AHRC “Sex Files” concluding paper released

Important note: this paper should not be regarded as a guide to our current policy on identification documents. Our approaches have been informed 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.

The Australian Human Rights Commission (AHRC) has released Sex Files: the legal recognition of sex in documents and government records, and this paper is available for download as a PDF or Word .DOC at here.

Australian Human Rights Commission: Sex Files: the legal recognition of sex in documents and government records; Concluding paper of the sex and gender diversity project, March 2009.

Australian Human Rights Commission: Sex Files: the legal recognition of sex in documents and government records; Concluding paper of the sex and gender diversity project, March 2009.

Here are some items in the paper that mention intersex:

13.1 The focus of the sex and gender diversity project

Sex Files specifically focused on issues concerning legal identity. The focus of the Commission’s sex and gender diversity project was an issue extensively debated on the blog. Some participants argued that the Commission should have investigated all issues concerning sex and gender diversity.

Some of the other issues relating to sex and gender diversity raised in our consultations include:

  • appropriate protection from discrimination
  • the lack of access to health services and treatment
  • the practice of non-therapeutic surgeries on infants who are intersex
  • greater public awareness on sex and gender diversity.

13.4 Surgery on infants who are intersex

During the sex and gender diversity project, the Commission received submissions concerning the practice of genital surgery on infants who are intersex. The Commissioner also met with people who identified as being intersex or having an intersex condition.

In response to these concerns, the Commission has been seeking further information from stakeholders, medical practitioners and surgeons practising in this area. The Commission is developing an issues paper which outlines some of the human rights concerns which have been raised.

The Commission will send the issues paper to the federal Minister for Health recommending that the Australian Health Ministers’ Conference consider these issues more fully.

As intersex people ourselves are the main stakeholders here, and not medical practitioners, nor surgeons nor, indeed, parents, OII Australia looks forward to working further with the Australian Human Rights Commission on these issues and the issues paper.

OII Australia’s response to “Sex Files”

30 March, 2009

Commissioner Graham Innes
Australian Human Rights Commission
GPO Box 5218
Sydney NSW 2110

Dear Commissioner Innes:

Thank you for the opportunity to attend the release of the Sex Files Report, the concluding paper of the sex and gender diversity project. OII appreciates the attention the AHRC has given this matter and encourages its continued consideration of intersex.

OII Australia especially wishes to thank the Commissioner for the introduction of the term “sex and gender diversity” to a wide audience. This form of words encapsulates both the separateness of sex from gender and their connectedness. These terms when viewed as exclusive or delineated along rigid lines limit the ways in which individuals, and especially intersex individuals, can engage in discourse that describes their lived experience. The position of the Commissioner set down in section 4 of his paper puts in concise and useful terms ways that sex and gender can be described.

The Commissioner said, “Every person has the right for their sex and/or gender identity to be recognised and respected,” and in saying that sets down a quote that should endure and be repeated well beyond the bounds of his paper.

OII broadly agrees with the Commissioner’s recommendations numbers 1 to 10. We take particular note of recommendation 5 and 9 (pp32 & 34) where the removal of sex designators from forms and the ability to not specify a sex is made. OII stands against the inclusion of “intersex” as a third designator. We contend that it is further isolating an already isolated minority, it subsumes the identity of intersex men and women for whom intersex is not their sex, and it is not representative of all the other ways that sex might be identified. OII thanks the Commissioner for taking the inclusive position he has, where an option other than male or female is available for all people.

OII disagrees strongly with the Commissioner’s recommendation 11 (b) (establishing a national board pp 35). OII has those amongst its membership with firsthand experience of the British model, and those in South Australia and Western Australia.

OII contends that there is widespread dissatisfaction with the operation of these boards and great contention with them in dealing with intersex changes of documentation. OII contends that the Victorian model, where proof is given to the Registrar of Births, Deaths & Marriages in accord with legislation laying down parameters, is adequate. OII further contends that intersex should always be allowed to change cardinal documentation on the basis of a mistaken assignment at the time of birth. Simple medical documentation, presented to the registrar, should be sufficient to allow such a change.

OII discourages notions of gender recognition certificates as performing any useful task; rather we contend they further identify and stigmatise difference. While states and territories have independent legislative responsibility for the registration of births it seems a federally-issued document that identifies the holder as “trans” (whether they are transsexual/transgender/intersex/something else) is no more than a certification of mental illness (in accordance with current psychiatric diagnostic criteria) or medical disorder.

OII agrees broadly with recommendation 12 (pp37) so long as any such office is advisory, includes close consultation with the sex and gender diverse community and is an alternative to any recognition board.

In considering changes to cardinal documentation, especially birth certificates, OII Australia recommended to the Commissioner that intersex individuals should be able to change the sex noted on those documents on the basis of a mistaken assignment made at the time of birth. Current births, deaths and marriages acts have provisions that will allow such changes. Registrars are reluctant to use those provisions because of archaic interpretations of the legislation. Many intersex children are assigned a sex at birth based on a series of best guesses. Those guesses are based on anecdotal evidence and feelings of certainty because of “experience” by attending physicians. How often those assignments go uncontested in the long term has never been tested.

Under current paradigms when an assignment is contested by the assigned, the individual is diagnosed as having one of two mental disorders. They are Gender Identity Disorder (GID) or Gender Identity Disorder Not Otherwise Specified (GIDNOS). (DSM IV).

This situation contends that the assigning practitioner is never wrong; indeed it is assumed that it is the assigned that are mistaken in their feelings that are at variance with their assignment. OII contends that assignments can only have certainty when an intersex individual is able to articulate their view of their sex and until that time any assignment can only be considered as provisional.

I reiterate the Commissioner’s words:

Every person has the right for their sex and/or gender identity to be recognised and respected.

OII notes that it is the Commissioner’s intention to develop an issues paper in respect of surgery on intersex infants (pp43). OII Australia respectfully asks that the Commissioner includes intersex adults who have survived and live with such surgery in his consultation. OII Australia has in its membership individuals who were subjected to extensive infant genital surgery and who have suffered the consequence. We ask the Commissioner to include OII in his consultations on this.

OII accepts the Commissioner has limited resources to fully canvass all human rights issues. We are grateful that he has done all that he has. We remain concerned however at the lack of discourse on intersex rights. Although some documentation issues raised in this paper are applicable to some intersex, if its recommendations are implemented it will, by and large, make little difference to intersex lives.

Most intersex are men and women living in apparently heterosexual relationships. For those, protection against vilification and discrimination, access to appropriate patient-based medical treatment, and a general recognition that though our bodies are thought to be different and that they challenge notions of sex and gender, we are no more than one of the many ways it is possible to be human. For intersex adults who were surgically assigned at birth we ask that no more surgical assignments take place until those being assigned can consent.

I sincerely thank the Commissioner for taking the time to hear us out and for putting his mind to a difficult and contentious subject. I look forward to further involvement with the Human Rights Commission in the future and particularly in respect to intersex rights.

Gina Wilson
Organisation Intersex Australia

Important note

In the time since this letter was written, the term “sex and gender diverse” has become synonymous with trans issues. The term is no longer supported by OII Australia, or other organisations like the National LGBTI Health Alliance or TransGender Victoria and Family Planning Victoria. There’s more information in this discussion paper.

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