Intersex rights in Germany

From Wikipedia, the free encyclopedia
Jump to: navigation, search
Intersex rights in Germany Germany
EU-Germany.svg
Location of  Germany  (dark green)

– in Europe  (light green & dark grey)
– in the European Union  (light green)  –  [Legend]

Protection of physical integrity and bodily autonomy No
Reparations No
Protection from discrimination No
Changing M/F sex classifications Yes
Third gender or sex classifications Compulsory for some infants, otherwise not available
Marriage Yes (since 1 October, 2017)

Intersex people in Germany have no recognition of their rights to physical integrity and bodily autonomy, and 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 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 on infants and children with intersex conditions in the period from 2005 to 2014, the United Nations and Amnesty International have joined local intersex civil society organizations in calling for protections.

History[edit]

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. 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.[4] formal sex verification testing was controversially later introduced in sport.[5] Other German sportspeople with intersex conditions include retired tennis player Sarah Gronert.

In the 20th-century, the term intersex was coined by the German-born geneticist Richard Goldschmidt.[6]

In the 21st-century, legal cases by Christiane Völling and Michaela Raab, provide first and later examples of successful legal action against coercive intersex medical interventions.[7][8]

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.[9][10][11] This was introduced as a measure to prevent early intersex medical interventions, but intersex civil society organizations fear that it will encourage such interventions,[12][9] and there is no evidence of reductions in surgery numbers.[13]

Civil society organizations, including Intersexuelle Menschen, OII Germany and Zwischengeschlecht, have submitted reports to Land, federal and international human rights institutions.

Physical integrity and bodily autonomy[edit]

  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.[14]

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.[15] 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."[15] Legislation was subsequently passed to assign infants who could not be determined as male or female to a de facto third classification.[16]

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.[13][17] 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.[13][11][18]

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."[19]

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".[20][21][22][23]

Reparations[edit]

  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 reparations for unwanted, harmful medical interventions have succeeded, those of Christiane Völling and Michaela Raab.[7][24][25] Both were adults at the time of the medical interventions. There appear to be no statutory provisions offering reparations, 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.[19]

Christiane Völling case[edit]

In Germany in 2011, Christiane Völling won what may be the first successful case against non-consensual "normalizing" medical treatment, the surgeon was ordered to pay €100,000 in damages[24][26] after a legal battle that began in 2007, thirty years after the removal of her reproductive organs.[27][28]

Michaela Raab case[edit]

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."[26] On 17 December 2015, the Nuremberg State Court ruled that the University of Erlangen-Nuremberg Clinic must pay damages and compensation.[25]

Identification documents[edit]

  Nonbinary / third gender available as voluntary opt-in
  Opt-in for intersex people only
  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,[16] requiring this where a child may not be assigned male or female, this was criticized by intersex civil society organizations such as OII Germany[29] 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."[10] 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."[citation needed]

Many intersex advocates in Germany and elsewhere have suggesting that the law might encourage surgical interventions, rather than reduce them.[12][16][30] 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.[9]

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.[31]

Marriage[edit]

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 has been legally available since 2001, has been 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.[32]

See also[edit]

References[edit]

