Intersex
Intersex people are individuals born with any of several sex characteristics including chromosome patterns, gonads, or genitals that, according to the Office of the United Nations High Commissioner for Human Rights, "do not fit typical bina ...
people in
Germany
Germany,, officially the Federal Republic of Germany, is a country in Central Europe. It is the second most populous country in Europe after Russia, and the most populous member state of the European Union. Germany is situated betwe ...
have legal recognition of their rights to physical integrity and bodily autonomy, with exceptions, but no specific protections from discrimination on the basis of sex characteristics. In response to an inquiry by the German Ethics Council in 2012, the government passed legislation in 2013 designed to classify some intersex infants to a ''
de facto
''De facto'' ( ; , "in fact") describes practices that exist in reality, whether or not they are officially recognized by laws or other formal norms. It is commonly used to refer to what happens in practice, in contrast with ''de jure'' ("by la ...
'' third category. The legislation has been criticized by civil society and human rights organizations as misguided.
Research published in 2016 found no substantive reduction in numbers of
intersex medical interventions
Intersex medical interventions, also known as intersex genital mutilations (IGM), are surgical, hormonal and other medical interventions performed to modify atypical or ambiguous genitalia and other sex characteristics, primarily for the purposes ...
on infants and children with intersex conditions in the period from 2005 to 2014. In 2021 the Bundestag passed legal protections, albeit protections that have been criticized due to exceptions to the law.
History
The 12th-century
canon law
Canon law (from grc, κανών, , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical authority (church leadership) for the government of a Christian organization or church and its members. It is th ...
collection known as the ''
Decretum Gratiani
The ''Decretum Gratiani'', also known as the ''Concordia discordantium canonum'' or ''Concordantia discordantium canonum'' or simply as the ''Decretum'', is a collection of canon law compiled and written in the 12th century as a legal textbook b ...
'' states that "Whether an hermaphrodite may witness a testament, depends on which sex prevails" ("Hermafroditus an ad testamentum adhiberi possit, qualitas sexus incalescentis ostendit."). On ordainment, Raming, Macy and Cook found that the ''Decretum Gratiani'' states, "item Hermafroditus. If therefore the person is drawn to the feminine more than the male, the person does not receive the order. If the reverse, the person is able to receive but ought not to be ordained on account of deformity and monstrosity."
Historical accounts of intersex people are scarce, but 19th-century medical journals document
Gottlieb Göttlich, a man who made a living from being studied by medical practitioners, and
Karl Dürrge. Dürrge also made his living as a medical subject, but his life also illustrates the historical legal tradition. Assigned female at birth, Dürrge changed name and designation to male as an adult, in line with articles Articles 19-24 of the
Prussian Code of 1792, which enabled hermaphrodites to choose to live as either male or female from the age of majority.
In the 20th century, the term
intersex
Intersex people are individuals born with any of several sex characteristics including chromosome patterns, gonads, or genitals that, according to the Office of the United Nations High Commissioner for Human Rights, "do not fit typical bina ...
was coined by the German-born geneticist
Richard Goldschmidt
Richard Benedict Goldschmidt (April 12, 1878 – April 24, 1958) was a German-born American geneticist. He is considered the first to attempt to integrate genetics, development, and evolution. He pioneered understanding of reaction norms, gen ...
. In 1932 gynecologist and obstetrician Hans Naujoks performed what was described as the first complete and comprehensive
intersex surgery
Intersex medical interventions, also known as intersex genital mutilations (IGM), are surgical, hormonal and other medical interventions performed to modify atypical or ambiguous genitalia and other sex characteristics, primarily for the purposes ...
and hormone treatment on a patient with both
ovarian
The ovary is an organ in the female reproductive system that produces an ovum. When released, this travels down the fallopian tube into the uterus, where it may become fertilized by a sperm. There is an ovary () found on each side of the body. T ...
and
testicular
A testicle or testis (plural testes) is the male reproductive gland or gonad in all bilaterians, including humans. It is homologous to the female ovary. The functions of the testes are to produce both sperm and androgens, primarily testost ...
tissue, at the
University of Marburg
The Philipps University of Marburg (german: Philipps-Universität Marburg) was founded in 1527 by Philip I, Landgrave of Hesse, which makes it one of Germany's oldest universities and the oldest still operating Protestant university in the wor ...
. The female patient was described as fully functional after surgery and, starting in 1934, spontaneously
menstruated.
