Intersex Human Rights Australia

Summary

This page presents a timeline of legal, community and other key reforms in Australian jurisdictions. It highlights good practice, and documents the history of them and other developments.

• Protections from harmful practices in medical settings, including forced and coercive so-called ‘normalising’ interventions without personal informed consent: ACT (public commitment made, work in progress), Victoria (public commitment made, work in progress)
• Elimination of discriminatory practices in the application of assisted reproductive treatments: no
• Apology and redress for harmful practices: no
• Human rights-affirming standards of care: no
• Protections from discrimination on grounds of sex characteristics: ACT, Northern Territory, Queensland, Tasmania (partial), Victoria
• Protections from discrimination on grounds of intersex status: Commonwealth, SA
• Fair work protections: enacted but not better practice using the attribute of sex characteristics
• Psychosocial support: InterLink community-owned and managed service commences with professional staff from 2023, with funding to mid 2025
• Respect for the diversity of people with intersex variations in relation to sex markers, and data collection: Commonwealth (mixed, bad practice in 2013 guidelines and passports, but 2020 ABS Standard is best practice), Northern Territory (birth certificates), Queensland (birth certificates), Tasmania (birth certificates), Victoria (birth certificates)

Commonwealth of Australia

1979 – the Family Court adjudicates ‘In the marriage of C and D (falsely called C)’; the marriage of a cisgender man was annulled on the basis that he was a ‘true hermaphrodite’; this constructed a troubling argument about mistaken identity; despite being observed male at birth, the man is described as a ‘true transsexual’ in case reports; the judgement breaks a historical model in Western countries of treating ‘hermaphrodites’ as female or male depending on predominant sex characteristics

1985 – the first meeting of what would become Intersex Peer Support Australia (IPSA) took place at the Royal Children’s Hospital, Melbourne

1993 – the Family Court adjudicates ‘In the Matter of the Welfare of a Child A’ and approves masculinising surgeries in a suicidal adolescent with congenital adrenal hyperplasia previously subjected to feminising surgeries; the adolescent’s male identity was blamed on the mother; clinicians assert that gender identity in children with congenital adrenal hyperplasia and XX chromosomes is determined by adherence with medication

1996 – Intersex Peer Support Australia (then known as the Androgen Insensitivity Syndrome Support Group Australia) held its first peer-led meeting

1998 – model law on female genital mutilation creates an exemption in protections from mutilation in relation to a ‘sexual reassignment procedure means a surgical procedure to give a female, or a person whose sex is ambivalent, the genital appearance of a particular sex (whether male or female)’ while also stating that any procedure ‘performed as, or as part of, a cultural, religious or other social custom is not to be regarded as a genuine therapeutic purpose’

2001 – Intersex Peer Support Australia becomes an incorporated association (under the name Androgen Insensitivity Syndrome Support Group Australia)

2003 – first reports are published of an ‘X’ passport issued by the government to Alex Macfarlane, a person with 47,XXY sex chromosomes (diagnosed as Klinefelter syndrome)

2004 – a letter by Tony Briffa on surgeries disregarding children’s human rights is published in the journal Nature

2005-2006 – Australian clinicians Vincent Harley and Garry Warne participate in the invite-only workshop that led to a clinical ‘Consensus statement on management of intersex disorders’; this sets out policy and (often scarce) evidence in support of clinical practices; this and the summary statement clearly identify that early cosmetic interventions on infants and children are based on feelings and beliefs in relation to relief of parental distress; rationales are also stated to include mitigating ‘risks of stigmatisation and gender-identity confusion of atypical genital appearance’

2009 – the Australian Human Rights Commission publishes ‘Sex files’, a paper on legal recognition of sex/gender in official documents

2009 – the Australian Human Rights Commission publishes a paper on intersex people and medical interventions that merely notes the existence of early surgeries; a disclaimer is later added

2009 – Intersex Human Rights Australia (IHRA) is founded as Organisation Intersex International Australia

2010 – Intersex Human Rights Australia registers as a not-for-profit company (under the name Organisation Intersex International Australia); we become a charity with Deductible Gift Recipient status in 2012

2010 – the documentary Orchids: My Intersex Adventure released in Australia

2011 – the Australasian Paediatric Endocrine Group holds a ‘crisis meeting’ with the Family Court, endeavouring to take decision-making on treatments affecting children with intersex variations out of court jurisdiction

