Intersex and the Sex Files: good for trans*, bad for intersex

Australian Human Rights Commission: Sex Files: the legal recognition of sex in documents and government records; Concluding paper of the sex and gender diversity project, March 2009.
OII Australia supports trans people in their call for human rights, in the same way we support all LGBTI peoples and other marginalized minorities. Sometimes, however, rights called for by one minority group can disadvantage another unless close strategic alliances are maintained so that proposed changes to the law do not accidentally impinge on rights.

The Sex Files is a good example of this. While OII Australia supports many of the recommendations in The Sex Files, we note that by and large they have little to do with intersex – and some parts are to our detriment.

Implementation would even make intersex people submit to ‘gender recognition boards’ and pathologizing protocols if they wish to change cardinal documents – even in states where evidence of intersex status is currently sufficient alone.

When OII Australia approached the commissioner at the beginning of the consultation that produced The Sex Files we were informed that the consultation would only address changes to cardinal documentation and intersex needs would not be considered.

The vast majority of submissions to the commissioner were from trans individuals, trans organizations or trans-allied organizations. Our calls to include recommendations that would assist intersex in their struggle for human rights were dismissed on the basis of funding constraints. So far no government organization has held a formal inquiry into intersex lives in Australia.

AHRC’s The Sex Files recommendations & our responses

Recommendation 1:

Marital status should not be a relevant consideration as to whether or not a person can request a change in legal sex.

OII Australia’s response:

If marriage equality is granted to all Australians this recommendation would be redundant. The recommendation is specific to transsexuals who are required to divorce before they can be granted a change of sex on their birth certificate. Very few intersex would be affected by this recommendation.

Recommendation 2:

The definition of sex affirmation treatment should be broadened so that surgery is not the only criteria for a change in legal sex

OII Australia’s response:

Sex affirmation treatment, while desired by transpeople, is resisted by intersex people. Sex affirmation treatment is the thing meted out to intersex infants to ensure they fit into the sex binary. We would have preferred that words indicating consent to the treatment were included in their recommendation. A significant difference between trans and intersex is the desire for surgery. Very few intersex desire any kind of genital or affirming surgery, but very many get it whether they want it or not.

Recommendation 3:

The evidentiary requirements for the legal recognition of sex should be relaxed by reducing the quantity of medical evidence required and making greater allowance for people to self-identify their sex.

OII Australia’s response:

Intersex people do not self-identify their sex in the way that trans people do. Intersex is primarily about the body, not identity – we have inescapable differences of sex anatomy. This recommendation reduces sex to identity politics.

Recommendation 4:

The special needs of children and young people who wish to amend their documents and records should be considered.

OII Australia’s response:

The special needs of children are only addressed in so far as a trans child might want to amend their documents. The special needs of children with intersex differences are not addressed and their need for free prior and informed consent is completely unaddressed. This recommendation could have easily gone much further and could have included intersex kids.

Currently trans children must have the approval of the Family Court of Australia before they can embark on what may be irreversible and life changing medical procedures. This accords with the Supreme Court’s findings in Re: Marion. Intersex children are subjected to medical procedures defined as “therapeutic” for “psychosocial” rationales that are about us fitting in to the society and family around us. Indeed, a 2009 paper by the AHRC permits surgery to give infants’ genitals the appearance of a specific sex. Such surgeries are opposed by every intersex-led organisation campaigning on intersex issues everywhere in the world.

These surgeries just as life-changing and irreversible without any reference to anybody outside of parents and doctors. OII Australia has long called for intersex children to be afforded the same access to an independent umpire as trans children when surgery is being considered. Our policy is that no medical interventions that are not life preserving should be entertained without the person’s prior and informed consent.

Recommendation 5:

A person over the age of 18 years should be able to choose to have an unspecified sex noted on documents and records.

OII Australia’s response:

We agree with recommendation 5 in its entirety, and we believe that this should not be limited to trans or intersex people.

Recommendation 6:

Information on the process and criteria for the legal recognition of sex should be easily accessible and user-friendly.

OII Australia’s response:

We agree that information should be readily accessible. The caveat is this, that intersex do not seek to have their cardinal documents changed after going through some kind of standards of care, medical intervention or psychiatric diagnosis. Intersex people are perfectly adequate people as they are born. The notion that if we reject our birth assignment then we necessarily have some kind of mental disorder as well as an intersex one is repugnant to OII Australia. Intersex is natural physical differences of sex. We seek to have the right to have cardinal documents changed to reflect our lived gender role on the basis of a mistaken assignment at the time of birth. The production of proof of intersex should be the only requirement for that change. We already enjoy that right in three Australian states.

