On Germany's new intersex law and the dangers of our gender-obsessed culture

Germany has become the first European country to pass a law that lets a birth certificate to be left blank in cases where the child is neither obviously male nor female, but it will take far more than a bureaucratic fix to remove the stigma of "abnormalit

A new law, which came into force today in Germany, provides that the box on a birth certificate specifying a child's gender should be left blank in cases where the child is neither obviously male nor female. This will, an Interior Ministry spokesman explained, "take the pressure off parents to commit themselves to gender immediately after birth" - thus allowing for greater delay before drastic, life-defining and perhaps mistaken surgery is carried out on an infant too young to decide for itself what it wants to be.

Such legal acknowledgement of the existence of intersex conditions, which have been known about for all recorded history, comes surprisingly late. Germany is the first country in Europe, and only the second in the world after Australia, to pass such a law.  (Australian law is in fact more advanced, allowing people a third option - designated X - on all official forms.)

Awareness of intersex issues has attracted some official notice elsewhere, but only fairly recently. This summer, the EU stipulated for the first time that intersex people should be included in anti-discrimination law, while earlier in the year the UN Special Rapporteur on torture called for a ban on "forced genital-normalising surgery". Yet intersex people remain excluded from our own Equality Act, and when the German proposals were first brought forward there was criticism from some that they would create a legally-defined "third sex". 

In the event, the new law has left some intersex campaigners unsatisfied. For them, the main issue remains the practice of surgical intervention to definitively assign gender and thus "correct" the apparent mistakes of nature. Intersex activists accuse doctors of interfering with nature, of making arbitrary judgements based on aesthetics or to fit cultural norms, of calling it wrong (in some cases, surgically-corrected "girls" grow up to identify as male, or vice versa) and of indulging in practices equivalent to the genital mutilation widely condemned when performed for religious or tribal reasons. Silvan Agius, for example, writes that "Surgical or hormonal treatment for cosmetic, non-medically necessary reasons must be deferred to an age when intersex people are able to provide their own free, prior and fully informed consent... The right to bodily integrity and self-determination should be ensured and past abuses acknowledged."

This is the core of the problem. On one level, humanity has become a great deal more enlightened since Roman times, when the birth of a "hermaphrodite" might be interpreted as an omen of war or natural disaster and the child was liable to be exposed, or since the Middle Ages when such an "unnatural" birth could be seen as evidence of the sin and perversion of the parents. Modern science recognises that biology in its infinite complexity doesn't care about the neatness of human thinking with its love of binary categories. Being of indeterminate gender is not in itself a disability. 

To a first approximation, of course, human beings come in two sexes, but contrary to popular wisdom (or bestselling pop psychology) men and women are not separate species and don't come from different planets. Biological sex doesn't even always come down to chromosomes, but rather results from the subtle interplay of genetics and embryology. There are physically normal-looking males who have two X chromosomes and physically normal-looking women with who are XY - though such extreme examples of sexual crossover are thought to extremely rare. (Typically, they only come to light when the people involved, who are sterile, show up at fertility clinics.) More common are children born with ambiguous genitalia - testes that might be ovaries, an unusually large clitoris that might, from another point of view, be an unusually small penis. 

How many children are intersex is a matter of dispute, and also of definition. One in 4,000 is a commonly accepted figure, but Anne Fausto-Sterling of Brown University has argued that it might be as many as one in 70. Taking a polemical stance on the issue, she has written that "male and female stand on the extreme ends of a biological continuum" and that "if nature really offers us more than two sexes, then it follows that our current notions of masculinity and femininity are cultural conceits."

But the biology, and the experiences of intersex people assigned at birth to what they grow up to believe is the wrong gender, may tell a different story: that you can't arbitrarily assign decide that a child is a boy or a girl and expect it to conform to the cultural expectation. The problem with surgical intervention isn't just the theoretical one that it violates the integrity of the body but the practical one that the doctors might well make a mistake. The answer, say campaigners, is to hold off both legal gender assignment and surgery until the child is old enough to make up its own mind as to whether it's a boy or a girl - or something in-between. Yet such a child, in our gender-obsessed culture, is likely to feel confusion and face prejudice. The stigma of "abnormality" can cause deep psychological scars: every child has a right to feel normal, and social expectations of gender can make it difficult to feel normal in a body that is not unambiguously male or female. Tackling that will be a much larger problem than a simple bureaucratic fix.
 

From now on in Germany the gender on the birth certificate of a child who is not obviously male or female can be left blank. Photo: Getty
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Low turnout may not be enough to save Zac Goldsmith

Demographic patterns in mayoral elections do not replicate those at general elections. 

It is a truism in politics to say that older people vote. Almost exactly a year ago - the day before the General Election - ComRes published a briefing note for our clients pointing out that with large leads particularly amongst older people, as well as among the affluent and those who owned their home, the Conservatives were in the dominant position as the country headed to the polls.           

Turnout is one of the most difficult parts of polling to get right, but history was unequivocal in suggesting that these groups were overwhelmingly the most likely to vote in a General Election. This gave David Cameron the advantage, whatever the headline numbers in the polls were saying, and Labour would need a change in behaviour of historic proportions in order to make it to Downing Street.           