2011 – the Androgen Insensitivity Syndrome Support Group Australia (now Intersex Peer Support Australia) holds a first weekend peer support conference in Brisbane

2011 – Gina Wilson, then president of OII Australia (IHRA), participates in the first international intersex forum, in Brussels, Belgium

2012 – the government proposes to add ‘sexual orientation’ and ‘gender identity’ to federal human rights and anti-discrimination law, intending to include people of ‘indeterminate sex’ within the attribute of gender identity; this is purported to refer to intersex people, in line with flawed legislation in some states and territories; IHRA and allies propose ‘intersex status’ or ‘sex characteristics’ instead

2013 – the Senate conducts and reports on an inquiry on involuntary or coerced sterilisation, including in relation to intersex people; it is a groundbreaking world-first parliamentary inquiry on intersex health and rights, with 15 cross-party recommendations; none of the recommendations have been implemented

2013 – Parliament enacts protection from discrimination on grounds of ‘intersex status’ alongside ‘sexual orientation’ and ‘gender identity’ – this is groundbreaking at the time; the impact has unfortunately been limited due in part to imputations of identity ascribed to intersex status; the Fair Work Act is amended to provide protections only on the ground of ‘sexual orientation’

2013 – federal sex/gender recognition guidelines are published; these are incoherent in that they both recognise a diversity of identities and statuses amongst people with intersex variations, and wrongly construct intersex as a third category

2013 – Tony Briffa and Morgan Carpenter participate in the third international intersex forum, in Valetta, Malta

2014 – the first ever cross-party speeches on intersex health and human rights take place in the Senate

2015 – Morgan Carpenter participates in the first UN expert meeting on ending human rights violations against intersex people, in Geneva

2016 – the Family Court adjudicates ‘Re: Carla (Medical procedure)’ – the judge describes prior surgeries (without court authorisation) on this preschool child with 17β-hydroxysteroid dehydrogenase 3 deficiency, described as a ‘sexual development disorder’, as having ‘enhanced the appearance of her female genitalia’; the judge states that parents can authorise the child’s sterilisation; to an extent that is rarely publicly documented, the judgement presents gender stereotypes supporting that decision

2016 – IHRA appoints staff for the first time, with Morgan Carpenter and Tony Briffa both becoming paid part-time contractors and co-executive directors

2017 – community organisations and individuals in Australia and Aotearoa/New Zealand develop and publish the Darlington Statement, calling for protections from harm in medical settings, resourcing, standards of care, protections from discrimination and harm on grounds of ‘sex characteristics’ and an end to constructions of intersex as a third category of sex as these cause harm

2017 – the Family Court adjudicates ‘Re: Kaitlin’ – the judge authorises ‘cross sex’ hormone treatments in an adolescent who was physically unable to produce sex hormones, who was previously prescribed testosterone to start puberty, and who identified from an early age as female

2017 – NHMRC ethical guidelines on use of assisted reproductive technologies permit elimination of intersex traits where they are considered to be severely life-limiting; subsequent clinical discussion on the elimination of intersex traits often serves to exacerbate risks of worst case outcomes, and fails to acknowledge the impact of social stigma on decision-making

2017 – Morgan Carpenter gives a Rights Talk at the Australian Human Rights Commission

2017 – Morgan Carpenter and former Human Rights Commissioner Chris Sidoti are members of the drafting committee for the Yogyakarta Principles plus 10 on the application of international human rights law in relation to sexual orientation, gender identity, gender expression and sex characteristics

2017 – marriage equality is introduced following a postal plebiscite; LGBT intersex people become able to marry for the first time; intersex women and men in heterosexual marriages are treated as if non-existent; intersex people are othered as a homogenous third sex during the campaign and the explanatory memorandum for the reform bill

2017-2019 – UN Treaty Bodies including the Committee on Economic Social and Cultural Rights, the Human Rights Committee, the Committee on the Elimination of Discrimination against Women, the Committee on the Rights of the Child and the Committee on the Rights of Persons with Disabilities all make statements about ending forced and coercive medical interventions on intersex people in Australia, responding to submissions by IHRA and others

