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:
Intersex people are born with physical sex characteristics that do not neatly fit medical norms for female or male bodies. We face risks of forced medical interventions to make our bodies more typically female or male, as a result, and we also face risks of other forms of stigmatisation.
Intersex traits are hugely diverse, and we have many different kinds of sex characteristics. Intersex traits can be identified early in life, such as in infancy, but also at puberty, or later in life such as when trying to conceive a child, or prenatally through the use of genetic screening technologies. This means that intersex people have diverse sex classifications, gender identities and gender expressions. It is also the case that most intersex people identify with sex assigned at birth, while some do not.
Several research papers suggest that the majority of intersex people in countries like Australia are women (for example, Jones, 2016; Johnson and others, 2018). This may reflect technical rationales that underpin forced and coercive medical interventions, such as ideas about the relative ease of constructing different kinds of genitals (Carpenter, 2018a; Carpenter, 2018b). Many intersex people are men. Some intersex people understand themselves as female and male, or neither.
Some intersex people and some non-intersex (“endosex”) people use nonbinary terms to describe their identities and sex classifications. Often, however, we encounter assumptions that to be intersex is to be nonbinary, or to be nonbinary is to be intersex. These assumptions are harmful. They fail to recognise the existence of intersex women and men. These misconceptions can be experienced as stigmatising, and suppress disclosure and stories that need to be told. They harm community organising. They do not reflect the diversity of the intersex population, nor of the nonbinary population. They harmfully reduce intersex human rights issues to a matter of legal gender recognition.
These factors mean that any supposition that intersex people can be recognised by a single “intersex” sex or gender classification lacks justification. It is never appropriate to consign intersex people to a third category. New classifications should not be named intersex or associated with intersex people.
What do we know about practices in Australia?
Historically, like all countries with a Western legal system, Australia inherited a legal approach that can be traced back, via church canon law, to Roman law. This approach regards intersex people (using the term ‘hermaphrodites’) as either female or male depending on predominant characteristics (Finlay, 1980; Reis, 2012; Carpenter, 2018a; Carpenter 2018b).
Following a linguistic shift in clinical settings from ‘hermaphrodite’ to intersex, and the introduction of radical and invasive medical practices aimed at eliminating evidence of intersex traits (Carpenter, 2018b), new constructions of intersex people as a mythological other have arisen, often associated with new colonial conceptions of non-Western societies (Holmes, 2004).
In the 1979 case In the marriage of C and D (falsely called C) (1979) FLC 90-636, Justice Bell in the Family Court of Australia annulled the marriage of an intersex man, assigned male at birth, who had later consented to surgeries to make him more typically male as an adult (Fraser and others, 1966). It did so on the basis that he was “diagnosed as a true hermaphrodite”:
Marriage as understood in Christendom is the voluntary union of one man and one woman … and since the respondent was a combination of both, a marriage in the true sense could not have taken place and did not exist
This decision was ahistorical. Immediately critiqued (Finlay, 1980), some commentators nevertheless disregarded, like the Court, the man’s lifelong legal status and identity as male, and even portrayed him as someone “who has undergone sex-change surgery” (Bailey, 1979). While the precedent has been repudiated in later Family Court decisions on marriage, the test adopted by Bell J is still cited with the suggestion in Tien-Lao & Tien-Lao  FamCA 953 (21 November 2018) that the “wife mistakenly believed she was marrying a man, so the marriage was void” (at ).
Similar disregard for the lived reality and legal status of intersex people can be seen in the treatment meted out to women with intersex variations in sport (see for example, Karkazis and Carpenter, 2018).
For a range of reasons, some intersex people and some non-intersex people seek recognition of a third sex/gender classification. In some cases involving intersex people, these are informed by personal experiences of forced surgical or hormonal interventions and associated behavioural reinforcement.
In 2002/2003, the first Australian ‘X’ passport was issued, to Alex Macfarlane, a person with XXY sex chromosomes who was also the recipient of a Victorian birth certificate with a blank sex marker.
In the period 2010-2014, non-intersex people have also sought recognition of new sex/gender categories. In 2014, the High Court ruled in the Norrie case that “non-specific” is an appropriate third sex category in New South Wales.
In contrast to these developments, reform of federal anti-discrimination law in 2013 that added intersex status, sexual orientation and gender identity as attributes in the Sex Discrimination Act was explicitly “not intended to create a third sex in any sense” and this intent was reflected in our submissions on law reform in 2012 and 2013.
