Call for action in NSW: intersex human rights and health issues

IHRA and IPSA logos
Intersex people have innate sex characteristics that don’t fit medical norms for female or male bodies. Because our bodies are seen as different, we experience discrimination and stigmatisation, including forced surgeries and other medical interventions – often in childhood or adolescence – to make our bodies appear or function more typically female or male.

IHRA and IPSA are national, charitable intersex-led organisations. We engage in systemic and individual advocacy and peer and family support. In 2017, we and other intersex advocates from around Australia and New Zealand collaborated to create the Darlington Statement, a statement of the needs and demands of the intersex population in our countries.[1]

Our staff and directors are members of ministerial advisory groups across the country, including to the Victorian, ACT, South Australian and Tasmanian governments, and reference or advisory groups for the Australian Human Rights Commission (in respect of an inquiry reporting in 2021) and the Australian Bureau of Statistics. Morgan Carpenter, executive director of IHRA, is a member of the implementation committee for the NSW Health LGBTIQ+ Health Strategy. He was also a member of the advisory committee leading to development of the Strategy.

2023 election commitments

Labor, the Greens and Alex Greenwich MP have responded in writing to our call for action. Find their responses here:

No response has yet been received on behalf of the Liberal/National coalition.

The call for action below contains the measures we will be seeking during the next Parliament. It is followed by explanatory notes and supporting information.

Our call for action on intersex health and human rights in NSW

  1. Enact legislation to protect the human rights of people with innate variations of sex characteristics in medical settings, including the provision of effective rights-based oversight.
  2. Provide resourcing for peer and family support and advocacy services for people with innate variations of sex characteristics and our families, including a dedicated helpline.
  3. Ensure that mental health programs respond to the needs of our population.
  4. Update statistical standards and birth registration categories in line with the Australian Bureau of Statistics standard on sex, gender, variations of sex characteristics and sexual orientation.
  5. Update anti-discrimination legislation to implement protections for people with innate variations of sex characteristics on the ground of ‘sex characteristics’, and replacement of comparator tests.
  6. Ensure policies in relation to education provide protections for people with innate variations of sex characteristics, and are not inappropriately based on matters of identity. Update education curriculum reform to provide clear, accurate, human rights-affirming information about innate variations of sex characteristics.
  7. Ensure policies in relation to detention provide protections for people with innate variations of sex characteristics, and are not inappropriately based on matters of identity.
  8. Ensure that the subset of people with innate variations of sex characteristics who need to update the sex marker on their birth records are not required to undergo surgical and other medical interventions.
  9. Establish a whole-of-government advisory group to advise in relation to policy and practice affecting people with innate variations of sex characteristics and LGBT people.

Explanatory notes and supporting information

Legislation to protect the human rights of people with innate variations of sex characteristics in medical settings and provide for oversight

  • This mirrors current work with the ACT and Victorian governments
  • Aligns with Strategic Priority 3.2 of the NSW Health LGBTIQ+ Health Strategy: “Work with other jurisdictions to promote and embed improved measures to meet the health and wellbeing needs of intersex people”
  • Implements recommendations 1, 4, 7, 8 and 9 of the 2021 Australian Human Rights Commission report ‘Ensuring health and bodily integrity: towards a human rights approach for people born with variations in sex characteristics’
  • Also implements calls for reform by UN Treaty Bodies (CEDAW, CRPD, CRC, HRC, and CESCR), the regional intersex community consensus Darlington Statement, and the Yogyakarta Principles plus 10
  • Addresses calls by the Australian Medical Association and Public Health Association of Australia 2021 position statements

Resourcing for peer and family support and advocacy services for people with innate variations of sex characteristics and our families

