We shouldn’t get too enthusiastic about Germany’s new birth certificate designation: “indeterminate.” Because the category will be an obligatory designation for babies born with ambiguous genitals (commonly known as intersex), the law might do more harm than good.
Most infants are born with seemingly uncomplicated gender designations; we look at their genitals and decide their sex and their gender in an instant. Of course, not everyone grows up to agree with the gender they were assigned at birth. Transgender people grow up feeling out of sync with the gender they were assigned, even though the decision for most of them seemed perfectly straightforward at the time.
Babies born with ambiguous genitals present a more complicated picture at birth. These babies are born not with typical looking genitals, but perhaps with labia that are perceived more as a scrotum or with a clitoris that is deemed too big. Sometimes these babies have to spend a few extra days in the hospital in order for physicians to run hormonal and chromosomal tests. And then sometimes even these tests are not enough to determine definitively whether they are male or female, because, in fact, they are intersex, a category not given as a choice on birth certificates.
Germany’s new law has been somewhat misrepresented in the news media, though there are some dynamite interviews with intersex people that I would highly recommend. Even in this terrific Huffington Post segment though, the print story begins, “Germany is the first country to designate intersex as a gender category.” That’s not exactly what they’ve done, in fact. What they’ve done is to make “indeterminate” an option, which is not the same thing. On the one hand, lawmakers might have believed that providing this option would give parents and physicians more time to figure out if their intersex baby would more likely grow up to be a boy or a girl. But some intersex activists have wisely pointed out that the law might have a different, more damaging effect.
As Hida Viloria has pointed out here, there would be little protection for an intersex baby placed into this “indeterminate” category. Despite Germany’s universal health care, insurance is provided to those either “male” or “female,” and so it is unlikely that any parent would want their child to fall outside the standard categories. Same thing with marriage when these children get older; the binary categories are still enforced and only women and men can marry. If the “indeterminate” category is stigmatizing (and it’s hard to imagine that it wouldn’t be), how would parents be able to change the birth certificate to get their child into the more “normal” male or female categories?
Probably, intersex babies would have to undergo genital surgeries to “normalize” their genitals, having them surgically scultped to conform to the more typical ways that genitals look. If their genitals looked male or female, then a physician could rule that they legitimately fit the legal binary as well. And these infant surgeries are precisely what intersex activists and others have been protesting for close to twenty years now.
Intersex babies should not be subjected to infant genital surgery, unless it is medically necessary. If they need surgery for cosmetic reasons only, in other words to have their genitals look more normal so that they can be proclaimed legitimately male or female, then Germany’s law will have been a complete disaster. Will parents feel less pressure to conform by declaring their babies “indeterminate,” or will they rush into surgery to attain a “male” or “female” designation, as Anne Tamar-Mattis, Executive Director of Advocates for Informed Choice, fears?
Germany’s law is not, in fact, the first time that such an option has been available on birth certificates. When my brother was born in 1960, in Connecticut, the options on the birth certificate were: “male,” “female,” “undecided.” My mother remembers saying to the nurse, “Undecided? Show me any baby; I can decide!” But of course, she had never seen a baby born with ambiguous genitals, and so she naively thought that all such decisions would always be easy.
Having “undecided” on birth certificates, unfortunately, did not preclude intersex surgeries. In fact, the 1960s were the heydey of infant “normalizing” surgeries, based on protocols developed at Johns Hopkins University that assumed that parents could best raise healthy children if the baby’s genitals matched the gender of rearing. As John Money, the leading intersex researcher in the late twentieth century and his colleagues, Joan and John Hampson, put it in 1955: “For neonatal and very young infant hermaphrodites, our recommendation is that sex be assigned primarily on the basis of the external genitals and how well they lend themselves to surgical reconstruction in conformity with assigned sex, due allowance being made for a program of hormonal intervention.”[i]
In 1957, another influential article that Money and the Hampsons co-authored provided a rationale for infant surgery: “The chromosomal sex should not be the ultimate criterion, nor should the gonadal sex. By contrast, a great deal of emphasis should be placed on the morphology of the external genitals and the ease with which these organs can be surgically reconstructed to be consistent with the assigned sex.”[ii]
The rationale that social gender could be created to match genital shape came to define intersex management for the next fifty years. This model, assuming the medical assignment of sex and stressing surgical convenience over all other considerations, has had lasting negative consequences stemming from the shame and secrecy surrounding such surgery, in addition to physical problems created by the surgery itself, such as the loss of sexual sensation.
And this is what today’s intersex activists are trying to avoid. Germany’s lawmakers may have had good intentions in crafting this piece of legislation that might give parents more time to decide. But they should have listened to more intersex people to fully comprehend the most important issues they face. Birth certificates can be changed; surgery that takes away sensitive genital tissue cannot be undone and so should not be performed unless and until the intersex person requests it.
[i] John Money, Joan Hampson, and John Hampson, “Hermaphroditism: Recommendations Concerning Assignment of Sex, Change of Sex, and Psychologic Management,” Bulletin of the Johns Hopkins Hospital 97 (1955): 284-300, quotation on 290. Emphasis added.
[ii] John Money, Joan G. Hampson, and John L. Hampson, “Imprinting and the Establishment of Gender Role,” AMA Archives of Neurology and Psychiatry 77 (March 1957): 333-36, quotation on 334. Emphasis added.
- Dreger, Alice Domurat, ed. Intersex in the Age of Ethics (Hagerstown, MD: University Publishing Group, 1999).
- Greenberg, Julie A. Intersex and the Law: Why Sex Matters (NY, NY: New York University Press, 2012).
- Holmes, Morgan. Intersex: A Perilous Difference (Selinsgrove, PA: Susquehanna University Press, 2008).
- Karkazis, Katrina. Fixing Sex: Intersex, Medical Authority, and Lived Experience (Durham, NC: Duke University Press, 2008).
- Kessler, Suzanne J. Lessons from the Intersexed (New Brunswick, NJ: Rutgers University Press, 1998).
- Preves, Sharon. Intersex and Identity: The Contested Self (New Brunswick, NJ: Rutgers University Press, 2003).
- Reis, Elizabeth. Bodies in Doubt: An American History of Intersex (Baltimore, MD: Johns Hopkins University Press, 2009).