(part B) Philosophy of Law, M.Bonfili

German Ethics Council Opinion on Intersexuality 1/2012 This Opinion was drawn up in response to the Federal Government’s instruction to the German Ethics Council to examine the situation of intersexed people and the associated challenges in a dialogue with affected individuals and their support groups while taking due account of the relevant therapeutic, ethical, sociological and legal perspectives

The German Committee uses the term “intersexuality” to denote an intersexual variation in which a person’s sex cannot be unambiguously determined, and discusses the ensuing ethical, social and legal problems

Intersexed individuals must be protected from undesirable medical developments and discrimination in the community, while parents of children with DSD need expert support. Wide-ranging education and information are necessary to promote the respect and support of intersexed individuals in society

The German Ethics Council recommendations: Medical and psychological counselling for those affected with DSD and their parents, as well as the diagnosis and treatment of people with DSD, should be provided only at specialized interdisciplinary centres Regular, ongoing medical care of people with DSD should be offered by independent specialized centres distributed conveniently throughout the country

The avoidance of any possible discrimination or insensitivity in the medical treatment of people with DSD should also be ensured. Irreversible medical sex assignment measures in people with DSD whose sex is ambiguous constitute an interference with the rights to physical integrity, to the preservation of sexual and gender identity, to an open future and often also to procreative freedom

Decisions on such measures are strictly personal and should therefore always be taken by the individual concerned when competent to decide. In the case of an affected individual who has not yet attained decision- making capacity, such measures should be adopted only after thorough consideration of all their advantages, disadvantages and long-term consequences and for irrefutable reasons of child welfare. Such a reason at any rate applies if the measure concerned serves to avert a grave concrete risk to the life or physical health of the affected individual.

In the case of a individual affected with DSD who is not yet competent to decide but whose sex is unambiguous, as with CAH, the decision on surgical alignment of the genitals with that sex should always be based on thorough consideration of the medical, psychological and psychosocial advantages and disadvantages of early intervention. The guiding principle here too should be the welfare of the child. In cases of doubt, such operations should not be carried out before the person concerned is competent to decide

child’s welfare With regard to identification of what constitutes the child’s welfare (Recommendations 6 and 7), the affected child, even if not yet fully competent to decide, should be informed as early as possible in accordance with the child’s state of development and involved in all decisions on medical measures; the child’s wishes should be taken into account as far as possible. A manifest attitude of refusal on the part of the affected child should also be taken into account

Affected individuals and those with the right to care for them should be given complete information and advice on all treatment options.

There should be a statutory requirement for a ruling to be obtained from the Family Court at least in situations where the wishes or declarations of the child concerning a decision on medical measures with potentially irreversible effects on the child’s (future) fertility and/or sexual sensation conflict with those of the persons with the right to care for the child

Provision should be made for persons whose sex cannot be unambiguously determined to register not only as “female” or “male” but also as “other”. Provision should also be made for individuals’ sex not to be registered until they have decided for themselves. A maximum age for affected people to decide should be laid down in law.

If provision exists for a person’s sex to be entered as “other” in the civil register, such a person must also be allowed to enter into a responsible and reliable relationship recognized by the state and in law.

The German Ethics Council proposes by a substantial majority that person whose sex is recorded as “other” should be able to enter into a registered civil partnership.

German Intersex Law (2013) is a specific intersex legislation that is, as the debate in parliament clearly proves, in fact based on the Recommendations by the German Ethics Council on Intersex in Even before the law came into force, the registration of civil status could already be postponed, if information or evidence were missing (art.7 Code of civil status Procedure). Entries could be changed later (art.47 Civil Status Act)

German Intersex Law PStG § 22 Abs. 3 [new]: '(3) If the child can be assigned to neither the female nor the male sex, then the child has to be entered into the register of births without such a specification.‘ PStG § 22 Abs. 3 [neu]: '(3) Kann das Kind weder dem weiblichen noch dem männlichen Geschlecht zugeordnet werden, so ist der Personenstandsfall ohne eine solche Angabe in das Geburtenregister einzutragen.'