Op-ed: Germany’s Third-Gender Law Fails on Equality

Many are surprised to hear that intersex advocates aren't raving about Germany's new third-gender law. If you haven't heard, the law establishes an alternative to declaring children to be male or female when parents fill out birth certificates for their newborns. It sounds great, but actually, intersex children face hurdles with fewer rights.

The law was implemented without making basic services, such as health insurance, available to anyone who isn't "male" or "female." Silvan Agius, policy director of ILGA-Europe, spoke to the BBC World Services about this, adding that marriage rights are also now denied to intersex people, as only males and females can legally marry (through heterosexual or same-sex marriage).

So why has the law been presented so positively? For starters, it sounds progressive. The general public knows so little about intersex people that it's easy for people to misunderstand it or spin it in a positive light, as psychotherapist Herta Richter-Appelt tried to do On the BBC program mentioned above. (Key word: tried, and full disclosure, I was interviewed on the show too.)

As we all know, laws can be made to sound good, but reading the law may help some understand what it actually does say: "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."

While it's been widely reported that the law gives parents a new "choice" or "option," it's clear that the designation is mandatory. As OII Europe, the European affiliate of the Organization Intersex International (the world's largest intersex advocacy organization), 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."

Some claim this will help by giving parents more time to decide whether to label their baby male or female, but since the law states that babies with intersex bodies can not be labeled male or female, the only way for parents to attain those labels for their child will be through the use of "normalizing" genital surgeries. Surgeries deemed so harmful that the United Nations Special Rapporteur on Torture recently called for all member states to ban them.

Intersex people in Germany and around the globe have been calling for this ban for decades. However, rather than banning intersex genital mutilation, the German government instead created a law that local intersex advocates believe puts intersex babies at greater risk of being subjected to it. My colleague Ins Kromminga, spokesperson for OII Germany, stated via email that parents will likely opt for genital 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?"

Think about it this way: Gays and lesbians have long said that we're born this way, but if it could be detected at birth, would we want doctors forced to label us as such on our birth certificates? Do we think most parents would be comfortable having their babies' gay or lesbian status visible on legal documents? I know mine wouldn't have been, and they would have done everything possible to change it.

Some argue that it's "progress" for a baby who's born intersex to be labeled as such, but the current situation amounts to Germany forcibly creating a new class of citizens without equal rights or access to services and with no legal protection from the violence to their bodies that the law makes them more vulnerable to. It would be akin to a country such as Russia, where LGBTI people are demanding antidiscrimination legislation, choosing instead to simply create legal labels to make LGBTI people even more vulnerable to discrimination.

Intersex people know that the more of us come out, the safer the world will be for others to do the same. However, it should be our choice to do so. German and German-speaking intersex advocacy organizations OII Germany, Zwischengeschlecht, and Intersexuelle Menschen (also known as the Federation of Intersex People in Germany) have all criticized the new law for the same reasons I do, and OII Germany's Kromminga told me via email, "No one from OII Germany was involved in this, nor were we consulted."

Which brings me to what's right about Australia's third-gender law: It was initiated by OII Australia and other advocates, and the Australian government worked closely with them to address their needs. Thus, the third-gender designation is only available to adults who seek it, as advocates felt strongly that labeling babies would create a host of new problems. Also, an X was chosen (which stands for "Unspecified/Intersex/Indeterminate") rather than an I, not only for consistency with existing passport legislation that uses an X, but because there are as many different types of intersex people as there are colors in the rainbow, some very male-looking, some very female, and everything in between. Labeling us all one specific sex would be inaccurate, as we're living proof that biological sex exists along a spectrum of numerous possibilities.

In addition, OII Australia recognized the importance of being inclusive when creating the new identification designator. As Gina Wilson, acting president of OII Australia when the legislation was passed, stated, "We resist the creation of a third sex category where anatomical differences of sex are the required qualification and only intersex people qualify." The X is therefore also available to transgender and other adults not served by binary labels.

I encourage German government officials and others to follow Australia's lead and listen to the true "experts" on what's best for intersex people: intersex people. Labels and identity politics are interesting to theorize over, but what intersex people most want and need are equal rights and the right to make decisions about our own bodies and lives.

HIDA VILORIA is chairperson of OII, the world's largest intersex advocacy organization, and director of its American affiliate, OII-USA. She has a degree in gender and sexuality from U.C. Berkeley, and has written about intersex issues for Ms., The Global Herald, CNN.com, the American Journal of Bioethics, and others, and has been a guest on numerous television shows, including 20/20 and Oprah. You can read her blog Intersex and Out.