2018 – the Australian Human Rights Commission commences an inquiry on protecting the human rights of people born with variations in sex characteristics in the context of medical interventions; it reports in 2021

2018 – the report of the expert panel on Religious Freedoms Review brackets intersex status together with race, disability and pregnancy, calling for the abolition of any exemptions to anti-discrimination law that provide for discrimination by religious schools on these grounds

2019 – IHRA and GATE coordinate an international community response to the introduction of ‘disorders of sex development’ (DSD) language in the World Health Organization’s International Classification of Diseases

2019 – the first issue of YOUth & I intersex youth publication is published, edited by Steph Lum

2021 – the Australian Bureau of Statistics issues a new 2020 Standard for Sex, Gender, Variations of Sex Characteristics and Sexual Orientation Variables – this Standard resolves problems with the 2013 guidelines and provides a best practice model for data collection; it is not used in the national census in 2021

2021 – the Australian Medical Association calls on medical practitioners to affirm Principle 32 of the Yogyakarta Principles, on the right to bodily integrity: ‘no-one should be subjected to invasive or irreversible medical procedures that modify sex characteristics without their free, prior and informed consent, unless necessary to avoid serious, urgent and irreparable harm to the concerned person’.

2021 – the Australian Human Rights Commission publishes a major report on ensuring health and bodily integrity of people with innate variations of sex characteristics, recommending a package of reforms to address concerns with current medical practices.

2022 – ‘intersex status’ was added as a protected ground in the Fair Work Act (protections have not yet commenced). On behalf of the government, Minister Tony Burke also made a public commitment in the House of Representatives to update protections in the Sex Discrimination Act and Fair Work Act from ‘intersex status’ and to ‘sex characteristics’.

2023 – with support from Queensland Council for LGBTI Health, IHRA begins delivering the InterLink psychosocial support service, designed by Bonnie Hart who also joins IHRA as deputy executive director.

2023 – Assistant Minister for Health Ged Kearney chairs a new expert advisory group for a 10-year action plan on LGBTIQA+ health and wellbeing. Morgan Carpenter participates, and national consultations commence.

2023 – a population-specific stream is announced as part of a new Medical Research Future Fund round on LGBTIQA+ health.

Australian Capital Territory

1997 – the Crimes (Amendment) Act (No. 3) amends the Crimes Act 1900 to prohibit female genital mutilation, with no exemptions in relation to ‘cultural, religious or other social custom’ but an exemption for ‘sexual reassignment procedures’ meaning ‘a surgical procedure performed by a medical practitioner to give a female person, or a person whose sex is ambivalent, the genital appearance of a person of the opposite sex or of a particular sex (whether male or female)’

2003 – a Government Report to the ACT Legislative Assembly on discrimination against LGBTI people states that ‘the majority of people with an intersex condition did not have issues around gender identity’ and that legislation should ‘regulate “normalising” surgery’; IPSA had made a submission

2003 – the Legislation (Gay, Lesbian and Transgender) Amendment Act 2003 defines intersex persons as ‘a person who, because of a genetic condition, was born with reproductive organs or sex chromosomes that are not exclusively male or female’, and applies the definition particularly in relation to body searches

2010 – the Human Rights Commission Legislation Amendment Act 2010 amends the Discrimination Act 1991, replacing the attribute of ‘transsexuality’ with the attribute of ‘gender identity’, adding wording in relation to people of ‘indeterminate sex’ who live ‘as a member of a particular sex’

2012 – the ACT Law Reform Advisory Council publishes ‘Beyond the Binary: legal recognition of sex and gender diversity in the ACT’ which conflates sex and gender, and proposes to construct intersex as a legal category of sex; decisions around forced and coercive surgeries are framed as questions about decision-making in relation to sex assignment at birth; apparently an IHRA submission went missing

2014 – intersex is added as a category of sex, consequential to the Births, Deaths and Marriages Amendment Act; the Chief and Health Minister states in a letter that this will provide for a parental right, and reduce the risk that intersex infants will be subjected to gender-related surgeries; however, a separate 2014 letter from the Chief and Health Minister states that children with ‘DSDs’ are subjected to surgeries in line with standard medical protocols; IHRA opposes the reform as the government failed to understand the population; no children with intersex variations are assigned to this category

