Initial response to the leak of the religious freedoms inquiry report

Religions have a long history of including intersex people (people born with sex characteristics that don’t fit medical or social norms for female or male bodies) in marriage, ordination, and other aspects of religious and daily life. Those forms of inclusion follow particular rules, and they don’t allow for self-determination, but they are not discriminatory, as such. Christian teachings were based on Roman teachings, and they went like this: a hermaphrodite should be regarded as male or female depending on prevailing or dominant characteristics.(1–3) The term hermaphrodite, used here, predates recent and precise uses in the biological sciences, and recognises diversity. These teachings became part of the early common law, used in Australia.(3,4)

In recent decades, many religious institutions appear to have neglected these old teachings. Like our legal system, they have begun to re-examine what it means to be intersex in light of their attitudes towards gay and trans peoples. Nevertheless, there remains space for us. Many cite Matthew 19:12. There is no evidence that religious institutions wish to discriminate systematically against intersex people for having intersex variations.(4–11)

These issues were put to the religious freedoms inquiry, along with other concerns.(4–5) The leaked information appears to agree with our analysis and our justification for our position. It calls for religious exemptions on grounds of intersex status, disability, race and pregnancy to be removed in all jurisdictions. We are heartened by this.

We acknowledge that Commonwealth law does not facilitate religious exemptions applicable to intersex status in education settings. However, a more recent law in South Australia does this.(12) In line with the religious freedoms inquiry report, the South Australian government should remove this exemption.

In other Australian jurisdictions, the situation is more complicated. In Victoria, the attribute of “physical features” offers significant practical utility in protecting people with intersex variations from discrimination.(13) It is also purported that we are protected in the State on grounds of “gender identity”, through some language about “bona fide” identification of people of “indeterminate sex” with a “particular sex”.(13) This has little utility and is offensive.

New South Wales law is even more problematic, including people of “indeterminate sex” within definitions of discrimination on transgender grounds.(14) This law offers higher protections only to “recognised transgender people” available only to persons who legally change sex classification in the State. School staff and students with intersex variations appear to have no protection from any form of discrimination.

We are aware of significant discrimination facing students with intersex variations at school. Research published in 2016 shows that almost 20% of students born with atypical sex characteristics fail to complete secondary school, for reasons including bullying, lack of inclusion, developmental delays, and the impact of medical interventions during puberty.(15) This is far above the Australian average.

In line with the Darlington Statement and the Yogyakarta Principles plus 10, we call for all Australian jurisdictions to effectively protect intersex and other people from all forms of discrimination on grounds of sex characteristics.(16,17)

We have also seen how the religious freedoms inquiry has drawn attention to previously little acknowledged legal exemptions.(18) We believe that no-one should be discriminated against in education, or when accessing any other publicly-funded service, for being intersex, for being LGBT, nor for disability, or race or pregnancy. Community expectations have shifted, and we hope that all parties will respond accordingly.

1. Finlay HA. Sexual identity and the law of nullity. Aust Law J. 1980;54(3):115–26.
2. Raming I. A History of Women and Ordination. 2nd ed. Vol. 2. Lanham, Maryland; Toronto; Oxford: Scarecrow Press; 2004. 366 p.
3. Greenberg J. Defining Male and Female: Intersexuality and the Collision Between Law and Biology. Ariz Law Rev [Internet]. 1999 [cited 2012 Mar 31];41. Available from: http://ssrn.com/abstract=896307
4. Carpenter M. Submission to the Expert Panel on Religious Freedoms. 2018 Feb.
5. Briffa T. Submission to the Expert Panel on Religious Freedoms. 2018 Feb.
6. Price C. What About Intersexuality? [Internet]. Focus on the Family. 2015 [cited 2017 Dec 29]. Available from: http://www.focusonthefamily.com/socialissues/sexuality/transgenderism/what-about-intersexuality
7. Coalition for a Biblical Sexuality. Nashville Statement [Internet]. 2017 [cited 2017 Aug 30]. Available from: https://cbmw.org/nashville-statement
8. Simon L. Intersex and the Nashville Statement [Internet]. 2017 [cited 2017 Sep 4]. Available from: http://www.liannesimon.com/2017/09/03/intersex-and-the-nashville-statement/
9. Simon L. Barren Women and the Nashville Statement [Internet]. 2017 [cited 2018 Feb 9]. Available from: http://www.liannesimon.com/2017/10/05/barren-women-and-the-nashville-statement/
10. Sydney Diocesan Doctrine Commission. A Theology Of Gender And Gender Identity [Internet]. 2017 Jun [cited 2017 Oct 5]. Available from: http://portal.sds.asn.au/sites/default/files/ATheologyOfGenderAndGenderIdentity(SydDoctrineCommission).Aug2017.pdf?doc_id=NTQ3NjY%3D
11. Freedom for Faith. Protecting Diversity Towards a Better Legal Framework for Religious Freedom in Australia. 2018.
12. Parliament of South Australia. Relationships Register Bill 2016 [Internet]. Sep 22, 2016. Available from: https://www.legislation.sa.gov.au/LZ/B/CURRENT/RELATIONSHIPS%20REGISTER%20BILL%202016/B_AS%20INTRODUCED%20IN%20HA/RELATIONSHIPS%20REGISTER%20BILL%202016.UN.PDF
13. Victoria. Equal Opportunity Act 2010 No. 16 of 2010.
14. New South Wales. Transgender (Anti-Discrimination and Other Acts Amendment) Act 1996 No 22 [Internet]. 22 of 1996 1996. Available from: http://www.austlii.edu.au/au/legis/nsw/num_act/taoaaa1996n22541.pdf
15. Jones T. The needs of students with intersex variations. Sex Educ [Internet]. 2016 Mar 11 [cited 2016 Mar 18];16(6):602–18. Available from: http://www.tandfonline.com/doi/full/10.1080/14681811.2016.1149808
16. Androgen Insensitivity Syndrome Support Group Australia, Intersex Trust Aotearoa New Zealand, Organisation Intersex International Australia, Black E, Bond K, Briffa T, et al. Darlington Statement [Internet]. Sydney, New South Wales; 2017 Mar [cited 2018 Apr 10]. Available from: https://darlington.org.au/statement
17. Yogyakarta Principles. The Yogyakarta Principles Plus 10: Additional Principles and State Obligations on the Application of International Human Rights Law in Relation to Sexual Orientation, Gender Identity, Gender Expression and Sex Characteristics, to Complement the Yogyakarta Principles [Internet]. 2017 [cited 2017 Nov 21]. Available from: http://www.yogyakartaprinciples.org/principles-en/yp10/
18. Elphick L. The Ruddock Review was ostensibly set up to expand religious exemptions. Their report then recommended new constraints on exemptions. And now that attention has been drawn to exemptions most weren’t aware of, calls are growing to remove them entirely. Quite the faux pas #auspol [Internet]. @LiamElphick_. 2018 [cited 2018 Oct 11]. Available from: https://twitter.com/LiamElphick_/status/1050150495795335168