It is in the same spirit that a number of commentators have written articles raising the prospects of an upset in the election for Mayor of London. Different arguments have been used, but the central thrust has tended to be that, despite Sadiq Khan’s lead overall, there are turnout advantages not picked up in polling which benefit the Conservatives and which could produce a shock result.            

This is the first point made by Asa Bennett when advising “Don't write Zac Goldsmith off as London Mayor – he can still win this thing”, while Adam Bienkov has suggested that a low turnout “will inevitably help the Tories, whose voters tend to be older, wealthier and more likely to turn up to the polls.”           

While these arguments make intuitive sense, they make one fatal assumption: that demographic patterns in mayoral elections replicate those at general elections.           

Firstly, it is important to point out that there are no exact numbers on who actually votes at elections. The paper copies of marked electoral registers are kept separately by local authorities and contain no demographic information anyway.            

Instead, we know who votes in General Elections because in places where the population is older, turnout tends to be higher than in places where it is younger. Communities with more middle class and affluent constituents have higher turnouts than more deprived areas.      

The graphs below show the relationship between the socio-economic make up of a constituency’s population, with the proportion of people who turned out to vote at the last General Election. As can be seen, the higher the proportion of constituents who come from the most affluent AB social grades, the higher the turnout was in the constituency. On the other hand, turnout was lower the higher the proportion of a constituency’s population came from the least affluent DE social grades.

Now this all fits with expectation. But the rub comes when we run a similar exercise on the last mayoral election in 2012. If we look at the age profile of individual electoral wards, we would expect to see those with a higher proportion of older people have a higher level of turnout at the election. “Older people vote” after all.

But if we look at the data, a different picture emerges. The graph below shows all the wards in London, and the relationship between the proportion of people aged 55 and over in that ward, and the proportion of people who turned out to vote. And the picture is surprising but clear: there was almost no relationship between age and likelihood to vote at the last mayoral election. 

As the graph shows, there is a very slight incline upwards in the trend-line as the proportion of 55+ constituents increases, but the fit is very loose. The individual data points are scattered all over the place, far from the line and indicating an extremely weak relationship – if any at all (this wouldn’t pass a statistical test for the presence of a correlation).

The case is similar if we use with proportion of 18-34 years – or for that matter, the proportion of a ward’s population which owns their home. Despite some commentators suggesting homeowners are more likely to vote, the data suggest this is not the case at mayoral elections.

Another common trope is that “the doughnut may yet do it” for the Conservatives, with turnout being lower in inner London, where Labour does better, and higher turnout in the leafy suburbs therefore delivering victory for Zac Goldsmith. Again though, this claim does not really stand up to reality. If we look at average turnout in inner and outer London boroughs, it has not been noticeably higher in the outer ring of the doughnut since 2004. In fact, at the last mayoral election, average turnout was slightly higher in inner London boroughs than it was in outer London boroughs.

There is one final possibility, which has become a higher profile issue in the current contest than in the past: that there is a racial element in Londoners’ likelihood to vote. This is important because Zac currently leads Sadiq Khan by seven points among London’s white population, but is 31 points behind among BAME Londoners. If white Londoners were much more likely to vote therefore, there is an outside possibility that Zac Goldsmith could sneak a result.

Once again though, the data suggest this is not the case – there was very little relationship between a ward’s ethnic profile and its level of turnout at the last mayoral election. The predominantly white wards on the left hand side of the chart below include the wards with the highest turnout – but also most of the lowest. There is little to suggest that the predominantly BAME wards necessarily have a lower level of turnout than the London-wide average.

Overall then, there is little relationship between turnout at mayoral elections and age, home ownership, suburbia or ethnicity. It is within this context that much of Zac Goldsmith’s campaign, which has raised controversy in some areas, should be seen. Seeking to link Sadiq Khan to Islamic radicalism is not necessarily about trying to get people to change how they will vote, but more to provide an incentive for older voters in outer London to go out to the polling station and to drive up turnout among Conservative-leaning groups.

In turn, the hope is also to reduce the motivation to vote among Labour-leaning voters by creating an element of doubt in the back of the mind and to dampen enthusiasm (“Meh – I’m not sure I want him to be elected anyway”). The leaflets targeting Hindu and Sikh households are perhaps also similar examples of this - if not converting your opponent’s voters, at least reducing their affinity to him (or her).

Of course, it could also have the opposite effect. Rather than making Labour-leaning voters less likely to vote, Goldsmith’s campaign may have provided them with more of a reason to make the trip to the polling station, in order to stop a campaign they see as racially-charged and a threat to London’s status as a beacon of successful multiculturalism.  

Either way, if such tactics are to work, the Conservatives will need to overturn the turnout trends seen in 2012 to a very large extent. 

London is famously a city where relative wealth and deprivation sit closely alongside each other. Mews housing Georgian terraces meander into streets containing chicken shops, homeless refuges or council estates; Londoners of all backgrounds subscribe themselves to the same crush of the Tube at rush hour. For whatever reason, London also has not the stark variations in propensity to vote between different social groups seen in national elections. Turnout may hold the key for Goldsmith, but it would represent a rupture of historical trend, rather than an expression of it.