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.

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Got a legal question? Email me at anne@aramink.com. 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 www.aramink.com.

About Anne

Writer. Voracious reader. Lawyer. Jack’s mom. Irreverent. Coffee drinker. Cat owner. Grudging dog owner. Chief cook and bottle washer. Over-educated. Irish-Italian. Irreligious. History buff. Paleontology freak. Science fiction fan. Political junkie. Part-time avenging angel. Tea lover. Music nut. Tale spinner. Movie addict. Opinionated. Wordy.

Got a legal question related to religion? Contact me at anne@aramink.com

  • baal

    The biology is pretty clear that sexual identity in the brain (gender) can be decoupled from genital development.

    This simple fact wasn’t recognized historically – instead the model was that your brain somehow knew (hello mechanism?) to conform to what you physically looked like (or were sugeried into). As such, doctors would push for a gender assignment and just tell the parents to raise the child that gender…turns out that works poorly (and some of their stories are tragic).

  • guesttt

    wow, this is probably the most ignorant post I’ve read on here. maybe it’s just me being German. “The whole holocaust thing kind of wiped out any memory of tolerance the country may have exercised before the 20th century.” really? Things have happened in the 70 years since then. Americans are not strong in history but still… Also, living in the US I have to say that our conservative party is more liberal than your liberals (though I consider Germany more conservative than Canada). Germany does not have marriage equality but we’ve had civil union for a while now, which included some of the legal rights (not an excuse, and I am headbutting for equality but it’s halfway there. Germany also doesn’t have a church/state separation) We have plenty of flaws but your article sounds uneducated. (but then again, Americans seem to be obsessed with Nazis. )

    • Baby_Raptor

      One comment that’s not pertinent to the point makes her entire article sound uneducated?

      I think you have an offense problem.

    • # zbowman

      Honestly, it seems more like she’s talking about Germany’s reputation among the rest of the world – which, to be fair, is largely comprised of people who’ve got too much on their plate to do a lot of research into other nations. To this day, a lot of people hear ‘Germany’ and think ‘Nazi’ if only because of the immersion they underwent during childhood, raised by people who had themselves grown up postwar. Something like that leaves memetic scars, and those take generations to fade. It’s not anyone’s fault that they think like this, it’s just simple repetition through childhood. Those who are in the know, know better – but that’s never going to be everyone, in any given situation. It’s not that people *still* think Germany as a nation is National Socialist; it’s that that will remain an image associated with Germany for some time yet, simply because of how culture works.

      (Full disclosure: my grandmother grew up in Nazi Germany and married a man who’d been a British infantryman in the war. I’m not personally leaning either way on this.)

  • http://eternalbookshelf.wordpress.com/ Ani J. Sharmin

    Thanks for writing about this. It’s good to hear about some steps in the right direction.

  • Andrew Kohler

    Thanks so much for writing about this Anne!! As an opponent of all unnecessary genital cutting of children (or, for that matter, non-consenting adults), I think this is great news. I also just spent a year in Germany for dissertation research, so I’m very pleased to see them making such progress–let’s hope they get on board with LGBT equality, too.


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