GENDER LABELS //
Labels: Read the Fine Print by Erica McLachlan
On November 1, 2013, Germany followed Australia’s lead to become the first European country to introduce a third, non-specified option for “gender” classification on their birth certificates. This policy is aimed at intersex infants born with sexual anatomy that does not fit the traditional definition of “male” or “female,” exhibiting natural biological and chromosomal variation along the sex spectrum. A report published in 2012 by Germany’s national Ethics Council, maintained that “Intersex people should be recognized, supported and protected from discrimination” and provided the impetus for the government to pass this legislation. The change in policy aims to end the traumatizing and medically unnecessary “corrective” surgeries performed on newborns. It should allow parents of intersex babies to leave the gender designation on their child’s birth certificate blank rather than forcing them to assign their child an identity for registration with the authorities (if the doctors consult them at all). Although this legislation has helped to increase the public’s awareness of the harmful “normalizing” surgeries that intersex children are subject to, it will not prohibit doctors from performing the operations. The German government’s decision followed the United Nations “Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment,” which criticized the non-consensual, medically unnecessary and genital-normalizing surgeries: Children who are born with atypical sex characteristics are often subject to irreversible sex assignment, involuntary sterilization, involuntary genital normalizing surgery, performed without their informed consent, or that of their parents, “in an attempt to fix their sex,” leaving them with permanent, irreversible infertility and causing severe mental suffering… These procedures are rarely medically necessary, can cause scarring, loss of sexual sensation, pain, incontinence and lifelong depression and have also been criticized as being unscientific, potentially harmful and contributing to stigma. These surgeries often attempt to alter the individual’s genitalia to resemble the “norm,” either male or female, as closely as possible. According to the BBC, one individual who was subjected to this surgery at a young age later said that: “I am neither a man nor a woman. I will remain the patchwork created by doctors, bruised and scarred.” Although some individuals may choose to undergo surgery later in life, society’s understanding of the sexed body makes it nearly impossible for those who prefer to identify as neither male nor female to do so. The UN report condemned such surgeries, calling on member states to “repeal any law allowing intrusive and irreversible treatments, including forced genital-normalizing surgery…when enforced or administered without the free and informed consent of the person concerned.” The Council of Europe (COE) similarly
Issue 10.2
condemned “early childhood medical interventions in the case of intersex children” in Resolution 1952 (2013), pointing out that “supporters of the procedures tend to present [the surgeries] as beneficial to the children themselves despite clear evidence to the contrary.” The COE stated that it is important to “ensure that noone is subjected to unnecessary medical or surgical treatment that is cosmetic rather than vital for health during infancy or childhood, guarantee bodily integrity, autonomy and self-determination to persons concerned, and provide families with intersex children with adequate counseling and support.” Again, while Germany’s new policy may have given parents the option to forego surgery by including an “indeterminate” gender, it fails to prohibit doctors from carrying out these operations. By performing these surgeries, physicians are complicit in policing and enforcing “socially constructed gender expectations” through the pathologization of intersex bodies. The European branch of Organization Intersex International (OII), the largest intersex advocacy organization in the world, points out that the legislation is not a choice, but rather a requirement: If the child can be assigned to neither the female nor the male sex, then the child is to be entered into the register of births without such a specification. OII points out that the current practice leaves the determination of sex to the discretion of medical professionals. In response, they have called for “an end to…externally determined gender assignment, the practice of sexed standardization and mutilation, as well as medical authority of definition on sex.” This “solution” also raises a number of important questions concerning the rights of intersex individuals. For instance, heterosexual marriage and homosexual civil unions in Germany are legally sanctioned for male or female identified individuals, potentially barring intersex people from such partnerships. Similar concerns have been raised with health insurance. Likewise, traveling to countries that may or may not accept such designations may prove difficult, even perilous. Some have identified this “other” category as a catch-all for those that do not readily conform to the normative gender binary. As Hida Viloria, a chairperson for OII, points out, it is a distinct possibility that this legislation may increase discrimination against intersex people, particularly because it forcibly “outs” the intersex individual without their express consent. In addition, Viloria criticized the German government for failing to consult OII in the drafting of the new legislation: “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.” Many are worried that this new category may simply serve to consolidate traditional dichotomies and increase discrimination, rather than emphasize the reality of anatomical diversity and the fluidity of gender identification. Germany’s legislation fails to accomplish its most important task: putting an end to the unnecessary genital-normalizing surgeries performed on intersex infants. Its success must be measured not by the number or nature of labels available, but by the end of human rights violations. QIO
QIO
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