Nazi Germany
![Misogynistic intersex pseudo-diagnosis in Nazi Germany 1943 - Waibel Lehrbuch Frauenheilkunde](https://upload.wikimedia.org/wikipedia/commons/e/e8/Misogynistic_intersex_pseudo-diagnosis_in_Nazi_Germany_1943_-_Waibel_Lehrbuch_Frauenheilkunde.jpg)
During Nazi rule in Germany many intersex people were either killed or hidden from the public. German athlete
Dora Ratjen competed in the
1936 Olympic Games in
Berlin
Berlin ( , ) is the capital and largest city of Germany by both area and population. Its 3.7 million inhabitants make it the European Union's most populous city, according to population within city limits. One of Germany's sixteen constitue ...
, placing fourth in the women's high jump. She later competed and set a world record for the women's high jump at the 1938
European Championships
The European Championships is a multi-sport tournament which brings together the existing European Championships of some of the continent's leading sports every four years. The inaugural edition in 2018 was staged by the host cities of Berlin, ...
. Raised as a girl, tests by the German police concluded that Ratjen was a man. Ratjen later took the name Heinrich Ratjen following an official registry change.
Formal
sex verification testing was controversially later introduced in sport. ''
Time
Time is the continued sequence of existence and events that occurs in an apparently irreversible succession from the past, through the present, into the future. It is a component quantity of various measurements used to sequence events, to ...
'' magazine later reported that Ratjen tearfully confessed that he had been forced by the Nazis to pose as a woman "for the sake of the honor and glory of Germany".
["Track & Field: Preserving la Difference"]
''Time'', 16 September 1966, retrieved 18 March 2011.
Post World War II
In the 21st century, legal cases by
Christiane Völling
Christiane Völling (born 17 April 1959) is the first intersex person known to have successfully sued for damages in a case brought for non-consensual surgical intervention described as a non-consensual sex reassignment. She was awarded €100,00 ...
and Michaela Raab, provide first and later examples of successful legal action against coercive
intersex medical interventions
Intersex medical interventions, also known as intersex genital mutilations (IGM), are surgical, hormonal and other medical interventions performed to modify atypical or ambiguous genitalia and other sex characteristics, primarily for the purposes ...
.
Also in this century, Germany introduced what may be the first form of third gender recognition in Europe, albeit controversially as a requirement for some intersex infants and otherwise not available.
This was introduced as a measure to prevent early intersex medical interventions, but
intersex civil society organizations
Intersex civil society organizations have existed since at least the mid-1980s. They include peer support groups and advocacy organizations active on health and medical issues, human rights, legal recognition, and peer and family support. Some gr ...
fear that it will encourage such interventions,
and there is no evidence of reductions in surgery numbers.
Civil society organizations, including Intergeschlechtliche Menschen,
OII Germany and
Zwischengeschlecht
Zwischengeschlecht (literally "between sexes") is a human rights advocacy group campaigning on intersex bodily autonomy issues. The group demonstrates outside medical events where surgical interventions are discussed or performed, engages with th ...
, have submitted reports to Land, federal and international human rights institutions.
In the spring of 1999, Heike Bödeker coined the term ''
endosex
An ''endosex'' person is someone whose innate sex characteristics fit normative medical or social ideas for female or male bodies. The word ''endosex'' is an antonym of ''intersex''.
Etymology and meaning
The prefix '' endo-'' comes from the An ...
'', as an opposite or
antonym
In lexical semantics, opposites are words lying in an inherently incompatible binary relationship. For example, something that is ''long'' entails that it is not ''short''. It is referred to as a 'binary' relationship because there are two members ...
for the term intersex.
Physical integrity and bodily autonomy
![Protection of intersex children from harmful practices](https://upload.wikimedia.org/wikipedia/commons/a/a2/Protection_of_intersex_children_from_harmful_practices.svg)
The organization Intersexuelle Menschen first submitted a Shadow Report to the United Nations
Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW) in July 2008, detailing human rights violations in medical settings and failures to act in the best interests of the child.
In 2010, the German Ethics Council was instructed to review the situation of intersex people in Germany following a demand by CEDAW to protect the human rights of intersex persons.
A 2012 report by the
German Ethics Council
German Ethics Council (german: Deutscher Ethikrat) (Precursor from June 2001 to February 2008: National Ethics Council of Germany) is an independent council of experts in Germany addressing the questions of ethics, society, science, medicine and l ...
stated that, "Many people who were subjected to a 'normalizing' operation in their childhood have later felt it to have been a mutilation and would never have agreed to it as adults."
Legislation was subsequently passed to assign infants who could not be determined as male or female to a ''de facto'' third classification.
