Intersex rights in Germany
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
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" 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. In the 20th century, the term intersex was coined by the German-born geneticist Richard Goldschmidt. 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.Nazi Germany
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, 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. Formal sex verification testing was controversially later introduced in sport. 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".Post World War II
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.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 fear that it will encourage such interventions, and there is no evidence of reductions in surgery numbers.
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
The organization Intersexuelle Menschen first submitted a Shadow Report to the United Nations Committee on the Elimination of All Forms of Discrimination Against Women 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 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 in December 2016 shows that, over the period 2005 to 2014, there were no significant trends in numbers of intersex medical interventions. 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.
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 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".
Claims for compensation
Two legal cases seeking compensation for "unwanted, harmful medical interventions" have succeeded, those of Christiane Völling 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 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 Clinic must pay damages and compensation.Identification documents
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 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." 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:
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 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.