantic partnership and marriage (particularly in the absence of marriage equality). The German Ethics Council’s recommendation for a third category of sex assignment was not meant to be a quick fix, but was one among many measures intended to address the serious violations of human rights their report acknowledges and seeks to rectify.
Surely it is a measure of how entrenched sexual difference remains that the recognition of bodies that do not fit standards for male and female seem to require the creation of new categories. When the rules of a rigid system of sex and gender have resulted in so much harm, it may seem that abolishing the categories of sex is the best or only means of righting wrongs that have occurred in the name of children’s best interests. To adults whose bodies bear normalization scars, it can seem like the answer is to create a society free of gender. But utopian visions provide little support or hope for new parents of children with atypical sex anatomies.