Germany's New "Third Gender" Law Is Not Progressive for Intersex People

prepared by Claudia Astorino

The internet has been a flurry the last couple of weeks reporting on Germany's new "third gender" law, where individuals' gender can be legally identified as "M," "F," or "X." This legislation is being touted as really progressive and exciting and a step for both intersex people and people who are gender non-conforming.

But this law is far from progressive for intersex kids, even if it's a good thing for gender non-conforming adults. Intersex activists have been opposing this law since it has been publicized, for several good reasons. Let's talk about why this law is not the intersex victory it might appear to be.

1) This law is a good thing for ADULTS, who can consent to their legal gender identifier. This law is NOT a good thing for intersex KIDS, who have their legal gender ID chosen FOR them.

While this law may be a good thing for adults, who can consent to changing their legal gender designation to/from M, F, or X, this law is not good for intersex kids, who get no say in choosing their legal gender identity.

A lot of the news reported thus far focuses on the fact that one can CHOOSE M, F, or X. But for intersex people, these choices are only real choices once they're adults. A closer read indicates that DOCTORS are the ones who assign legal gender for intersex kids - who by default, must get an X.

This is messed up because intersex kids are LITERALLY being marked from birth to be societally misunderstood and potentially harassed - both emotionally and physically. Intersex activism is raising awareness that intersex people are normal, and good, and when conversations (with accurate information on intersex) are had between intersex people and others, many are very accepting and understand why intersex people aren't bad, or a big deal, and should have bodily autonomy over what body parts they do and don't keep.

That being said, there are still people out there who don't understand. We're not at a place where people really know what intersex is, and stereotypes about who we are - and how our existence should be "dealt with" societally - are abundant and draconian. I am worried about intersex kids being born in Germany, because I don't trust our societies are at a place where we will accept them as they are and not mistreat them for having the bodies we have. It is one thing to raise awareness that intersex kids exist, and another to literally "out" these intersex kids from birth, opening them up to the potentially for lifelong harassment.

Intersex activist Hida Viloria recently stated (in my own paraphrasing), "People are more accepting of gays and lesbians, but discrimination exists. If there was a way to know that a baby was lesbian from birth, would it be a good idea to mark that on their birth certificates? Wouldn't this open them up to a lot of discrimination?"

Outing intersex kids from birth is not okay. It's one thing for an intersex adult changing their gender identity to "X" (as it is for any person - intersex or not - that chooses to do so), and having the choice be made for intersex kids. This law results in some other very troubling consequences - leading us to my second point.



2) This law simply promotes non-consensual, cosmetic surgeries on intersex kids, so their parents can change their legal gender to "M" or "F" (because post-surgery, they'll supposedly be "real" boys or girls).

As stated above, doctors are the ones who assign legal gender for intersex kids - and by default, must assign "X." Parents do have some say in assigning their child's legal gender, but doctors have the final say. The way that parents can contribute to their intersex child's legal gender assignment is this: If they want their kid to have "M" or "F" on their child's birth certificate, after the doctor has assigned that child "X," parents can force their children to undergo cosmetic surgery without consent. If parents have their children undergo surgery to alter or remove atypical sex characteristic (in terms of external genitals, internal genitals, or gonads), doctors will recommend changing the "X" to "M" or "F."

This is clearly so fucked up and awful.

Intersex activists have been working for years to STOP these treatments that are not medically necessary, that we cannot consent to, that are irreversible, that scar us physically and emotionally - potentially for the rest of our lives, and that can cause ACTUAL health problems (you know, to fix the health problems we never had to begin with). Parents and doctors are recommending these surgeries because they don't want their children to be marked as "different" based on their physical form. Now, Germany is recommending these kids be marked LEGALLY as "different" if their parents don't submit their kids to surgeries...which is going to result in parents doing just that. This new law simply provides FURTHER reasons to continue performing non-consensual, cosmetic surgeries on kids. This is a gigantic step (or ten) backward for intersex people.

A new law that encourages intersex genital/gonadal surgeries? Is not progressive for intersex people, period.



3) Intersex people don't represent a "third gender" category. Sex is not the same thing as gender. (While we're at it, we don't represent a "third sex" category, either.)

I think the reason many people see the new law as progressive is because intersex people are seen as an "other" requiring a third gender category. Our genders "can't" be female, and they "can't" be male, so our gender must lie behind door number three! Right?

Actually, no. Remember that intersex is actually about bodies, about biological sex. Sex and gender are NOT the same concept. Sex is about your body form (i.e., what it looks like) and how it functions. Gender is about whether you FEEL (or identify as) male, female, and/or other identities - it's not about your body specifically, but who you know yourself to be (whether or not that gender ID is the same as your biological sex or not).

So, bodies and gender don't share a one-to-one relationship. Whatever identity label you use for sex (e.g., "male") doesn't mean that you use that label to identify your gender, too. We can't assume that because someone has a body like X, their gender must also be X, too. Their gender might be Y, or Z, or maybe X sometimes and Y other times, maybe Y and Z at the same time, or maybe this person doesn't use gender labels at all.

In this vein, it's kind of weird, then, to create a third gender category for intersex people. If sex and gender don't match up in this they-have-to-match kind of way, or in this there-are-only-two-OH-WAIT-THREE-genders way (because there are potentially as many gender identities out there as there are people to have them), then creating a third gender doesn't make so much sense. A person with an intersex body can totally have a male gender identity! A person with an intersex body can totally have a female gender identity! A person with an intersex body can totally identify as intersex in terms of their gender, too! A person with an intersex body (like anyone else) can have any kind of gender identity/ies they can define!

So like, creating a third GENDER to label people that don't clearly fall into male or female SEX categories, doesn't make sense as a concept, because we're conflating sex and gender.

People everywhere on the internet have been excited for how this law is progressive and good for intersex people. I don't like being the downer that rains on everyone's parade, but I hope that it's clear that this law is NOT good for intersex people. To read more on why this law is not good for intersex people, check out OII-USA's post by Hida Viloria - "Germany’s New Third Gender Law Places Intersex Babies at Risk."

also see: EU adopts historic intersex resolution