Discrimination

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What is the issue?

 
This page is part of a series of articles summarising key and interrelated issues for the intersex movement in Australia, and our work:

People born with variations of sex characteristics experience stigmatisation, discrimination, bullying, body shaming and other forms of harm because of our sex characteristics, and also because of assumptions about our identities. These violate our rights, and limit our participation in society.

Harms associated with assumptions about our identities can arise from assumptions that we have a nonbinary gender identity, or that we are female or male, that we are not female or male enough, that we are queer, that we are heterosexual, or that being intersex means we are old enough to freely express an identity. We are not a homogeneous population.

Misconceptions and stigma limit disclosure and affect the kinds of language that individuals feel comfortable with.

What do we know about the experience in Australia?

We gather evidence through community consultation and support for independent research. These sources tell us that intersex people suffer discrimination and stigmatisation in healthcare, education, employment and access to other services. Experiences of discrimination can be exacerbated by the obviousness of any intersex variation.

  • Risk of forced and coercive medical practices that violate human rights.
  • Many intersex people leave school early, without any qualifications. A 2015 sociological study found that 19% of people born with atypical sex characteristics failed to complete secondary school (Jones, 2016). Reasons appear to include bullying on the basis of physical characteristics, developmental delays, the impact of medical interventions during puberty, and lack of inclusive curricula.
  • The 2015 sociological study also found very high rates of poverty (Jones, 2016)
  • Early exposures to general anaesthesia are now associated with developmental delays (Schneuer and others, 2018).
  • We are aware of instances of discrimination in healthcare, schools, workplaces, sport, and access to other services. Some cases are presented in submissions by IHRA, and a 2014 paper on intersex for employers written jointly with Pride in Diversity.
  • Access to Medicare services has been determined by necessity and not restricted by sex or gender since July 2013, in consultation with IHRA. We wholeheartedly welcomed these reforms. However, Medicare does not fund all procedures, nor does it fund many on-going or reparative treatments to manage the consequences of forced medical interventions.
  • In healthcare, prior experience of trauma and stigmatisation may limit utilisation of necessary healthcare services. Schützmann and others (2009) reported an Australian study as showing rates of psychological distress similar to “a comparison group of chronic somatically ill persons”, thus showing “markedly increased distress”. We discuss discrimination in relation to forced and coercive medical practices in our page on bodily integrity.
  • We discuss the role of discrimination in eugenic policies in our page on genetics.
  • We discuss issues relating to sport in our page on that issue. The key issues in sport include a disregard for the often lifelong legal and social status of women born with intersex variations seeking to compete as women.

The Sex Discrimination Act, as amended in 2013

In 2012- 2013, we actively supported the inclusion of “intersex status” in the Sex Discrimination Act (Cth). This was a major and welcome advance, and followed lobbying to ensure that intersex was not inappropriately included within a definition of gender identity.

  • Read our submission to the Senate Inquiry on the Human Rights and Anti-Discrimination Bill in December 2012. This bill was later dropped, but the process informed changes to the Sex Discrimination Act.
  • Read our submission on the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013, April 2013.
  • Read our statement on enactment of this law, June 2013.

“Intersex status” was added to anti-discrimination law, independently of sex, gender identity, and sexual orientation, in 2013. This followed advocacy by us and others, and it opportunistically used an attribute developed in Tasmania for a bill that was then before the State parliament. The attribute is defined in the Act as follows:

intersex status means the status of having physical, hormonal or genetic features that are:
(a) neither wholly female nor wholly male; or
(b) a combination of female and male; or
(c) neither female nor male.

The legislative changes resolved many of the issues with failed previous attempts to include protections for intersex people within attributes protecting on grounds of gender identity, however, the approach taken in federal law has had three failings.

Firstly, it is based on a model of deficit: it makes statements about what intersex people lack in relation to typical females and males. Secondly, it has been imputed to mean something about the identity of intersex people, even though the legal attribute refers to physical features. Thirdly, the definition needed to be imprecise to protect people who are perceived to have an intersex variation; for this reason, it is not limited to people born with particular characteristics.

