Stepping outside the binaries – intersexuality and gender diversity
Picture source: https://www.planetromeofoundation.org/project/egalite-intersex-ukraine/
In Australia, written legislation uses plenty of technical wording and detailed sentences in an attempt to set comprehensive legal boundaries.[1] Among the many subject matters the law prefers to delineate, sex and gender categories are two of them. The dual classification of ‘male’ and ‘female’, while dominant in legal and societal use, does not reflect the biological reality of intersex people or the socially malleable concept of gender. To witness the law’s discriminatory use of such gender binaries, one needs to look no further than section 5 of the Marriage Act 1961 (Cth), which explicitly restricts marriage to the “union of a man and a woman.”[2]
While sex discrimination (understood as the unequal treatment of males and females) is increasingly being discussed, discrimination against people of non-binary sex and gender is far more misunderstood and under-addressed as a result. Not only does this expose these individuals to further abuse and feelings of social illegitimacy, but it also hinders their access to important services such as education and healthcare.[3]
What is intersexuality and gender diversity?
Within public discourse, the terms “intersex” and “gender diverse” have often been confused at the expense of their proper recognition. Intersexuality, on the most basic level, involves a person possessing biological traits, which cannot be exclusively classified as either ‘male’ or ‘female’.[4] That is, people are intersex by reason of their natural anatomy and physiology rather than self-identification. Within the medical and wider community, intersex people are overwhelmingly stigmatised as being defective or disabled, often from the moment they are born.[5]
Gender diversity, on the other hand, is a matter of personal identity, which does not always entail intersex characteristics. Trans and gender diverse individuals perceive, act and express their sense of self in a manner that digresses from their birth-sex and social expectations of masculinity and femininity.[6] The structural bias in favour of binary male and female divisions therefore prevents other gender preferences from being respected both within the law and the community.
Experiences with discrimination
The dichotomies of ‘male’ and ‘female’ are so pervasive in our everyday lives that many of us tend to overlook the difficulties of living outside them. The discrimination and emotional stress that comes with being gender diverse was highlighted in a 2011 LGBTI survey, which found up to half of the transgender respondents had previously attempted suicide.[7] These respondents also experienced high rates of violence, with one-third reporting verbal threats, 19% reporting physical abuse and 50% reporting vilification and social marginalisation.[8]
The intersex population also suffers disproportionately from mental health concerns. In a recent study, 26% of intersex participants have self-harmed and 19% have attempted suicide compared to less than 3% of the general Australian population.[9] The study also revealed higher unemployment and high school dropout rates than the Australian average, the latter being attributable to bullying as well as disruptive medical procedures such as hormone therapy.[10] Intersexuality itself is regularly treated as a health disorder that needs to be promptly “fixed” through surgical means, violating the rights of intersex people to bodily integrity and self-autonomy.[11]
Current status of sex and gender recognition
Fortunately, progress has already been made towards officially recognising intersex and gender diverse people. With the passing of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth), federal law now prohibits discrimination against people based on their intersexuality or identification as gender diverse.[12] In NSW Registrar of Births, Deaths and Marriages v Norrie, the High Court of Australia also held that the law in that case, despite its tradition of imposing gender binaries, could accommodate the registration of a person’s sex as “non-specific” rather than male or female.[13]
The central issue, however, still remains the same: how can the law and wider society better meet the needs of intersex and gender diverse people? Current government policies in many areas do not adequately address intersex and transgender challenges. For example, there is no national framework to address discrimination against intersex students in schools.[14] In the workplace, enduring challenges range from needing to wear compulsory gender-specific uniforms to experiencing harassment from other employees.[15] In terms of medical services, sex affirmation procedures remain difficult to access for gender diverse individuals, while intersex people often fail to receive necessary treatments such as ovarian surgery for a male.[16] Even if they do, intersex people commonly find that Medicare does not cover these procedures.[17]
Moving forward?
