Intersex Human Rights Australia

Dr Alice Dreger misapprehends much in the decision by the Australian government to allow people of unspecified sex the right to have X on their passport.

Intersex, sex and gender

Sex and gender are indeed conflated in this decision as they are in all of Australian legislation and much of British, European and American law. Our Sex Discrimination Act 1984 for example, when dealt with by the Australian Human Rights Commission (AHRC), which is the legal body responsible for overseeing its implementation, conflates sex and gender as do the recent findings by the High Court of Australia in the matter of AH and AB. That conflation is reinforced in second-reading speeches and various Interpretations Acts in Australian state and federal legislation.

The Shorter Oxford English Dictionary, preferred by our judiciary, still regards the separation of sex and sex roles into biology and sociology – that is, sex and gender – as a feminist euphemism.

Intersex living in the grey zone

Given that, we suppose we will have to live with a less-than-absolutely-clear dividing line between one’s anatomical parts and one’s sex role, and we certainly reject the notion that one’s sex anatomy in no way informs our sense of of our own sex role or our sexual orientation.

We are whole human beings and the subtle interaction between anatomy, sex role and sexual orientation is not understood by science. The popular press, on which this writer – Dr Dreger – seems to have relied on at least partially to form her views, makes no distinction between sex and gender and uses gender as a less offensive word than sex in much the same way that it prefers bathroom to toilet.

The current common use of gender as a way of describing sex at least gives the latitude for an individual to have atypical sex parts and to live as a man or a woman. Strict insistence on anatomical sex conformity to qualify for the gender role of man or woman has resulted in a good deal of infant genital “corrections” aka intersex genital mutilation (IGM). The use, in this instance, of a strict dividing line between sex and gender reinforces the notion that it is our sex that is at fault and not society’s view of our differences.

In the DFAT policy, where sex and gender are also conflated, the need to separate out our body parts for appropriateness disappears and our lived experience takes precedence. It is no more a pretence that intersex is a natural category than it is a pretence that male or female are natural categories. All such categories are constructs of the human imagination and differences have been categorized in a variety of ways throughout history.

The narrow anatomical view this author takes represents a certain, but not the only, perspective on what exactly differentiates human beings into sex classes. That position rests on the idea that intersex differences are somehow not natural and are in fact “conditions” or “disorders”, and continues to suggest normalization of our differences using surgery and medication and diagnosing us as mentally ill if we decide the assignments we have been given are wrong.

Recipients of X – trans and intersex people

The DFAT policy in no way suggests that transgender people have only one of two possible genders. The first recipient of an X passport under the new policy is trans and not intersex (this person is not the first recipient of an X passport, that was Alex MacFarlane, reported in 2003). The policy is specifically trans-inclusive and in the main addresses some persistent problem experienced by trans individuals contemplating overseas travel.

Those provisions are quite clearly put on the Department of Foreign Affairs & Trade (DFAT) website. The author, however, focuses on the provision of an X rather than the other remedies made available to trans people. The X is indeed available to trans individuals and the first recent passport with that designator under the new access policy was given to a trans person, Norrie May Welby. The second was given to an intersex person who is an OII Australia Board member. There is an expectation, based on previous inquiries to the Department that up to two hundred applications by intersex individuals will be made in the early stages of policy implementation.

The author, in seeking to research her article from popular media sources, has produced an article that is both unhelpful and muddled. Intersex Australians have had access to X designators on their passports since 2003 when Alexan MacFarlane challenged the then Department of Foreign Affairs through the Administrative Appeals Tribunal (AAT) for the right to an X designator.

For those early applicants it was necessary to have a birth certificate that indicated the person was of “sex not specified” to qualify for an X designator. The state of Victoria was the only state to allow this and then only when the original births notification documentation indicated uncertainty about the sex of the child. Given sex ambiguity is rarely acknowledged by medical practitioners and assignments are made quickly irrespective of intersex, few could pass this hurdle and qualify. Consequently there were few individuals with X as a sex designator. This policy seeks to simplify the process of applying for X as “sex not specified” by only requiring a letter from a medical practitioner confirming the person in question lives as a person of unspecified “gender” meaning, to DFAT, “sex”.

Global passport agreements permit M, F and X

The only sex designator allowed on passports under International Civil Aviation Organisation (ICAO) rules are M, F or X.

Following the Second World War, the ICAO was delegated, by the United Nations, the responsibility for overseeing passports. That organization then had to consider how they would manage passports during the huge migration of returning displaced persons, slave labourers and concentration camp inmates. Many organizations had the responsibility for issuing emergency passports and identity documents where individuals had lost theirs during the course of the war or those documents had been destroyed in the course of that conflict. It was not always possible to issue passports in those circumstances on a face-to-face basis so documents were often drawn up in the absence of the applicant. Because of difficulties with languages, information supplied did not always make it clear if the applicant was male or female and names could not be relied on to clarify the situation.

To remedy this, ICAO allowed a designator – X – when sex was “unknown”. Other possible designators such as I for intersex or O for other and so on are not allowed under international law.

