Intersex Human Rights Australia

What is the issue?

People with innate variations of sex characteristics face risks and experiences of stigmatisation and discrimination in many settings because our innate physical sex characteristics do not fit medical and social norms for female or male bodies. There are at least 40 known intersex variations, with diverse characteristics, including genetic, anatomic and chromosomal variations.

Stigmatisation is evident in practices based on ideas that our bodies should be made to look or function in particular ways. The intersex human rights movement seeks to ensure that people born with variations of sex characteristics are able to make our own decisions about what happens to our bodies. Awareness and education are fundamentally important to ensure that this is possible.

Students with intersex variations need appropriate, affirmative information about their bodies that respects their diverse identities and characteristics. In order to enhance students’ agency and decision making capacities information needs to be made available using age-appropriate language. Stigmatisation and discrimination can also be experienced within educational settings as a result of a lack of understanding of the issues and needs of students with an intersex variation.

At present, educational curricula pay little or no attention to the existence of intersex variations. In education settings, lack of disclosure of human biological diversity, and discussion of typical sex development pathways as if they are the only possible developmental pathways, help to create a lack of comprehension of our existence, concerns and diversity.

More than this, when intersex is aggregated to other issues, particularly LGBT or transgender issues, this can result not in full attention to the concerns of each population, but instead it can result in further erasure of the existence and needs of people born with intersex variations.

Stigmatisation happens when students with variations of sex characteristics are bullied because of their physical characteristics, including because of developmental delays, cognitive issues, or physical development that does not conform to social and medical expectations. Stigmatisation and exclusion can happen when students miss classes, school or even drop out because of surgical procedures. Some students will also feel isolated and confused about what it means have an intersex variation and, as a result, will struggle to develop a positive self-image, esteem and worth.

The way that language is used in educational settings can have a profound impact on student experiences. Framing intersex bodies as pathological or disordered predisposes students to understand the bodies of students with variations of sex characteristics in stigmatised ways, including as in need of medical treatment to “fix” them. This creates a social and cultural environment that diminishes students’ agency to make informed decisions and freely give their informed consent.

Language that constructs intersex as a gender identity, or that assumes that people born with variations of sex characteristics identify with a non-binary sex or gender category, is harmful to girls and boys, and women and men, with intersex variations. It misgenders them and frames their lives in ways that do not match their lived reality.

Students with intersex variations may require support to manage their physical, mental and emotional health, including dealing with developmental issues, diagnosis, disclosure of health information, and the immediate and longer term consequences of medical interventions. This may require a multidisciplinary approach. As students work through the various issues, this may require time away from school or education settings.

In some cases, these issues may mean that individuals experience trauma, stigmatisation, isolation, depression or anxiety (National LGBTI Health Alliance 2014). We know from existing research that these affect an individual’s self-image, self-esteem and self-worth. It is also established that when young people experience a diminished sense of self-image, self-esteem and self-worth, they are less resilient, experience bullying, and may leave early or attain below average academic outcomes. The consequences can be lifelong.

What do we know about the situation in Australia?

Research data

To date, no research on LGBT or LGBTI populations, nor clinical research, in Australia has provided useful evidence on the educational situation of intersex people (see, for example, Robinson et al. 2014; Smith et al. 2014). However, important intersex-specific and broader research exists.

We know from sociological research on Australians born with atypical sex characteristics (Jones 2016) that intersex students experience bullying, stigma and discrimination. In this study, 19% of respondents failed to complete secondary school, compared to an Australian average of 2%. This is a matter of grave concern to us. The impact of medical interventions during puberty and the impact of developmental delays were found to be factors in this high drop-out rate.

This research also found that some students experience bullying due to their characteristics, and some experience cognitive issues. Jones also reported that risks to student wellbeing were high particularly after being first told about their variation. Neither school curricula nor counselling and support services appeared to be inclusive, with adverse consequences.

We are also learning more about the adverse development effects of exposure to general anaesthetic in the first years of life (Schneuer 2018).

We know that a minority of people born with variations of sex characteristics prefer non-binary or multiple sex/gender classifications, and this must be respected. It is also essential to respect the full diversity of sex classifications and gender identities of intersex people, including students who identify with sex assigned at birth. We are unfortunately aware of situations where students with variations including 47,XXY and 45,X0 have been confronted with the idea they are a third sex or gender diverse in classrooms, provoking emotional responses including anger.

