Allies at the Senate Inquiry on the Human Rights and Anti-Discrimination Bill

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We’d like to publicly thank all of the allies and other organisations who supported our assertions that intersex needs to be a specific attribute in the Human Rights and Anti-Discrimination Bill, including the numerous organisations and individuals who made written submissions, and the people who mentioned intersex during the Senate Inquiry hearings.

What the discussions at the hearings highlight is an increasing familiarity with intersex, and an acknowledgement by very many parties that intersex is not a gender identity or sexual orientation but a biological characteristic.

The discussions also make it clear that inclusion of intersex is not a particularly contentious issue. For example, Professor Triggs, President of the Australian Human Rights Commisssion stated on explicit intersex inclusion:

We feel quite confident in saying that we have had a lot of support from the groups that we consult with. I do not think it is going to be controversial, and it will be a wonderful opportunity to include explicit recognition of that category within the legislation.

The proceedings are on the public record, and are available on the Senate Committee web page.

During the hearings on Wednesday 23 January in Melbourne, the following mentions appear in the uncorrected Hansard proof:

Sally Goldner, for Victorian Gay and Lesbian Rights Lobby:

By respecting the government’s aim to include intersex Australians, we note that discrimination faced by intersex people is on the basis of physical differences and not on the basis of their identity. Accordingly, again, we support the Tasmanian definition and propose that the government introduce intersex as a unique protected attribute. This would not increase regulatory impact as it is already intended to be covered by the draft bill, and the explicit and easy-to-understand definition from the Tasmanian bill would reduce that regulatory burden. We note that the committee will be hearing from Organisation Intersex International Australia tomorrow in Sydney and broadly support their submission as one of the leading intersex organisations in Australia… Intersex is more an issue of differentiation in bodily sex as distinct from the issue of identity, which is perhaps a little more intangible. They are separate issues. It is why, for example, the organisation Transgender Victoria, with which I am also involved, does not represent intersex. We cannot claim to have that specialised area of expertise.

Robin Banks, Anti-Discrimination Commissioner, Office of the Anti-Discrimination Commissioner, Tasmania:

Finally—and I suspect this is not a highly contentious issue—the question of gender and intersex identity is being redefined in Tasmanian law to make it clearer and to ensure that the full spectrum of gender and gender identity is fully protected. My concern with the federal bill is that it takes a binary approach to gender: it suggests that you are either male or female, and that your identity is either male or female. I think that contemporary thinking suggests—and I think more than suggests but indicates—that that is an incorrect analysis of the human experience and that there are in fact people across a spectrum of gender and gender identity. I urge the committee to recommend to the government that the definition in the bill be amended to reflect the new Tasmanian provisions and to separate out intersex, because intersex is not an identity issue; it is actually a sex characteristics issue, and it is important to give that protection.

Karen Toohey, Acting Commissioner, Victorian Equal Opportunity and Human Rights Commission, and speaking for the Australian Council of Human Rights Agencies:

…the ACHRA submissions support the specific inclusion of protection on the grounds of intersex. A number of states already include that in a number of definitions, and certainly each of the state commissions represented with the ACHRA submission was very clear that it is very important that that be included as a separate ground, not within gender identity but sitting within a specific definition within the legislation.

Senator PRATT: Ms Banks, on the significance of splitting gender identity and intersex, I think you said that it relates to intersex status being a sex characteristic and a biological characteristic as opposed to gender identity, which is an identity issue. What problems are caused in the current way the draft is written in conflating the two?

Ms Banks: The key problem is that the current draft still requires a person to identify as one or other, so a person who is intersex who does not identify as male or female would not have protection under the act on that basis, which is problematic for a very significant and growing population of people who are intersex.

