Germany Has an Official Third Gender

A new law in Germany creates a third sex category on birth records. It could seem like an obvious solution to some problems of intersex: If some babies are born with bodies that are neither clearly male nor female, then it seems there should be some category beside “male” or “female.”

News reports from Der Spiegel, the Wall Street Journal and ABC News have characterized the new German legislation as providing an “option,” suggesting that the sex identification of infants will simply be a matter of parental choice.

In the past, by contrast, parents have generally relied on physicians to “fix” intersex children through the use of surgical and hormonal sex “normalizations.” (For example, this has sometimes included surgical sex reassignment for baby boys born with very small penises.) With the new category introduced by German law, the ambiguity presented by infants with atypical sex anatomies can be managed simply with a new label.

What may first appear to be an appealing alternative to surgical or hormonal normalization, however, turns out to require active exclusion of children with atypical sex anatomy from the categories of male and female—the categories into which most affected children and adults identify.

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.

I interviewed parents of children with atypical sex anatomy for my forthcoming book, and there was one mother, Sarah, who, shortly after the birth of her son with atypical sex anatomy, found inspiration in a song by Peter Alsop. Alsop is a children’s folksinger and educational psychologist. The song is called “It’s Only a Wee Wee.” Although it's intended to make light of gender difference, Sarah heard the song in more literal terms after the birth of her son:

As soon as you’re born, grownups check where you pee
And then they decide just how you’re s’posed to be
Girls pink and quiet, boys noisy and blue
seems like a dumb way to choose what you’ll do

Well it’s only a wee wee, so what’s the big deal?
It’s only a wee wee, so what’s all the fuss?
It’s only a wee wee and everyone’s got one
There’s better things to discuss!

Now girls must use makeup, girl’s names and girl’s clothes
And boys must use sneakers, but not pantyhose
The grownups will teach you the rules to their dance
And if you get confused, they’ll say “Look in your pants”

Now grownups watch closely each move that we make
Boys must not cry, and girls must make cake
It’s all very formal and I think it smells
Let’s all be abnormal and act like ourselves.

Sarah did not deny that her son’s difference would pose challenges. Talking to adults whose medical treatment had proved traumatizing, she was determined that her son not be robbed of the childhood or the confidence in her love she took to be his right. So Sarah resisted normalizing interventions for her child.  Giving her son the opportunity to "be himself" meant for Sarah that it was not her son's atypical sex anatomy that needed changing.