Recommendation 7:

Documents of identity and processes required for the legal recognition of sex should not reveal personal information about a person’s past identity in relation to sex.

OII Australia’s response:

OII Australia holds that revealing our being intersex to third parties is essentially revealing private medical information given that intersex is only currently discoverable by medical means. Revealing personal medical information without permission is illegal in Australia. Any change of name or apparent change of sex in cardinal documents should always remain completely private and should not be released to anyone save for the most serious of matters and then with absolute confidentiality and tightly limited access.

Recommendation 8:

Laws and processes for the legal recognition of sex should use empowering terminology.

OII Australia’s response:

Intersex people would appreciate empowering terminology being used when we are referred to. We reject terms such as “condition,” “disorder” or any other pathologizing terminology. We also reject terminology that reconstructs intersex as either an identity, a gender and especially a “gender identity.” Intersex people have just as diverse a range of gender identities as non-intersex people.

Recommendation 9:

Where possible, sex or gender should be removed from government forms and documents.

OII Australia’s response:

OII Australia supports this recommendation as being helpful to all Australians and not only trans or intersex people.

Recommendation 10:

The federal government should consider the development of national guidelines concerning the collection of sex and gender information from individuals.

OII Australia’s response:

This recommendation could easily have included collecting data on intersex numbers. A significant issue for intersex is the lack of data on our numbers and a breakdown into the different ways we are intersex. Likewise the call for further data should include long-term follow-up on medical procedures. Where trans people have several significant documents that validate the surgical interventions they agree to, intersex people have none on the surgical and other medical intervention we are forced to endure.

Recommendation 11:

The federal government should take a leadership role in ensuring that there is a nationally consistent approach to the legal recognition of sex in accordance with the recommendations of this paper, by either

  • working cooperatively with state and territory governments through the Council of Australian Governments (COAG) process to amend their respective legislation and policies in line with the recommendations in this paper, particularly in relation to birth certificates, or
  • establishing a national board with responsibility for receiving and determining applications for official recognition of a change in sex, based on the recommendations in this paper (see section 11.2), as well as securing agreement from states and territories to recognise certificates of recognition issued by such a board.

OII Australia’s response:

  • We agree with the first part of this recommendation only in so far as all registries adopt a policy of changing cardinal documents for intersex people on the basis of mistaken assignment at the time of birth and that the production of proof of intersex is all that is necessary to achieve that. This is already possible in NSW and Victoria.
  • We reject this second part of the recommendation completely. Where such recognition boards have been set up, such as in Western Australia and the United Kingdom, they have disadvantaged intersex people. These boards all require a person to live in a gender role for a specified period of time, to adopt one or the other of the binary genders and to live in that gender for life. They also require the applicant to submit themselves to pathologizing protocols that require intersex to be eliminated as an underlying reason for the request to change documents. In WA (and also in the UK) we have had intersex people rejected by these boards on the basis of their being intersex. We need fewer gatekeepers and not more of them.

Recommendation 12:

The federal government should consider establishing a national office to advise and assist the public and federal government in relation to changing legal recognition of sex, as an alternative or precursor to the national board put forward in Recommendation 11.

OII Australia’s response:

Identity issues are not the key challenges facing intersex people in Australia. Non-consensual surgical interventions and discrimination are our key challenges – and we would welcome legal recognition of the importance of these issues.

OII Australia would rather have funding directed to intersex organisations (OII Australia and AISSGA both operate on volunteer resources). We would also welcome support for a national LGBTIQ office that acts as an ministerial advisory group. We envision that body as being able to disseminate educational material on LGBTIQ issues and lives and especially advise government on LGBTIQ policy through widespread consultation with the community and community organizations. Right now policy in regard to us is inconsistent across legislatures. It should not be the precursor to the Recognition Board. It should be the peak government body on LGBTIQ.


The Sex Files report was not developed in consultation with the intersex community or community organisations. It simply doesn’t reflect our issues and concerns. In some areas, proposals do not just miss the mark, they also offer potential to make life more difficult for us.

We call for consultation with intersex groups, and stronger collaboration to make sure that advances for one group do not inadvertently affect another.

More information


Hannah (dave)

Good information and great ideas. Has anyone in the USA OII been working with you on developing a clearing house on these issues? Or are focusing on laws within your country?

Hannah (Dave)


Thank you for the compliments. There are plans to revamp the OII global website to link to and consolidate content and news from OII affiliates worldwide. It is a big job demanding resources that are in short supply.

In the meantime we do our best to note here the intersex news and issues we come across but we know that what is published in English is a mere fraction of what is going on for intersex around the world.

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