On 20 September 2012, the Senate referred the involuntary or coerced
sterilisation of people with disabilities in Australia to the Senate Community
Affairs References Committee for inquiry and report. On 7 February 2013 the
Senate amended the terms of reference of the inquiry to add the following
2. Current practices and policies relating to the
involuntary or coerced sterilisation of intersex people, including:
(a) sexual health and reproductive issues; and
(b) the impacts on intersex people.
The addition of this item reflected the growing awareness by both the
committee and stakeholders of a significant overlap between issues faced by
people with disability and by intersex people. The committee's desire to examine
the issues more closely was also fostered by the work of the government and the
Senate Legal and Constitutional Affairs committee on the Exposure Draft of
Human Rights and Anti-Discrimination Bill 2012, and the subsequent Sex
Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex
Status) Bill 2013.
On 17 July 2013 the Community Affairs committee tabled its first report,
on involuntary or coerced sterilisation of people with disabilities in
Australia. This second, and final, report addresses the term of reference
concerning intersex people.
The committee has benefited from the cooperation of many individuals and
organisations, who have responded to questions and helped the committee to
understand this extremely complex field of human rights and medicine. The
committee is particularly grateful to Organisation Intersex International Australia
(OII) for its assistance in locating a range of reference materials, and to a
number of specialists in the field, such as Dr Hewitt, Professor Warne, and Dr
Cools and her colleagues who provided reference material and answered the
committee's questions. The committee recognises the efforts all these people
have made to assist the inquiry.
Because of the technical nature of the inquiry and differences of view
between stakeholders regarding the published research, wherever possible the
committee considered the original research publications in the field, rather
than relying on their interpretation in submissions. For this reason, this
report relies to a greater extent than usual on peer-reviewed published
research material. The committee is grateful to submitters, the Parliamentary
Library, and other libraries around the country for assisting in sourcing this
What is intersex?
'Intersex' describes biological variation in members of a species that
means they cannot be comprehensively described by the labels 'male' or
'female'. Intersexuality occurs in many species, including humans, and it
represents a range of genetic, chromosomal and hormonal circumstances. Intersex
may be evident from genotype: a person may have variations in their
genes and chromosomes other than the 46,XX and 46,XY that define typical female
and male sex respectively. There may be variations in phenotype: the
observable sex characteristics of the body may differ from those of a typical
male or female.
Intersexuality is sometimes but not always evident at birth:
[I]ntersex people are diagnosed visually, at birth, or via
amniocentesis, by chromosome, and other blood tests... Intersex differences may
also be determined during infancy, at puberty, when attempting to conceive, or
through random chance.
Intersex is not the same as transgender or transsexual. As OII
Trans people include people who are born unambiguously
one gender but who, later in life, identify and present in the world
differently. In contrast, intersex is not based on identity, even though
non-standard identities might be regarded as a logical possible consequence of
The circumstances that can lead to someone being intersex include
unusual combinations of X or Y chromosomes, physiological variations in
genitals that are not apparently male or female at birth (and/or subsequently)
and variations in hormone production at different stages in development. This
was well explained by the World Health Organisation's genomic resource centre:
Humans are born with 46 chromosomes in 23 pairs. The X and Y
chromosomes determine a person’s sex. Most women are 46XX and most men are
46XY. Research suggests, however, that in a few births per thousand some
individuals will be born with a single sex chromosome (45X or 45Y) (sex
monosomies) and some with three or more sex chromosomes (47XXX, 47XYY or 47XXY,
etc.) (sex polysomies). In addition, some males are born 46XX due to the
translocation of a tiny section of the sex determining region of the Y
chromosome. Similarly some females are also born 46XY due to mutations in the Y
chromosome. Clearly, there are not only females who are XX and males who are
XY, but rather, there is a range of chromosome complements, hormone balances,
and phenotypic variations that determine sex.
