Submission on the NSW Anti-Discrimination Amendment (Private Educational Authorities) Bill

On 10 September, we made a brief submission on a proposed amendment to NSW anti-discrimination legislation to extend protections to children at private schools.

We support the amendment insofar as it goes, but note that it is a lost opportunity to authentically include intersex children in state anti-discrimination legislation for the first time. The bill would need to amend the attributes or grounds protected under the legislation if it were to do this.

The federal Sex Discrimination Act, as amended this year, remains the only anti-discrimination Act in Australia to adequately include intersex people. We regretfully note, too, that the NSW government opposed the inclusion of intersex in that Act.

Our submission follows.


Thank you for this email and letter.

In principle, OII Australia supports the ending of religious and private school exemptions from anti-discrimination law. However, we note that the NSW legislation does not cover intersex students (the I in LGBTI) at all, so a change to end exemptions will have no impact on intersex students in NSW.

The federal government recognised this gap, and filled it, in the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act earlier this year.

The explanatory memorandum for that Act says:

A separate ground of discrimination on the basis of intersex status is also introduced. People who are intersex may face many of the same issues that are sought to be addressed through the introduction of the ground of gender identity. However, including the separate ground of intersex status recognises that whether a person is intersex is a biological characteristic and not an identity.

That explanatory memorandum did not extend educational religious exemptions to intersex, remarking:

otherwise discriminatory conduct on the basis of sexual orientation and gender identity will not be prohibited for educational institutions established for religious purpose….

The Bill will not extend the exemption to cover the new ground of intersex status. During consultation, religious bodies raised doctrinal concerns about the grounds of sexual orientation and gender identity. However, no such concerns were raised in relation to ‘intersex status’. As a physical characteristic, intersex status is seen as conceptually different. No religious organisation identified how intersex status could cause injury to the religious susceptibilities of its adherents. Consequently, prohibiting discrimination on the basis of intersex status will not limit the right to freedom of thought, conscience and religion or belief.

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