Opportunities and challenges with the German act for the protection of children with variations of sex development

Abstract

In May 2021, the German parliament passed a long-debated law to protect children with variations of sex development/sex characteristics from medically unnecessary surgeries until they are old enough to decide for themselves. This law joins similar laws passed in other countries in recent years and recognizes the rights of people with variations of sex development to self-determination and bodily autonomy. In this article, we discuss the notion of bodily autonomy and examine details of the German legislation in the context of psychosocial care. We focus on the following questions: (1) How may the law help to preserve the genital integrity and future bodily autonomy of newborns with variations of sex development (VSD)? (2) What are the opportunities and challenges of this law? (3) What strategies are needed to implement the law in ways that include medical professionals’ knowledge and skills, parental cooperation, and protection for the genital integrity as well as the future genital autonomy of newborns with VSD? We make two main arguments. On the one hand, this law has created a space for a new discourse and discussion on VSD in German society and enables the “wait and see” approach. This approach challenges the traditional “psychosocial emergency” policy aimed at quickly “repairing” atypical genitalia. On the other hand, the law is characterized by significant challenges. For example, it does not address the meaning of bodily autonomy in the context of newborns and their families with VSD, and it overlooks the important distinction between genital appearance, genital function, and gender identity. We offer various educational strategies that can be implemented with different target groups in Germany to meet these challenges and ensure the adequate implementation of this law.

Differences of sex development and surgical decisions: focus group interviews with health care professionals in Norway

“…Relatedly, a new Icelandic law states that no permanent changes to sex characteristics, other than hypospadias surgery, can be made while the child is too young to provide consent (Alaattinoglu, 2022 ), which is in consistency with other countries’ laws (e.g. Malta and Germany) (Danon et al, 2023 ). A moratorium on surgery is also supported by human-rights activists (InterACT & Watch, 2017 ).…”

Medical necessity and consent for intimate procedures

“…9 In a parallel set of developments, the global movement for intersex rights has been gaining steam of late, with multiple countries recently passing or considering legislation to prohibit medically unnecessary genital 'normalisation' surgeries in children with diverse sex characteristics: that is, in persons too young to consent. [14][15][16][17] This has coincided with increasingly vocal opposition to nontherapeutic infant penile circumcision for similar reasons, [18][19][20] part of a broader, international human rights campaign that advocates for 'genital autonomy' for all persons, that is, irrespective of sex characteristics or gender. 21 Meanwhile, a string of high-profile court cases since 2015-spanning England, the USA and Australia-have been testing the limits of Western liberal tolerance 22 for medicalised religious practices involving children's genitalia.…”

Child genital cutting and surgery across cultures, sex, and gender. Part 2: assessing consent and medical necessity in “endosex” modifications

“…Increasingly, human rights organizations have taken a stand against such surgeries, insofar as they are indeed neither voluntary nor strictly required on grounds of physical health [4,5]. Moreover, some governments (e.g., in Malta, Germany) have lately passed statues to ban such practices, with similar legislation now being considered in other countries [6].…”