However, over time, and notably in 2011, when access to ‘X’ passports was formalised, and in 2013, when the federal government issued guidelines to standardise sex and gender recognition by federal government departments and agencies, a third sex/gender marker has become common. Sometimes, the third classification is termed intersex, as is the case in 2011 passport rules, 2913 federal guidelines and later ACT birth registrations which refer to “indeterminate/intersex/unspecified”.
Given the information OII Australia had available to it at that time, we considered that the guidelines were acceptable. Our position was that children with intersex variations should be assigned female or male, according to the best available information, in the expectation that this could change. We also stated that families and children should receive psychological support, and – crucially – children should not be subjected to forced or coercive medical practices. We also supported a right not to declare a sex or gender by people able to consent.
This position in relation to children is the same as the position developed in the 1990s by Tiger Devore for ISNA on reform to medical practices:
Intersex children would be given preliminary gender assignments as boys and girls (recognizing that all gender assignment is preliminary and does not require surgery); hormonal and surgical interventions would be limited to those that were needed to treat clear and present medical problems, with all elective interventions waiting until patients could consent for themselves; intersex children and adults (and their loved ones) would be provided professional, non-shaming psychosocial support and peer support (Dreger, 2018; see also ISNA, undated).
Limitations and flaws in the 2013 federal guidelines immediately became evident. Intersex has been associated with third sex/gender categories, and people have made unfounded assumptions about the implications of those categories for children with intersex variations.
We opposed the creation of a new classification called “unspecified/indeterminate/intersex” for infants and children in the ACT in 2014. It was evident to us at that time that, despite good intent, this reflected a lack of comprehension of the affected population. For example, the Chief and Health Minister proposed that the classification would satisfy parental rights and “reduce the risk” of children undergoing forced “gender assignment surgery” – in hospitals that the Chief and Health Minister is responsible for (Carpenter, 2016; Carpenter, 2018a; Carpenter, 2018b).
It is clear that rules for sex classifications are unlikely to address the longstanding and intractable problem of forced and coercive medical procedures on infants, children and adolescents with intersex variations (Carpenter, 2018a; Carpenter, 2018b). Legislative reform is necessary to specifically tackle this issue. The creation of third sex/gender categories may even promote parental acceptance of surgical interventions in order to avoid public scrutiny and stigma. Four years after the legislation was passed in the ACT, no children have been assigned to a new sex classification, and children are not protected from the “risk” of “gender assignment surgery”.
In October 2015, we joined with trans and LGBTI organisations to request that the third category in federal sex and gender recognition guidelines be renamed “non-binary”. This is a minimal, necessary reform, and we also call for further changes, including improving access, additional options, and work to ensure that sex/gender data is only collected when and where necessary.
The current situation reflects what Morgan Carpenter (2018a) describes as a harmful contradiction in law and policy in Australia:
In practice, intersex bodies remain “normalized” or eliminated by medicine, while society and the law “others” intersex identities. That is, medicine constructs intersex bodies as either female or male, while law and society construct intersex identities as neither female nor male.
We have sought to construct policy that reflects and respects the diversity of intersex lived experience, and that is cognisant of, and consistent across, different settings, including also on forced medical interventions, marriage and sport. This creates many challenges.
We do not support the creation of new sex or gender classifications using the term intersex. However, IHRA and other intersex-led organisations support new categories in certain circumstances: where they are open to all, irrespective of whether or not an individual has an intersex variation, and where they are not named or associated with the term intersex. We support multiple and alternative sex classifications. We support such classifications as an interim measure: we would prefer that, like with race and religion, identification documents do not classify individuals by sex or gender.
In 2013, Tony Briffa and Morgan Carpenter participated in the Malta Declaration of the Third International Intersex Forum, which made demands on ending forced medical practices and also, on identity recognition:
- To register intersex children as females or males, with the awareness that, like all people, they may grow up to identify with a different sex or gender.
- To ensure that sex or gender classifications are amendable through a simple administrative procedure at the request of the individuals concerned. All adults and capable minors should be able to choose between female (F), male (M), non-binary or multiple options. In the future, as with race or religion, sex or gender should not be a category on birth certificates or identification documents for anybody.
