Intersex Human Rights Australia

Over recent years we’ve commented on appropriation of intersex by multiple different groups of gender diverse people, including based on the harmful idea that being intersex ‘messes with the system‘, the harmful idea that being transgender is a form of ‘brain intersex‘, and the harmful idea that intersex is a non-binary gender. We know these ideas are not the only representations of what it means to be intersex in gender diverse spaces, and we are glad of the friendship and allyship of so many trans and gender diverse people and organisations – but we have to tackle misconceptions.

These ideas are not the only forms of appropriation. Another form is exemplified clearly in statements by Rachael Wallbank and Karen Gurney.

Gurney is a lawyer and barrister admitted to the Supreme Court in Victoria. Statements by Gurney include comments (2004) that Australian courts have adjudicated family law cases in a way that:

affirmed the position in Australian law that transsexualism is, indeed, an intersex condition and established that people with transsexualism should not be treated differently to others with intersexed conditions.

Statements by Wallbank were recorded on the Australian Women’s Register in 2016. The Register is a project of the National Foundation for Australian Women and the University of Melbourne. Words by Wallbank are recorded because of her prominence in family law cases on the rights of trans people. Wallbank is also “a member of the Legal Issues Committee of the World Professional Association for Transgender Health (WPATH) and a founding member of the Australian and New Zealand Professional Association for Transgender Health (ANZPATH)”.

Wallbank makes the following statement in her words on the Register:

Rachael is grateful that her life and legal career have presented her with the opportunity to achieve significant legal and human rights reform and to advance the understanding of Transsexualism as a naturally occurring form of diversity in human sexual formation and a form of intersexual disorder of sexual development with a clearly therapeutic medical treatment protocol and not a mental disorder or a psychological phenomenon.

And this in a 2015 book chapter:

Transsexualism is an intersex condition and a disorder of sexual development therapeutically medically treated by hormonal therapy and Genital Reassignment Surgery… Transsexualism is not a mental illness or mental disorder.

The reference to a “disorder of sexual development” is a clear and unambiguous reference to “disorders of sex development”, a contested pejorative terminology introduced by clinicians following an invitation-only workshop in 2005.

What this harmful rhetoric does is clearly described in a response by Morgan Carpenter in a 2018 book chapter:

An unalterable sense of internal self-identification is taken to indicate a biochemical origin for gender identity, relieving stigma arising from being perceived to have a mental disorder… In addition to relieving the stigma associated with mental disorders, such claims are also based on a perceived ‘ease’ of access to medical intervention, by which intersex children are ‘fixed’. Medicalisation of what Wallbank describes as ‘a form of intersexual disorder of sexual development’ justifies medical interventions to align an individual’s embodiment with their brain…

Wallbank’s utilisation of ‘disorders of sexual development’ terminology shows that the 2006 change in clinical terminology has been co-opted into the narrative of a medicalised transgender population.

Cary Gabriel Costello (2016) also remarks on the harm caused by this rhetoric:

Trans* people who position themselves as suffering from an intersex disorder are basing their claim to medical treatment on an argument that supports the perpetuation of binary-normalizing infant genital surgery.

These ideas are all harmful to individuals and families who lack community connections because they can’t see themselves and their needs reflected in these ideas, and this is harmful to community organising. This situation has led some people to believe that the word intersex is itself inappropriate. The appropriation of ‘DSD’ by Wallbank shows that advocates of changes to nomenclature as a solution to misconceptions and appropriation fail to consider the purposes behind the appropriation of bodies with intersex traits or DSDs.

These ideas are also harmful in their impact on comprehension by policy-makers of the specific kinds of human rights abuses that affect people born with intersex characteristics. Without that comprehension, those specific human rights abuses cannot be meaningfully addressed.

Addressing these ideas also wastes our limited time and resources.

For these reasons, we ask transgender and gender diverse people to ally with us and stand up to challenge the appropriation of intersex or DSD in trans spaces.

More information

Briffa, Tony. 2014. ‘Tony Briffa Writes on “Disorders of Sex Development”’. Intersex Human Rights Australia. May 8. http://ihra.org.au/26808/tony-briffa-on-dsd/.

Carpenter, Morgan. 2018. ‘The “Normalisation” of Intersex Bodies and “Othering” of Intersex Identities’. In The Legal Status of Intersex Persons, edited by Jens Scherpe, Anatol Dutta, and Tobias Helms, 445–514. Cambridge, England: Intersentia. doi:10.1017/9781780687704.028.

Costello, Cary Gabriel. 2016. ‘Intersex and Trans* Communities: Commonalities and Tensions’. In Transgender and Intersex: Theoretical, Practical, and Artistic Perspectives, edited by Stefan Horlacher, 83–113. New York: Palgrave Macmillan US. doi:10.1057/978-1-349-71325-7_4.

Gurney, Karen. 2004. ‘Twisting the Knife – Discrimination in the Law’. Deakin Law Review 9: 339.

Intersex Human Rights Australia. 2011. ‘“ISGD” and the Appropriation of Intersex’. May 22. http://ihra.org.au/13651/isgd-and-the-appropriation-of-intersex/.

Intersex Human Rights Australia. 2014. ‘High Court Recognises “Non-Specific” Gender Identity, Implications for Intersex People’. April 2. https://ihra.org.au/25214/media-release-intersex-community-on-edge-high-court-contemplates-transgender-case/.

Intersex Human Rights Australia. 2014. ‘Intersex, Brain Differences, and the Transgender Tipping Point’. June 5. https://ihra.org.au/27298/intersex-and-brain-differences/.

National Foundation for Australian Women and The University of Melbourne. 2016. ‘Wallbank, Rachael – Woman – The Australian Women’s Register’. Document. November 18. http://www.womenaustralia.info/biogs/AWE5634b.htm.

Wallbank, Rachael. 2015. ‘The Legal Status of People Who Experience Difference in Sexual Formation and Gender Expression in Australia’. In The Legal Status of Transsexual and Transgender Persons, edited by Jens M. Scherpe, 457–526. Cambridge, United Kingdom: Intersentia.