Students with an intersex variation must be understood as individuals who may or may not identify as LGBTQ. Schools need to be aware of this. Based on pedagogical research, Koyama and Weasel (2001, 2002) and Brömdal, et al. (2017) provide helpful analyses on teaching about intersex variations in ways that address actual student needs.

Medical interventions and stigma

Clinicians in Australia and internationally frame risk of stigmatisation, including risk of stigmatisation due to atypical genital appearance, as rationales for surgical interventions. These rationales have been described by the Senate Community Affairs References Committee (the committee with the medical portfolio) as being a “circular argument”:

Normalising appearance goes hand in hand with the stigmatisation of difference. Care needs to be exercised that medical treatment of intersex is not premised on, and contributing to, the stigma and perceived undesirability of people appearing different from one another.

There is frequent reference to ‘psychosocial’ reasons to conduct normalising surgery. To the extent that this refers to facilitating parental acceptance and bonding, the child’s avoidance of harassment or teasing, and the child’s body self-image, there is great danger of this being a circular argument that avoids the central issues. Those issues include reducing parental anxiety, and ensuring social awareness and acceptance of diversity such as intersex. Surgery is unlikely to be an appropriate response to these kinds of issues. (Community Affairs References Committee 2013, 74)

Surgery does not create “normal” bodies: it creates scarring and other kinds of physical difference. Testimonies (Jones 2016, Davis 2015, DuBois et al. 2016) instead identify feelings of difference arising from medical interventions and their consequences, and repeated medical examinations. There is no evidence that surgery can solve stigmatisation (Lee, et al. 2016, 176).

Generally, policy and practice in education and elsewhere rightly seeks to challenge bullying and exclusion, rather than change the bodies of stigmatised individuals (Reach Out 2019).

Anti-discrimination law

The Sex Discrimination Act 1984 (Cth) enacted federal protections against discrimination on grounds of intersex status for the first time. In doing so, an exclusion was created in relation to sport, but no exclusion was created relevant to religious freedoms in educational settings. The evidence available at that time, and during the course of the 2018 inquiry into religious freedoms, is that religious institutions do not seek to discriminate against people born with variations of sex characteristics because of those variations (Ruddock, et al. 2018; IHRA 2018). However, it is also the case that some LGBT and some religious bodies have no institutional memory of historical approaches to the inclusion of intersex people, and have instead reinterpreted the meaning of intersex people to them in the context of LGBT issues. Social polarisation on those issues therefore create new risks to intersex people, including in any enactment of legislation proposing a positive right to religious freedoms, where there is no clear understanding by schools about the nature and history of intersex traits.

South Australia unfortunately permits religious exemptions on the innate biological ground of intersex status in section 34 (3) of the Equal Opportunity Act 1984 (SA), as amended in 2016. The religious freedoms inquiry does not support this practice (Ruddock, et al. 2018).

Sport

We are aware of situations, and procedures, that problematise participation in competitive sport by children aged 12 or more. When the Sex Discrimination Act (Cth) was amended in 2013 to protect against discrimination on grounds of intersex status, an exemption was created permitting exclusion from sport “in any competitive sporting activity in which the strength, stamina or physique of competitors is relevant”. In line with advice to a Senate inquiry (Legal and Constitutional Affairs Legislation Committee 2013) from the Attorney General’s Department (2013), such exclusions should be expected to be determined case-by-case, on the basis of sound evidence. In our view, such evidence must be rigorous: peer-reviewed, transparent, and reproducible. As of 1 March 2019, no such evidence has been published.

Academic curriculum

From a very early age, a natural discovery of all aspects of the body, including genitals, occurs. The World Health Organization’s (WHO, 2006) definition of sexuality suggests a conceptualization of emerging sexuality in childhood as an interchange between biological, psychological, and social factors through which children experience and learn about their bodies and construct gender identities and roles.

