When it comes to the rights of intersexual persons, enlightenment has been a long time coming. Even Germany, a country that sees itself as a front-runner in building awareness for minorities, is only now coming around. A few weeks ago the Federal Constitutional Court, based in Karlsruhe, ruled that in addition to “male” and “female,” the government must recognize a third gender category, which could be identified as “intersexual” or “diverse.”
The landmark ruling injects clarity and sobriety into an often ill-informed and ideologically poisoned debate about gender in Germany. Whether it can stand outside that debate, or gets sucked into it, is a different question.
The ruling came about because an intersexual person in the state of Lower Saxony, who was raised as a girl, argued that the plaintiff’s rights were infringed when that person was confronted with the choice of having to legally register as either “male” or “female.” Born with only one X chromosome and lacking a second, sex-defining chromosome, what doctors call Turner syndrome, the person went to court. (Turner syndrome is one of many conditions that might define a person as intersex.)
Physicians estimate that up to 0.2 percent of people are intersexual, putting the number in Germany at about 160,000. And yet many people will say that they’ve never met an intersexual person. That’s in part because not all intersexuals have a nonbinary identity; some may not even know they are intersex. But a big part of it is the lack of legal and social recognition: According to the German Society for Transidentity and Intersexuality, people who see their identity negated in daily life tend to either involuntarily adapt or retreat from society. The psychological pain can be intense, and suicide rates are high.
Interestingly, two centuries ago, German law was outspoken on intersexual people. As early as 1794, the “Zwitterparagraf” (literally, “hermaphrodite paragraph”) was a part of the Prussian civil code. It stated that when “Zwitter” were born, parents had the right to raise them as the gender they deemed appropriate. When of age, the person could decide which gender to take on. This wasn’t a perfect solution — it still forced people to choose one of two identities — but the amazing thing is that after this paragraph was scrapped in 1875, the whole issue was dropped. It wasn’t until 2013 that the Bundestag made it possible for intersexuals to choose “male,” “female” or no affiliation.
But as the complainant from Lower Saxony argued, having to chose male, female or “none of the above” made one feel like a “nullum,” a nothing. Lower courts took a legalistic approach in rejecting the claim, ruling that intersexual Germans were not discriminated against by the law, that regardless of the term, all laws applied to them equally.
The Constitutional Court, the country’s highest, took a different approach. It ruled that the very act of denying the legal recognition of a wanted and documented sexual identity impairs the basic right to a “self-determined development and safeguarding of personality” and ordered the Bundestag to come up with a new regulation by the end of 2018.
It didn’t take long for the populist Alternative for Germany Party, which has just entered the Bundestag for the first time after winning 13 percent in the recent national elections, to get it all wrong. In vowing to disobey the Constitutional Court, the party’s parliamentary leader, Alice Weidel, called the ruling an “abstruse gender-political recommendation.” She went so far as to claim that the court was “not legitimized by the citizens.”
To make the obvious point, this isn’t about gender equality but sexual equality, and Ms. Weidel is trying to muddy the waters by ignoring the distinction. She would much rather fight against sexual equality within the context of the gender wars, because she knows that more people will support her.
Truth be told, Alternative for Germany didn’t weaponize gender; the left did. It has taken up gender identity as an all-or-nothing fight, an issue that demands immediate and extensive change. This posturing has allowed the populists to depict them as aloof elites fighting the Germany of the regular guy.
For example, the Berlin government, which is run by the center-left Social Democrats, is pushing the idea of retrofitting public buildings with gender-neutral bathrooms, including gender-neutral urinals — a plan that has attracted no small amount of public derision. And not without reason: Whatever virtue the proposal might project, it would also be costly, burdening an already poor city that is struggling to keep its schools in decent shape.
The danger for intersexual Germans is that the far right will use the mounting public antipathy to the left’s “virtue” on gender to discredit a judicial decision that will cost Germans little besides their own outdated assumptions and prejudices. As long as the left offers easy targets, Ms. Weidel and the Alternative for Germany will only increase their attacks. In the face of a growing backlash against all forms of gender and sexual progress, it’s up to the left to disarm them.
Jochen Bittner is a political editor for the weekly newspaper Die Zeit and a contributing opinion writer.