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Column: Ireland needs to re-examine the legal gender of intersex children

The law on birth registration in Germany is to be amended to permit ‘indeterminate’ to be recorded as the gender of a child born with an intersex condition. Irish authorites should take note of this welcome development.

Tanya Ni Mhuirthile

THIS MORNING IT was reported that the law on birth registration in Germany is to be amended to permit ‘Indeterminate’ to be recorded as the gender of a child born with an intersex condition. This is a very welcome development.

Intersex is an umbrella term for a variety of conditions where a person is born with a body which combines biological traits of males and females or does not conform to expected biological norms for either gender. Given the number of conditions which can be considered intersex, it is difficult to determine precisely its frequency.

That said, in 2000, Melanie Blackless and colleagues in Brown University crunched the numbers for incidence of the various intersex conditions and arrived at the conclusion that approximately 1.7 per cent of all live births do not conform to gender norms for male or female bodies.

Due to the complexity of the conditions intersex can manifest at various stages throughout life: birth, puberty, in adulthood or on autopsy. Where intersex becomes apparent at birth or in childhood, it is not unusual for the child with the intersex condition to undergo medical treatment, either hormonal or surgical, to attempt to recreate a body that appears more male or female.

The importance of legal recognition

It is important to note that most intersex conditions are not life threatening. Whether or not the person undergoes treatment, it is not certain that the individual with an intersex condition will identify with the gender assigned at birth and consequently recorded on the birth certificate. This can cause difficulties when official documentation does not correspond with the individual’s gender identity. A good practical example of this is seen in a case, now (for the most part) overruled, which came before the Australian High Court in 1979.

In the marriage of C and D (Falsely called C) concerned the validity of a marriage between a biologically born woman and her husband who was born with an intersex condition. Marriage was defined as the union of one man and one woman. The Australian Court held that as Mr C was neither man nor woman, he was incapable of marrying anyone. Thus the importance of legal recognition of one’s preferred gender identity is obvious.

Where the law cannot recognise a person’s preferred gender that person may be excluded from the exercise of normal legal rights he might otherwise expect to enjoy.

Being ‘locked in’ to a legal gender

Against this backdrop, the development in Germany which ensures that babies born with ambiguous genitalia are not ‘locked in’ to a legal gender within weeks of birth is to be welcomed, particularly if it operates as intended to take pressure away from parents in deciding whether to intervene to treat their child’s body.

However, as reported, the consequences of this ‘indeterminate’ gender designation are not yet clear. Will ‘indeterminate’ people be able to re-register themselves as either male or female once they have a firm gender identity? If they choose to remain ‘indeterminate’ will this, as in the case of Mr C in Australia, stop them accessing certain legal rights? For a third gender designation to be truly meaningful, there will need to be root and branch reworking of laws based on a binary understanding of gender so that ‘indeterminate’ people are not left outside the law’s privileges and protection.

This German development comes at an interesting time in terms of Ireland’s consideration of the question of legal gender recognition. On Jul 17th this year, Minister Burton published the General Scheme of the Gender Recognition Bill 2013. This bill was introduced to address the gap identified in the law in the Foy case where it was held that the inability of Irish law to recognise the preferred gender identity of a transgender woman was in violation of her right to respect for her private life under Article 8 of the European Convention on Human Rights.

At the launch of the Bill Minister Burton stated that the Bill would facilitate applications from people with intersex conditions to change their gender of legal recognition. However, as the rights contained in the proposed Bill are confined to those aged 18 years or older, it is of no use for children with intersex conditions or their families.

The rights of intersex and trans children

Last week, the Joint Oireachtas Committee on Education and Social Protection spent two days hearing evidence from community groups and experts on the question of legal gender recognition. One of the themes to emerge from these hearings was the need to consider the rights of intersex and trans children and young people when drafting any gender recognition legislation.

Failure to include a mechanism which accounts for those under 18, may well be in contravention the newly inserted Article 42A of the Constitution on children’s rights. It might also breach Article 42 rights of families to make decisions, including the gender with which their child will be registered, on behalf of their children.

The German gender innovation might be useful to our legislators when considering how to accommodate intersex and trans youth in Gender Recognition Legislation. Perhaps it could operate to enable such children to interact as either male or female, depending on their gender identity development, until they were in a position to elect to be recognised legally as of their preferred gender.

Such a situation is not unfamiliar to the law. Writing in the 1600s Lord Coke stated that: ‘Every heire is either a male, or female, or an hermaphrodite … . And an hermaphrodite … shall be heire, as either male or female, according to that kind of sexe which doth prevaile.’

In other words intersex people told the law what gender they wished to be legally recognised as, and the law complied with that decision. Resurrecting such a flexible approach to the question of the legal gender of intersex children would be sensible solution to a challenging conundrum.

Dr Tanya Ní Mhuirthile is a Senior Lecturer at the Law faculty in Griffith College. She is also a legal advisor to Transgender Equality Network Ireland (TENI) and IntersexUK.

Read: Germany to allow new babies be neither male nor female

Read: Trans community has “waited long enough” for gender recognition

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Tanya Ni Mhuirthile

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