The Scavenger: “Sex not specified” mistakenly treats intersex as a non-binary gender identity

Reporting in The Scavenger mistakenly treats intersex as a non-binary gender identity:

NSW Births Deaths and Marriages then issued the ‘Sex Not Specified’ Details Recognition Certificate in accordance with recommendations made by the Australian Human Rights Commission’s 2009 report on the legal rights of sex and gender diverse people proposing a greater scope of legal recognition be used beyond male and female for certain individuals.

The Scavenger: Sex not specified: Australia leads the way with legal document

“This decision now has fundamental ramifications for neuter and intersex identified individuals in that they no longer have to be forced to live as male or female,” said Tracie O’Keefe, spokesperson for SAGE.

“Furthermore it is an enormous legal breakthrough for the rights of intersex children whose doctors and parents are confused about their sex at births and that they could be registered as ‘Sex Not Specified’ until they decide what sex would be right for them,” O’Keefe continued.

“Many intersex children have been forced into male and female identities, when not medically necessary, which they later felt were incorrect, including unnecessary brutal surgery to give them stereotypical looking genitalia, often leaving them without sensation or function.”

“Intersex identified?” Sorry, but intersex is not an ‘identity’. Intersex is a matter of biology.

That aside, OII Australia is pleased that Norrie has received the first ‘Sex Not Specified’ Details Recognition Certificate and is grateful to NSW Births Deaths and Marriages for issuing it.

In doing so, NSW BDM has recognized the fact that not all human beings consider themselves a part of the sex binary.

The notion that this offers some kind of solution to parents of an intersex child misapprehends intersex and the problems faced by both the parents and children in this situation.

OII Australia does not agree that the identity of a child should be battled out on an already contested body. Children should be given a ‘conditional’ assignment of male or female and gender neutral names. When the child decides then they can then change their birth certificate under already existing regulations that allow for a change of designators because of a mistaken assignment at the time of birth.

A seven or eight year old child does not need to be saddled with a birth certificate that declares their difference in a society that currently struggles with such differences and threatens those who have them. This is not dissimilar to having BASTARD stamped across a birth certificate. Parents and child alike do not need the burden of such a document when they already face their own internal prejudices and those of the community around them. Intersex are aware from the time they learn of their differences that they have unacceptable bodies.

It is one thing for a cogent and strong activist to opt out of the sex/gender binary and make it so in law. It is another thing entirely to expect a seven or eight year old to understand these issues and to face down the prejudice such a document would engender.

OII Australia is interested to know if this sex non-designator is available to everyone or is it only available to those who can show medical and/or anatomical non-binary inclusion. If it is not available to all people we consider it analogous to creating a third sex for those who have physical differences of sex. OII Australia opposes the creation of such a category.

OII Australia also notes this is not a change of a birth certificate, simply the provision of an official recognition. Just how a child or parent could use such a document is unclear. Intersex have the right to have their primary documents changed in NSW under current arrangements and for the vast majority of intersex that is adequate.

The document in question is a “recognition certificate” and as such is similar to the UK “gender recognition certificate”. OII Australia considers both to be inadequate. Although it might be seen by some as a step forward – that has not proved to be the case in the UK – OII Australia stands for the removal of all sex designators from birth certificates.

We support “Not Specified” as a sex designator so long as it is available to all.

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One Comment

norrie mAy-welby

Perhaps Tracie was refering to individuals identified by doctors are having some intersex feature that makes it hard to put m or f on a birth cert, which does become political as it is deemed legally important to register the birth with a certain time with one of the two standard sex categories, and I know personally of one case where parents were pressured to approve of surgery to make such a classification in time to register the birth within twelve months. The butchery of babies to conform to legal niceties or social expectations IS political, and demands strong political opposition. With the option of not specifying sex, there is no legal emergency, and thus less imperative for non-consensual surgery.
There is no third sex implied here, by the way. “Not Specified” means just that; it is not a third sex, but simply a statement that sex is not specified.

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