Sex characteristics

Our position has changed in response to international and local developments since the passing of legislation in 2013. The Australian model has not travelled internationally.

In Malta a new attribute, introduced in 2015, called “sex characteristics” protects people with intersex variations from discrimination and non-consensual medical interventions. Unlike the Australian attribute of intersex status, this attribute is universal; it deliberately includes everyone. The attribute reads:

“sex characteristics” refers to the chromosomal, gondal and anatomical features of a person, which include primary characteristics such as reproductive organs and genitalia and/or in chromosomal structures and hormones; and secondary characteristics such as muscle mass, hair distribution, breasts and/or structure.

This approach is recommended by the Council of Europe and a growing number of institutions. A version of this definition has been adopted into the Yogyakarta Principles plus 10. The YP+10 define sex characteristics in the following way:

UNDERSTANDING ‘sex characteristics’ as each person’s physical features relating to sex, including genitalia and other sexual and reproductive anatomy, chromosomes, hormones, and secondary physical features emerging from puberty;

Our position

Our position is set out in the 2017 Darlington Statement, a community consensus statement by intersex organisations and advocates in Australia and Aotearoa/New Zealand:

9. We call for effective legislative protection from discrimination and harmful practices on grounds of sex characteristics.

In relation to healthcare:

11. We call for an end to genetic discrimination, including in insurance and employment.

17. We call for the implementation of advisory bodies to develop appropriate human rights- based, lifetime, intersex standards of care with full and meaningful participation by intersex community representatives and human rights institutions.

19. We recognise that intersex people have health and medical needs, sometimes related to having an intersex variation, and sometimes not. We recognise that for people with an intersex variation, misconceptions and associated stigma can act as barriers to treatment. Current practices are often based on the needs of other populations.

21. … Standards of care must support reparative treatments, and must not require conformity with stereotypical and clinical norms for female or male bodies, women and men, nor impose inappropriate psychiatric eligibility assessments.

27. Intersex-led organisations must be resourced to develop patient rights and human rights toolkits for intersex people and our families to improve access to healthcare, and ensure enjoyment of the highest attainable standard of physical and mental health.

The Statement makes a number of demands about education and employment:

11. We call for an end to genetic discrimination, including in insurance and employment.

51. We acknowledge that stigma is often the result of misconceptions about intersex which is compounded by a lack of education and awareness.

52. We recognise that the stigmatisation and pathologisation of people born with variations of sex characteristics hinders self-acceptance, access to community, help-seeking, and accessing of services including healthcare.

53. We acknowledge the impacts of stigma, trauma and unwanted medical interventions on access to education and on employment, and consequences that include high rates of early school leaving, poverty, self-harm and suicidality.

54. We call for the inclusion of accurate and affirmative material on bodily diversity, including intersex variations, in school curricula, including in health and sex education.

55. We call on education and awareness providers to develop content with intersex-led organisations, and promote delivery by intersex people.

56. We call on employer groups, governments, institutions and trade unions to develop affirmative policies and practices to support employees with intersex variations.

57. We call for policies in educational institutions and employment to recognise that some people born with intersex variations may benefit from accommodations and reasonable adjustments, including special needs requirements, workplace adjustments, job access assistance, and provisions for medical leave.

Our position is also reflected in the 2017 Yogyakarta Principles plus 10 which reflect an understanding of the differing situations of differing populations:

RECOGNISING that the needs, characteristics and human rights situations of persons and populations of diverse sexual orientations, gender identities, gender expressions and sex characteristics are distinct from each other;

NOTING that sexual orientation, gender identity, gender expression and sex characteristics are each distinct and intersectional grounds of discrimination, and that they may be, and commonly are, compounded by discrimination on other grounds including race, ethnicity, indigeneity, sex, gender, language, religion, belief, political or other opinion, nationality, national or social origin, economic and social situation, birth, age, disability, health (including HIV status), migration, marital or family status, being a human rights defender or other status;

Note that the Yogyakarta Principles plus 10 envision sex characteristics as additional to sex and gender, and not a replacement for either. The Darlington Statement is specific about the meaning of sex when mentioned, as legal attribute or as biological sex characteristics.

