OII Australia was disappointed but not surprised that Intersex was not specifically included in the recently released Anti-Discrimination Consolidation Bill. Our sources had been telling us both the cabinet and back benches were having some difficulty getting their heads around exactly what intersex people are.
The issues so far as we were able to understand were these.
- There was a view that Intersex were adequately protected by legislation that exists in NSW , Victoria and Queensland and by incorporating those words into the bill Intersex would be covered.
- The legislators do not appear to be able to readily understand the difference between sex and gender, and consequently thought including indeterminate sex under gender identity would include Intersex.
- Legislators were unwilling to include Intersex as a protected attribute, fearing they would create a third sex, and a call for third sex toilets, classrooms retirement age and whatever else at law is defined in sex binary terms.
- Legislators are keen to make the bill as uncontroversial as is possible fearing it will not pass the lower house .
The quick answer to the above points are these.
Intersex is not adequately covered by the wording in the NSW and other ADB > the wording is nebulous, exists under gender identity and has been described as not including Intersex by the president of NSW Antidiscrimination Board. Intersex has on more than three occasions in the last three years attempted to use the indeterminate provisions. On all occasions our applications were rejected on the basis the issues were physical anatomical differences not gender identity.
We agree with legislators that, at law, the difference between sex and gender is not all that clear; they are however able to distinguish it readily enough to make gender identity an attribute in the proposed Bill. The explanatory note should be expanded so members voting on this understand the difference between a persons lived social foot print and their anatomical sex.
A third sex can only be created by registries of Birth Deaths and Marriages by allowing a third sex classification on birth certificates. We make the point that not specifying is not the same as a third sex, rather it is silence on the matter.
OII Australia opposes the creation of third sex categories as further stigmatising an already stigmatised minority and more that there is no consensus what name should be given to any third sex category and what qualifications would a person need to be so consigned.
The inclusion of Intersex has been uncontroversial in Tasmania legislation, and we see no reason why it would be so in federal legislation. We would contend issues such as; religious exemptions, vilification provisions and jurisdiction are far more likely to exercise the minds of parliamentarians than people who are born with anatomical differences of sex.