Well done Germany. German law has been changed to allow for a "third gender", for legal recognition to be extended to people who are born intersex. This is entirely welcome - it's high time the legalities caught up with nature and acknowledged that not all people are born into one of two discrete biological sexes. The BBC report notes this has now created a problem with the law regarding marriage and civil partnerships which are defined in 'traditional' gendered terms. Still, it'll keep the lawyers plenty busy.
One of the interesting asides in the BBC piece is its rundown of 'third gender' recognition. This includes - as you might expect - Thailand, but also Bangladesh, India, Pakistan and Nepal, as well as Australia and New Zealand. With the exception of the Antipodeans, the West are playing catch up. But why? Why is Western culture so hung up on gender? A potted overview of history might help.
The jolly old Judeo-Christian tradition and the cultures it bequeathed have rather set views on gender and the strict differences between women and men. Surprisingly, it wasn't always so. For example, the 12th century Parisian theologian Peter the Chanter and his circle wrote on matters of practical Christian morality, including matters regarding the mediaeval understanding of what we would call gender today. Revealed in his writing was the common sense of his day, that there was less a sense of an absolute separation between the genders and more a continuum or, if you like, a sliding scale ranging from woman to man and back again. However, this did not mean the environs of Notre Dame Cathedral - which Peter oversaw - was a haven of liberal tolerance. On intersex people (or 'hermaphrodites'), he wrote:
The church allows a hermaphrodite - that is, someone with the organs of both sexes, capable of either active or passive functions - to use the organ by which (s)he is most aroused or the one to which (s)he is most susceptible. If (s)he is more active, (s)he may wed as a man, but if (s)he is more passive, (s)he may marry as a woman. If, however, (s)he should fail with one organ, the use of the other can never be permitted, but (s)he must be perpetually celibate to avoid any similarity to the role inversion of sodomy, which is detested by God.The ambiguity intersexed people presented prevailing theology was defused through a test followed by a prescription. The active/passive injunction was the "natural" way of determining the true gendered character, and once discerned the question was closed down for good. The sliding scale would only allow so much. As an establishment figure, for Peter, ultimately this was always going to be subordinate to his interpretation of received wisdom.
The continuum of gender gradually developed into more rigid notions as the centuries ground on. Intersexed babies tended to be interpreted as monsters, or some sign that parents had incurred God's displeasure. By the 18th and 19th centuries there was a gradual positioning of intersexed bodies as a medical problem. It therefore shifted from the supernatural to the scientific. For example, the 1741 A Mechanical and Critical Enquiry into the Nature of Hermaphrodites by James Parson argued that intersex people as such didn’t exist. He defined true intersexed as people who possessed both fully formed and functional male and female genitalia. Anyone failing to match up to this ideal type were dismissed. While acknowledging this as an anatomical impossibility, he nevertheless argued a person presenting these characteristics should be allowed to choose their gender.
This started a long line of official denialism as far as the medical profession was concerned. But in the context of the rigid gender split, it was better pretend something didn't exist than interfere with the neat precisions of the emergent taxonomy. This was as true in the 19th century, but with an added anxiety. Despite their official non-existence, there was a concern that intersexed people might inadvertently tempt men into homosexual relations. Therefore where the sanctity of marriage was concerned, intersex people were a cause for worry. The early 19th century therefore saw crude attempts to surgically alter intersexed bodies. This mainly involved “freeing” abdominal testicles, in order that there be no gender ambiguity about the physical appearance of human bodies.
As the management of populations became a primary focus of the state, the more rigid the sex distinction became. Birth registration and the assignment of sex was bound up with a whole host of legal rights and obligations specific to sex, and were key to the maintenance of moral communities founded on the family life of the heterosexual marriage. Hermaphrodites were classified as either female or male, and transgression of that gendered binary was severely punished. If it happened, they were typically charged with sodomy, and subjected to a whole host of grisly legal penalties.
Are things that different now? We still have a sense of the discrete “separateness” of gender. We don’t burn intersex people in the street, but we do have a plethora of medical technologies. There is still the assumption that if one is found to be intersex they should then be “corrected”. The relevant NHS website describes the various types of syndromes grouped under ‘intersex’, with advice for patients, parents, and doctors. The NHS provides support for what you might call a 'neonatal psychosocial emergency'. This is the "common sense" perception that a child is at risk of a severe psychological and self-identity crisis if “corrective” surgery isn’t performed prior to the acquisition of a gendered self.
You might call this the 'biomedical argument'. It does not favour surgical intervention because of immediate problems with how an intersex body excretes waste. It demands babies and toddlers go under the knife to give them "normal" bodies.
Unfortunately, this can lead to some very sad outcomes. As well as the case hinted at in the BBC story, some readers may recall the case of David Reimer, who was the subject of an Horizon documentary about a decade ago. David was born biologically male but as the result of a botched circumcision at about 18 months, his penis was destroyed. The doctor recommended to his parents that he be surgically normalised as a girl and be raised as one. They agreed. At the same time, they came under John Money, a child and sex psychologist interested in gender role socialisation. He made recommendations to 'Brenda's' parents, which included strict adherence to gendered modes of dress and self-presentation. To reinforce this, Money forced Brenda and her twin brother, Bruce, to have simulated sex in his office. The theory being this would socialise Brenda into the "passivity" expected of women. This was abuse masquerading as therapy, and it screwed both children up for life.
By the time Brenda reached 13, she had a nervous breakdown and was told about the accident and the "experiment". He renamed himself David and immediately started living as a teenage boy. Unfortunately, the deep scars of their childhood affected the brothers badly. Brian was to die of an overdose, and not long after David took his own life.
While this story is shocking and involves all kinds of abuses of trust, there is a certain commonality to surgeries on intersexed children or boys who find themselves injured like David did. According to Morgan Holmes ('Rethinking the Meaning and Management of Intersexuality’, Sexualities, 5, (2), 159-180. (2002)), 90% of children with ambiguous genitalia who undergo surgery are latterly assigned female. Part of it is deemed to be technical. As the Baltimore surgeon John Gearhart delicately put it, "it is easier to dig a hole than build a pole". But there's more to it than that. There is a history of assumptions around the constitution of masculinity that grounds it in relation to the penis - what sociologists of gender call 'phallocentrism'. If you've got a small one, you're only partially a man. And if you haven't got one at all? The decision surgeons make reflects the received cultural understanding - the absence of a clearly identifiable penis means that intersex child must be classified as a girl, regardless of the character of their gonads or configuration of their chromosomes. Therefore, just like the 18th and 19th century savants, surgery is a sophisticated technology for concealing and hiding intersex people by forcing them into one side of the gender binary.
Perhaps this is starting to break down. With the impressive - and hopefully irreversible - gains made for LGBT rights over the last 30 years and a destabilisation of traditional gender identities, it was only a matter of time before intersexed people came out from the shadows our modern, civilised societies had consigned them in. But intersexed people are challenging they confuse the way we think about gender, and that is a core component of our culture. We recognise multiple gender identities now. Our culture is getting used to the idea of transgendered folk too. But still, whether gay, straight, bi or transitional, everyone fits into the same old gender binary. Germany's welcome move to legally recognise the intersexed will cause the lawyers some issues, but it is the harbinger of a wider cultural conversation that is coming.