Intersex Human Rights Australia

This is a statement prepared by Morgan Carpenter, followed by additional comments by community members.

Scott Morrison’s comments in support of a bill, purporting to be about ‘saving’ women’s sport, and preventing competition by trans people, are profoundly saddening. Women’s sport is increasingly inclusive of all women, and it offers some of the most inspiring sporting moments that we have ever seen, despite being poorly funded and supported, with unequal pay and conditions, and less media attention.

Morrison’s comments, and the bill, also have a pervasive and profoundly harmful impact on most people with intersex variations.

The bill proposes to insert a hard biological definition of sex, and of ‘man’ and ‘woman’, into the national legislation that has offered protections from discrimination on grounds of sex, intersex status, sexual orientation and gender identity since 2013. It proposes that ‘sex’ means ‘the chromosomal, gonadal and anatomical characteristics associated with biological sex’, where everyone’s characteristics line up neatly as man or woman. These proposed changes are not limited to sporting contexts.

While Scott Morrison was treasurer, the Family Court adjudicated a case known as ‘Re: Carla (Medical procedure)’. In it, the judge described the circumstances of a pre-school child, described as having a ‘sexual development disorder’; ‘genetically male’ with ‘male’ gonads. The judge also stated that the child had already had surgery that ‘enhanced the appearance of her female genitalia’. The case was taken to sterilise the child, which occurred on the basis of misrepresented facts and gender stereotypes that included an appeal to the child wearing ‘Minnie Mouse underwear’ and having ‘her long blond hair tied in braids’. The pre-school child had little agency about any of these decisions.

The case is profoundly disturbing, and has contributed to analysis and recommendations for legislative reform, including by the Australian Human Rights Commission. We hope this will lead to reform to protect children with intersex variations from these so-called ‘normalising’ procedures in future. The ACT and Victoria have made tangible commitments to reform.

In the context of the proposals by Sen. Claire Chandler, supported by Scott Morrison, the case begs a question: is Carla a ‘man’ or a ‘woman’? Who decides?

Is Carla a ‘man’ within the terms of the bill? Should medicine and society treat her as a man? If so, then why did the Family Court refer to surgery as having ‘enhanced the appearance of her female genitalia’? Why was this considered even remotely acceptable, let alone characterised as an ‘enhancement’? Surgeries like this should wait until people can make their own informed decisions.

Is Carla a ‘woman’, within the terms of the bill? Should medicine and society treat her as a woman? Is this why gender stereotypes like having ‘long blond hair tied in braids’ were called upon to justify the removal of her testes? Why is this considered even remotely acceptable, as a justification for surgery? Unless there’s an urgent need to protect physical health, surgeries like this should wait until people can make their own decisions.

Is Carla to be considered not a ‘woman’ or a ‘man’ within the terms of this bill, because her body doesn’t fit the ideas about what it means to be a member of those categories? Why is it considered even remotely acceptable to exclude her from her lifelong legal and social category? Decisions about changing someone’s social and legal status should be made by individuals themselves, with their informed consent.

Intersex variations are variously termed ‘disorders of sex development’, innate variations of sex characteristics, or using a range of individual diagnostic names. Some of this language reinforces the idea that our bodies should be ‘fixed’ to fit ideas about how they should function or appear. By their very nature, people with intersex variations have sex characteristics that differ from normative ideas about what it means to be a ‘man’ or a ‘woman’ within the narrow terms proposed in this bill.

This does not mean that people with intersex variations should be treated as a third category, outside narrow stereotypes of what it means to be a man or woman. Like ‘Carla’, people with intersex variations are invariably observed or assigned female or male at birth.

In situations of doubt, New South Wales doctors state that ‘surgical options’ are an acceptable factor in classifying sex. The information we have available to us from a paediatric gynaecology service in Queensland, the state where the Family Court case on ‘Carla’ was adjudicated, show that all of a cohort of children with similar intersex variations seen by the service have experienced unnecessary medical interventions to make their bodies fit normative ideas about appearance and function.

It should be up to individuals to make their own decisions about their bodies and who they are.