Our position today builds upon this, and is set out in the 2017 Darlington Statement, acknowledging:
3. The diversity of our sex characteristics and bodies, our identities, sexes, genders, and lived experiences. We also acknowledge intersectionalities with other populations, including same-sex attracted people, trans and gender diverse people, people with disabilities, women, men, and Indigenous – Aboriginal and Torres Strait Islander, Tangata Whenua – and racialised, migrant and refugee populations.
4. That the word ‘intersex’, and the intersex human rights movement, belong equally to all people born with variations of sex characteristics, irrespective of our gender identities, genders, legal sex classifications and sexual orientations.
8. Regarding sex/gender classifications, sex and gender binaries are upheld by structural violence. Additionally, attempts to classify intersex people as a third sex/gender do not respect our diversity or right to self determination. These can inflict wide-ranging harm regardless of whether an intersex person identifies with binary legal sex assigned at birth or not.
Undue emphasis on how to classify intersex people rather than how we are treated is also a form of structural violence. The larger goal is not to seek new classifications but to end legal classification systems and the hierarchies that lie behind them. Therefore:
- As with race or religion, sex/gender should not be a legal category on birth certificates or identification documents for anybody.
- While sex/gender classifications remain legally required, sex/gender assignments must be regarded as provisional. Given existing social conditions, we do not support the imposition of a third sex classification when births are initially registered.
- Recognising that any child may grow up to identify with a different sex/gender, and that the decision about the sex of rearing of an intersex child may have been incorrect, sex/gender classifications must be legally correctable through a simple administrative procedure at the request of the individual concerned.
- Individuals able to consent should be able to choose between female (F), male (M), non-binary, alternative gender markers, or multiple options.
The Darlington Statement also makes concrete demands to protect the bodily integrity of people born with variations of sex characteristics.
Our position is also reflected in the 2017 Yogyakarta Principles plus 10, Principle 31 on “The Right to Legal Recognition”:
Everyone has the right to legal recognition without reference to, or requiring assignment or disclosure of, sex, gender, sexual orientation, gender identity, gender expression or sex characteristics. Everyone has the right to obtain identity documents, including birth certificates, regardless of sexual orientation, gender identity, gender expression or sex characteristics. Everyone has the right to change gendered information in such documents while gendered information is included in them.
A) Ensure that official identity documents only include personal information that is relevant, reasonable and necessary as required by the law for a legitimate purpose, and thereby end the registration of the sex and gender of the person in identity documents such as birth certificates, identification cards, passports and driver licences, and as part of their legal personality;
B) Ensure access to a quick, transparent and accessible mechanism to change names, including to gender-neutral names, based on the self-determination of the person;
C) While sex or gender continues to be registered:
i. Ensure a quick, transparent, and accessible mechanism that legally recognises and affirms each person’s self-defined gender identity;
ii. Make available a multiplicity of gender marker options;
iii. Ensure that no eligibility criteria, such as medical or psychological interventions, a psycho-medical diagnosis, minimum or maximum age, economic status, health, marital or parental status, or any other third party opinion, shall be a prerequisite to change one’s name, legal sex or gender;
iv. Ensure that a person’s criminal record, immigration status or other status is not used to prevent a change of name, legal sex or gender.
- Our guidance on including intersex people in forms, studies and surveys reflects our guidance on identification documents
These positions recognise systemic violence and the hierarchies that lie behind classification systems. The Darlington Statement establishes that an undue focus on how intersex people are classified is also a form of structural violence.
These Statements and Principles focus on registration of sex and gender, and not the concepts of sex and gender themselves. Like censuses and other surveys that ask about ethnicity, Indigeneity and religion, these positions do not prevent institutions or researchers from asking about sex, gender or other demographic information when appropriate.
These statements and principles are consistent with international treaty positions, including the 1966 International Covenant on Civil and Political Rights (ICCPR) and the 1989 Convention on the Rights of the Child. Article 24 of the ICCPR states:
- Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.
- Every child shall be registered immediately after birth and shall have a name.
- Every child has the right to acquire a nationality.
Article 7 of the Convention on the Rights of the Child states:
- The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents.
What have we done about identification documents?
