We welcome new federal guidelines on sex and gender recognition

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Important note: this paper should not be regarded as a guide to our current policy on identification documents and data collection. Our approaches have been informed by a 2013 Senate inquiry into involuntary or coerced sterilisation, by community-building and evidence-building, and are defined (as of March 2017) in the Darlington Statement. For information on data collection, see our page on forms and surveys.

Important update on language in these guidelines, 2015

OII Australia, together with the National LGBTI Health Alliance, A Gender Agenda, Transformative and Transgender Victoria, recently made a joint submission to the federal Attorney General’s Department proposing to change the definition of “X” in federal guidelines to mean “non-binary”. More information: Joint submission on recognition of non-binary gender in federal sex/gender guidelines.

On the new guidelines

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In 2003, the first Australian passport with an ‘X’ sex marker was issued to Alex MacFarlane, on the basis that Alex’s birth certificate, issued by the State of Victoria, showed no sex marker. Access was limited to people in the same circumstance, and only Victoria issues such certificates to intersex adults on request.

In 2011, the Australian government greatly improved access to ‘X’ passports. This enabled any intersex citizen, and any person with a non-binary identity, to obtain an X passport.

Now the government is rolling out the same standards across federal institutions, in the “Australian Government Guidelines on the Recognition of Sex and Gender”.

We warmly welcome the publication and implementation of these guidelines, and also the consultation process that has led to publication. Such wide consultation is necessary to prevent adverse consequences for any of the communities affected by the guidelines.

The impact of the guidelines is broad, and every aspect of the commonwealth government is affected. The agreement of these guidelines across government departments and agencies, along with evidence of strong input from affected communities, is a very significant achievement. The Attorney General’s Department must be commended for it.

Data collection only when necessary

The guidelines restrict the collection of data on sex and gender to occasions when there is a demonstrable need. We regard this as a very positive development.

Recognition that intersex people have many different gender identities

They acknowledge that intersex is not a gender identity and that we may have any gender identity. The guidelines do not oblige intersex people to identify with a specific gender:

People who are intersex may identify their gender as male, female or X.

In full, the guidelines recognise that an intersex person might choose to identify as male, female, or unspecified or indeterminate.

State and territory legislation has often, erroneously in our view, referred to intersex as “intermediate sex”. We regard this as a somewhat euphemistic term. While “indeterminate sex or gender” has been retained in these guidelines, it has now been disassociated from intersex status. Intersex is innate; indeterminate sex is not necessarily so.

Recognition that intersex has a biological basis

The guidelines recognise the biological, innate nature of intersex:

An intersex person may have the biological attributes of both sexes or lack some of the biological attributes considered necessary to be defined as one or the other sex. Intersex is always congenital and can originate from genetic, chromosomal or hormonal variations. Environmental influences such as endocrine disruptors can also play a role in some intersex differences.

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They don’t affect assignments at birth, only self-assignment as an adult.

The guidelines do not single intersex people out as a separate group from birth; something that we would regard as experimental treatment on intersex infants.

We support these considerations.

Medical issues

We are glad that evidencing for the necessary documentation has opened up beyond the medical profession – we didn’t think this was likely. We are especially pleased that “the necessity of a medical service or associated benefit should be determined by the physical need, regardless of a person’s recorded sex and/or gender”. We hope and expect that this will have repercussions within Medicare and PBS.

Passports

We are very glad that the validity of binary M/F passports for people who otherwise prefer X is recognised. This was an issue we raised in our submission. In our consultation submission, we said:

There may be a conflict between a person’s identity living in Australia, and potentially adverse consequences that may arise from the disclosure of that identity while travelling internationally, whether for work or pleasure… concern about such issues limits their attractiveness to many intersex people… There is a strong case for the availability of passports with a binary (M/F) sex descriptor for people who otherwise are intersex or identify as indeterminate/unspecified.

Other implementation issues

We are similarly glad that “Departments and agencies should pay particular attention to the use of titles in forms and personal records”; this is something else that we raised.

Support by other Australian governments

We hope that other Australian governments will also implement these guidelines so that we can have consistent interactions with government departments and agencies, regardless of whether they are commonwealth, state or territory-based. The Attorney General’s Department notes that:

These Guidelines support the Australian Government’s introduction of legal protections against discrimination on the grounds of gender identity and intersex status in Commonwealth anti-discrimination law

Given the Sex Discrimination Amendment Bill’s lack of controversy in the House of Representatives, we hope that these guidelines will be supported by any incoming new government in September.

A caveat

Finally, identity issues always seem to generate significant interest, but they are not top of our list of priorities. The Senate is currently conducting an Inquiry into involuntary or coerced sterilisation. We know that very few non-intersex organisations have commented on the intersex aspects of the Inquiry, but we hope that as much interest will be shown in the outcomes of that Inquiry as there is in these guidelines.

A third sex?

We don’t think so – see Third Sex Redux for more information.

More information

Press

Gay News Network, 18 June 2013, New gender recognition guidelines released