Kapitel 1: Grundsätze
1. Basic principles

1.b Non-discrimination

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1.a Best interests of the child
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1.c Participation

Equality and protection against discrimination are core elements of protecting human rights, which are based on the notion of human dignity afforded to all people alike. Children and adolescents, however, are affected by all kinds of discrimination, disadvantage and bullying in their everyday lives. Specific, attitude-based forms of discrimination have been observed (e.g. ageism, sexism, antisemitism, racism and disability discrimination). Different types of discrimination are intersectional, may occur simultaneously, and may feed off one another. Structural and institutional discrimination, e.g. as part of the school system, also exists. Children and adolescents are regularly disadvantaged here – particularly in relation to social and cultural background – and in relation to disabilities or limitations (see Chapter 7).

The rise in far-right views and anti-democratic attitudes continues to be a serious problem. Polarised opinions, as well as misanthropic and extremist ideologies, are gaining momentum in Germany and Europe, necessitating greatly intensified action to effectively protect against discrimination and provide suitable prevention measures in all areas of life. The groups of children and adolescents particularly affected by discrimination, disadvantage or bullying must especially be taken into account, as duly documented by studies conducted by the German federal government’s antidiscrimination institution, the Leipzig Authoritarianism Study, and – in the area of education – by international comparative studies for education systems, such as the PISA. These are primarily children with a migration or refugee history, from socioeconomically disadvantaged families, Roma children, children with disabilities, and those who identify as LGBTI.
When it comes to classifying forms of discrimination, there is an element of conflict between the aim of using classification to combat discrimination, and the risk of assigning and reducing children and adolescents to set categories. Eliminating discrimination and barriers must, however, be viewed as a social shift: The problem is not the children and adolescents affected by discrimination, but rather individual, institutional and structural barriers that lead to disadvantage and discrimination.

The German federal government reports of increasing resources for programmes combating far-right extremism and misanthropy, yet this is mostly as part of temporary programmes and projects, rather than focusing on increasing sustainable expertise and infrastructure. A general, overarching strategy aimed at children’s rights is lacking, as is a reliable, long-term infrastructure to combat discrimination and promote the acceptance of diversity.

Social polarisation and structural discrimination particularly affect refugee children and adolescents who, under Article 22 of the UN Convention on the Rights of the Child, have special protection rights, or those who belong to a recognised minority, especially the German Sinti and Roma. Accompanied refugee minors often only gain access to schooling once placed in communities. This can drag on for up to two years or even until the end of their stay, and is dependent on their country of origin and the German state in which they are located. Refugee children and adolescents also suffer from structural disadvantages because – unlike other children – they receive benefits for housing, health care or education under the German Asylum Seekers Benefits Act (AsylbLG). They sit in separate classrooms at the education facilities. They are sometimes confronted with a racist environment, in which children and adolescents with so-called migration backgrounds are often affected more than the average person. In particular, they are more frequently discriminated against in schools and in terms of access to training, and receive poorer grades and less favourable recommendations for further study. This education plight, which has been ongoing for decades, has substantial negative consequences for the children’s lives.

The differentiation in the German support system can also foster discrimination. This is particularly true for children and adolescents with and without a disability, for they fall under different legal regulations. The provisions of Volume VIII of the German Social Code generally apply to children and adolescents. Physically and mentally disabled children and adolescents, however, generally receive aid based on Volume XII of the German Social Code (Section 10 of Vol. VIII of the German Social Code; as of 2020, this will be Vol. IX of the German Social Code) and thus through different administrative structures. When it comes to comprehensively protecting the interests and rights of disabled children, and eliminating discrimination and barriers, it is therefore necessary to ensure Volume VIII of the German Social Code (Child and youth aid) is entirely inclusive, and that the provisions of the UN Convention on the Rights of Persons with Disabilities and the UN Convention on the Rights of the Child are implemented consistently.

The German federal government’s reports on poverty and wealth repeatedly show that there are more children and adolescents living in poverty in Germany than ever before. Those worst affected are children with so-called migration backgrounds, children of single parents, and families unable to claim state benefits due to excessive bureaucratic hurdles. One in five children (21 percent) in Germany lives in a permanent or recurring state of poverty for a period of at least five years, and another 10 percent have had temporary experience with poverty. In Germany, this does not mean basic needs are not met, but for the affected children, adolescents and their families, poverty does have a multitude of consequences: They participate less in recreational activities, have fewer friends, are excluded, and are less likely to aim for high-level educational qualifications. Eliminating hurdles to access state financial support is important but not enough to combat poverty-based discrimination. Poverty also ‘reinforces’ other forms of discrimination, compounding disadvantage and uncertainty.