2016 – the Discrimination Amendment Act 2016 added ‘intersex status’ as a protected attribute, replacing previous language on people of ‘indeterminate sex’ within the attribute of ‘gender identity’

2019 – government commits to reform to protect intersex people from harm in medical settings in the Capital of Equality strategy

2020 – the Discrimination Act 1991 is updated to replace ‘intersex status’ with ‘sex characteristics’ in the Justice Legislation Amendment Act 2020

2020 – a discussion paper is published on prohibiting deferrable medical interventions on intersex people; it is followed in 2021 by a listening report and an options paper

2023 – the ACT government passes legislation protecting the rights of many people with innate variations of sex characteristics in medical settings. It establishes a Variations in Sex Characteristics Restricted Medical Treatment Assessment Board, and also a Variations in Sex Characteristics Psychosocial Support Service.

New South Wales

1995 – the Crimes Act 1900 is amended by the Crimes (Female Genital Mutilation) Amendment Act 1994; the provisions contain an exemption for medical procedures including ‘sexual reassignment’ constructed narrowly to mean surgeries to alter genital appearance ‘to the appearance (as nearly as practicable) of the opposite sex to the sex of the person’

1996 – people of ‘indeterminate sex’ who ‘identify with a particular sex’ added to the definition of ‘transgender’ in the Anti-Discrimination Act 1977; this is purported to refer to people with intersex variations but it is not clear how it provides protection

2010 – Kathleen Worrall, a woman with congenital adrenal hyperplasia convicted of manslaughter, dies in prison; news reports link her behaviour to non-compliance with medication

2011-2014 – Norrie takes legal action against the registrar of births, deaths and marriages in pursuit of a third legal category of sex; this is purported in media and submissions to the High Court to be relevant to the status of people with intersex variations

2013 – the NSW government opposes inclusion of ‘intersex status’ in federal anti-discrimination law

2016 – paediatric clinicians in NSW and Victoria publish material on medical interventions on children with intersex variations in Sydney and Melbourne where ‘dilemmas’ or ethical issues are referred to a multidisciplinary team; the document states that these teams are ‘an alternative to legal oversight of all decisions in DSD’

2018 – ‘intersex status’ is included in new Crimes Act prohibitions on ‘publicly threatening or inciting violence’; the opportunity to adopt the preferred attribute of ‘sex characteristics’ is not taken; no opportunity is taken to add either attribute the Anti-Discrimination Act

2020-2021 – the Education Legislation Amendment (Parental Rights) Bill 2020 proposes a ban on the teaching of ‘gender fluidity’ in schools, with the definition of gender fluidity including a reference to people ‘born with disorders of sexual differentiation’; the majority report by the Committee investigating the proposal fails to substantively address this issue

2022 – following consultations, NSW Health publishes an LGBTIQ+ Health Strategy 2022-2027. While the report contains welcome actions on the health of people with innate variations of sex characteristics, no funding is attached to these goals

Northern Territory

1995 – the Criminal Code Amendment Act (No. 2) amends the Criminal Code to prohibit female genital mutilation, with no exemptions in relation to ‘cultural, religious or other social custom’ but an exemption for ‘gender reassignment’ procedures meaning ‘surgical procedure[s] to give a female, or a person whose sex is ambivalent, the genital appearance of a particular sex (whether male or female)’; this constructs an exemption permitting harmful practices on children with intersex variations

2017 – discussion regarding potential reforms to the Anti-Discrimination Act 1992 commence, but are later suspended due to uncertainty about federal action on discrimination on grounds of religion; the Act contains no reference to ‘indeterminate sex’ or intersex

2018 – the Births, Deaths and Marriages Registration and Other Legislation Amendment Act provides for the registration of non-binary people without harmfully conflating this with intersex traits, following an intervention by IHRA

2022 – the Anti-Discrimination Act was updated to offer protections on grounds of sex characteristics, in line with a submission by IHRA

Queensland

2000 – the Criminal Law Amendment Act prohibits female genital mutilation, with the exception of ‘sexual reassignment’ procedures defined as ‘surgical procedure[s] to give a person the genital appearance of a particular sex, whether male or female’, constructing an exemption permitting harmful medical practices on children with intersex variations