Senator PRATT: They may not identify as one or the other because essentially they have the biological characteristics of both. It would be like asking me to be a man or—

Ms Banks: I do not think I can answer that very well. Somebody who is intersex would be better at answering what it would feel like to have to identify one way or the other. Part of the issue is that it still requires an election, almost, of identity. But, secondly, they are different things. Gender identity—the gender a person feels they are—is quite different conceptually from what their the sex characteristics are; and to conflate them does serve to confuse. I think also one of the important benefits of naming attributes and doing it well—I noted Senator Brandis’ earlier comment about some of the definitions; some of the concepts are not particularly well defined—

Senator BRANDIS: Or defined at all.

Ms Banks: or defined at all, yes. There is a public benefit in actually naming intersex as a protected attribute because it increases community understanding that people exist in our community who are intersex—quite a significant number of people. Subsuming it within gender identity loses that educative benefit and I think that is a very significant part of what we are seeking to achieve—awareness in the community that this is a reality for many people and they do experience discrimination because of it…

enator BRANDIS: You are the one who introduced the term ‘gender identities’ into the discussion or perhaps Senator Pratt did. This issue arose in your discussion with Senator Pratt. I just want to make sure that we understand what we are talking about so that male, female, intersex or whatever else there might be—

Ms Banks: Transgender, transsexual spectrum—

Senator BRANDIS: Transsexual—all of those gender identities should be—

Ms Banks: Except that intersex is not a gender identity. I guess that was the opening point.

On Thursday 24 January 2013, in Sydney:

Dr Justin Koonan for the NSW Gay and Lesbian Rights Lobby:

It is clear that intersex people are not adequately protected under the draft bill or under existing state or territory legislation. We strongly support the claims made by OII Australia and others for explicit protection along the lines of the Tasmanian Anti-Discrimination Bill 2012, which has passed the lower house in that state. Intersex people are some of the most marginalised in our community, and a bill that fails to protect them is clearly deficient.

Frieda Lee, Project and Policy Officer of the National Association of Community Legal Centres:

We strongly support the inclusion of sexual orientation and gender identity as protected attributes and also welcomed the intention of the bill to protect intersex people. To achieve this goal intersex people should be defined and listed separately from gender identity. We recommend drawing on the definitions in Tasmania’s Anti- Discrimination Amendment Bill 2012. We support the position of the organisation Intersex International that intersex be included as a separate protective attribute in the bill to ensure that people in Australia with physical, hormonal or genetic differences do not suffer stigmatisation and discrimination because of the way they are born.

Associate Professor Mark Hughes, Southern Cross University, and associate professor in social work and social welfare:

…I also support the definitions of relationships status and sexual orientation in the draft bill and request that the committee consider including intersex as a separate protected attribute and defining gender identity in line with the Tasmanian legislation.

Professor Simon Rice, OAM, Chair of Law Reform and Social Justice, Australian National University, Discrimination Law Experts Group:

Senator PRATT: To kick off, I wanted to clarify something in the Discrimination Law Experts Group submission relating to preferred definitions of sexual orientation and gender identity, noting that some new definitions have emerged. I am keen to hear your position.

Prof. Rice: We came prepared to tell the senators our position on that. First of all, the submission we made was made in a context where we understood from the government that it had announced that it would introduce a new ground—sexual orientation—but no other new grounds. Accepting that, we did not then promote intersex as a separate ground. Our view is that intersex could and should be a ground on its own, and the position we took there, just so you understand, was in the context of what we thought the policy framework was.

Senator PRATT: So the Tasmanian definition would be okay?

Prof. Rice: We are fine with it.

Professor Gillian Triggs, President of the Australian Human Rights Commission:

Senator WRIGHT: …You indicate that you recommend that the status of intersex attributes is clearly articulated in the draft act, either by virtue of using the definition in the Tasmanian bill, for instance, or having it as a specific protected attribute.

Prof. Triggs: We would very much like to see that. I have been very pleased that, although this has been a very vibrant public debate, the debate has not centred on that kind of issue.

Senator WRIGHT: No. It does not seem to have.

Prof. Triggs: We feel quite confident in saying that we have had a lot of support from the groups that we consult with. I do not think it is going to be controversial, and it will be a wonderful opportunity to include explicit recognition of that category within the legislation.

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