Intersex people and the NSW government

We’re deeply disappointed in the NSW Government’s late submission on the federal Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) [SDA] Bill. The state says there hasn’t been enough debate to add “intersex status”:

In particular, insufficient time has been provided to assess the regulatory implications of the introduction of ‘intersex status’ as a protected attribute. It was not included as a protected attribute in the Human Rights and Anti-Discrimination Bill 2012. This aspect of the Bill has therefore not been subject to the same level of consultation as has occurred in relation to the other protected attributes proposed.

Firstly, the state government is incorrect to say that intersex was not consulted upon until the SDA inquiry, even though it was not a separate attribute. Intersex was previously poorly included as a gender identity in the Exposure Draft of the Human Rights and Anti Discrimination Bill, much like how intersex appears as “indeterminate sex” in transgender provisions in NSW state anti-discrimination legislation.

The proposed legislation at that time, like the law in NSW, lacks utility because it misconstrues intersex as a gender identity. Intersex people have as diverse a range of gender identities as everyone else.

We lobbied on the basis that intersex is a matter of the body, not identity, and the Senate Inquiry on the Human Rights and Anti Discrimination Bill agreed. The Senate Inquiry report said:

7.16 The committee received considerable evidence regarding the coverage of intersex status in the Draft Bill. The committee recognises that intersex individuals are often the subject of discrimination in public life, and that as such there is a need for protection on the basis of intersex status in Commonwealth anti-discrimination law.

7.17 The committee agrees with the evidence presented by Organisation Intersex International Australia, and other submitters, that intersex status is a matter of biology rather than gender identity, and as such should not be covered within the definition of gender identity in the Draft Bill. Further, the committee considers that the current requirement in the Draft Bill that intersex individuals identify as either male or female is misguided, and is unhelpful for intersex individuals whose biological characteristics do not necessarily accord with a male or female identification.

7.18 The committee considers, therefore, that intersex status should be listed as a separate protected attribute under the Draft Bill.

So what happened was that the form of our inclusion has changed – from an inappropriate, unworkable model to one that is based on the reality of our circumstances.

Secondly, the proposal has been markedly uncontroversial. Only one or two fringe Christian groups have objected, and there’s no scriptural basis for their position. They effectively threw any argument they could think of at us. Most Christian groups recognise the nature of intersex and haven’t objected. So the state government is keeping strange bedfellows.

The state government’s position is hugely disappointing as well as inaccurate – but in a real sense it’s no surprise: the state government has done nothing to support intersex people. The Victorian government published healthcare decision-making guidelines on intersex infants and kids in February but there’s no sign of NSW doing anything like it. The Victorian and ACT governments consult the broader LGBTI communities through Ministerial Advisory Groups – but not NSW. The Marriage Equality Bill was full of holes, not recognising that some of us don’t have a binary sex on our birth certificates. No intersex organisations get any NSW state funding. So it’s part of a pattern; it seems there’s just lip service to genuine LGBTI support.

We’d like that to change, and we’d love to talk with the state government about our issues. We live in hope – but the federal government are the ones who have listened to our voices on human rights and healthcare issues. One other Liberal state does better, too. And we’re deeply grateful for all that.

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