We gather evidence, promote sound and useful research, build community and contribute to the creation of joint platforms. We engage in discussions about effective data collection and the identification of people born with variations of sex characteristics, and we seek to ensure that our policies and guidance offers a consistent position across multiple different settings. We make submissions to governments, government agencies (such as the Australian Bureau of Statistics), and others. These include:
- Advice and recommendations on including people born with variations of sex characteristics in surveys, studies and on forms
- Via reference group membership, we supported an independent 2015 Australian sociological study that has given us important demographic data on people born with atypical sex characteristics (see Jones, 2016; Jones, 2017)
- Joint submission on recognition of non-binary gender in federal sex/gender guidelines, October 2015
- A commentary on High Court recognises “non-specific” gender identity, implications for intersex people, 2 April 2014
- A commentary on miraculous thinking on the benefits of third classifications, December 2016.
- A commentary on how open birth sex assignments do not reduce surgical interventions, 4 November 2013.
- A commentary on how German proposals for a “third gender” on birth certificates miss the mark, 20 August 2013.
- A commentary on ten years of ‘X’ passports, and no protection from discrimination, 12 January 2013.
- A commentary on An annulment of marriage due to being intersex in the Family Court: In the marriage of C and D (falsely called C), February 2012.
Submissions to State and Territory governments and parliamentary inquiries include:
- Australian Capital Territory: Response to the report “Beyond the Binary” in 2013. Response to reform in ACT, March 2014
- New South Wales: submission to inquiry led by Alex Greenwich MP, August 2015
- Northern Territory: following a submission and discussion with IHRA, the Northern Territory government introduced reforms to births, deaths and marriages legislation that introduced a new sex/gender category called non-binary, without creating a new category called intersex. Much press reporting on this legislation is inaccurate.
- Queensland: Submission to inquiry, April 2018
- South Australia: submission to inquiry, May 2017. These reforms problematically construct intersex as a third sex/gender category, and permit discrimination on grounds of religion that religious institutions have not sought.
- Western Australia: submission on Law Reform Institute of Western Australia discussion paper, October 2018. With minor reservations, we support the final report, but it has been rejected by the State government.
Submissions to governmental entities include:
In the marriage of C and D (falsely called C) (1979) FLC 90-636
Tien-Lao & Tien-Lao  FamCA 953 (21 November 2018)
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.
Bailey, Rebecca J. 1979. ‘Family Law–Decree of Nullity of Marriage of True Hermaphrodite Who Has Undergone Sex-Change Surgery’. Australian Law Journal 53 (9): 659–65.
Carpenter, Morgan. 2018a. ‘The “Normalization” of Intersex Bodies and “Othering” of Intersex Identities in Australia’. Journal of Bioethical Inquiry, May, 1–9.
Carpenter, Morgan. 2018b. ‘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.
Dreger, Alice. 2018. ‘Twenty Years of Working toward Intersex Rights’. In Bioethics in Action, edited by Françoise Baylis and Alice Dreger, 55–73. Cambridge University Press.
Finlay, Henry A. 1980. ‘Sexual Identity and the Law of Nullity’. Australian Law Journal 54 (3): 115–26.
Fraser, Kenneth, M. J. J. O’Reilly, and J. R. Rintoul. 1966. ‘Hermaphroditus Verus, with Report of a Case’. Medical Journal of Australia 1 (24): 1003–8.
Holmes, Morgan. 2004. ‘Locating Third Sexes’. Transformations, Regions of Sexuality, no. 8 (July).
House of Representatives. 2013. Explanatory Memorandum, Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013.
Intersex Society of North America. undated. What does ISNA recommend for children with intersex?
Johnson, Emilie K., Ilina Rosoklija, Courtney Finlayson, Diane Chen, Elizabeth B. Yerkes, Mary Beth Madonna, Jane L. Holl, Arlene B. Baratz, Georgiann Davis, and Earl Y. Cheng. 2017. ‘Attitudes towards “Disorders of Sex Development” Nomenclature among Affected Individuals’. Journal of Pediatric Urology, May.
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).
Karkazis, Katrina, and Morgan Carpenter. 2018. ‘Impossible “Choices”: The Inherent Harms of Regulating Women’s Testosterone in Sport’. Journal of Bioethical Inquiry, August.
Reis, Elizabeth. 2012. Bodies in Doubt: An American History of Intersex. Baltimore: Johns Hopkins University Press.
Third international intersex forum. 2013. ‘Malta Declaration: Public Statement by the Third International Intersex Forum’. Floriana, Malta.
United Nations. 1966. ‘International Covenant on Civil and Political Rights’.
United Nations. 1989. ‘Convention on the Rights of the Child’.
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.
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