  • Existing services do not meet these needs; existing organisations have no public funding to provide these essential services, currently delivered by volunteers with a few staff funded by foreign philanthropy, see IHRA and IPSA’s funding prospectus
  • Aligns with Strategic Priority 3.1 of the NSW Health LGBTIQ+ Health Strategy and milestone 3.1.1: “Partnership between the NSW Ministry of Health and peak organisations representing intersex people is strengthened”.
  • Due to action by ACT and Victoria, this work aligns with Strategic Priority 3.2 of the NSW Health LGBTIQ+ Health Strategy: “Work with other jurisdictions to promote and embed improved measures to meet the health and wellbeing needs of intersex people”
  • Implements recommendations 2 and 10 of the 2021 Australian Human Rights Commission report, and underpins all other recommendations 1-12 by the Commission
  • Implements call for reform by UN Treaty Bodies (CRC, CRPD, CEDAW, and HRC), and the Darlington Statement

Mental health programs

  • Despite the use of psychosocial rationales to justify unnecessary surgical interventions on children with intersex traits, our population is invisible in State mental health programs and services
  • Mental health programs lack awareness of the health needs of our population
  • Engagement with intersex led organisations on these programs aligns with Strategic Priority 3.1 of the NSW Health LGBTIQ+ Health Strategy and milestone 3.1.1: “Partnership between the NSW Ministry of Health and peak organisations representing intersex people is strengthened”.
  • Due to action by ACT and Victoria, this work aligns with Strategic Priority 3.2 of the NSW Health LGBTIQ+ Health Strategy: “Work with other jurisdictions to promote and embed improved measures to meet the health and wellbeing needs of intersex people”
  • Implements recommendations 2 and 10 of the 2021 Australian Human Rights Commission report, and underpins all other recommendations 1-12 by the Commission
  • Implements call for adequate support and counselling for families and individuals by UN Treaty Bodies (CRC, CRPD, CEDAW, and HRC), and the Darlington Statement

Update statistical standards

  • Implementation will end erroneous constructions of intersex as a third sex/gender category
  • Implements an existing and current national ABS standard
  • Implements call for reform by the Darlington Statement
  • Supports a 2021 national standard for general practices by the Royal Australian College of General Practitioners
  • More information about these issues is available in Morgan Carpenter’s analysis of Australian data prepared on invitation for the Australian Institute of Health and Welfare: https://morgancarpenter.com/intersex-dsd-australian-data/

Update anti-discrimination legislation

  • We call for provisions to support reasonable accommodations where needed
  • We call for action to ensure that comparator tests do not disadvantage people with innate variations of sex characteristics
  • Mirrors best practice reforms implemented in ACT, Victoria, Northern Territory and Tasmania, and current proposals for reform in Queensland
  • Implements proposals by the Public Interest Advocacy Centre (PIAC)
  • Implements best practice defined in the Darlington Statement, and the Yogyakarta Principles plus 10
  • Intersex specific information about these issues is available at https://ihra.org.au/discrimination/

Education policies and curriculum reform

  • Aims to improve knowledge and reduce stigma, including incomprehension and distress faced by parents and prospective parents of infants with innate variations of sex characteristics
  • Implements recommendation 2 of the 2021 Australian Human Rights Commission report
  • Underpins call for reform by UN Treaty Bodies (CRC, CRPD, and CEDAW), and implements the Darlington Statement; for more information see 2021 resource by SHFPACT
  • More information about these issues is available at https://ihra.org.au/education/

Detention policies and curriculum reform

Birth records

  • Some people with innate variations of sex characteristics seek to update their birth records in order to declare a gender transition, or otherwise update their records in line with their lived realities.
  • Legislation should be amended (in line with statistical standards) to end surgical and other medical requirements.
  • People with innate variations of sex characteristics in this situation may have already undergone surgical and other interventions in childhood to impose an unwanted appearance and identity.
  • Mirrors reforms implemented or proposed in all other jurisdictions in Australia.
  • Implements the Darlington Statement
  • More information about these issues is available at https://ihra.org.au/identities/

Whole-of-government advisory group

  • The ACT, Victorian and South Australian governments have whole-of-government advisory groups providing advice in relation to health and social policy impacting people with innate variations of sex characteristics and LGBT people.
  • Building on the successful LGBTIQ+ Health Strategy advisory committee, we recommend establishment of a whole-of-government advisory group with strong intersex representation.

[1] Darlington Statement. 2017. https://darlington.org.au/statement