Germany will become the first European country to legally recognise a “third gender” in November when new-born babies whose sex is indeterminable will no longer be automatically assigned a male or female gender by medical staff.

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Germany is to become the first European country to allow “undetermined” as a gender type for new-born babies when, on November 1, a recommendation by the country’s constitutional court comes into law.

The new legislation means that babies who are born without gender-defining physical characteristics can be registered as having an “undetermined” or “unspecified” gender on their birth certificate.

The law aims to redress discrimination against intersex people, a category which includes those born with both female and male genitalia (formerly known as hermaphrodites), and those affected by medical conditions that mean their bodies do not conform to a male or female “standard”. Around 1 in 5,000 people born in Europe identify as intersex.

A report filed to the European Commission in 2011 described intersex people as “differ[ent] from trans [sexual or gender] people as their status is not gender related but instead relates to their biological makeup (genetic, hormonal and physical features) which is neither exclusively male nor exclusively female, but is typical of both at once or not clearly defined as either.

“These features can manifest themselves in secondary sexual characteristics such as muscle mass, hair distribution, breasts and stature; primary sexual characteristics such as reproductive organs and genitalia; and/or in chromosomal structures and hormones.”

Legal breakthrough

The decision in Germany has been hailed as a legal breakthrough for intersex people, who have long suffered the irreversible discrimination of medical staff, often-distressed parents and an ignorant public. In the last quarter of the 20th century it became commonplace to perform surgery on an intersex baby in order allow it to meet either a male or female standard. The operations often resulted in physical damage and psychological trauma later in life.

A survey carried out by the German Ethics Council in 2009 found that intersex people were deeply set against both surgery and hormonal balancing before they had reached an age of understanding and consent. The 2009 European Commission report detailed that “many intersex adults are angry that surgery was performed upon them as young children”.

In 2009, a Cologne court ordered a surgeon to pay €100,000 to a woman who had had her female primary characteristics removed without her consent. Assigned the male gender as a new-born intersex baby, the woman was immediately operated on in order for her to conform, aesthetically, to the male standard. Later, during appendicitis surgery at the age of 17, her womb and ovaries were discovered and removed by without her consultation.

The ruling made Germany a leader in intersex rights in Europe, where the small community has found itself largely overlooked by the authorities, despite substantial improvements in equal rights for the frequently associated lesbian, gay, bisexual and transgender (LGBT) community.

Sex ‘not binary’

In June 2013, a 52-year-old Australian national became the world’s first legally-recognised “genderless” person after winning an appeal to retain “unspecified” gender status for life. One of Norrie May-Welby’s solicitors hailed the ruling as “the first decision that recognises that sex is not binary”.

Australia had already made available a third gender to passport holders in 2011, when citizens were granted an option to employ an “X” instead of “F” for female or “M” for male in the gender section of their passport.

In Germany, intersex citizens will be able to modify their officially recognised gender at any point or leave it as “not specified” if they wish to.

But in neighbouring France, where gender remains a controversial topic, the issue is unlikely to receive such a warm welcome. In passing its long-awaited marriage equality bill this year, the Socialist government provoked a furious response from Catholic and conservative circles, which launched the biggest social protest movement France has seen since the 1970s.

In 2011, dozens of French MPs signed a petition calling for “gender theory” to be withdrawn from school textbooks.

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