The Health and Physical Education HPE (Foundation to Year 10) curriculum mentions intersex, with a focus on “teaching about reproduction and sexual health” and to ensure “relevance to the lived experiences of all students”, including students who may be intersex:

The Australian Curriculum: Health and Physical Education (F–10) is designed to allow schools flexibility to meet the learning needs of all young people, particularly in the health focus area of relationships and sexuality. All school communities have a responsibility when implementing the Health and Physical Education curriculum to ensure that teaching is inclusive and relevant to the lived experiences of all students. This is particularly important when teaching about reproduction and sexual health, to ensure that the needs of all students are met, including students who may be same-sex attracted, gender diverse or intersex (ACARA, undated).

Unfortunately, this material is located in a section entitled “Same-sex attracted and gender-diverse students”, and this appears likely to adversely restrict interpretations of the text.

International sources of helpful material include the UNESCO interagency International technical guidance on sexuality education (2018). This guidance recognises pubertal development challenges for adolescents who are intersex, a need for information about sex characteristics or biological variations, recognises failures to protect children from forced and coercive medical procedures, and recommends specific learning objectives on human rights that impact sexual and reproductive health, and local and national laws and policies.

South Australian policy and procedure

The current “Gender diverse and intersex children and young people support” procedure by the South Australian Department of Education (2019b) have a focus on names and pronouns, and gendered toilets, changing room facilities and uniforms. Explicitly, in statements about “requests to transition or affirm gender”, and also implicitly and by omission, the messaging in the Department’s procedure is that intersex students will have concerns about gender identity and transition. No acknowledgement is given of intersex bodily diversity and developmental issues. No guidance is given in relation to adjustments, leave in relation to medical concerns.

The current procedure also problematises the participation of intersex and gender diverse students, stating that “an intersex or gender diverse child or young person aged 12 and over may be excluded” from elite competitive sport, without specifying circumstances and grounds for such exclusion. Further, consultation is recommended “before preventing any student from competing in the sport as their identified gender” (2019b). Like the rest of the South Australian policy, this appears predicated on the idea that intersex is about gender transition, and the guide provides no explicit guidance on students competing in their birth-assigned sex.

The procedure may assist intersex and non-intersex (endosex) students alike if they are gender diverse, but the policy is not designed to support intersex students irrespective of gender diversity.

The South Australian Department of Education policy (2019a) recognises a need for schools to develop policies that address discrimination on the basis of intersex status as part of anti-bullying and harassment policies, but it is not clear that schools are receiving messaging that supports them to recognise intersex people on any basis other than their expressed identities.

IHRA engaged in discussion with representatives of the South Australian education department and ministry in early 2017 on previous versions of these documents. However, these current policies and procedures fail to meet the needs of students born with variations of sex characteristics.

In October 2021, SHFPACT and A Gender Agenda published Including Intersex: responding to issues affecting the educational experiences of intersex students in Australia. Find out more and download the resource

Our position

The Darlington Statement is an Australian – Aotearoa/New Zealand community consensus statement that sets out our priorities:

47. Intersex is distinct from other issues. We call on allies to actively acknowledge our distinctiveness and the diversity within our community, to support our human rights claims and respect the intersex human rights movement, without tokenism , or instrumentalising, or co-opting intersex issues as a means for other ends. “Nothing about us without us.”

28. Children with intersex variations require clear, age-appropriate disclosure of their intersex variations, and affirmative support, including peer support.

It is imperative that reasonable steps are take to eliminate discrimination on the basis of sex characteristics or intersex status, and sex, sexual orientation and gender identity. It is important to acknowledge and be mindful of the intersectionality of discrimination experience by intersex students. Policy documents must therefore used language that is positive, supportive and respectful of students’ diversity and individuality. It is important to acknowledge and consider the effects of both direct and indirect discrimination practices on students.

Students who have experienced disruptions to school attendance, for example due to surgery, will need personalised teaching and learning programs.

In relation to education about intersex variations and disclosure to individuals:

54. We call for the inclusion of accurate and affirmative material on bodily diversity, including intersex variations, in school curricula, including in health and sex education.

55. We call on education and awareness providers to develop content with intersex-led organisations, and promote delivery by intersex people.

While limited, the current health and physical education supports the inclusion of relevant information on reproduction and sexual health (ACARA undated). A UNESCO/interagency statement (2018) supports inclusion of relevant material in curricula on biology, law and ethics.