Research published by Ulrike Klöppel at the
Humboldt University
Humboldt-Universität zu Berlin (german: Humboldt-Universität zu Berlin, abbreviated HU Berlin) is a German public research university in the central borough of Mitte in Berlin. It was established by Frederick William III on the initiative of ...
in December 2016 shows that, over the period 2005 to 2014, there were no significant trends in numbers of
intersex medical interventions
Intersex medical interventions, also known as intersex genital mutilations (IGM), are surgical, hormonal and other medical interventions performed to modify atypical or ambiguous genitalia and other sex characteristics, primarily for the purposes ...
.
An average of 99 feminizing surgeries took place each year, with a change only to the types of medical classification adopted. Rising numbers of masculinizing surgeries took place, exceeding 1600 per year. Between 10 and 16% of children diagnosed with
hypospadias
Hypospadias is a common variation in fetal development of the penis in which the urethra does not open from its usual location in the head of the penis. It is the second-most common birth abnormality of the male reproductive system, affecting abou ...
underwent a
plastic reconstruction of the penis.
In a hearing of the United Nations Committee on the Elimination of Discrimination against Women, German government stated that irreversible medical interventions were permissible where they are "a life-saving procedure, or the best interest of the child, for example if a child was suicidal."
In 2017,
Amnesty International
Amnesty International (also referred to as Amnesty or AI) is an international non-governmental organization focused on human rights, with its headquarters in the United Kingdom. The organization says it has more than ten million members and sup ...
published a report condemning "non-emergency, invasive and irreversible medical treatment with harmful effects" on children born with variations of sex characteristics in Germany and Denmark. It found that surgeries take place with limited psychosocial support, based on gender stereotypes, but without firm evidence. Amnesty International reported that "there are no binding guidelines for the treatment of intersex children".
Legal protections, 2021
A law that provides for a general ban on operations in children and adolescents with 'variants of gender development' ('Varianten der Geschlechtsentwicklung') was passed in the German parliament on 25 March 2021. According to a report in the
Deutsches Ärzteblatt
The ''Deutsches Ärzteblatt'' is a weekly German-language medical magazine published in Germany.
Profile
''Deutsches Ärzteblatt'' is published by the Deutscher Ärzte Verlag, which is co-owned by the German Medical Association (''Bundesärztekam ...
, the law is intended to strengthen the self-determined decision-making of children and adolescents and avoid possible damage to their health. Surgical changes to
gender characteristics should only take place - even with the consent of the parents - if the operation cannot be postponed until age 14. The majority of legal scholars and psychologists consulted support the approach. The Federal Chamber of Psychotherapists requires the mandatory participation of a counsellor with experience on intersex in an assessment before a possible intervention. While supportive of progress, the law that was finally passed was criticized by the
Organisation Intersex International (OII) Germany,
OII Europe, and Intergeschlechtliche Menschen, because they provide too many exceptions.
Remedies and claims for compensation
![Inclusion of sex characteristics in anti-discrimination law](https://upload.wikimedia.org/wikipedia/commons/c/cd/Inclusion_of_sex_characteristics_in_anti-discrimination_law.svg)
Two legal cases seeking compensation for "unwanted, harmful medical interventions" have succeeded, those of
Christiane Völling
Christiane Völling (born 17 April 1959) is the first intersex person known to have successfully sued for damages in a case brought for non-consensual surgical intervention described as a non-consensual sex reassignment. She was awarded €100,00 ...
and Michaela Raab.
Both were adults at the time of the medical interventions. There appear to be no statutory provisions offering compensation, however, at a hearing of the United Nations Committee on the Elimination of Discrimination against Women in February 2017, the German government said that a compensation fund for victims of intersex genital mutilation is under discussion.
Christiane Völling case
In Germany in 2011,
Christiane Völling
Christiane Völling (born 17 April 1959) is the first intersex person known to have successfully sued for damages in a case brought for non-consensual surgical intervention described as a non-consensual sex reassignment. She was awarded €100,00 ...
won what may be the first successful case against non-consensual "normalizing" medical treatment. The surgeon was ordered to pay €100,000 in damages
after a legal battle that began in 2007, thirty years after the removal of her reproductive organs.
Michaela Raab case
In 2015, Michaela Raab sued doctors in Nuremberg, Germany who failed to properly advise her. Doctors stated that they "were only acting according to the norms of the time - which sought to protect patients against the psychosocial effects of learning the full truth about their chromosomes."
On 17 December 2015, the Nuremberg State Court ruled that the
University of Erlangen-Nuremberg
A university () is an institution of higher (or tertiary) education and research which awards academic degrees in several academic disciplines. Universities typically offer both undergraduate and postgraduate programs. In the United States, t ...
Clinic must pay damages and compensation.
