Germany’s Third Option

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In August 2013, Susan Donaldson James wrote a report for ABC News detailing the law that Germany had recently passed which allows parents the option to choose neither a male nor female sex marker in cases of infants with “ambiguous genitalia”. Later in the child’s life, the child or their parents can decide to change this “unspecified” marker according to their wishes, though it is not necessary to choose a male or female marker. Somewhat controversially, James claims that this law constitutes Germany allowing a legal “third gender”, though this is truthfully a “third option” — the option of no designation at all or, as was likely the intent of the law, the option to choose later to conform to the gender/sex binary. Germany is the first country in the European Union to allow such an option, though Australia and Nepal both allow a “third gender” designation on official documents, which led to Norrie May-Welby, a 52 year old Australian, becoming the first officially-recognized genderless person in the world; however, James points out, the German law is not clear if this “third option” will be legal on passports and other forms of identification.

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Discrimination against intersex and trans people was highlighted in 2011 by a report filed to a European Union commission, which detailed bias incidents, violence, employment discrimination, and more against these identities. James highlights France as a particularly overt offender, noting that in 2011 there was a petition, signed by lawmakers, to disallow “gender theory” in textbooks. In this light, Germany appears fairly progressive; however, reactions to this “third option” law are mixed. Dr. Jack Drescher’s reaction, quoted by James, is fairly telling: he says the law “sounds like a good thing” (emphasis mine). It is certainly a step in the right direction, and far more desirable than the current preferred policy in the United States, which dictates choosing a gender for ambiguously-sexed infants and then surgically modifying their genitals to “match” the assigned gender. Of course, there are opposing arguments from both advocacy and non-advocacy groups. James mentions a comment made by a parent in Maryland, who said that not knowing the gender is “stressful” and an “extra limitation” upon an already stressful and difficult job. This parent then says that children “need stability and certainty”, though judging by their earlier objections, it seems as if their true issue is taken from a selfish perspective as a parent, not from one which has the well-being of children in mind.

Intersex advocacy groups have also responded negatively to this law. James states the views of Anne Tamar-Mattis from the Advocates for Informed Choice, who believes that bearing an undesignated gender marker “invites labeling and stigma” in the vein of the discrimination previously mentioned. She said that a better process is to assign a gender and then wait to allow the child to make their own decisions in adulthood, rather than facing that loaded decision in childhood: it is “not a battle children should have to take up”. Though Tamar-Mattis does not speak for all advocacy groups, the general unfavorable sentiment toward the law, favoring instead a true “third gender” option, seems to be widely held and fought-for to the present day. Germany has not responded well to this movement; in August 2016, three years after James’s ABC News article, Reuters reported that the German high court had decided to rule against a plaintiff who sought a legal “intersex”, rather than “blank”, gender marker. The German court ruled that there was “no violation of the plaintiff’s basic rights” since the “blank” marker option is available. Reuters says that this plaintiff will file a challenge to this ruling.

I agree that an option not to designate gender does not constitute a “third gender” option. It seems that in the intent of the law, the third option is a placeholder for a later decision which will place a person into the gender/sex binary — not an expression of a non-binary identity. James fails to acknowledge this distinction and the opposition to the law based on it; however, despite glossing over many intersex people’s varied reactions, she does end with the opinion of one intersex woman, Katie Baratz, which highlights the law’s benefits as compared to the common practice in the United States: “Ultimately, the child will decide which sex he or she feels more comfortable with — and that’s a wonderful thing. It empowers children to make the decision for themselves.”