Through The Binary: Intersex Rights in Australia

Photo source: Organisation Intersex International Australia Limited

‘To be lied to as a child about your own body, to have your life as a sexual being so ignored that you are not even given the decency of an answer to your own questions, is to have your heart and soul relentlessly undermined’[1]

Quote: Martha Coventry, intersex rights lobbyist

This fact sheet considers the potential discrimination faced by the 1.7%[2] of the population who has intersex traits and the role Commonwealth law plays in protecting such persons.

Legal Definition

"intersex status " means the status of having physical, hormonal or genetic features that are:

(a) neither wholly female nor wholly male; or

(b) a combination of female and male; or

(c) neither female nor male.[3]

Sex Discrimination Act 1984 (Cth)

Discrimination on the ground of intersex status

(1) For the purposes of this Act, a person (the discriminator ) discriminates against another person (the aggrieved person ) on the ground of the aggrieved person's intersex status if, by reason of:

(a) the aggrieved person's intersex status; or

(b) a characteristic that appertains generally to persons of intersex status; or

(c) a characteristic that is generally imputed to persons of intersex status;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who is not of intersex status.

(2) For the purposes of this Act, a person (the discriminator ) discriminates against another person (the aggrieved person ) on the ground of the aggrieved person's intersex status if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of intersex status.

…

The Sex Discrimination Act, extracted above, distinguishes intersex status from sexual orientation, gender identity and sex, defining the term broadly to ensure protections for people perceived to be intersex[4]. However, rather than broadening the definition of ‘sex’, distinguishing intersex discrimination from sex discrimination may further position intersex as ‘other’. Although the Sex Discrimination Act provides some protections, much more needs to be done in order to address the potential for human rights abuses and discrimination that intersex people are vulnerable to.

The Effect of Exemptions under the Act - Sport

Australia is one of the few countries that protect intersex people from Discrimination. However, this protection is undermined by the legal exemption for competitive sports, which allows intersex people to be discriminated against in sport[5]. There are many examples of women being banned from competing in sporting events after testing reveals intersex variations, although the Court of Arbitration for Sport has found the scientific basis for such exclusion has not been demonstrated[6]. This suggests that relevant sections of the Act are outdated and should be amended to reflect such a finding.

An example for Australia to follow - Malta

Malta is the only country in the world that prohibits sex assignment treatments and surgical interventions on minors (in cases where treatment can be safely deferred) until the person to be treated can provide consent[7]. Malta’s Gender Identity, Gender Expression and Sex Characteristics Act[8], introduced in 2015, provides an example of how meaningful action to reduce discrimination faced by intersex people is possible and practical[9]. The Act prohibits modifications of sex characteristics for all people, except in cases where there is personal consent or clear physical necessity[10]. It also sets out a process through which a person’s gender is to be recognised based on self-determination, rather than medical evidence[11]. The inclusion of a gender marker on a child’s birth certificate can be delayed until the child’s gender identity is determined.[12] Community group Organisation Intersex International Australia Limited has described this legislation as historic and suggests Australia should follow in Malta’s footsteps by pointing out that these laws contain key improvements when contrasted with Australian legislation that seeks to address intersex issues[13].

Moving Forward

Morgan Carpenter, as the President of Organisation Intersex International Australia Limited, is a strong advocate for the rights of intersex people. In his article Intersex Rights and Freedoms he suggests an approach to be followed in order to better address the rights and freedoms of intersex people with the view to end discrimination[14]. These are as follows:

References

[1] Martha Coventry, ‘Finding the words’ (1997) Chrysalis: Special Issue on Intersexuality 27.

[2] Melanie Blackless et al, ‘How sexually dismorphic are we? Review and synthesis’ (2000), 12 American Journal of human Biology 151, 159.

[3] Sex Discrimination Act 1984 (Cth), s 4.

[4] Morgan Carpenter, (2015) ‘Intersex Rights and Freedoms’, 9 Court of Conscience, 28, 28.

[5] Ibid, 29.

[6] See, for example, Dutee Chand v Athletics Federation of India (AFI) & The International Association of Athletics Federation (IAAF) (Interim Arbitral Award) (Court of Arbitration for Sport, CAS 2014/A/3759, 24 July 2015) 34, 155-156.

[7] Ibid, s 14.

[8] Gender Identity, Gender Expression and Sex Characteristics Act (Malta, 2015) No. XI of 2015, 14 April 2015.

[9] Morgan Carpenter, (2015) ‘Intersex Rights and Freedoms’, 9 Court of Conscience, 28, 31.

[10] Ibid.

[11] Transgender Europe Malta Adopts Ground-breaking Trans and Intersex Law – TGEU Press Release (1 April 2015) <http://tgeu.org/malta-adopts-ground-breaking-trans-intersex-law/>.

[12] Ibid.

[13] Organisation Intersex International Australia Limited We celebrate Maltese protections for intersex people (2 April 2015) < https://oii.org.au/28592/we-celebrate-maltese-protections-for-intersex-people/ >.

[14] Morgan Carpenter, (2015) ‘Intersex Rights and Freedoms’, 9 Court of Conscience, 28, 29.

[15] Morgan Carpenter, (2015) ‘Intersex Rights and Freedoms’, 9 Court of Conscience, 28, 29.

[16] Ibid.

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