First thoughts on the federal anti-discrimination proposals

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OII Australia was disappointed but not surprised that intersex was not specifically included in the recently released Anti-Discrimination Consolidation Bill.

From the exposure draft, page 15:

Section 6 of the proposed bill includes the following definition:
gender identity means:
(a) the identification, on a genuine basis, by a person of one sex as a member of the other sex (whether or not the person is recognised as such):
(i) by assuming characteristics of the other sex, whether by means of medical intervention, style of dressing or otherwise; or
(ii) by living, or seeking to live, as a member of the other sex; or

(b) the identification, on a genuine basis, by a person of indeterminate sex as a member of a particular sex (whether or not the person is recognised as such):
(i) by assuming characteristics of that sex, whether by means of medical intervention, style of dressing or otherwise; or
(ii) 
by living, or seeking to live, as a member of that sex.

From the Explanatory Notes:

85. Gender identity: gender identity is introduced in this Bill as a protected attribute at the Commonwealth level. Gender identity will cover people:
• born as one sex who identify as another sex, or
• born intersex who identify as either sex.

86. The introduction of gender identity as a protected attribute in this Bill matches the highest current standards in State and Territory anti-discrimination law and will be subject to exemptions in clauses 32 and 33 relating to religion.

87. This clause does not require recognition of, or provision of facilities for, people who do not identify as either sex. Protection against discrimination on the basis of gender identity implements recommendation 43 of the SDA report.

Summary of issues for intersex people

  1. Intersex is not a gender identity: it is a biological state, one that in many cases can be determined prenatally, via amniocentesis.
  2. Sex is customarily defined as being the two binary sexes, and this is supported by extensive case law.
  3. Current State legislation is not effective: The Anti-Discrimination Board of NSW has found that existing State legislation does not effectively protect intersex people. NSW and other State and Territory legislation has been clearly described as not including intersex by the President of NSW Anti-Discrimination Board. Intersex people have, on more than three occasions in the last three years, attempted to use the indeterminate provisions to bring a case. On all occasions our applications were rejected on the basis the issues were physical anatomical differences not gender identity.
  4. Authenticity: the words “on a genuine basis” should be omitted where they appear. People should be protected whether they are a member of a protected class, or whether they are perceived to be such. There should be no judgement on a person’s authenticity or genuineness. No other attribute is tested for “genuineness” in this way. Applying the concept of “authenticity” only to intersex would contravene the aims of anti-discrimination legislation.
  5. “Indeterminate” is euphemistic and misleading when applied to adults: most intersex people have received medical interventions in an attempt to assign a sex. Nevertheless, both courts of law and individuals have questioned or rejected such assignments.
  6. Excludes the most vulnerable: Explicitly excluding people who do not identify as either male or female fails to protect the human rights of many intersex or trans people, including those of us who are amongst the most easily identifiable, the most obviously different, and so the most vulnerable.
  7. Does not live up to the objective of including LGBTI people: Explicitly excluding some LGBTI people fails to achieve stated government objectives to protect LGBTI people.
  8. Including intersex explicitly as a separate protected category in Tasmanian anti-discrimination legislation, currently making its way through the state parliament has been uncontroversial and has bipartisan support. We see no reason why it would be contentious in federal legislation.
  9. The current standard in State and Territory law is expected to shift in the near future, with an intersex-inclusive Tasmanian Bill. This bill is likely to pass before the first reading of federal legislation.

Proposals for effective inclusion of intersex and gender variant people

  1. The definition of intersex in the Tasmanian 2012 Anti-Discrimination Bill should be inserted: The definition of intersex is independent of a definition of gender identity.
  2. Gender Identity should be defined and listed as a protected attribute separate to Intersex. Gender identity should protect all binary and non-binary gender identities, including culturally-specific genders, and not only those that are considered mainstream.
  3. “On a genuine basis” should be omitted. This criterion is not applied to other protected categories; selective application would constitute discrimination.

Action

The Senate is inviting written submissions on the draft legislation from interested individuals and organisations. The deadline for submissions is 21 December 2012.

More on the Senate inquiry

Background

The issues so far as we are able to understand were these. There was a view that intersex people 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. For this reason, the bill explicitly includes many of the most vulnerable intersex (and trans) people – those who don’t “genuinely” identify with one binary gender or another, and who are likely to have the most obvious visible differences.

Legislators are keen to make the bill as uncontroversial as is possible fearing it will not pass the lower house.

We agree with legislators that, in 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 person’s lived social footprint and their anatomical sex.

A third sex can only be created by Registries of Birth Deaths and Marriages 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 a person would need to be so consigned.

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.

UPDATE

Our submission has now been published. Click for more details.

More information