Both the Darlington Statement and the Yogyakarta Principles plus 10 make additional statements on combatting discrimination, including in sport and healthcare.

Genetic discrimination occurs when insurance companies charge higher premiums after genetic testing. Discrimination is legal in some circumstances and the industry is self-regulated in Australia (Tiller et al 2020).

What have we done about discrimination and stigma?

 
This is one of a series of briefing papers on discrimination, stigma and policy in specific settings:

We continually engage in evidence-building, including through supporting independent research. We engage with local, national, regional and international human rights institutions, legal bodies, and human rights defenders. We promote governmental and institutional responses to our findings. We build community expertise through community gatherings and mentoring. Our community development necessarily seeks to be trauma-informed. We have contributed to the development of the Darlington Statement and the Yogyakarta Principles plus 10.

We make submissions to State and Territory governments, including:

In 2012-3 we made submissions that contributed directly to federal law reform:

We have contributed to the development of resources to tackle discrimination and stigma in workplaces:

We have contributed to education on discrimination in sport. For example:

Further reading

Androgen Insensitivity Syndrome Support Group Australia, Intersex Trust Aotearoa New Zealand, Organisation Intersex International Australia, Eve Black, Kylie Bond, Tony Briffa, Morgan Carpenter, et al. 2017. ‘Darlington Statement’. Sydney, New South Wales.

Carpenter, Morgan. 2017. ‘Submission on the Yogyakarta Principles, 10 Year Review’.

Carpenter, Morgan. 2018. ‘The “Normalization” of Intersex Bodies and “Othering” of Intersex Identities in Australia’. Journal of Bioethical Inquiry, May, 1–9.

Carpenter, Morgan. 2018. ‘The “Normalisation” of Intersex Bodies and “Othering” of Intersex Identities’. In The Legal Status of Intersex Persons, edited by Jens Scherpe, Anatol Dutta, and Tobias Helms, 445–514. Cambridge, England: Intersentia.

Garland, Fae, and Mitchell Travis. 2018. ‘Legislating Intersex Equality: Building the Resilience of Intersex People through Law’. Legal Studies, September, 1–20.

Jones, Tiffany. 2016. ‘The Needs of Students with Intersex Variations’. Sex Education 16 (6): 602–18.

Jones, Tiffany. 2017. ‘Intersex and Families: Supporting Family Members with Intersex Variations’. Journal of Family Strengths 17 (2).

Schneuer, Francisco J, Jason P Bentley, Andrew J Davidson, Andrew JA Holland, Nadia Badawi, Andrew J Martin, Justin Skowno, Samantha J Lain, and Natasha Nassar. 2018. ‘The Impact of General Anesthesia on Child Development and School Performance: A Population-Based Study’. Pediatric Anesthesia, April.

Schützmann, Karsten, Lisa Brinkmann, Melanie Schacht, and Hertha Richter-Appelt. 2009. ‘Psychological Distress, Self-Harming Behavior, and Suicidal Tendencies in Adults with Disorders of Sex Development’. Archives of Sexual Behavior 38 (1): 16–33.

Tiller, Jane, Susan Morris, Toni Rice, Krystal Barter, Moeen Riaz, Louise Keogh, Martin B. Delatycki, Margaret Otlowski, and Paul Lacaze. 2020. ‘Genetic Discrimination by Australian Insurance Companies: A Survey of Consumer Experiences’. European Journal of Human Genetics 28 (1). Nature Publishing Group: 108–13.

Yogyakarta Principles. 2017. 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.

More information

Browse our extensive library of articles on discrimination.

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