Five years ago there was the so-called Law on the Treatment of Children with Variations of Sex Development (§ 1631e). It prohibits surgically adjusting a child’s physical appearance solely for the purpose of matching it to male or female sex characteristics (TheColu.mn reported). Even when the bill was introduced in 2020, intersex organizations and scientists criticized the draft (TheColu.mn reported).
Where does this stand now, five years later, in terms of the continuity of surgeries on intersex children in Germany? We spoke with Florin Lindgrün and Ulrike Klöppel of OII Germany about it. Florin Lindgrün is intersex and a board member of OII Germany as well as a systemic advisor. Ulrike Klöppel (pronouns she/they) is a board member of OII Germany and a medical historian focusing on gender and queer history at Heidelberg University.
The International Organization of Intersex People — OII Germany advocates for fundamental rights and the depathologization of intersex people. The association offers counseling, training, and community meetings and works on human rights and current political developments related to intersex topics.
You criticize § 1631e as “ineffective.” Why?
Ulrike Klöppel: The scope of protection in the law is far too narrow. Why should it apply only to children with so-called “variations of sex development”? That is a medical umbrella term for a range of diagnoses that has historically been broadened and narrowed. Children whose diagnosis does not fall into that spectrum may still be operated on.
Florin Lindgrün: It’s important to note that “variations of sex development” is a pathologizing medical term. In the intersex community we prefer to speak of being “inter” or of “variations of sex characteristics.” The medical term, in turn, invites doctors to classify people as “inter” or “not inter.” This then leads to surgeries with vague justifications, such as a supposed “functional disorder of genital organs” or because preserving “fertility” is deemed necessary. Yet there is no concrete health danger. Still, gender-changing procedures on genitals are carried out simply so intersex people conform to society’s sexist, binary body norms. These are acts of bodily harm and human rights violations that can lead to genital mutilation.
The law applies to children who cannot consent. But how is it determined when children can make a self-determined decision about a possible operation?
Ulrike Klöppel: There are no regulations in the law on this. That means doctors can determine the child’s capacity to consent. The best solution would be to postpone the decision until adulthood. For trans youths, surgical interventions before adulthood are also not allowed — so why should intersex children be allowed to proceed? A series of safeguards would be needed to ensure the child or adolescent is not unduly influenced by gender-normative pressures. We’re all subjected to these norms, even once we’re adults. This would require, among other things, comprehensive counseling, ideally lasting at least a year.
Florin Lindgrün: Our recommendation is to let the children grow up, ideally until they reach adulthood. In the case of trans children and adolescents, closer scrutiny is applied. So there is a double standard — even though intersex and trans identities are not mutually exclusive. A fundamental problem is the normalized medical violence inflicted on inter bodies, which the law reproduces. Even in the World Health Organization’s so-called Health Catalog, intersex variations are still described as pathologizing diagnoses. As an intersex person, I am not a diseased condition, I am not a diagnosis, I am not a medical problem, but part of the spectrum of gender diversity.
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In cases where an intervention should not be postponed until the child can make a self-determined decision, family courts decide with the help of statements from special interdisciplinary commissions. That sounds reasonable at first.
Florin Lindgrün: In these commissions there is no mandatory intersex perspective or an independent medical, scientific viewpoint. Expertise is reserved for physicians and used to justify the positions in the statements. In effect, judges decide based on normative ideas of gender. This contradicts the aim of the law, which is to delay cosmetic interventions until a self-determined decision is possible if there is no immediate life danger. There are no scientific studies or evidence that these interventions are beneficial.
Ulrike Klöppel: The commissions include doctors who themselves are actively involved in the treatment context. So there isn’t even an independent review in the medical field—not to mention juristic, psychological, or social-science perspectives that could test the reasoning. A second problem is that the judges are not trained. An unbiased decision thus hinges on the commitment and preexisting training of individual judges.
How has the law been applied in the last five years? Which cases are you aware of?
Florin Lindgrün: A study from Flensburg University by Nick Markwald and Anna Katharina Mangold analyzed family court rulings and evaluated 40 court decisions legally. In all cases, interdisciplinary medical commissions issued favorable statements advocating for surgeries. The family judges followed these statements uncritically. In at least 19 cases, the children were under three years old. That is highly problematic.
What else do you think should be improved about the law?
Ulrike Klöppel: Scientifically, there needs to be a verification of the numbers to show that after the law’s introduction there are actually fewer surgeries. It is very difficult to measure because documentation requirements are poor. However, there are indicators that show the surgery rates have not declined. To our knowledge, there has been no medically independent, scientifically grounded evaluation of the law.
Florin Lindgrün: We are demanding mandatory, free peer counseling for parents. We also suspect that many clinics are not even aware of the law. Public advisory services, such as those offered by our association, should be expanded. We also call for a compensation fund for human rights violations suffered by intersex people. The Conference of Justice Ministers unfortunately decided against this in mid-June, but we continue to press for it. None of these provisions are addressed in the law.
