Ellen K. Feder questions the effect of the new category on German birth certificates.

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On November 1, 2013 a new law came into effect in Germany allowing parents to register children who are born with bodies that are neither clearly male nor female as “X”, instead of “M” or “F”. “X” is intended as a temporary category until such time as one or other sex is assigned.

News reports from Der Spiegel, the Wall Street Journal and ABC News have characterized the new legislation as helpful in providing parents with a third “option.” In the past, with only a week to register their children as either male or female, parents relied on physicians to “fix” intersex children through the use of surgical and hormonal sex “normalizations.” An example would be surgical sex reassignment for baby boys born with small penises. With the new law, infants with atypical sex anatomies can simply be registered with a new label.

The Swiss activist group Zwischengeschlecht (Between Genders) has a different perspective on the new legislation.  In their view, this legislation is not so much about providing parents with increased options, as suggested by media reports, but rather is about prohibiting the registration of intersex children as “M” or “F” and mandating their entry “into the register of births without such specification.” If, from a physician perspective, a child’s anatomy does not conform to the category of male or female, there is no option but to withhold the male or female labels given to “normal” children.

The purpose of the new legislation was to decrease the likelihood of normalizing surgeries – surgeries that have been criticized not only in the 2012 German Ethics Council report that inspired the legislative change, but also in numerous other reports including reports by the Swiss National Advisory Commission, and the United Nations Special Rapporteur on Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. Paradoxically, however, the new legislation may have the net effect of promoting these surgeries so that children with atypical sex anatomy can be registered as “M” or “F”.

Copyright © Elsa Dax, stuckism.com

The 2012 German Ethics Council report recommended the category “other” as a way to defer sex assignment “until [individuals] have decided for themselves.” The new category was meant to protect newborns with atypical sex anatomy from harm resulting from children’s bodies being made to fit the categories of male or female. The Ethics Council condemned normalizing interventions in strong terms: “Irreversible medical sex assignment measures in persons of ambiguous gender infringe the right to physical integrity, to preservation of sexual and gender identity, to an open future and often also to procreative freedom.” The German Ethics Council’s recommendation for a third category of sex assignment was not meant to be a quick fix, but was to be one among many measures to address the serious violations of human rights their report acknowledged and sought to rectify. But the effect—and perhaps we should ask, the intent?—of the law that recently went into effect in Germany bears little resemblance to the original proposal made by the Ethics Council.

To adults whose bodies bear normalization scars, or to those who have become aware of the harms wrought by the standard of care, it can seem like the answer is—or can only be—to create a society free of gender. But utopian visions provide little support or hope for new parents of children with atypical sex anatomies. Raising a child with no gender, as neither male nor female, implies a life in which their child either has no place, or will always be in struggle.

Acknowledging the shortcomings of the new law (which, absent normalizing interventions, requires that children with atypical sex anatomy be set apart) is not to say that legislative reform has no role to play in ending ongoing violations of human rights.  But clearly legislative reform is not enough. Also in need of reform are the attitudes that make normalizing interventions seem imperative. Rather than see the problem in the bodies and identities of those with atypical sex anatomy, we should properly locate the problem in our responses, and thereby see the problem as a matter of culture.

For my forthcoming book, Making Sense of Intersex, I interviewed parents of children with atypical sex anatomy. Shortly after the birth of her son, Sarah (a pseudonym) found inspiration and insight in a children’s song by folksinger and educational psychologist Peter Alsop.  The song, “It’s Only a Wee Wee” is intended to make light of gender difference. After the birth of her son with atypical sex anatomy, Sarah reheard the song in more literal terms:

As soon as you’re born, grownups check where you pee
And then they decide just how you’re s’posed to be
Girls pink and quiet, boys noisy and blue
seems like a dumb way to choose what you’ll do

[chorus]

Well it’s only a wee wee, so what’s the big deal?
It’s only a wee wee, so what’s all the fuss?
It’s only a wee wee and everyone’s got one
There’s better things to discuss!

Now girls must use makeup, girl’s names and girl’s clothes
And boys must use sneakers, but not pantyhose
The grownups will teach you the rules to their dance
And if you get confused, they’ll say “Look in your pants”
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Now grownups watch closely each move that we make
Boys must not cry, and girls must make cake
It’s all very formal and I think it smells
Let’s all be abnormal and act like ourselves.

Talking to adults whose medical treatment had proved traumatizing, Sarah was determined that her son not be robbed of the childhood and the confidence in her love to which he was entitled. Alsop’s call to “be abnormal” inspired Sarah to resist normalizing interventions for her child. In Sarah’s story, and that of the terrific grown man her son has become, we see that it is not the bodies of those with atypical sex anatomy that need changing, but rather our attitudes towards individuals with atypical sex anatomy.  We can and should do better.

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Ellen K. Feder is Associate Professor of Philosophy at American University in Washington, DC.

Another version of this essay appeared in theAtlantic.com