2002 – the Anti-Discrimination Act 1991 is amended by the Discrimination Law Amendment Act 2002; it purports to protect intersex people as people of ‘indeterminate sex’ within the attribute ‘gender identity’

2008 – the Health Legislation (Restriction on Use of Cosmetic Surgery for Children and Another Measure) Amendment Act prohibits some cosmetic interventions on children

2012 – the Department of Communities asserts that cosmetic medical interventions on children with intersex variations no longer take place

2016 – Family Court adjudicates ‘Re: Carla (Medical procedure)’, an anonymous government department appears as a friend of the court

2017 – Family Court adjudicates ‘Re: Kaitlin’

2022 – InterLink community psychosocial support service first established at Queensland Council for LGBTI Health by Bonnie Hart, with indirect funding from the State government

2023 – the Queensland Parliament passes reforms extracting references intending to relate to people with innate variations of sex characteristics from the gender identity attribute in anti-discrimination law.

2024 – legal protections from discrimination on grounds of sex characteristics commence in late April.

South Australia

1988 – the Sexual Reassignment Act 1988 is enacted. It is the first legislation in Australia to facilitate changes to sex markers for transgender people. The Act also defines a ‘reassignment procedure’ as ‘reassignment procedure means a medical or surgical procedure (or a combination of such procedures) to alter the genitals and other sexual characteristics of a person, identified by birth certificate as male or female, so that the person will be identified as a person of the opposite sex and includes, in relation to a child, any such procedure (or combination of procedures) to correct or eliminate ambiguities in the child’s sexual characteristics’. This gives government imprimatur to forced and coercive medical interventions on people with intersex variations. The wording changed to recognise the existence of a third sex in 2016, when ‘the opposite sex’ is changed to ‘a different sex’, but the reference to surgical procedures to ‘correct or eliminate ambiguities’ remained until 2017.

1995 – the Statutes Amendment (Female Genital Mutilation and Child Protection) Act prohibits female genital mutilation; it contains a narrow exemption for ‘sexual reassignment procedures’ including surgical procedures ‘to give a female, or a person whose sex is ambivalent, genital characteristics, or ostensible genital characteristics, of a male’, and an exemption for ‘therapeutic’ purposes ‘directed at curing or alleviating a physiological disability or physical abnormality’

2016 – on the basis of recommendations by the South Australian Law Reform Commission, the Relationsips Register Act 2016 adds ‘intersex status’ to the Equal Opportunity Act 1984; in correspondence with the South Australian Law Reform Commission, IHRA had recommended addition of ‘sex characteristics’; the provisions introduce a religious exemption on grounds of ‘intersex status’ – this is the only law in Australia to link religious exemptions to intersex characteristics and the later 2018 report of the expert panel on Religious Freedoms Review places intersex status calls for the abolition of such exemptions

2016 – intersex advocates speak at an event at the SA Parliament for the first time; the event was organised and chaired by IHRA

2017 – regulations attached to the Births, Deaths and Marriages Registration Act 1996 are implemented that harmfully construct intersex as a third sex; IHRA opposes this and does not endorse it, yet is thanked by Premier Jay Weatherill for our advocacy

Tasmania

1999 – the Criminal Code Act 1924 is amended by commencement of the Criminal Code Amendment Act 1995, prohibiting female genital mutilation that prohibit procedures for cultural, religious or social customs, but that exempt ‘sexual reassignment procedures’ including ‘a surgical procedure to give a female, or a person whose sex is ambivalent, the genital appearance of a particular sex’

2013 – ‘intersex status’ added to anti-discrimination law; proposals for this attribute provided a model for Commonwealth law, facilitating an alternative to federal proposal for inclusion of ‘indeterminate sex’ within the meaning of ‘gender identity’

2019 – sex/gender on birth certificates becomes optional as a result of the Justice and Related Legislation (Marriage and Gender Amendments) Act 2019

2019 – ‘intersex variations of sex characteristics’ added as an attribute to the Anti-Discrimination Act 1998; the term intersex is not defined and constrains use of the legislation due to popular misconceptions about intersex people

2020 – the Tasmanian Law Reform Institute reports on sex and gender recognition; the report is flawed but supports calls to criminalise forced and coercive medical interventions on infants and children with intersex variations