The Disorder of Sex Development multidisciplinary team at Royal
Children's Hospital, Melbourne submitted that there is a range of circumstances
that meet the criteria of being intersex:
Some life threatening conditions such as salt wasting congenital
adrenal hyperplasia, which requires lifelong medications and medical care;
- Babies born with ambiguous genitalia;
- others which involve significant penis anomalies (hypospadias);
- others involving girls who are born without a vagina and uterus;
- babies who are born with only one opening for bladder, bowels
(and vagina) or where the entire lower abdominal wall and genital area is open
and exposed with the inside of the bladder open and the clitoris or penis in 2
There is a bewildering array of terms and medical conditions describing
intersex, with many having synonyms. A number of these will be discussed at
various stages in this report, and by inquiry participants. These clinical
Congenital Adrenal Hyperplasia (CAH)
47,XXY (or Klinefelter syndrome)
45,X (and variants, or Turner's syndrome)
Partial Androgen Insensitivity Syndrome (PAIS) (or Reifenstein's
Complete Androgen Insensitivity Syndrome (CAIS) (or Morris'
Gonadal Dysgenesis (including, depending on the classificatory
approach, Frasier syndrome, Denys-Drash syndrome)
MRKH (also known as Vaginal Agenesis)
17-Ketosteroid Reductase Deficiency
Intersex can include circumstances where the person will benefit from –
indeed require – medical intervention, and intersex conditions are classified
by the World Health Organisation as endocrine disorders.
Intersexuality however does not necessarily involve a medical condition:
Intersex is not a medical condition or a disorder or a
disability or a pathology or a condition of any sort. Intersex is differences
in the same way height, weight, hair colour and so on are differences. Only a
very few ways of being intersex have links to differences that might cause
illness. Congenital adrenal hyperplasia (CAH) is the most common. Strangely
very few CAH individuals are intersex despite it being classified by medicine
as a way of being intersex. We know of no XY CAH individuals who are intersex.
We know most XX CAH individuals are females capable of having a child with very
few anatomical differences of sex. Some intersex [people] have very striking
differences in anatomical presentation but they are usually very healthy and
Some intersex people are naturally fertile. Others may be infertile,
however their gonads—whether ovaries or testes—are capable of producing
hormones. There are also some intersex people who, while not capable of
unassisted reproduction, may be able to have children with medical support,
either with existing reproductive assisting technologies, or as new scientific
How common is intersex?
Figures for the incidence of intersex are difficult to come by. The UK's
National Health Service suggests a range of 0.1 to 2 per cent of the
The Australasian Paediatric Endocrine Group (APEG) indicated that the incidence
1 in 125 boys for a mild variant, to 1 in 4500 babies where
genitalia appear significantly ambiguous at birth such that the sex of the
infant is unable to be immediately determined.
Some mixed sex chromosome conditions – where a person has a
configuration of chromosomes other than the usual 46,XX or 46,XY – are
considered common, occurring in about 1 in 400 births, with the most frequent
being '47,XXX (1:947 girls), 47,XXY (1:576 boys), 45,X (1:1893 girls) and
47,XYY (1:851 boys)'.
Warne and Hewitt have indicated that one type of CAH – 21-hydroxylase
deficiency – is 'the single most common cause of ambiguous genitalia',
though ambiguous genitalia is of course not a necessary feature of intersex. In
fact two studies found that, for most people, variation from the standard
genetic make-up of 46,XX or XY did not result in abnormal genital appearance.
While CAH is the commonest cause of ambiguous genitalia, it is rarer than some
other intersex conditions, occurring in around 1 in 16 000 births.
OII reported two studies:
Fausto-Sterling (2000) reports that 1-2% of the population
are intersex. The NSW Ministry of Health reports data from the NSW Mothers and
Babies report showing that infants with visible reportable differences of sex
anatomy between 2003-2009 comprised 0.59% of all births, while no breakdown of
additional (often not visible at this stage) relevant chromosomal
"anomalies" is given.
The definition used by Fausto-Stirling and others was an 'individual who
deviates from the Platonic ideal of physical dimorphism at the chromosomal,
genital, gonadal, or hormonal levels'.
Psychologist Leonard Sax criticised Fausto-Stirling's estimate on the grounds
that her definition of intersex was too broad. Sax favoured a definition of
intersex as 'those conditions in which (a) the phenotype is not classifiable as
either male or female, or (b) chromosomal sex is inconsistent with phenotypic
sex'. He then went on to argue that the frequency of intersex according to his
narrower definition was approximately 0.018 per cent of the population.
Sax's definition however is not accepted elsewhere and his calculations exclude
conditions such as Klinefelter syndrome and Turner syndrome: he is the only source
to suggest these are not intersex.
OII commented on the lack of data available, and some steps that would
contribute to rectifying this:
Given a social environment where intersex people are
stigmatised, we support registration of intersex infants with a binary sex,
however, the birth registration process also means that we have no accurate
data on our numbers. Further, no data is available to us on the number or type
of surgical procedures on intersex children, or the numbers of intersex
Intersexuality and its assessment
To assist in understanding subsequent chapters, this section describes a
number of different forms of intersexuality, and some of the means by which
they are assessed.
