Intersex rights in Germany

The 12th-century canon law collection known as the Decretum Gratiani states that "Whether an hermaphrodite may witness a testament, depends on which sex prevails" ("Hermafroditus an ad testamentum adhiberi possit, qualitas sexus incalescentis ostendit.")[1][2] 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."[3] 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. In the 20th century, the term intersex was coined by the German-born geneticist Richard Goldschmidt.[4] In 1932 gynecologist and obstetrician Hans Naujoks performed what was described as the first complete and comprehensive intersex surgery and hormone treatment on a patient with both ovarian and testicular tissue, at the University of Marburg. The female patient was described as fully functional after surgery and, starting in 1934, spontaneously menstruated.[5]

Nazi Germany

A pseudo-diagnosis from Nazi Germany in 1943. The text reads: "The intersex type is physical and psychologically expressed. There are also sexual intermediate stages, where female characteristics are only weakly developed. Hair growth is excessive and atypical, the features are male, the voice is deep. Puberty occurs with delay, there is frigidity and reduced fertility in the case of hypoplasia of the gonads and hyperfunction of the pituitary gland, sometimes eunuch-like tall stature, also disorders in the function of the thyroid gland. Often dysmenorrhea is observed."

During Nazi rule in Germany many intersex people were either killed or hidden from the public.[6] German athlete Dora Ratjen competed in the 1936 Olympic Games in Berlin, 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. 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.[7] Formal sex verification testing was controversially later introduced in sport.[8] Time 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".[9]

  Legal prohibition of non-consensual medical interventions

  Regulatory suspension of non-consensual medical interventions

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.[17]

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.[18] A 2012 report by the German Ethics Council 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."[18] Legislation was subsequently passed to assign infants who could not be determined as male or female to a de facto third classification.[19]

Research published by Ulrike Klöppel at the Humboldt University in December 2016 shows that, over the period 2005 to 2014, there were no significant trends in numbers of intersex medical interventions.[16][20] 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 10-16% of children diagnosed with hypospadias underwent a plastic reconstruction of the penis.[16][14][21]

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."[22]

In 2017, Amnesty International 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".[23][24][25][26]

  Explicit protection from discrimination on grounds of sex characteristics

  Explicit protection on grounds of intersex status

  Explicit protection on grounds of intersex within attribute of sex

Two legal cases seeking compensation for "unwanted, harmful medical interventions" have succeeded, those of Christiane Völling and Michaela Raab.[10][27][28] 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.[22]

  Nonbinary / third gender available as voluntary opt-in

  Opt-in for intersex people only

  Mandatory for some born intersex, and opt in

  Mandatory for some born intersex

  Nonbinary / third gender not legally recognized / no data

In November 2013, Germany became the first European country to allow "indeterminate" sex,[19] requiring this where a child may not be assigned male or female. This was criticized by intersex civil society organizations such as OII Germany[32] and Zwischengeschlecht 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."[13] 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.[15][19][33] The Council of Europe Issue Paper on intersex restates these concerns:

Human rights practitioners fear that the lack of freedom of choice regarding the entry in the gender marker field may now lead to an increase in stigmatisation and to "forced outings" of those children whose sex remains undetermined. This has raised the concern that the law may also lead to an increase in pressure on parents of intersex children to decide in favour of one sex.[12]

October 13, 2018: protest for 3rd gender in front of the Bundeskanzleramt

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.[34] 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".[35] 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.[36] The proposal was approved by the Bundestag in December 2018.[37] 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.[38] 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.[39]

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 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.[40]

• German passport
• Intersex human rights
• OII Germany
• Zwischengeschlecht
• LGBT rights in Germany
• Transgender rights in Germany
• Human rights in Germany

• Intersexuelle Menschen (July 2008). "Shadow Report To the 6th National Report of the Federal Republic of Germany On the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)" (PDF). Hamburg.
• German Ethics Council (February 2012). Intersexuality, Opinion. ISBN 978-3-941957-50-3.
• International Commission of Jurists. "In re Völling, Regional Court Cologne, Germany (6 February 2008)". Retrieved 2017-05-15.
• Klöppel, Ulrike (December 2016). "Zur Aktualität kosmetischer Operationen "uneindeutiger" Genitalien im Kindesalter". Gender Bulletin (in German). Humboldt University (42). ISSN 0947-6822. Archived from the original on 2017-02-04. Retrieved 2017-02-04.
• Kromminga, Ins A; Blaine; Klöppel, Ulrike (December 2009). "Intergeschlechtlichkeit ist kein medizinisches Problem!" (PDF). Gen-Ethische Informationsdienst (in German) (9).
• OII Germany (January 20, 2017). "OII Germany: CEDAW Shadow Report. With reference to the combined Seventh and Eighth Periodic Report from the Federal Republic of Germany on the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)" (PDF).
• von Neugebauer, Franz Ludwig (1908). Hermaphroditismus beim Menschen (in German). Leipzig: Dr Werner Klinkhardt. OL 25266971M.
• Zwischengeschlecht.org (March 2015). Intersex Genital Mutilations Human Rights Violations Of Children With Variations Of Sex Anatomy: NGO Report on the Answers to the List of Issues (LoI) in Relation to the Initial Periodic Report of Germany on the Convention on the Rights of Persons with Disabilities (CRPD) (PDF). Zurich.

• Intersexuelle Menschen
• OII Germany
• Zwischengeschlecht