Gender Identity Rights

Sexual reassignment surgery is all too often the fate of a child who is born with ambiguous genitalia. Recently, a couple in South Carolina, who adopted a foster child whose gender had been arbitrarily assigned when he was a toddler, sued the state on behalf of their child. They claim the sexual reassignment surgery was medically unnecessary and irreversible, not to mention that the state chose the wrong gender for the child.

Gender identity is an important part of who we are and how we think of ourselves. Ask any transsexual person: being trapped in the body of the wrong gender is a nightmare. Bullying, the fear of exposure, the discordant sense that one’s own body is all wrong – depression and anxiety among transgender people too frequently lead to suicide,  and that’s when homicide doesn’t happen first.

Enter Germany.

Germany is not known, historically speaking, for its tolerance. The whole holocaust thing kind of wiped out any memory of tolerance the country may have exercised before the 20th century.

But Germany is nothing if not a scientific nation these days, and as research is showing that there are actual physical differences in the brains of people who are transgender, the notion that these people deserve sympathy and respect, and not to be treated like freaks or weirdos, is taking hold.

Effective November 1, 2013, babies whose genders cannot be readily identified at birth don’t have to be listed as either “male” or “female” on German birth certificates. They can be noted as “third gender,” or listed with no gender assignment at all, and as they grow and their sexual identity develops, the proper gender can be assigned to them.

This enlightened law came about not because of German tolerance in general, but because of a German constitutional court decision that held a person has a right to choose when a person “deeply feels” that they belong to a different gender than one that seems obvious to the world, that person has a right to choose the gender they legally identify with.

The new German law does not apply to transsexual people, though. It only applies to babies whose gender is not readily identifiable, like the child in South Carolina.  These people are referred to as intersex, not as transgender.

The court decision and this new law will have rippling effects internationally. Even passports require gender identification. And Germany does not have marriage equality. The country defines marriage as between a man and a woman, so the status of intersex people who have not chosen a gender may remain up in the air for some time.

Australia and New Zealand already permit people to opt out of choosing a specific gender, but Germany is the first European country to do so.

One wonders what repercussions the German law will have in the EU, and from there, throughout the rest of the Western world.


Got a legal question? Email me at I’m a lawyer, but there’s only a 2% chance I’m licensed in your state. Whether I answer your question or not, sending me an email or reading this blog post does not create an attorney-client relationship between us. I’m on Twitter as @aramink, and you can see my regular blog at

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