German lawmakers voted last month to ban medically unnecessary surgeries on babies born with intersex characteristics, which make their “biological sex” ambiguous to doctors. The legislation was adopted by the German parliament on March 25.
While the law makes Germany the third country to ban medically unnecessary surgery on intersex infants, it been criticized by leading intersex rights organizations. The Organisation Intersex International (OII) Germany, OII Europe, and Intergeschlechtliche Menschen say it limits protection to children who are diagnosed with an established “disorder of sex development,” a diagnosis which, if changed, could leave children no longer included under the definition of that term unprotected.
About 1.7% of children are designated intersex at birth, an umbrella category which can include variations in chromosomes, gonads, hormones, and other sex characteristics that do not fit the typical medical establishment’s definitions of “male” or “female.”
Between 2005 and 2016, 1,871 children under the age of 10 were given “feminizing” or “masculinizing” surgery in Germany, according to the University of Bochum. These types of surgical interventions are often cosmetic and considered medically unnecessary by doctors. Most of these procedures are performed on infants who are too young to give consent, as intersex activists have pointed out.
Numerous leading medical and human rights groups, including the World Health Organization and the American Academy of Family Physicians, condemned medically unnecessary surgeries on intersex babies. The United Nations, meanwhile, has criticized these operations as often irreversible, stating that they can have long-lasting negative consequences on intersex individuals, including pain, loss of sensation, and permanent infertility.
Advocates argue that these procedures can also cause long term negative psychological side effects and that they can be traumatizing. A study conducted by Sweden’s Karolinska Institutet in 2018 found reports of attempted suicide to be four times higher among intersex people than the general population.
A similar study of intersex people in the U.S. found unusually high rates of depression and anxiety. A shocking 32% of participants reported having attempted suicide. Published in the peer-reviewed, academic journal PLOS One last year, researchers concluded that it’s “vital to consider how interventions experienced by intersex infants and children affect health throughout the life course, in order to inform decision-making, promote bodily autonomy, and avoid preventable harms.”
German intersex rights advocates applauded the legislation as addressing the needs of this vulnerable group, but many are nervous that parents and doctors could potentially work around the law by operating on youth who are not formally diagnosed as intersex. OII Europe also criticized the law for not specifying any way of ensuring accountability from doctors or pursuing justice for affected intersex people.
“We’re very happy that there is finally a law about this, but the ban has loopholes and leaves many questions unanswered,” Charlotte Wunn, head of Intergeschlechtliche Menschen, told Reuters.
Legislation similar to Germany’s was recently introduced in Spain’s parliament and has been proposed in a handful of U.S. states. In California, State Senator Scott Wiener (D-11th District) has introduced legislation attempting to ban medically unnecessary intersex surgeries for the past three years and has stalled in committee each time. New York City lawmakers have also proposed similar legislation.
No U.S. state legislature has yet to pass legislation banning medically unnecessary procedures on intersex infants. However, multiple hospitals in the U.S. have recently announced that they would cease performing some surgeries on intersex babies, giving advocates hope that legislation may soon follow.
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