Victoria

1996 – the Crimes (Female Genital Mutilation) Act prohibits female genital mutilation with an exemption for ‘sexual reassignment’ procedures performed by medical practitioners, which appears to provide an exemption in relation to early surgical interventions on children with intersex variations

2008 – the Assisted Reproductive Technologies Act prohibits sex selection including reference to ‘the purpose of a purpose of producing or attempted to produce a child of a particular sex’, which an uninformed reader might take to mean a reference to include intersex people; however, the provisions exempt procedures that ‘avoid the risk of transmission of a genetic abnormality or a genetic disease’, and this provides a framework for the elimination of embryos with intersex variations

2010 – protections on grounds of ‘physical features’ meaning ‘a person’s height, weight, size or other bodily features’ enacted in the Equal Opportunity Act 2010; people of ‘indeterminate sex’ also included in the ‘gender identity’ attribute, purportedly intending to refer to intersex people

2010 – ethicists and paediatric endocrinologists in Melbourne publish ethical principles that appear primarily intended to facilitate early surgical interventions; the principles include reference to impaired marriage prospects as a rationale for early surgical interventions

2011 – the ethical principles are challenged by other clinicians for rationalising early surgical interventions

2011 – Tony Briffa is elected mayor of Hobsons Bay, Victoria

2013 – the Victorian state government publishes decision-making guidelines substantively based on the 2010 ethical principles; the original version refers to impaired marriage prospects as a rationale for early surgical interventions but this is later quietly removed

2016 – paediatric clinicians in Victoria and NSW publish material on medical interventions on children with intersex variations in Melbourne and Sydney where ‘dilemmas’ or ethical issues are referred to a multidisciplinary team; the document states that these teams are ‘an alternative to legal oversight of all decisions in DSD’

2019 – the Births, Deaths and Marriages Registration Amendment Act respects the diversity of the intersex population and simply provides for a variety of terms in applications for birth registration, without constructing intersex as a sex category

2021 – ‘sex characteristics’ added to the Equal Opportunity Act via the Change or Suppression (Conversion) Practices Prohibition Act, replacing previous inappropriate wording on ‘indeterminate sex’ in the attribute of ‘gender identity’; protections commenced on Intersex Awareness Day, 2021

2021 – in the statement ‘(i) Am Equal’ by the Minister for Health and Equality and Tony Briffa, the government commits to protecting people with innate variations of sex characteristics to protection from harmful medical practices

2021 – the Assisted Reproductive Treatment Amendment Bill provides welcome protection from discrimination on grounds of sex characteristics in accessing treatments, but fails to address discrimination in the application of such treatments, such as the elimination of intersex traits

2021 – the State government funds Equality Australia to develop proposals for legislative protections, and funding IHRA to support this work

2024 – the State government expects to introduce legislation for an intersex protection system in parliament

Western Australia

2000 – the Gender Reassignment Act defines ‘reassignment procedures’ to mean procedures that ‘alter the genitals and other gender characteristics of a person’ including ‘in relation to a child, any such procedure (or combination of procedures) to correct or eliminate ambiguities in the child’s gender characteristics’; this effectively gives governmental imprimatur for harmful practices in medical settings, framing early surgeries as ‘reassignment’

2000 – the Equal Opportunity Act 1984 is amended in the Gender Reassignment Act 2000 to include ‘gender history’; any relationship of this attribute to people with intersex variations is uncertain

2004 – the Criminal Code Amendment Act prohibits female genital mutilation with an exemption for ‘reassignment procedures’ within the meaning of the Gender Reassignment Act 2000

2018 – the Law Reform Commission inquires into legislation recognising ‘sex, change of sex or intersex status’ – the terms of reference show an incomprehension of intersex traits and the focus is primarily on birth certificates; minimal and flawed attention is given to harmful practices in medical settings; the report recommends removing sex/gender from birth certificates; the government rejects this recommendation and proposes constructing intersex as a third category of sex, a construction that is explicitly rejected in the Darlington Statement

2021 – the Law Reform Commission commences an inquiry into reform of the Equal Opportunity Act 1984; wrongly frames intersex status in relation to ‘gender history’

2024 – the Health Minister claims that harmful practices do not exist in Western Australia

2024 – the Attorney General proposes creating an intersex/indeterminate legal sex classification, out of step with community expectations and demands, and out of step with other jurisdictions