Sunday, August 25, 2013

"Third Gender" Option on Birth Certificates Won't Necessarily Help Intersex People

A new German law has recently been passed affording parents the option of leaving their newborn's gender designation blank on birth certificates. The idea is that instead of assigning their baby's gender for them at birth, that individual can define their own gender for themselves when they are older.

I have a lot of questions about this law. First off, it's a really different concept to talk about defining a person's biological sex vs. a person's gender. These two words are used interchangeably all the time, and are conflated as meaning the same thing, when in fact, they're different concepts. I am having some difficulty figuring out if the new German law is actually legislating a new option for gender or for biological sex on birth certificates - or, whichever one is being legislated, if it makes any practical, legal difference anyway since we conceptualize them as being the same anyway.

While on the surface, this change seems progressive, it isn't necessarily so much. Aside from the sex vs. gender conflation, what this law does is to allow someone to not legally identify as male or female. It doesn't mean that the individual can identify in other ways than male or female if they choose...they can simply choose NOT to identify as those two things. That isn't necessarily a third option as much as it is as a (permanent) deferment in choosing one of the two normative options.

But, allowing your child the option to define their sex/gender when they get older, and not doing it for them, is progressive in a sense. If individuals decide the live their whole lives as "blank," however, a lot of other legislation would have to be put in place to not cause other problems. Will people not legally male or female be allowed to leave the country if their passports don't have M or F on them? Same-sex civil unions are legal in Germany, although same-sex marriage isn't. Are civil unions legal among individuals who aren't legally registered as male or female? Various countries, states, and workplaces have different minimum retirement ages for men and women. When can a person who is legally neither male or female retire? How about driver's licence insurance premiums, or (in places without universal healthcare) health insurance rates? There's a lot of legal stuff resulting in differential treatment for males and females. When you throw male and female designations out the window, and changes at different levels of a system that has only recognized M and F are slow (or fail) to follow, what happens to these people? It seems like it could be pretty easy to get lost in the mix altogether.

Finally, I fear that this legislation could get amended later to not allow parents to choose "blank," but to instead chose an actual "third sex/gender category," changing our hardline binary sex/gender system into a still-just-as-not-progressive tertiary sex/gender system. Let's say that lawmakers say, "Listen, identifying as 'blank' is a little confusing. Why don't we just create the category 'other' or something? You can be M, F, or X!" In this instance, parents of intersex kids might be forcibly assigned to category "X" instead of to M or F. This is a big problem for intersex people, because not all people with atypical sex anatomy (and COULD identify as intersex) actually identify as intersex or "other," but as males and females. Such kids who wouldn't identify as intersex would have to fight later for the right to legally change their status from X to M or F, and answer to people who think they should identify this way because they were born with a, b, and c body traits. Or, they might fight back against the system and provide alternative views: that that there shouldn't be these three categories that everyone has to fall into to begin with, because there's not only three sexes or genders.

Doesn't that sound familiar?

Yeah. Doesn't sound too appealing to me, either.

The third gender option isn't an entire fail, but I don't think it's the super-progressive legal antidote to all our sex and gender problems some people are hoping for. I'll be interested to follow this in the coming weeks and months, and see what the legislation does (or fails to do) for newborns in practical terms.

What do you think about it?

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