  1. ^ Decretum Gratiani, C. 4, q. 2 et 3, c. 3
  2. ^ "Decretum Gratiani (Kirchenrechtssammlung)". Bayerische StaatsBibliothek (Bavarian State Library). February 5, 2009. 
  3. ^ Raming, Ida; Macy, Gary; Bernard J, Cook (2004). A History of Women and Ordination. Scarecrow Press. p. 113. 
  4. ^ Berg, Stefan (15 September 2009). "How Dora the Man Competed in the Woman's High Jump". Der Spiegel. Retrieved 31 August 2010. 
  5. ^ Padawer, Ruth (2016-06-28). "The Humiliating Practice of Sex-Testing Female Athletes". The New York Times. ISSN 0362-4331. Archived from the original on 2016-06-28. Retrieved 2016-06-28. 
  6. ^ Goldschmidt, R. (1917), "Intersexuality and the endocrine aspect of sex", Endocrinology, 1 (4): 433–456, doi:10.1210/endo-1-4-433 
  7. ^ a b International Commission of Jurists. "In re Völling, Regional Court Cologne, Germany (6 February 2008)". Retrieved 27 December 2015. 
  8. ^ Zwischengeschlecht (December 17, 2015). "Nuremberg Hermaphrodite Lawsuit: Michaela "Micha" Raab Wins Damages and Compensation for Intersex Genital Mutilations!". Retrieved 2015-12-21. 
  9. ^ a b c Council of Europe; Commissioner for Human Rights (April 2015), Human rights and intersex people, Issue Paper 
  10. ^ a b Germany Has an Official Third Gender
  11. ^ a b 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). 
  12. ^ a b Viloria, Hida (November 6, 2013). "Op-ed: Germany's Third-Gender Law Fails on Equality". The Advocate. 
  13. ^ a b c Klöppel, Ulrike (December 2016). "Zur Aktualität kosmetischer Operationen „uneindeutiger“ Genitalien im Kindesalter". Gender Bulletin (42). ISSN 0947-6822. 
  14. ^ 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. 
  15. ^ a b German Ethics Council (February 2012). Intersexuality, Opinion. ISBN 978-3-941957-50-3. 
  16. ^ a b c "Deutsche Welle, "Third sex option on birth certificates", 1 November 2013". DW.DE. Retrieved 6 October 2014. 
  17. ^ Achtelik, Kirsten (December 7, 2016). "Umgang mit intersexuellen Kindern: Operationen gehören verboten". die tageszeitung. Retrieved 2017-02-03. 
  18. ^ Zwischengeschlecht.org (January 2017). "NGO Report to the 7th and 8th Report of Germany on the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)" (PDF). Zurich. 
  19. ^ a b United Nations Office at Geneva (February 21, 2017), Committee on the Elimination of Discrimination against Women considers the reports of Germany 
  20. ^ Amnesty International (2017). First, Do No Harm. 
  21. ^ Amnesty International (2017). "First, Do No Harm: ensuring the rights of children born intersex.". Retrieved 2017-05-13. 
  22. ^ Semple, Ross (May 10, 2017). "Intersex children subject to ‘invasive’ surgery to ‘normalise’ their sex, reports Amnesty International". Attitude Magazine. Retrieved 2017-05-13. 
  23. ^ Cherubini, Elena (May 11, 2017). "Amnesty denounces ‘human rights violations’ on intersex children". Retrieved 2017-05-11. 
  24. ^ a b Zwischengeschlecht (August 12, 2009). "Christiane Völling: Hermaphrodite wins damage claim over removal of reproductive organs". Retrieved 2015-07-20. 
  25. ^ a b Zwischengeschlecht (December 17, 2015). "Nuremberg Hermaphrodite Lawsuit: Michaela "Micha" Raab Wins Damages and Compensation for Intersex Genital Mutilations!". Retrieved 2015-12-21. 
  26. ^ a b The Local (February 27, 2015). "Intersex person sues clinic for unnecessary op". Retrieved 2015-12-21. 
  27. ^ "German Gender-Assignment Case Has Intersexuals Hopeful". DW.COM. Deutsche Welle. 12 December 2007. Retrieved 2015-12-21. 
  28. ^ DW Staff (August 2010). "Christiane Völling". German Ethics Council. Retrieved 2015-12-21. 
  29. ^ "Sham package for Intersex: Leaving sex entry open is not an option". OII Europe. 15 February 2013. 
  30. ^ "OII Australia, "German proposals for a "third gender" on birth certificates miss the mark", 20 August 2013". OII Australia - Intersex Australia. Retrieved 6 October 2014. 
  31. ^ German high court rejects 'intersex' as third gender category Reuters
  32. ^ German court expands adoption rights of gay couples

Bibliography[edit]

External links[edit]