In relation to support within the school environment:

53. We acknowledge the impacts of stigma, trauma and unwanted medical interventions on access to education and on employment, and consequences that include high rates of early school leaving, poverty, self-harm and suicidality.

57. We call for policies in educational institutions and employment to recognise that some people born with intersex variations may benefit from accommodations and reasonable adjustments, including special needs requirements, workplace adjustments, job access assistance, and provisions for medical leave.

In relation to physical education and sport at school:

35. We call for access to sport at all levels of competition by all intersex persons, including for all intersex women to be permitted to compete as women, without restrictions or discriminatory medical investigations.

In line with government expectations when the Sex Discrimination Act was amended to create an exemption permitting exclusion from sport on grounds of intersex status’ (Attorney General’s Department 2013), such exclusions must be determined case by case, on the basis of sound evidence. In our view, such evidence must be peer-reviewed, transparent, and reproducible. As of 1 March 2019, no such evidence has been published.

What have we done about this?

We continually engage in evidence-building, including through supporting independent research. We engage with policy-makers and local, national, regional and international human rights institutions. We promote governmental and institutional responses to our findings. We build community expertise through community gatherings and mentoring.

We make submissions to parliamentary and other inquiries on matters relating to education. In 2013 we made a submission to a Senate inquiry on exemptions in federal anti-discrimination law in relation to religion and sport. In 2018 (and repeated in 2019), we made submissions to inquiries on religious freedoms in schools.

In August 2013, we made a submission on the draft national Health and Physical Education curriculum.

In early 2017, we raised our concerns regarding the inappropriate South Australian policy and procedure with the local Department for Education and Child Development. We also provided research evidence, in order to promote better policy development. We have also raised issues around educational needs with the Victorian government.

IHRA participated in the reference group for the 2015 study (Jones 2016) that researched education and other issues.

Further reading

Equal Opportunity Act 1984 (SA)
Sex Discrimination Act 1984 (Cth)

ACARA (Australian Curriculum, Assessment and Reporting Authority). Undated. ‘Structure’. https://www.australiancurriculum.edu.au/f-10-curriculum/health-and-physical-education/structure/.

Attorney General’s Department. 2013. ‘Questions on Notice, Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013’. http://www.aph.gov.au/DocumentStore.ashx?id=3755e19e-0d14-471d-af28-a4cd54acc770.

Brömdal, Annette, Mary Lou Rasmussen, Fida Sanjakdar, Louisa Allen, and Kathleen Quinlivan. 2017. ‘Intersex Bodies in Sexuality Education: On the Edge of Cultural Difference’. In The Palgrave Handbook of Sexuality Education, edited by Louisa Allen and Mary Lou Rasmussen, 369–90. London: Palgrave Macmillan UK. https://doi.org/10.1057/978-1-137-40033-8_18.

Community Affairs References Committee, Senate of Australia. 2013. Involuntary or Coerced Sterilisation of Intersex People in Australia. http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/Involuntary_Sterilisation/Sec_Report/index.

Davis, Georgiann. 2015. ‘Normalizing Intersex: The Transformative Power of Stories’. Narrative Inquiry in Bioethics Volume 5, Number 2: 87–89.

Department of Education (South Australia). 2019a. ‘Supporting Gender Diverse, Intersex and Sexually Diverse Children and Young People’. https://www.education.sa.gov.au/doc/supporting-gender-diverse-intersex-and-sexually-diverse-children-and-young-people.
Department of Education (South Australia). 2019b. ‘Gender Diverse and Intersex Children and Young People Support Procedure’. https://www.education.sa.gov.au/doc/gender-diverse-and-intersex-children-and-young-people-support-procedure.

Department for Education and Child Development (South Australia). 2016a. ‘Supporting Same Sex Attracted, Intersex and Gender Diverse Students’. https://www.education.sa.gov.au/doc/supporting-gender-diverse-intersex-and-sexually-diverse-children-and-young-people.

Department for Education and Child Development (South Australia). 2016b. ‘Transgender and Intersex Student Support Procedure’.

DuBois, James, Ana S Iltis, and Georgiann Davis, eds. 2016. ‘Normalizing Intersex’. Voices, Personal Stories from Narrative Inquiry in Bioethics. https://nibjournal.org/wp-content/uploads/2017/07/Voices_2016_INTERSEX_FINAL.pdf.

