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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David Cameron's prisons speech could be the start of something good

If the Prime Minister puts his words into action, then this speech could mark the beginning of a big shift on prisons policy. 

David Cameron’s speech condemning prisons as violent and failing could herald a seismic change in policy. He is absolutely right to point to the waste of money, effort and lives that characterises today’s prison system. He is also right about the direction of travel that needs to be taken and some of his ideas are at the very least worthy of discussion. The most important reform was missing, as none of his aspirations can happen unless the sheer number of men, women and children in prison is cut, and cut radically. Sentencing reform is the lynchpin.

The detailed proposals will be scrutinised as they are rolled out over the coming months, but the urgent over-riding challenge is to cut the prison population. Last week the number of men in prison increased by 185, and in the last four weeks the prison population has gone up by 684 men and women. Prison overcrowding is not standing still, it is rapidly deteriorating.

Chris Grayling closed 18 prisons and wings, reallocating the population into the shrunk estate. He cut prison staff by more than a third in each prison. The result was overcrowded, understaffed, violent prisons full of drugs and very disaffected staff trying to control frustrated prisoners on restricted regimes.

I was expecting some thinking on who we send to prison and what we do with them when they are incarcerated to create the conditions for radical reform. I was disappointed as the proposals were oddly reminiscent of things that Labour tried and contributed to this mess in the first place.

Labour was very proud of building lots of new prisons, hoping that they would build their way out of an overcrowding crisis. What happened of course was that new prisons were filled even before they were completed so the old prisons couldn’t be closed. Today we hear that £1.3 billion will be spent on building ‘reform prisons’ that will pilot new ways of working. My worry is that they will become warehouses unless the sheer number of prisons is restricted and resources are allocated to allow for just the sort of flexibility being proposed.

Giving governors more autonomy sounds good, and I support it in principle, but they always used to have their own budgets with discretion to choose how to spend it, including commissioning education and other services. It is no good having increased autonomy if they are constantly firefighting an overcrowding crisis and not given the resources, including well trained prison staff, to implement new ideas.

We already have league tables for prisons. Every few months assessments of how prisons are performing are published, along with regular inspections and independent boards monitor conditions. Reoffending rates are published but this information is less robust as prisoners tend to move round the system so how can one establishment be accountable.

I was pleased to hear that work inside prisons is going to be a key reform. But, the Prime Minister referred to a small project in one prison. Projects with desultory training in the few hours that men get to spend out of their cells will not instil a work ethic or achieve work readiness. Prisoners get a pack of cereals and a teabag at night so they don’t have breakfast, are not showered or clean, are wearing sweaty and shabby clothes.

Every day men and women are released from prison to go to work in the community as part of their programme of reintegration. This is extremely successful with incredibly few failures. So what is the point of adding extra expense to the public by tagging these people, unless the purpose is just to feed the coffers of the private security companies.

There are imaginative ways of using technology but what was being suggested today looks as though it is just adding restrictions by tracking people. That would be neither creative nor effective.

David Cameron is looking to his legacy. I fear that I could be listening to a Prime Minister in five or ten years bewailing the dreadful prison conditions in institutions that are no different to today’s overcrowded dirty prisons, except that they were built more recently. He will have achieved a massive investment of capital into expanding the penal estate but, whilst there will be more prisons, even the new jails could be overcrowded, stinking and places of inactivity and violence.

I want the Prime Minister to look back on today’s speech with pride because it achieved humanity in a system that is currently failing. I would like to see a prison system in decades to come that is purposeful, with men and women busy all day, getting exercise for the mind, body and soul. I would like to see prisons that only hold people who really need to be there because they have committed serious and violent crimes but whose lives will be turned around, who achieve redemption in their own eyes and that of victims and the public.

My job is to hold him to account for this vision. If what he announced today achieves radical reform and changes lives for the better, I will cheer. I will be watching.

Frances Crook is the Chief Executive of the Howard League for Penal Reform.