Third sex legalized by more States
In early November 2017, the German Constitutional Court issued a landmark ruling - by the end of 2018, laws must be amended accordingly to ensure that citizens can indicate the so-called "third sex." The verdict referred to the complaint of a bi-sexual person who was registered as a woman, while chromosome analysis showed that she had more male characteristics. The government has declared adjustments to the law to comply with the Court's ruling.
This means that neutral gender will appear on birth certificates and other documents of German citizens in addition to male and female gender.
(internationally marked with an X). This is another country, and the first European one, that will guarantee respect for the fundamental rights of people whose gender cannot be clearly classified as male or female.
What does this ruling mean in practice, and what changes can we expect in the coming years in European Union countries? What social challenges and legal risks does the legalization of gender neutrality bring?
What is the "third gender"?
When a baby is born the first question is: boy or girl? The answer seems simple, but in the case of 1/500 - 1/1500th live birth, nature is sometimes less clear and
the baby has both male and female genitalia.
(In Europe, the incidence is about 0.58/10,000 births).
Partnership .
(also known as hermaphroditism, intersex or neutral sex), is a congenital disorder of genital differentiation. It is a developmental defect of the fetal period and has either a genetic or hormonal basis. Usually people with this disorder are definitely male or female, despite anatomical abnormalities and incompatibilities in the genitalia. How, then, to resolve the issue of recording gender on the birth certificate? Often, the initial decision to classify a child into a particular gender has proved to be wrong over the years. In the 1970s, genital surgeries began to be performed in the US to improve the functioning and unambiguous gender identification of intersex individuals. This solution, however, has a drawback, because in the case of newborns having both male and female genital organs, the male one is usually removed (the child becomes a "girl"), since this direction of gender correction is technically easier to perform. Particularly difficult at this stage was the situation of the parents, usually seeking to match the child to a particular gender as soon as possible, to protect them from potential problems with "otherness" at later stages of life.
From taboo to acceptance
Nowadays, the indecision of nature is not a taboo subject - intersex people can count on the latest medical advances, psychological help and social support. Until a few decades ago, the delicate issue of "gender status" was particularly problematic in a field where gender is of fundamental importance - that is, sports competition. There were doubts about several athletes, and there were cases of gender changes already in the course of a sports career. In 1966, during the European Athletics Championships, tests for chromosome configuration were introduced as determining gender. Unfortunately, the first unmasked athlete turned out to be a Polish runner
Ewa Klobukowska.
Soon after, Klobukovskaya withdrew from the sport, her results were canceled, and it wasn't until the 1990s that it was confirmed that the decision was wrong and the chromosome array test is an unreliable way to determine gender. Even more interesting is the story of the famous Polish runner Stanisława Walasiewicz, Olympic champion in Los Angeles in 1932, Olympic runner-up in Berlin in 1936 and author of 37 world records. Only an autopsy performed after her tragic death in 1980 showed that the famous Valasiewiczówna possessed both male and female genitalia. However, she was never stripped of her Olympic gold medal and was nevertheless ranked among the 20 most outstanding Polish female athletes of all time. Famous people born as sexually undifferentiated are also not lacking in other fields and show business, and nowadays many of them openly talk about it and meet with social acceptance. Among them is the young Polish model Michalina Manios, who was legally a boy until the age of 18.
Legalization increasingly common
Associations of people born intersex are calling for simply
accept their difference and recognize them as the "third gender".
, as medical interference does more harm than good (for example, people whose gender has been surgically corrected to female are often infertile). Just will society and legal norms cope with the existence of three genders? How will the parents' freedom of decision to record their gender on the birth certificate of an intersex child be regulated?
Germany has a chance to be the first country in the European Union to legally legalize a third gender from January 1, 2019 at the latest.
(An unsuccessful attempt at legalization was also made by France in 2017, the legislation was rejected by Parliament). The first step was taken as early as 2013 when it was decided that the gender box on the birth certificate could simply be left blank for later selection. Third gender toilets are also being established. Other countries began legalizing "third sex" several years earlier, including:
Nepal - Nepal's Supreme Court ruled in 2007 that the government should change the law, but it is only since 2012 that the third gender has been legalized;
Australia - Since 2011, citizens have been allowed to write the letter "X" as a gender designation in their passports;
New Zealand - it is possible to choose "unspecified" sex on birth certificates, since 2012 passports are issued with an "X" option in the sex box;
India - in 2014. The Supreme Court recognized the existence of a third gender;
Canada - the third gender has been functioning in passports since September 2017 ;
United States - the third gender is recognized by 4 states (California, Washington, Oregon, New York), designations function in identity documents. The state of New York also issued what is likely to be the first birth certificate in the US for an intersex person in 2017.
Challenges and risks of legalization
It seems that the legalization process will continue, including in Europe. However, the fact that the "third sex" is recognized is not only about improving the psychological comfort of intersex people and separate toilets.
The "X" mark on birth certificates and passports can cause a number of legal and practical problems, .
Not only in the home countries of these individuals, but
Mainly within countries where "third sex" is not legalized.
to which people with passports marked "X" can travel, emigrate or take up employment. Legal challenges may include issues such as:
Labor laws (e.g., protection of women's rights, prohibited work).
Access to certain professions.
Pension entitlements (e.g., in Poland we currently have a differentiated retirement age for men and women).
Getting married or entering into a partnership (especially in countries that only allow marriage between a man and a woman, as is currently the case in Poland).
Parenting (e.g., adopting a child).
Sports competition (most sports differentiate between the sexes).
Gender-sensitive tests and diagnoses (in psychological diagnosis, among others).
Use of various types of services - including air transportation, travel, recreation, nursing services.
Medical care (e.g., hospital stays).
Criminal liability (e.g., for arrest or incarceration).
Social relations (e.g., in Polish, we use the polite form Pan and Pani in correspondence with strangers).
Arguably, legalization alone will not guarantee intersex people equal rights or protect them from discrimination if it is not accompanied by information campaigns and education that this "other" is just like us.
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