Intersex Human Rights Australia. 2013. ‘Submission on the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill, 2013’. Sydney: Organisation Intersex International Australia. https://ihra.org.au/22142/submission-sda-intersex-status/.

Intersex Human Rights Australia. 2013b. ‘Submission on the Revised Australian Curriculum: Health and Physical Education: Foundation to Year 10’. https://ihra.org.au/23491/submission-education-curriculum/.

Intersex Human Rights Australia. 2018. ‘IHRA Submission to the Inquiry on Legislative Exemptions That Allow Faith-Based Educational Institutions to Discriminate against Students, Teachers and Staff’. https://ihra.org.au/32900/submission-faith-based-schools/.

Jones, Tiffany. 2016. ‘The Needs of Students with Intersex Variations’. Sex Education 16 (6): 602–18. https://doi.org/10.1080/14681811.2016.1149808.

Koyama, Emi, and Lisa Weasel. 2001. Teaching Intersex Issues. http://isna.org/pdf/teaching-intersex-web.pdf.

Koyama, Emi, and Lisa Weasel. 2002. ‘From Social Construction to Social Justice: Transforming How We Teach about Intersexuality’. Women’s Studies Quarterly 30 (3/4): 169–78. https://www.jstor.org/stable/40003252.

Lee, Peter A., Anna Nordenström, Christopher P. Houk, S. Faisal Ahmed, Richard Auchus, Arlene Baratz, Katharine Baratz Dalke, et al. 2016. ‘Global Disorders of Sex Development Update since 2006: Perceptions, Approach and Care’. Hormone Research in Paediatrics 85 (3): 158–180. https://doi.org/10.1159/000442975.

Legal and Constitutional Affairs Legislation Committee, Senate of Australia. 2013. Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 [Provisions]. Canberra: Legal and Constitutional Affairs Legislation Committee.

National LGBTI Health Alliance, Marcus O’Donnell, and Barry Taylor. 2014. ‘Working Therapeutically with LGBTI Clients: A Practice Wisdom Resource’. Sydney: National LGBTI Health Alliance. https://lgbtihealth.org.au/resources/working-therapeutically-with-lgbti-clients/.

Reach Out. 2019. ‘Understanding Intersex People’. https://au.reachout.com/articles/understanding-intersex-people.

Robinson, Kerry H., , Peter Bansel , Nida Denson , Georgia Ovenden, Cristyn Davies , University of Western Sydney, and Young and Well Cooperative Research Centre. 2014. Growing up Queer: Issues Facing Young Australians Who Are Gender Variant and Sexuality Diverse. http://www.youngandwellcrc.org.au/news/article/263.

Ruddock, Philip, Rosalind Croucher, Annabelle Bennett, Frank Brennan, and Nicholas Aroney. 2018. ‘Religious Freedom Review: Report of the Expert Panel’.

Schneuer, Francisco J, Jason P Bentley, Andrew J Davidson, Andrew JA Holland, Nadia Badawi, Andrew J Martin, Justin Skowno, Samantha J Lain, and Natasha Nassar. 2018. ‘The Impact of General Anesthesia on Child Development and School Performance: A Population-Based Study’. Pediatric Anesthesia, April. https://doi.org/10.1111/pan.13390.

SHFPACT and A Gender Agenda. 2021. ‘Including Intersex’. https://www.shfpact.org.au/news-and-updates/418-including-intersex.

Smith, Elizabeth, Tiffany Jones, Roz Ward, Jennifer Dixon, Anne Mitchell, and Lynne Hillier. 2014. From Blues to Rainbows: Mental Health and Wellbeing of Gender Diverse and Transgender Young People in Australia. Melbourne: The Australian Research Centre in Sex, Health, and Society.

UNESCO, UNAIDS, UNFPA, UNICEF, UN Women, and WHO. 2018. International Technical Guidance on Sexuality Education. Geneva: UNESCO.

World Health Organization. 2006. Defining Sexual Health: Report of a Technical Consultation on Sexual Health 28-31 January 2002, Geneva. Geneva: World Health Organization. https://www.who.int/reproductivehealth/publications/sexual_health/defining_sexual_health.pdf.

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This paper was written by Morgan Carpenter and Dr. Agli Zavros-Orr.