For decades, doctors in European hospitals have given parents of children born with sexual anatomy that doesn’t fit the typical definitions of male or female a choice: When we do gender-assignment surgery would you like us to give you a son or a daughter? Now, in Germany, there’s a third option. On Nov. 1, the German Parliament passed a law that gives parents the option of leaving the gender blank on a child’s birth certificate. This makes Germany the first European country to adopt a law that will likely allow parents a freedom to choose not to go ahead with a form of surgery that an increasing body of medical research suggests is medically unnecessary and can be physically painful and psychologically harmful.
For activists fighting for the rights of people born of indeterminate gender — also known as intersex people — across both Europe and the U.S., the German law is a significant victory in an ongoing campaign to bring an end to surgical practices that evolved during the 20th century as doctors tried to “normalize” intersex children soon after birth. The term intersex encompasses a range of conditions in which a person’s reproductive or sexual anatomy doesn’t fall into the typical male or female biological categories. Sex is determined by the sets of chromosomes, hormones, internal organs and genitals a person has. Some people have characteristics that put them on a sliding scale between male and female; for example, a girl born with a lack of vaginal opening or a noticeably large clitoris that could also be a very small penis.
Not all intersex people are born with atypical genitalia, but for children who are, doctors and surgeons have tended to use gender-assignment surgery. This has often been done, says Katrina Karkazis, a bioethicist and anthropologist at the Stanford School of Medicine in California, because of a prevailing view among the medical community and a fear many parents have “that children who go through life with atypical genitalia will suffer from stigma.” Gender-assignment surgery has therefore generally been viewed as being in the best interests of a child as well as the parents, she says.
“As recently as 15 years ago, you would have had very few people in the medical community who would have questioned the benefit of surgery,” says Karkazis. That’s begun to change because of a growing body of medical evidence examining the outcomes and accounts of intersex individuals who had undergone the operations as babies or children. These accounts, says Karkazis, who has interviewed intersex individuals, their families and clinicians on the subject since 1996, have shown “a really very striking, sharing of the feeling of incredible psychic, intimate and physical harm from the surgeries.”
Tiger Devore, a 55-year-old U.S.-based clinical psychologist and sex therapist, had multiple operations as a child, the first when he was three months old, because he was born with indeterminate sex. He describes the operations he had — 20 in total — as “unnecessary failures” in which he lost a lot of sexually sensitive tissue. Devore believes that there is a very clear problem with “steel cutting into sensitive tissue.” Other patients who have undergone operations such as clitoral reduction have also complained of pain, scarring and a loss of sensation.
Karkazis explains that in the nearly two decades she has been interviewing individuals who have undergone this experience she has only come across one person who has said that although having the surgery “was not easy” she understood why it was done.
The medical community has increasingly acknowledged the concerns of intersex adults who underwent surgery as infants. In 2006 a group of international health professionals put together a consensus statement (a statement put together by a panel of medical experts advising on best practice) on how to revise the treatment of “intersex disorders,” taking into account “the place of patient advocacy.” And in February this year, the U.N.’s special rapporteur on torture condemned the practice of nonconsensual surgery on intersex individuals.
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Germany’s new law was in response to a 2012 report from the country’s national Ethics Council, an independent group of experts mandated by the government to look into ethical issues, which concluded that intersex people should be protected from “undesirably medical developments” like surgery on infants. It called for a deferral of the operation until a child can consent.
Silvan Agius, policy director at ILGA-Europe, an international lesbian, gay, bisexual, trans and intersex advocacy group, believes that the German law does not do enough to address the issue of surgery on newborns and children and believes these kinds of operations should be banned. He also fears that intersex individuals “may possibly be exposed to more and not less discrimination due to the automatic ‘outing’ that intersex infants may be subjected to as a result of the new category.” A spokesman for the German Interior Ministry has acknowledged that the new law ”is not adequate to fully resolve the complex problems of intersex people.”
In spite of this, Agius thinks that Europe is “slowly waking up to” intersex issues. In some other countries, such as Australia, Bangladesh, India and Nepal, a “third” gender has been recognized in some legal capacity in recent years. Colombia remains one of the most progressive examples because of its Constitutional Court’s decision in 1999 to restrict the ability of parents and doctors to use medically unnecessary genital plastic surgery.
For Tiger Devore, a similar ban on these surgeries globally is the right route. He believes people will eventually see the surgical treatments on infants as a “terrible mistake.” Society will only wake up to this, says Devore, when people let go of the idea that human beings only exist in the binary of female and male and understand that intersex is an identity in its own right.