For some time now the German decision to require parents of a child with ambiguous genitals to register their child without a sex marker and without protection or time limit, is making the news. To the growing displeasure of intersex activists.
Displeasure because intersex activists have not been consulted and if consulted would have advised against this law. Because of the utter confusion about a “third gender” or “third sex”. Because the way it works, parents and doctors will be inclined more to cut up the childs genitals instead of less. Without education or protection: who wants a sex ambiguous child?
To first tend to the misunderstanding about Germany that the press still furthers. Germany does not have third gender option. Not even or intersex infants. If a child is born in a German hospital (or at home) and on grounds of the genitals its se cannot be defined without a doubt, the requirement is to leave the sex marker (gender marker) open in the birth certificate. There is no time limit to it.
Where the power to decide on the childs sex lies in medical hands the tendency will be to try to prevent any ambiguity, out of professional pride (“Look! We can fix this!”). Be it through prenatal hormone therapy (with certain intersex conditions the mother gets off-label prescription of dexamethasone), surgical or postnatal hormone treatment prescription Or even abortion. Preimplantation Diagnostics and other screenings are unwelcome interventions where it concerns intersex “discovery”.
This will not help prospecting parents in handling the body diversity of their child. The most friendly it will be frowned upon and run into problems when for example registering it for Kindergarten. Given the ttal lack of support in society, the enforcing of a sex and gender binary everywhere in life, already the child’s start will be complicated. How will it be treated by family (“we don’t now what it is”), in Kindergarten where everything is pink and blue ..
The way it works, intersexed children (they fit within a diversity of bodies, but through medical scrutiny they intersexed, made intersex or having a “Disorder of Sex Development” to make it worse) only get the worst of possibilities, not the best.
Would anti-discrimination legislation help then: Well, yes. Though there is a risk of making thngs more complicated to keep the system. Instead of creating a limited extra category, German government could have had the courage to open it up for everyone to have no sex/gender marker in the birth certificate and other documents. At least let it die out. So that from end 2013 all children would be free of a sex/gender marker, and after some years that population will have grown and gender registration starts dying out with the deceased.
A word about terminology here: usually we speak of gender marker, but it happens at birth on the view of the genitals of a baby. The “no sex marker” solution the german chose and others are eyeing, shows that sex and gender are constantly conflated. Because of specific genitals, a specific gender identity and gender role is attributed too the child. naturalistic thinking with biologistic arguments then takes care of the rest: your gender is supposed to stay the same through life, apart from errors. in classic legislation the legal problem trans people present is solutioned along these “error” lines. Apparently the person develops differently than we expected, so we grant the right the correct this error. Another reason the Argentinean solution for gender recognition is so revolutionary.
The solution to havng a two option system and people that do not fit in can theoretically be solutioned by introducing a new category, or leave the field open. But that leaves two important questions: is it the best solution, and waht do the people involved say of it? There is a saying “Nihil nobis sin nobis”, nothing about us without us. Decent politics involves the group that has to benefit or suffers from a certain solution. This has not happened here. Elsewhere, in the Australasian region third gender solutions have been introduced through the explcit wish of part of the population. Not in Germany however.
What would be the best solution to the problem of having non fitting categories? One could opt for opening up a real third sex/gender category, indicated with an X on all official documentation (this is the internationally recognized solution from the ICAO). But for legsilation there must be a need and it must be proportionate in its effect. In Europe (Council and Union) there also is the equality principle. New categories , new distinctions may only be introduced in legislations where equalilty is protected. In Germany this is definitely not the case, neither in Australia where inter* people cannot marry a man or a woman since they are not one. The very least to do is introduce protection against discrimination. If not it is a solution on unequal footing and against the equality principle.
Next there is the risk of wanting to create even more categories. Why not one or inter* and one or trans*? Sensile lawyers will rejext this idea since it makes no sense to discriminate between so many not really essential traits. Which in turn brings us to the question: if continuing to create categories is senseless, do the existing categories make sense? Does sex registration in the civil registry make sense? Medically speaking, sex registration might make sense. But the civil registry is not for medical information. With equality legislation covering more and more terrain, inequality between men and women seen as a somewhat retarded way of thinking (although still very much alive), what is the use of registering? Just because bodies are different and they have different roles? That is hardly a good argument.
The best way then is to simply abolish sex/gender registration at the civil registry. Make those categories moot, uninteresting, without importance. It is not about abolishing men and women ro male and female identities, it is just about quitting to enforce them. Most reasons to keep the status quo come from the same realm as objections against marriage equality between genders or the possiblity to change genders, sc. moral conservatism.
Of course between act and dream stand laws and moral objections – to quote the Dutch poet Willem Elsschot – but that should not be insurmountable.