The House of Representations passes an inclusive Sex Discrimination Amendment

The House of Representatives today passed the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013. The Bill remains the subject of a Senate Inquiry, which will report on 17 June 2013.

The Bill adds the following attributes to protection measures in the Sex Discrimination Act:

7 Subsection 4 (1) Insert:

intersex status means the status of having physical, hormonal or genetic features that are:
(a) neither wholly female nor wholly male; or
(b) a combination of female and male; or
(c) neither female nor male.

6 Subsection 4(1) Insert:

gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.

12 Subsection 4(1) Insert:

sexual orientation means a person’s sexual orientation towards:
(a) persons of the same sex; or
(b) persons of a different sex; or
(c) persons of the same sex and persons of a different sex.

This is a huge advance for intersex people in Australia, and it will also have a global impact. This is the first time that intersex status has been added to an anti-discrimination bill in such a comprehensive way.

Publication of the Human Rights and Anti-Discrimination Bill

The Human Rights and Anti-Discrimination Bill Exposure Draft, published late in 2012, was initially a matter of concern, positioning intersex as a form of gender identity, and only protecting intersex people (of “indeterminate sex”) who genuinely identified as male or female. From the 2012 exposure draft:

gender identity means:
… (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.

Previous state and territory legislation has been similar: highly contingent and completely ineffective, as the nature of intersex has been misconstrued, and many of us have been explicitly excluded from protection.

Frank hearings took place in January this year, and OII Australia participated after making a detailed written submission. We benefitted from the introduction of better worded attributes in a Tasmanian anti discrimination bill, currently still before that state parliament.

The Senate Report on the Human Rights and Anti-Discrimination Bill

The Senate’s Legal and Constitution Affairs Committee published a report on the Human Rights and Anti-Discrimination Bill that achieved what we sought. It read:

Intersex status
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. The committee notes comprehensive evidence from witnesses that the definition of ‘intersex’ found in the Tasmanian Anti-Discrimination Amendment Bill 2012 most accurately provides coverage for intersex individuals. The committee supports this definition as the preferred option for inclusion in the final form of the Commonwealth legislation.

7.19 As a concluding point, the committee is of the view that since intersex status is a condition related to the innate biological characteristics of an individual, it should not be an attribute to which any religious exceptions apply.
…
Recommendation 2
7.21 The committee recommends that subclause 17(1) of the Draft Bill be amended to include ‘intersex status’ as a protected attribute. ‘Intersex’ should be defined in clause 6 of the Draft Bill as follows:
intersex means the status of having physical, hormonal or genetic features that are:
(a) neither wholly female nor wholly male; or
(b) a combination of female and male; or
(c) neither female nor male.

The Human Rights and Anti-Discrimination Bill failed to receive full support from the opposition, so the minority Labor government chose to introduce a Sex Discrimination Amendment, and achieve a more limited set of objectives – but crucial ones for us.

The Sex Discrimination Amendment Bill

The Sex Discrimination Amendment was tabled on 21 March 2013. It even includes intersex in the full title.

The House of Representatives conducted its own brief report on the Sex Discrimination Amendment, and recommended passing the Bill – which it did later this same week.

We have come such a very long way, and this has involved a huge amount of work in partnership with some exceptional allies – both individuals and organisations.

It’s useful to restate what the Bill includes:

New attributes protecting people on grounds of intersex status and gender identity that are of immediate relevance to intersex people, as well as the ground of sexual orientation.
Protection for all intersex people, regardless of our gender identities.
Recognition that intersex has a biological basis.
The intention of no substantive religious exemptions applicable to intersex.
The intention that sport exemptions will be managed on a case by case basis, according to the Attorney General’s Department (PDF).
A late amendment, expected to be introduced in the Senate, that removes religious exemptions on gender identity and sexual orientation grounds from aged care – something of great value to intersex people who identify as LGBT or queer.

Two days ago, the House of Representatives published a report proposing that the bill be passed. The report is brief, and the Committee did not seek submissions, but it reviews submissions on the Senate Inquiry on the Exposure Draft Human Rights and Anti-Discrimination Bill, and the report mentions both OII Australia, and the Senate’s recommendation to include “intersex status” in anti-discrimination legislation.

1.16 In addition to receiving over 3 000 written submissions from a range of stakeholders, the Senate Committee took significant evidence from a wide range of groups with views relevant to this issue including:

Liberty Victoria

Victorian Gay and Lesbian Rights Lobby

Human Rights Council of Australia

Office of the Anti-Discrimination Commissioner (Tasmania)

Australian Council of Human Rights Agencies

Organisation Intersex International Australia

NSW Gay and Lesbian Rights Lobby

Australian Human Rights Commission, and

Commonwealth Attorney General’s Department.

The Bill is hugely important and we welcome it wholeheartedly. We thank the government for putting the Bill forward, and we thank other parliamentarians for supporting it. We thank all our friends and allies.

Intersex Human Rights Australia