Intersex Human Rights Australia

Witnessed by members and representatives of the South Australian LGBTI communities, on 1 December, the Hon. J Weatherill, Premier of South Australia put the following motion to the House of Assembly:

1. That this house recognises that many lesbian, gay, bisexual, transgender, intersex and queer community members have been discriminated against by South Australia’s legislation.
2. We accept that while South Australia has long been a leader in LGBTIQ reform, more must be done.
3. To LGBTIQ community members discriminated against in legislation, we offer you our unreserved and sincere regret and are sorry for those injustices.

The Premier then spoke of the sad and sorry history of the laws and legislation which enshrined discrimination and criminalisation of members of the LGBTIQ communities throughout the twentieth century and many remain active to the present day:

When our laws discriminate against a particular group of people, it sends a message that this prejudice written into law justifies treating people differently in our day-to-day lives. Such laws do not affect only the LGBTIQ community, they diminish our society as a whole. They diminish us by saying effectively that there are certain people who deserve to be treated differently, whose relationships are worth less, whose families should not exist, who are not entitled to the same fundamental rights as their neighbour.

The Premier explained that in 2015, ‘the South Australian Law Reform Institute was invited to review legislative or regulatory discrimination against individuals and families on the grounds of sexual orientation, gender, gender identity or intersex status.’

During their review, more than 140 pieces of legislation were identified that, to various degrees, discriminated against members of LGBTIQ communities. In response, the Government introduced a series of Bills that were designed to address discrimination and several of those Bills had, to date, been passed by the House.

These Bills included:

• The Births, Deaths and Marriages Registration (Gender Identity) Amendment Bill. This Bill makes it easier for South Australians to change the gender they are registered as on their birth certificate.
• The Relationships Register Bill 2016 allows unmarried heterosexual couples, same-sex couples who are unmarried and same-sex couples who are married overseas to have their relationships legally recognised in South Australia. It also included some protection from discrimination for intersex people, on grounds of intersex status.
• The Statutes Amendment (Surrogacy Eligibility) Bill ensures people can access reproductive treatment if they are unlikely to become pregnant other than through the use of assisted reproductive technology. The bill also amends the Family Relationships Act 1975 to extend access to lawful surrogacy agreements to non-heterosexual couples. It does not tackle the use of IVF to eliminate the potential of intersex lives.
• The Statutes Amendment (Gender Identity and Equity) Bill changes the language used in South Australian law to remove gender bias and ensure that gender identities are captured in state legislation.
• Same-sex couples will now be given the right to adopt a child in South Australia under changes to the Adoption Act, which replaces the definition of ‘marriage relationship’ with ‘qualifying relationship’. This means couples in a marriage-like relationship, irrespective of sex and gender identity, can adopt.

While these Bills primarily address the needs of members of the LGBTIQ communities, they are also relevant to the needs of some intersex people.

OII Australia also participated in work with the South Australian Law Reform Institute, prior to the drafting of the current bills, those bills make fallacious assumptions, including the belief that someone’s genetic inheritance can become a “past intersex status”.

OII Australia and AISSGA worked to improve comprehension of intersex issues by parliamentarians, including through a closed parliamentary briefing on 16 November, kindly organised by the office of Katrine Hildyard MP. At that briefing, five intersex people (4 of them local to South Australia) presented personal stories, as well as data from recent independent Australian survey of 272 people born with atypical sex characteristics.

It was clear from the Premier’s speech that few people in Parliament, the Gallery and beyond would understand the term ‘intersex status’. The only substantive mention of intersex concerns was this:

“Intersex people have suffered from feelings of exclusion from society because in part their status is not properly recognised on documents and ID cards. One person wrote to me saying, ‘Every time I have to show my ID at a pub or a university, I feel deeply humiliated.'”

This perspective, likely based on a misunderstanding, is undermined by the reality of our gender identities and assigned sexes; those assignments and identities are typically already recognised. Even more crucially, continuing issues of medicalisation, and protection of the bodily autonomy of intersex people, have not been adequately addressed by the tabled legislation.

While the apology was well received by the members of the LGBT communities, and rightly so because this new legislation has significantly addressed the long-standing discrimination towards them, unfortunately the specific needs and concerns of intersex people remain inadequately addressed.

My experience of this process, and especially the difficulties and barriers Morgan and I faced in attempting to clarify the needs of intersex people, and their appropriate inclusion in the apology, demonstrate that much more work needs to be undertaken to ensure the human rights of intersex people in South Australia are protected by laws and legislation.

We would like to warmly thank all those people who attended or participated in the parliamentary briefing, and particularly Katrine Hildyard’s office, Lee Carnie, and the South Australian Equal Opportunity Commissioner and her staff.

Michael Noble
Intersex advocate, South Australia