In terms of gender equality, the public discussions under the #metoo hashtag have highlighted the prevalence of sexism and sexual abuse against women and girls that also exists in Germany. Organisations and individuals actively campaigning for gender equality for children and adolescents are increasingly coming under fire from far-right and populist groups. The existing services put in place by the German federal government are thus inadequate here. The campaigns to eliminate gender stereotypes (e.g. girls’ or boys’ days) continue to have a very low profile amongst young people. Regular information and campaigns are necessary here, e.g. through education at schools and social media, and awareness-raising work for all children and adolescents.

There is still not enough focus on lesbian, gay, trans and intersex children and adolescents. The conditions in which they grow up continue to be problematic, in terms of drug and alcohol consumption or a higher tendency to die by suicide. They are also at greater risk of everyday discrimination and exclusion, while their quantitative underrepresentation poses additional risks for their development growing up.

  • The National Coalition Germany recommends that the UN Committee call on the German federal government to
  • 23. Develop a general, interdisciplinary strategy to combat discrimination and reinforced group-focused enmity;
  • 24. Help eliminate discrimination and establish gender equality by introducing an aid policy which, in addition to innovations, also ensures extensive investments for a reliable, sustainable infrastructure;
  • 25. Continuously analyse barriers and participation obstacles with the involvement of civil society, children and adolescents, and develop strategies to eliminate these;
  • 26. Make support instruments so flexible that they help eliminate discrimination without pigeonholing children and adolescents into fixed categories. The support should primarily be aimed at protecting children and adolescents against discrimination, not at ‘categorising’ them and perpetuating the discrimination;
  • 27. Work with civil society and all relevant players to continuously analyse the discrimination existing in the education system, act on suggested changes, develop support programmes, and thus eliminate discrimination and disadvantage.

 

Intersex Children

Intersex children reflect a natural variation in the diversity of human life. Their children’s rights encompass respecting the best interests of the child, and legally banning gender-corrective surgery without the children’s informed consent and participation until they have reached an age where they can make their own informed decisions. They need to be given appropriate opportunities for information, legal protection and compensation, and a non-discriminatory gender entry in vital records. The UN Committee on Economic, Social and Cultural Rights, the UN Committee on the Elimination of Discrimination against Women, and the UN Committee against Torture have issued extensive recommendations regarding the rights of intersex people.

Voluntary commitments or guidelines will not suffice to comprehensively protect the rights of intersex children and adolescents. Two studies found that corrective surgery continues to be performed on a large number of children despite the guidelines in place: 2,079 feminising (plastic surgery procedures on the vulva, vagina and clitoris) or masculinising operations (on the testicles, scrotum and penis) were performed in 2016. In the coalition agreement between the CDU, CSU and SPD, the German federal government had announced its intention to clarify, by law, ‘that gender-corrective medical procedures on children only be permitted in urgent cases and to avoid the risk of death’. This clarification had yet to be provided at the time of this report’s compilation.

The ‘intersex’ label covers a wide range of diagnoses. In many cases, neither parents nor doctors can predict a child’s sexual development, which is why top priority must be given to the informed decision of the child, as the legal subject. This also means a parental decision cannot replace the child’s consent.

In its State Report, the German federal government mentions flyers, guidelines for counselling centres, and studies on the support and counselling required for intersex children, adolescents and their families. It does not, however, go into the act on reforming the German civil status law (Personenstandsrecht) law, passed by virtue of a decision by the German Federal Constitutional Court in October 2018. It creates the new gender-entry option of ‘diverse’ (intersex), though this requires a medical examination. The medical examination contradicts the purpose of the act, as the compulsory nature of it does not respect an open and thus non-discriminatory gender entry for all children.

  • The National Coalition Germany recommends that the UN Committee call on the German federal government to
  • 28. Ensure, as an addendum to Section 1631 of the German Civil Code (BGB), that gender-assignment operations cease to be performed on intersex children and youth without their express consent, and that breaches of this be rendered a punishable offence;
  • 29. Abolish the compulsory medical examination that is required before entries of ‘diverse’ can be made in vital records, so as respect, without discrimination, the self-determination rights of intersex and trans children when entering their gender in vital record documents;
  • 30. Provide systematically and continuously updated information and educational resources on the protection and rights of intersex children, particularly for relevant professions, in courses at vocational colleges and universities, and as part of education in politics and human rights;
  • 31. Ensure systematic, high-quality, personal and continuous health care for intersex children, adolescents and their families everywhere and for their entire lives;
  • 32. Establish legal certainty and protection for those affected by genital surgery, and assess compensation options for the injustice suffered.
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1.a Best interests of the child
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