Androgen Insensitivity Syndrome
People with Androgen Insensitivity Syndrome (AIS) have bodies that are
either completely insensitive to testosterone and other androgen hormones
(CAIS) or partially insensitive to androgens (PAIS).
Complete Androgen Insensitivity Syndrome
With CAIS, a cell is completely insensitive to testosterone thereby preventing
the development of male external genitalia. This results in the development of
external female genitalia but without 'ovaries, Fallopian tubes or uterus; and
the vagina will be blind-ending and possibly short or absent. Female pubertal
development occurs but there will be no menstruation and no possibility of
Testes are usually present in a 'superficial inguinal position and can be the
size found in men'.
CAIS is caused by an alteration in a gene which 'blocks the body's
response to masculinising hormones during foetal development and after birth'.
Some common features of CAIS include:
Female body shape
Large breasts with juvenile nipples
Absent/scanty axillary and pubic hair
No temporal hair recession (balding)
Female external genitalia with small labia
Absent or rudimentary internal genitalia
Gonads consistent histologically with cryptorchid testes
Testes produce androgen and oestrogen.
Diagnosis of CAIS has often not taken place until puberty because it is
only then that many people discover that they cannot menstruate and that other
features of puberty such as the growth of pubic and axillary hair do not
Past clinical practice refrained from disclosing the nature of the
condition to patients and their parents, partly due to a 'paternalistic
attitude but it was also due to the perceived difficulty of explaining XY
chromosomes and testes to a girl without traumatising her'.
This lack of diagnosis often caused much distress to the intersex person:
The failure of doctors to disclose the true nature of the
condition to them and their parents led to major difficulties and this has
generated a great deal of anger and resentment.
A number of medical conditions are associated with CAIS. There is a
small increased risk of testicular cancer (3%) and women with CAIS have an
increased risk of osteoporosis.
Undescended testes can also result in an inguinal hernia in infancy.
Partial Androgen Insensitivity Syndrome
PAIS is a variant of AIS which can result in children being born with
masculinised genitalia. The extent of the variation results in some children
with PAIS being raised as boys and some raised as girls.
A grading system for the phenotypic features in AIS was proposed in 1995
by Dr Charmian Quigley and Dr Frank French. This system categorises the
variations of AIS in a range from Partial to Complete. CAIS is shown at Grades
6/7 of the spectrum where the outward appearance of the person is invariably
A person categorised as Grade 1 PAIS will have outward genitalia that is
completely male in appearance. The system is used by the Androgen
Insensitivity Syndrome Support Group (AISSG) to illustrate the variation
between the two conditions.
Male genitals, infertility
Male genitals but mildly 'under-masculinized',
Predominantly male genitals but more severely
'under-masculinized' (perineal hypospadias, small penis, cryptorchidism i.e.
undescended testes, and/or bifid scrotum)
Ambiguous genitals, severely 'under-masculinized'
(phallic structure that is indeterminate between a penis and a clitoris)
Essentially female genitals (including separate
urethral and vaginal orifices, mild clitoromegaly i.e. enlarged clitoris)
Female genitals with pubic/underarm hair
Female genitals with little or no pubic/underam hair
*Before puberty, individuals
with Grade 6 or 7 are indistinguishable.
Congenital adrenal hyperplasia
Congenital Adrenal Hyperplasia (CAH) is a group of intersex conditions affecting
the adrenal glands of people (usually women) with XX chromosomes. CAH takes a
number of forms, which can be confusing to interpret. The most common type is
21-hydroxylase deficiency (21-OHD), in which the body does not produce enough
of some key chemicals (including one called 21-hydroxylase), with potentially serious
consequences for hormone production and many bodily functions.
The more severe form, called Classical CAH, is usually detected in the
newborn or in early childhood. However a milder form, called Non-classical CAH
(NCAH), may cause symptoms at any time from infancy through adulthood. NCAH is more
prevalent than Classical CAH,
however it is Classical CAH that is more often discussed in the context of
A person with Classical CAH will experience some degree of prenatal
virilisation or masculinisation. The degree of virilisation will vary
A person with CAH may be born with genitals that are to various degrees
masculinised. For example, the labia may be joined more like a scrotum, the
vagina may not be fully formed, or may be joined with the urethra.
