On 13 December 2018, the German Bundestag passed a „Law amending the information to be entered in the register of births“, which now makes it possible to choose „diverse“ as another affirmative designation in addition to female and male, and the option to leave the gender entry open.
In principle, we welcome the introduction of the third affirmative entry „diverse“ as well as the finally implemented change into an „optional“ provision in the Civil Status Act.
Now it is possible to reduce the pressure on parents to have sex-modifying medical interventions carried out on their intersex child in order to assign it to the male or female sex and thus to circumvent the previously forced open gender marker. Parents can now freely choose to register their intersex child at birth either as male or female, as diverse, or to leave the gender entry open.
But since the last two options are only possible with a medical certificate, the child is publicly marked as a deviation from male and female. We ask ourselves how many parents will make use of this possibility, since this means a forced outing for their child on a physical level. If gender registration had been abolished for all children, there would be no outing problem.
Similarly, this civil status regulation will not protect intersex people from unwanted cosmetic sex-modifying medical interventions, so we continue to urge a clear ban on these interventions!
Unfortunately, it failed to open a self-determined gender marker to all people, including trans* and non-binary people, whose gender identity does not correspond to the female or male gender marker.
Because the entry „diverse“ is allowed for a medically narrowly defined group of persons, i.e. at the price of an ongoing pathologization of intersex people who now have to present body details and past experiences of medical abuse by means of medical certificates, or have to undergo once again medical examinations. The urgent question of how the protection of such highly personal data is regulated remains unanswered.
The law at least recognises that the experiences of intersex people with medicine can often have been traumatic and that therefore it would be unreasonable to expect them to have to undergo further examinations. Also the fact that medical documents of past interventions and diagnoses often do not (any longer) exist, and physical variations of sex characteristics due to the medical interventions can often no longer be proven, is taken into account. In these cases, it should be possible to use the alternative option of an affidavit in lieu of an oath, but this involves such serious legal risks that Inter* could become criminalised and threatened with imprisonment so that it would be advisable rather not to make use of this option. Such a legal regulation will therefore continue to prevent many adult Inter* from choosing a third or different gender marker that suits them.
The alternative „affidavit in lieu of oath“ raises questions: The consequences according to criminal law of an allegedly false oath can be imprisonment or a fine. Who could question this oath, doubt it or even worse, simply claim that it is „untrue“? What would be the consequences of such a suspicion by others? Also it should be considered: The false suspicion also constitutes an offence under German criminal law.
As medicine itself says, many intersex characteristics are no longer detectable or their origin is still unknown. In addition, within medicine, what is defined under the term of „variants of sex development“ and what is not, changes. Does only the medical-pathologizing evidence count, and thus the arbitrariness of the medical classification of a „variant of sex development“? How else can be proved what the „truth“ is?
What does it mean for an intersex person who, after decades of harmful practices and malpractice by medicine, can now expect a criminal investigation, prosecution and imprisonment?
We as OII Germany speak in our human rights work about the fact that people are born with variations of sex characteristics. With this use of language we follow the international human rights discourses of the United Nations and the global intersex human rights movement, with which we have worked closely for many years.* This formulation includes all those who are born with sex characteristics that are classified as „deviating“ from the body norms described as „male“ and „female“, and that thereby suffer torture, ill-treatment and other harmful practices by medicine and society and are strongly discriminated against.
Medical practice over the past 70 years has led to these massive human rights violations. How can it be that a vulnerable group has to return to the context in which it has suffered damage that accompanies it throughout its life and in which it can continue to be discriminated against and violated? Now it is precisely this authority that is to determine again whether and who is legitimised and entitled to choose a third „positive“ gender marker in Germany?
The way to an equal and affirmative gender marker looks different!
An abolition of the gender marker at birth, as the Federal Constitutional Court pointed out as a possibility in its ruling of October 2017, would have made such a pathologizing and human rights violating special path unnecessary, would have avoided legal uncertainty, and would have made self-determination of ones gender identity possible for all people. Unfortunately, this opportunity was wasted in Germany!
We continue to demand:
• No gender marker at birth or completely abolish sex registration!
• Only self-determined gender markers!
• Compensation for past human rights violations!
• Outlawing of unconsented or not completely informed sex-modifying cosmetic medical interventions, especially on children!
• Our sex and gender belongs to us – for the acceptance and equality of all sexes and genders!