Intersex Rights in Germany

Up to 1.7% of the global population are born with intersex traits (a combination of male and female biological characteristics, such as chromosomes or genitals), making it as common as having red hair.  Ever since the term “intersex” was coined by German-born geneticist Richard Goldschmidt in 1917, Germany has often been heavily invested in debates about intersex identities.  For example, many peoples are familiar with the case of German athlete Dora Ratjen, who competed in the 1936 Olympic Games in Berlin and achieved the women’s high jump world record at the 1938 European Championships.  However, the gender of the athlete (who later went by the name Heinrich Ratjen) was disputed, and the identification of Ratjen as male later in 1938 contributed to the growing anxiety regarding gender fraud in athletics and led to the introduction of controversial sex verification testing of athletes at games and competitions in the 1960s.  Despite the movie Berlin ’36 telling a fictionalised version of the Ratjen case in which Ratjen was forced to pose as a woman by the Nazi government to prevent a Jewish athlete from competing, an investigation of medical and police records by Der Spiegel in 2009 revealed that Ratjen had been born with ambiguous genitals, but at the suggestion of the midwife was raised as a girl.

Discussions on intersex identities remain prevalent, and on the 1st January 2019, Germany became the first EU country to offer a third gender option on birth certificates.  Since 2013, German law has allowed parents of intersex babies who are deemed to be of “indeterminate” gender to not select either of the binary “male” or “female” gender options when registering for a birth certificate.  However, the 2019 law means that intersex people to register as a third gender (“divers/diverse”) on these documents.  This change was the long-awaited result of a 2017 constitutional court case, which ruled that the option of leaving gender fields blank doesn’t adequately “reflect that the complainant does not see them self as a genderless person, but rather perceives them self as having a gender beyond male or female" and therefore does not allow intersex individuals to exercise their “right to positive gender recognition”.

While the law change important for the recognition of intersex identities, it has nevertheless been criticised by German LGBTQ+ groups given that the third gender is only available to those who have a medical diagnosis of an intersex condition.  This means that people who are not intersex but who not identify as either male or female (such as non-binary/agender/gender queer people and some members of the transgender community) are still required to select one of the two binary gender options on official documents.

Nevertheless, the 2019 law is certainly a step in the right direction towards the recognition of people who don’t identify with the traditional binary genders.  Notably, the law has brought attention to the way that young intersex people are often forced to undertake unnecessary medical treatment.  While German law states that parents are not able to consent to “feminizing” or “masculinizing” surgery on their babies and young children unless it is medically necessary, there is no ban on surgeries for children who are to young to consent.  In addition, the decision of what I deemed “necessary” is left up to medical professionals, who might continue to characterize intersex people's bodily traits as disorders even when they are not harmful to the young person in question.  Therefore unsurprisingly, Human Rights Watch record that surgery continues to be practiced on children who have intersex characteristics who are too young to consent, although those procedures could be safely deferred until the children are old enough to participate in the decision.  These surgeries can have both significant physical and mental repercussions for the young people involved, and also contribute to the stigmatisation of intersex individuals.

The law change, and the subsequent media coverage, has also prompted discussions about Germany’s relationship with its intersex population more generally.  Young people are often at the forefront of the international movement to accept gender fluidity, with a 2015 poll determining that half of those aged between 18 and 34 in the US believe gender isn’t limited to male and female – results which demonstrate a meaningful shift in opinion from previous generations.  Therefore it is unsurprising that many of the young people I know in Germany are entering discussions on how to address non-binary people in the wake of the introduction of a third gender.  German (like Spanish and French), is a gendered language, meaning that both people and objects are given a gender.  This can be compared to natural gender languages like English (which tend to refer to non-living objects as “it” while people and animals are “he” or “she”), or genderless languages like Chinese (where no nouns are categorised as feminine or masculine).  There is therefore no specific German pronoun to describe intersex or non-binary people.

As German is a gendered language, it is not uncommon for documents to repeat all terms in two gender forms (“Schüler und Schülerin” aka “male students and female students”), to use slashes or parenthesis (“Schüler/in”), or to make use of a convention called Binnen-I where a capital I is inserted into the word (“SchülerIn”).  However, these solutions are often criticised as being overly wordy, and in some occasions confusing in spoken language.  Each example also continues to reinforce traditional gender binaries.  Therefore, in 2003, Steffen Kitty Herrmann (under the pseudonym “S_he”) introduced the Gendergap.  Popular within certain academic and feminist circles since the 2010s, the Gendergap involves the introduction of an underscore into gendered words (“Schüler_in”), which is indicated in speech with a glottal stop – an “uh” sound.  This underscore is meant to challenge gender binaries within the German language and also represent an open space between the two traditional, which makes language inclusive.  While not currently in wider use, recent debates about intersex rights have reignited discussions about how to navigate gendered language in a way that encompasses non-binary individuals.

In the two months since Germany became the first EU country to offer a third gender option on birth certificates, there has been renewed interest in the rights of intersex individuals in Germany, and particularly in the rights of young intersex individuals who may be subject to medical interventions without their consent.  While the law is not perfect, and not all non-binary people benefit from it, it is nevertheless a huge step in the right direction towards the recognition of people who don’t identify with the traditional binary genders, and has ignited wider discussions on how to make life in Germany as inclusive as possible – which can only be a good thing.