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
Belief, disbelief and beyond belief
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David had taken the same tablets for years. Why the sudden side effects?

Long-term medication keeps changing its appearance – round white tablets one month, red ovals the next, with different packaging to boot.

David had been getting bouts of faintness and dizziness for the past week. He said it was exactly like the turns he used to get before he’d had his pacemaker inserted. A malfunctioning pacemaker didn’t sound too good, so I told him I’d pop in at lunchtime.

Everything was in good order. He was recovering from a nasty cough, though, so I wondered aloud if, at the age of 82, he might just be feeling weak from having fought that off. I suggested he let me know if things didn’t settle.

I imagined he would give it a week or two, but the following day there was another visit request. Apparently he’d had a further turn that morning. The carer hadn’t liked the look of him so she’d rung the surgery.

Once again, he was back to normal by the time I got there. I quizzed him further. The symptoms came on when he got up from the sofa, or if bending down for something, suggesting his blood pressure might be falling with the change in posture. I checked the medication listed in his notes: eight different drugs, at least two of which could cause that problem. But David had been taking the same tablets for years; why would he suddenly develop side effects now?

I thought I’d better establish if his blood pressure was dropping. I got him to stand, and measured it repeatedly over a period of several minutes. Not a hint of a fall. And nor did he now feel in the slightest bit unwell. I was stumped. David’s wife had been watching proceedings from her armchair. “Mind you,” she said, “it only happens mid-morning.”

The specific timing made me pause. I asked to see his tablets. David passed me a carrier bag of boxes. I went through them methodically, cross-referencing each one to his notes.

“Well, there’s your trouble,” I said, holding out a couple of the packets. One was emblazoned with the name “Diffundox”, the other “Prosurin”. “They’re actually the same thing.”

Every medication has two names, a brand name and a generic one – both Diffundox and Prosurin are brand names of a medication known generically as tamsulosin, which improves weak urinary flow in men with enlarged prostates. Doctors are encouraged to prescribe generically in almost all circumstances – if I put “tamsulosin” on a prescription, the pharmacist can supply the best value generic available at that time, but if I specify a brand name they’re obliged to dispense that particular one irrespective of cost.

Generic prescribing is good for the NHS drug budget, but it can be horribly confusing for patients. Long-term medication keeps changing its appearance – round white tablets one month, red ovals the next, with different packaging to boot. And while the box always has the generic name on it somewhere, it’s much less prominent than the brand name. With so many patients on multiple medications, all of which are subject to chopping and changing between generics, it’s no wonder mix-ups occur. Couple that with doctors forever stopping and starting drugs and adjusting doses, and you start to get some inkling of quite how much potential there is for error.

I said to David that, at some point the previous week, two different brands of tamsulosin must have found their way into his bag. They looked for all the world like different medications to him, with the result that he was inadvertently taking a double dose every morning. The postural drops in his blood pressure were making him distinctly unwell, but were wearing off after a few hours.

Even though I tried to explain things clearly, David looked baffled that I, an apparently sane and rational being, seemed to be suggesting that two self-evidently different tablets were somehow the same. The arcane world of drug pricing and generic substitution was clearly not something he had much interest in exploring. So, I pocketed one of the aberrant packets of pills, returned the rest, and told him he would feel much better the next day. I’m glad to say he did. 

This article first appeared in the 13 March 2018 issue of the New Statesman, Putin’s spy game