Identification documents
![World map nonbinary gender recognition](https://upload.wikimedia.org/wikipedia/commons/0/05/World_map_nonbinary_gender_recognition.svg)
In November 2013, Germany became the first European country to allow "indeterminate" sex,
requiring this where a child may not be assigned male or female. This was criticized by intersex civil society organizations such as
OII Germany and
Zwischengeschlecht
Zwischengeschlecht (literally "between sexes") is a human rights advocacy group campaigning on intersex bodily autonomy issues. The group demonstrates outside medical events where surgical interventions are discussed or performed, engages with th ...
who argued that "if a child's anatomy does not, in the view of physicians, conform to the category of male or the category of female, there is no option but to withhold the male or female labels given to all other children."
[Germany Has an Official Third Gender](_blank)
The German Ethics Council and the Swiss National Advisory Commission also criticized the law, saying that "instead of individuals deciding for themselves at maturity, decisions concerning sex assignment are made in infancy by physicians and parents."
Many intersex advocates in Germany and elsewhere have suggesting that the law might encourage surgical interventions, rather than reduce them.
The Council of Europe Issue Paper on intersex restates these concerns:
![Aktion Standesamt 2018 Abschlusskundgebung vor dem Kanzleramt in Berlin 46 (cropped)](https://upload.wikimedia.org/wikipedia/commons/7/79/Aktion_Standesamt_2018_Abschlusskundgebung_vor_dem_Kanzleramt_in_Berlin_46_%28cropped%29.png)
In June 2016, Germany's High Court ruled that German law would not allow entry of a third option of "inter" or "diverse" in the birth registry. The High Court said it found no violation of the plaintiff's basic rights since intersex people have been able since 2013 to leave the gender entry in German birth registries blank. In November 2017, the German Constitutional Court ruled that civil status law must allow a third gender option. Open sex entries don't "reflect that the complainant does not see themself as a genderless person, but rather perceives themself as having a gender beyond male or female". This ruling was followed in August 2018 by a cabinet decision to create a new sex classification, "diverse", for intersex people only. This has been criticized for failing to address concerns about medical interventions, and for failing to make this non-binary gender category available to non-intersex people. The proposal was approved by the Bundestag in December 2018. On 22 December 2018, the adopted act entered into force, allowing the choice for intersex people (both at birth and at a later age) between "female", "male", "diverse" and no gender marker at all. In case of a change later in life, first names can also be changed. In the meantime, an appeals court had held that a nonbinary status must also be open to non-intersex non-binary people; the adopted act does not address this category of people and their situation therefore remains unclear pending additional case-law.
Marriage
Since 2017, persons classified as neither male nor female (or intersex people) can legally marry another person of any sex/gender within Germany. Since 1 October 2017,
same-sex marriage
Same-sex marriage, also known as gay marriage, is the marriage of two people of the same Legal sex and gender, sex or gender. marriage between same-sex couples is legally performed and recognized in 33 countries, with the most recent being ...
became legal within Germany and
registered partnerships that had been legally available since 2001, were abolished. Same-sex step adoption has also been legal since 2005 and was expanded in 2013 to allow someone in a same-sex relationship to adopt a child already adopted by their partner and full adoption rights for same-sex couples has been legally available since 1 October 2017 within Germany.
German court expands adoption rights of gay couples
See also
* German passport
German passport (, ) are issued to nationals(for example, G01E) of Germany for the purpose of international travel. A German passport is, besides the German ID card and the German Emergency Travel Document (called " Reiseausweis als Passersatz" ...
* Intersex human rights
Intersex people are born with sex characteristics, such as chromosomes, gonads, or genitals, that, according to the UN Office of the High Commissioner for Human Rights, "do not fit typical binary notions of male or female bodies."
Intersex peop ...
* OII Germany
* Zwischengeschlecht
Zwischengeschlecht (literally "between sexes") is a human rights advocacy group campaigning on intersex bodily autonomy issues. The group demonstrates outside medical events where surgical interventions are discussed or performed, engages with th ...
* LGBT rights in Germany
Lesbian, gay, bisexual and transgender (LGBT) rights in Germany have evolved significantly over the course of the last decades. During the 1920s and early 1930s, lesbian and gay people in Berlin were generally tolerated by society and many bars ...
* Transgender rights in Germany
Transgender rights in the Federal Republic of Germany are regulated by the ("Transsexual law") since 1980, and indirectly affected by other laws like the ("Law of Descent"). The law initially required transgender people to undergo gender-affirm ...
* Human rights in Germany
Human rights in Germany enjoy a high level of protection, both in theory and in practice, and are enshrined in the '' Grundgesetz''. The country has ratified most international human rights treaties. Reports from independent organizations such a ...
References
Bibliography
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External links
Intersexuelle Menschen
OII Germany
Zwischengeschlecht
{{DEFAULTSORT:Intersex rights In Germany
Law of Germany