Notwithstanding the Sex Discrimination Act 1984,[18] both state and federal legislation still assume a binary definition of sex and gender. For example, laws at both levels stipulate that certain police searches and forensic procedures should be carried out by a person of the same sex,[19] assuming both individuals can be identified as either male or female. This presumption is even more explicit in the NSW Anti-Discrimination Act 1977, which refers only to “man”, “woman” and “opposite sex”.[20] Other statutes, notably the Marriage Act 1961, expressly deny the right to marry to any person who is not classifiable as a man or woman.[21] Without further law reform, the legal recognition of intersexuality and gender identity will only remain fragmented by the vast majority of laws that rely on a rigid, dichotomous conception of gender.
Within the community, many of us who conform to the ‘male’ and ‘female’ social norm tend to take a number of daily activities for granted, some even as simple as going out in public. Unfortunately, this only marginalises the struggles of intersex and gender diverse people against the prevailing gender binary. Only when we become more educated on gender identity and community perceptions shift can these groups achieve what one LGBTI individual envisioned as “an Australia that celebrates difference for all the richness it provides”.[22]
References
[1] Victorian Law Reform Commission, Plain English and the law, Report No 9 (1987).
[2] Marriage Act 1961 (Cth) s 5.
[3] Australian Human Rights Commission, Resilient individuals: sexual orientation, gender identity and intersex rights: national consultation report (2015).
[4] Ibid 5.
[5] Senate Standing Committees on Community Affairs, Parliament of Australia, Involuntary or coerced sterilisation of intersex people in Australia (2013) 22.
[6] Jo Bird, ‘When sex means ‘condition’ or ‘impairment’: evaluating the human rights of transgender and intersex peoples’ (2001) 5 Southern Cross University Law Review 1, 3.
[7]Gabi Rosenstreich, LGBTI people mental health and suicide: briefing paper (2013), 3.
[8] Ibid 4.
[9] Tiffany Jones et al., Intersex: stories and statistics from Australia (Open Book Publishers, 2016) 121.
[10] Ibid 130-146.
[11] Australian Human Rights Commission, above n 3, 33.
[12] Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth).
[13] NSW Registrar of Births, Deaths and Marriages v Norrie (2014) 250 CLR 490.
[14] Jones et al., above n 9, 134.
[15] Australian Human Rights Commission, Addressing sexual orientation and sex and/or gender identity discrimination: consultation report (2011) 10.
[16] Ibid 11.
[17] Ibid.
[18] Sex Discrimination Act 1984 (Cth).
[19] Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 32; Crimes Act 1914 (Cth) s 23XN.
[20] Anti-Discrimination Act 1977 (NSW) s 23, 24.
[21] Marriage Act 1961 (Cth) s 5.
[22] Australian Human Rights Commission, above n 3, 10.
Bibliography
A Articles/Books/Reports
Australian Human Rights Commission, Addressing sexual orientation and sex and/or gender identity discrimination: consultation report (2011)
Australian Human Rights Commission, Resilient individuals: sexual orientation, gender identity and intersex rights: national consultation report (2015)
Bird, Jo, ‘When sex means ‘condition’ or ‘impairment’: evaluating the human rights of transgender and intersex peoples’ (2001) 5 Southern Cross University Law Review 1
Rosenstreich, Gabi, LGBTI people mental health and suicide: briefing paper (2013)
Jones, Tiffany, Bonnie Hart, Morgan Carpenter, Gavi Ansara, William Leonard and Jayne Lucke, Intersex: stories and statistics from Australia (Open Book Publishers, 2016)
Senate Standing Committees on Community Affairs, Parliament of Australia, Involuntary or coerced sterilisation of intersex people in Australia (2013)
Victorian Law Reform Commission, Plain English and the law, Report No 9 (1987)
B Cases
NSW Registrar of Births, Deaths and Marriages v Norrie (2014) 250 CLR 490
C Legislation
Anti-Discrimination Act 1977 (NSW)
Crimes Act 1914 (Cth)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Marriage Act 1961 (Cth)
Sex Discrimination Act 1984 (Cth)
Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth)
