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Identity

German Babies Don't Need to Be Boys or Girls Anymore

As of November 1, it’s no longer legally necessary for babies born in Germany to be registered as male or female. Have the country’s social policies caught up to this change?

Photo via Adriano Aurelio Araujo

It’s tempting to interpret legislative shifts as progress. After all, plenty of times they are. However, what looks like progress on the surface often masks a much more complicated underbelly. Think about the fight for marriage equality: if marriage is a fundamental right, then everyone certainly deserves access to it. Insofar as the fight for this access has further normalized and entrenched the institution of marriage—itself a problematic tradition with a deeply troubled past—progress becomes trickier to gauge.

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This complex relationship between progress and problem is quite clear in regards to Germany's new third gender option on birth certificates. As of November 1, it is no longer legally necessary for babies born in Germany to be registered as male or female on their birth certificates. Instead—in cases of newborns whose bodies don't fall neatly into male or female categories physiologically—the male and female boxes on a birth certificate can be left unchecked.

From that angle Germany isn't so much presenting a third gender option to its citizens as a gender binary opt-out (conversely, Australia has a formal third gender option—X—on all legal forms). Still, Germany has opened some space outside the rampant confines of “male” and “female.” Around the world, plenty of folks applauded.

Germany's cheerleaders have good reason to be excited. In a federally commissioned 2012 study on the experiences of intersex people in Germany, the German Ethics Council—an interdisciplinary group of academics and experts—issued a report recommending an end to the compulsory registration of people as either male or female. In a press release for the report issued on February 23, 2012, the Council writes:

"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. The decision concerned is personal."

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In other words, the expressed intent behind the recommendation for the new birth certificate law is to push back against violent and invasive practices, particularly the litany of surgeries infants and young children are often subject to in the name of fitting tidily into the male/female paradigm.

Illustration by JSwindell

According to Dr. Frank Fischer, Distinguished Professor of Politics and Global Affairs at Rutgers University, this move to reassess birth certificate protocol and examine the treatment of intersex individuals comes on the heels of a long period of lobbying by advocacy groups. Communicating from Germany via email, Dr. Fischer notes "the time has come, for a humanistic measure, thanks to a long political effort to bring this about." The problem with these humanistic measures is that there's no one-size-fits-all approach. For instance, birth certificates might hold space for a full array of genders, but other German laws do not. Marriage remains between a man and a woman, civil partnerships are reserved for people of the same sex, and passport applications still require a male or female identification.

Emi Koyama is the Director of Intersex Initiative, an organization based in Portland, Oregon, that focuses on developing and supporting activism and advocacy on a national level for people born with intersex conditions. In response to legislation that invokes the well being of children, Ms. Koyama is particularly concerned about, well, the children. "Assigning babies to the third gender category without their consent (even with the parents's consent) does not necessarily advance the rights of children with intersex conditions. In reality, it leads to treating this very small group of children as the other, marginalizing them while inevitably making their private medical information public."

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You only have to recall middle school gym class to appreciate how marginalizing this designation as other can be for a child. Now go farther back to kindergarten and bathrooms designated for boys and girls only. What's a kid to do? And what's a kid who's been told they aren't male or female but who feels male or female to do?

To this end, Ms. Koyama suggests that "a better way to address the issue is to create a third gender (or no gender) option for adults and adolescents who want it, or to abolish legal categories of sex altogether." Only then does the playing field start to be leveled. While the current birth certificate change has brought intersex issues to the fore of international dialogue, Ms. Koyama issues a cautionary warning. "Policies that affect intersex children must be evaluated on the basis of their impact on these children, not whether or not they promote changes in abstract societal conceptions of gender." In other words, we need to make good and sure that the bodies we intend to protect aren't, in fact, being utilized as pawns. Otherwise, mission not accomplished.

Not everyone agrees with Ms. Koyama. Internationally recognized intersex rights activist Maya Posch is one such person. Currently residing in the Netherlands, Maya has her sights fixed on moving to Germany or Australia after nearly a decade spent fighting the Dutch government and medical community for both legal recognition of herself as female and access to reliable and comprehensive healthcare (she's chronicled her struggle in detail on her website). From Ms. Posch's perspective, the new birth certificate protocol in Germany is a good, albeit imperfect, development. She recently told me that "the one thing I would like to see added to the law in Germany is that it's actually mandatory that gender is a personal choice that cannot be chosen by parents or physicians or anyone else. The psychological trauma that victims of childhood genital surgery suffer is astounding."

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When asked to weigh the trauma of childhood sex assignment surgeries against the very real logistical issues presented by the disconnect between gender on birth certificates and gender on other German legal forms, Ms. Posch laughed. "Bureaucracy is something big, tangled, and hairy to deal with. The main thing here, what's important here, is the physical part. What is so offensive about the forced genital surgery of infants is that it's non-reversible. Once you remove an organ, it's not going to grow back. It's a decision you make once."

In regards to the day-to-day struggles that might await children who fall outside the gender binary—and concerns that children are being forced to the periphery without any say in the matter—Ms. Posch is quick to assert that we are not facing new problems. She notes, "Society has been trying to pretend it's always been male and female, though it's never really worked out this way. The problems were always there. It's nothing new. It's a very good chance to actually look at this issue and say, well, why exactly do we need to have separate public toilets anyway?"

For Germany's part, they've got their work cut out for them. As leaders in intersex rights and legal inclusivity, the world is watching as they carve a path through difficult and high-stakes terrain.

More on gender

Oaxaca's Third Gender

Should Trans People Have to Disclose Their Birth Gender Before Sex?

If You Could Change Your Gender for a Day, Would You?