Open birth sex assignments do not reduce surgical interventions

Blank or indeterminate classifications on infant’s birth certificates do not, alone, reduce the likelihood of surgical interventions.

This might seem like a non sequitur, but it turns out to be fundamentally important because many people do argue that moves in Germany to establish similarly open sex assignment polices for some intersex infants at birth will lead to improved circumstances for intersex infants, and less pressure to undergo surgical intervention. The new policy on birth certificates has, to our understanding, not been accompanied by any measures to directly tackle surgical interventions on infants, or to tackle discrimination against affected infants.

ABC News in the US, for example, says:

The aim of the law was to take the pressure off parents who might make hasty decisions on sex-assignment surgery for newborns, and to fight discrimination against those who are intersex.

Sydney Morning Herald says:

The new law, which stems from a study by the German Ethics Council into intersexuality, will alleviate the pressures on new parents, providing an alternative to the medical procedure.

The situation in NZ shows that this is simply not true.

Birth certificates in NZ and Australia

Advice from the NZ Department of Internal Affairs states that:

Recording sex as “indeterminate”
…A person’s sex can be recorded as indeterminate at the time of birth if it cannot be ascertained that the person is either male or female, and there are a number of people so recorded.

Correspondence with directors of the Intersex Trust Aotearoa NZ and OII Aotearoa/NZ shows that “indeterminate” birth certificates have been available at least since the 1950s.

In contrast, Australian birth certificates with no sex data have been available for at least a decade – but only in the State of Victoria, and only to adults who request this, if they have documentary evidence of their intersex status. Attempts by non-intersex people to obtain non-binary birth certificates in Australia have resulted in legal appeals with no conclusion.

Decision making on infant surgical interventions

Australia and NZ share a number of common institutions, including clinician institutions such as the Australasian Paediatric Endocrine Group (APEG) that share a common approach to the clinical management of intersex infants and children. Information presented by this clinical organisation to an Australian Senate inquiry that reported in October 2013 shows that the same clinical practices take place in both countries – and that NZ is an outlier with early surgery recommended in cases of CAH (there is no data on other intersex variations):

(3.49) In 2013, presenting information about the treatment of congenital adrenal hyperplasia, Hewitt reported research that indicated almost all Australian and New Zealand respondents to an Australasian Paediatric Endocrine Group recommended genital surgery in cases of virilised genitals, though not all supported this surgery being timed to occur in infancy…

(3.106) Amongst those who supported early genital surgery, most favoured doing it between 6 and 12 months of age. But when the researchers analysed outliers, they found very strong regional variations. Those favouring surgery at less than 6 months were all from New Zealand, Queensland or outside the region…

According to this data, the availability of blank or indeterminate sex assignments at birth has no ameliorating impact on surgical interventions. Indeed, NZ may be an outlier in the region, with more hasty decision-making.

This is not surprising: the problem these laws seek to define and manage is the physical body of intersex infants.

The Australian Senate inquiry has found that current clinical practices raised significant, even “disturbing” ethical concerns:

3.109 As OII commented, normalisation surgery is more than physical reconstruction. The surgery is intended to deconstruct an intersex physiology and, in turn, construct an identity that conforms with stereotypical male and female gender categories”

This is what needs fixing. We need legislation to stop early medical intervention; legislation to define and manage the societal and clinical response to intersex bodies.

Australian anti-discrimination legislation

Finally, we have argued that the new legislation in Germany will likely make discrimination worse, given the importance of sex assignments to practices at kindergartens, schools and other public services. Australia has anti-discrimination legislation, passed in 2013, that explicitly protects people according to our “intersex status”. Germany has not moved to adopt similar legislation. NZ has no significant data to offer on this issue.

OII Australia does not support the assignment of intersex infants to an indeterminate or “third” sex category at birth due to risk and fear of discrimination which may increase surgical intervention. We support easily mutable sex assignments, and adults’ rights to choose.

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One Comment


I don’t think you say can that, based on anecdotal evidence from 50 years ago. What does appear to be the case is that despite this, New Zealand has treated intersex people much the same as anywhere else. But, that is not surprising, given it was working under the same paradigm as everybody else. It is the paradigm that needs to change, and by opening a space where the child is not a socio-medical emergency, then that space could be used to carefully assess what will work best for the child. Whether Germany, or any country, are in a position to take advantage of such an opportunity is a different matter. But, I fail to see the point in dismissing a change in a bureaucratic procedure which will simply allow for the recording of a state of affairs accurately, on the basis that is won’t do something it was not intended to do, or on the basis of all sorts of pessimistic speculations of what might happen as a result. The problem is the media have made all sorts of bizarre claims, and these needed to be refuted, but I fear we have focused on stating the opposite case, rather than acknowledging that this is actually just a trivial change in bureacratic practice, thereby falling into a trap where we too have helped feed the frenzy.

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