The bill proposes to deny the biological realities that people with intersex variations live with, and exacerbate social exclusion and incomprehension. It is profoundly regressive and doesn’t deserve support.

– Morgan Carpenter

Tony Briffa (vice-chair of IHRA and president of Intersex Peer Support Australia) comments:

Nature made me the way I was born. I might be different, but it doesn’t make me any less worthwhile or valid as any other woman. I was raised a girl, went to an all girls’ school, married, fostered children, and served my community for many years. Why should people like me be denied recognition or rights because we don’t stack up to someone’s rigid, exclusionary, narrow definitions? What message does this send to young children born with variations of sex characteristics? No wonder our differences are often such a hidden, shameful secret.

Morgan Carpenter (executive director) comments:

Some of the most difficult experiences of my life have been when my body has been treated as something to change to fit gender stereotypes. Those experiences occurred before there was any access to peer support and community, and I want others to be able to make their own choices about their own bodies, on the basis of informed consent and access to peers, to the maximum extent possible. Instead of trying to construct narrow ideas about who we should be and how our bodies look, the Commonwealth should be implementing reforms to protect people with intersex variations from so-called ‘normalising’ surgeries and interventions.

Cody Smith (senior projects officer) comments:

Intersex people do not exist in abstract. To create categories that don’t account for our population, and in doing cause us harm, is indicative of bad legislation. Either the consequences of this bill are unintended, in which case it must be thrown out. Or it hides malicious intent towards our vulnerable population, in which case it must be thrown out. As an intersex person I’m tired of being distracted by legislation around religion and sports, when we need legislation to protect the human rights of intersex children in medical settings. Being forced to engage with bad legislation is not only needlessly distressing as it allows for debate on the humanity of minorities. It is a drain on the time and energy we can invest in more important issues.

Michelle McGrath, a committee member of Intersex Peer Support Australia (IPSA), comments:

As a director of IPSA, I’m constantly seeing the struggles that people with innate variations of sex characteristics are forced to deal with on a daily basis. The harm done to folks with these variations due to forced medically harmful practices causes life long pain and suffering, physically and mentally. To include this bill in legislation will tip many of our community over the edge, causing a greater number of suicides with children.

Speaking directly to Senator Chandler, McGrath says the bill is both evil and hypocritical to the Christian faith:

If you spent more time concentrating on things that matter, like protecting children with variations from medical harm, then maybe I could respect you and your party. Your bill is a disgrace to Australia.”

Simone-Lisa Anderson, a parent and committee member of IPSA, comments:

One would have to wonder if Chandler believes the Earth is flat. As the ignorance of biological sex in her current Bill is staggering. Every mammalian species on this Earth has a spectrum of sex characteristics with one end being typically female and one end being typically male with all the variations in between…if there wasn’t every vagina or penis would look the same – one only has to look at the vagina wall at MONA to see this. Her definitions of what male and female are completely dismisses that spectrum, and the population that dwell in that atypical space. As a parent of someone in the up-to-1.7% who has had continued discrimination and abuses both physically and psychologically from ill-informed people, this Bill goes above and beyond by completely erasing people with variations to their sex characteristics. This Bill needs to be squished, binned, rolled up and thrown in a blazing fire.

Eileen Harlow, a committee member of IPSA, comments:

As a intersex woman who does not fit the binary xx definition… this bill would exclude me from participating. Ironically I am physically smaller at 5 foot nothing (tall for a woman with Turners syndrome because I was given human growth hormone as a teen). I have always struggled with sport and I would have zero advantage … which is usually the claims made to base discrimination against intersex and trans athletes. The fear and trauma such discrimination creates with its lack of inclusion and acceptance achieves nothing except causing us to fear for our general safety and creates poor mental health. This affects communities as a whole when people suffer. Leaving an impact on all resources… making our children grow up in a world that makes it unsafe to be yourself. That’s not a world I want the future generation to inherit. I have been bullied by PE teachers in school due to my small size and lack of strength and match to my peers. Education and understanding not discrimination is where the future should be so no child or adult feels bullied or socially isolated.