Although it might be thought that the regulators at the time might have expected the X designator to be resolved into M or F, that was not written into the regulations and nor is there any evidence that they in fact expected that as an outcome.

Yes they had to pick X, Dr Dreger. There is no other legal option.

An untested assertion about intersex

Now for this sentence from Dr Dreger’s article in Bioethics Forum…

The vast majority of people born with atypical sex types, or intersex conditions, see themselves as men or women, and the vast majority are not transgender.

This is a completely untested statement and not supported by the literature. Given the vast majority of intersex and especially adult intersex are unknown to both medicine and research it is impossible to tell. That there is scant, nearly nonexistent literature and research into how intersex fare as adults and into old age it is saying too much. To assume intersex in the main see ourselves as men and women, and even when we do supposes that we mean and imagine the same thing that a non-intersex person means when they use the words men and women is simply a bridge too far.

Intersex people, in western cultures, live in circumstances where their differences are seen as objectionable and where society takes every opportunity to erase them and remind us we are better off for that erasure. To frame the question “would you prefer to be seen as a normal man or woman in light of your physical differences” in a society that has made it clear that the answer “no” is unacceptable, is to ask individuals who have already endured years of the torment of normalization to cast themselves even further into the realms of disorder and abomination.

It will be some time before intersex people enjoy circumstances where our choices are prior, free and fully informed. Certainly we are not free to say that we don’t see ourselves as male or female unless we are prepared to accept the kind of opprobrium this author’s article pushes.

Another untested assumption, about intersex and trans

That the vast majority of transgender people are not intersex is likewise untested. The literature simply does not support this contention. It might be tempting to suppose a majority might not be so, however there is at least some evidence that many individuals who see themselves as trans also have intersex differences.

In many countries, and especially the United States, intersex people who reject their birth assignment have their problems compounded by the requirement that, to have their cardinal documents changed, they must submit to the World Professional Association for Transgender Health (WPATH) Standards of Care. Those standards up until version 7 called for intersex to be eliminated as a possible underlying diagnosis. Where intersex was revealed during the course of the WPATH work-up then individuals were generally counselled to accept their birth sex assignment and to see their unhappiness with that assignment as a part of their “disorder”.

Clearly for someone determined to reject their assignment it is preferable to keep their intersex to themselves if at all possible and present themselves as trans. For intersex this is a simple task given that we already, in general, live with our differences as a deep and shameful secret. The founder of the Intersex Society of North America (ISNA) had precisely this experience.

Dreger’s medical pathologization of intersex

As to Dr Dreger’s final point in respect of doctors certifying for the X designator…

Well, Dr Dreger, you had a hand in this. In pathologizing intersex as a disorder and in taking credit for the invention of Disorders of Sex Development (DSD) as a term to replace intersex, and seeing our differences as a “condition” and as not a part of the natural order, it follows logically that only a medical person would be qualified to comment on our sex.

In othering us through the lens of medicine and pathological differences we have to resist, at every turn, the need to qualify our lives as legitimate by referring to doctors. This is simply another example of that.

The intersex individuals who worked with the Foreign Minister’s office to bring about this change argued for our differences to be certified by any of the qualified people who certify all other aspects of passports applications. They include officers of the courts, some public servants, police, and justices of the peace and so on. We explicitly asked that a medical practitioner not be the only possible certifier because we absolutly hold that intersex is not a medical condition.

The argument about underlying causes that lead to intersex differences sometimes causing illness is for another place. Briefly, my Congenital Adrenal Hyperplasia (CAH) caused my intersex differences but it is not those differences that cause me illness, it is a comorbidity.

Our position on the availability of X for all

The position we put to the Minister is that X should be generally available to all applicants as a matter of choice in the same way as Mr, Ms, Miss and so on are.

It is our view that there is no need for sex designators on most documents and passports are no exception. The terrorist crime argument usually used against this position is a red herring. Any criminal or terrorist wishing to pass themselves off as a different sex or as no sex would have the nouse [an old Australian colloquialism meaning intelligence or cunning, a variant of nous… Ed.] and resources to organize documentation and disguise to suit their purpose and if they did not they would be easily found out. We, as a matter of our organization’s policy, resist the creation of third sex categories as further marginalizing already-marginalized people.

This policy in no way does that. Not specifying a sex is just that. To create a third sex one would have to specify what that sex was. The X designator simply indicates that the holder of the passport is of “sex unknown”.

Dreger and her insults

Finally Dr Dreger is quite insulting to both our Minister for Foreign Affairs, the Honorable Kevin Rudd, and to the good folk down at DFAT.

The Minister personally requested his staff to investigate and consult on this change. Intersex and trans organizations and individual intersex and trans people were involved over a period of more than two years in canvassing and consulting on this policy change. The policy is drafted for those who want it. Intersex people are under no compulsion to declare their intersex or to opt for X as a sex designator. It is a matter of free choice, for us, something we are rarely allowed when it comes to our sex, gender or our body parts.

The Minister for Foreign Affairs has been kind, engaged, sympathetic and active in allowing intersex voices to be heard on this. The policy people in his office and those with DFAT have been tremendously warm and sympathetic to our needs in ways we rarely experience.