CAH prevents the adrenal glands from producing cortisol, which is
necessary for life and also allows the body to 'deal with physical and
emotional stress, and maintain adequate energy supply and blood sugar levels'.
In addition, 75 per cent of people with Classical CAH also lack the adrenal
hormone aldosterone, which is necessary for regulating sodium and potassium
levels which help stabilise the heart. Aldosterone also maintains the normal
fluid volume of the body. When this deficiency occurs it is called Salt-Wasting
Mixed Sex Chromosome DSD
Humans are typically born with 23 pairs of chromosomes, forming a total
of 46. Twenty-two of these pairs are identical whilst the 23rd pair
differs between males and females. In this pair females have two copies of the
X chromosome while males have one X and one Y chromosome.
Mixed sex chromosome DSD occurs when there is sex chromosome abnormality
in the number of X or Y chromosomes. The most common chromosome abnormalities are
47,XXX; 47,XXY; 45,X; and 47,XYY. Two of these more common mixed sex
chromosome conditions are known as Klinefelter Syndrome (47,XXY) and Turner
Alternatively an abnormality may form part of a mosaic karyotype.
Mosaicism is a chromosomal abnormality where not all cells in a person's body have
the same number and/or composition of chromosomes. The most common of these are
45,X/46,XX; 45,X/46,XY; 46,XX/47,XXX and 46,XY/47,XXY. In many of the conditions
affected by sex chromosome abnormalities and/or mosaicism the development of
the gonads is adversely affected.
47, XXY (Klinefelter Syndrome)
Individuals with 47,XXY are born with an extra sex chromosome. The
committee heard that babies with a diagnosis of 47,XXY are typically assigned
as male at birth and diagnosed as having Klinefelter Syndrome.
Boys and men born with Klinefelter syndrome typically will have
smaller-than-average testes and low fertility. The effects of Klinefelter
syndrome vary substantially, and some affected persons show very few physical
Monosomy X (Turner Syndrome)
Turner syndrome is a condition in which a
person’s cells contain the chromosomal component 45,X. In other words, a
person has one X chromosome instead of two.
The phenotypes of girls with Turner Syndrome may include 'abnormalities in
linear growth (average adult height is 144cm), ovarian differentiation,
development of the cardiovascular, lymphatic and renal systems, the eyes and ears
and other organs.'
An extensive number of other medical conditions can also occur through
adolescence into adulthood.
In gonadal dysgenesis, a person’s gonads (ovaries or testes) do not
develop properly during foetal development, or develop in the wrong place. Gonads
that have developed in the inguinal canal that connects the abdominal cavity
with the scrotum, or in the abdominal cavity itself, fall into this category. Some
dysgenic gonads are described as 'streak gonads', which consist of fibrous
tissue that does not function like ovaries or testes. Streak gonads are not
capable of contributing to reproduction.
Depending on their position in the body, dysgenetic gonads may present a
high risk of gonadal cancer. According to members of the Disorder of Sex
Development multidisciplinary team at the Royal Children’s Hospital in
Melbourne, the intra-abdominal dysgenetic testes and streak gonads 'must be
removed as soon as possible after diagnosis'; other recent advice suggests that
inguinal testes can be retained, but 'a risk management strategy is mandatory'.
This issue is discussed further in Chapter 4.
There are some DSD conditions that cause genital abnormalities that are
not the result of hormone irregularities or chromosomal deviations. Cloacal
exstrophy for example is a very serious condition where the abdominal wall
fails to close correctly during foetal development. This can result in a
number of severe anatomical abnormalities such as the internal organs being
exposed and external genitalia not forming in a typical anatomic fashion. 
According to Hutson (2012), 'the key to recognition of these anomalies is that
the external anatomy is outside the range between normal male through to normal
female[...]by contrast, in hormonal causes of DSD, the morphological development
is otherwise normal'.
Aphalia and 'micropenis' are conditions where the person is born with
either no phallis or penis, or a penis that is 'at least 2.5 standard
deviations smaller than the average penis when stretched'.
The virilisation or masculinisation of genitalia is a feature of a
number of intersex conditions including CAH and AIS. It is frequently measured
using the Prader Scale which is a system developed by Dr Andrea Prader in 1954
for grading the degree of external genital virilisation.
The Scale starts at 0, which is an unvirilised female, and ends at 5 which is a
completely virilised female (a female who appears externally male at birth but
with the labial/scrotal sac empty since there are no testicles).
At the higher end of the scale, the external genitalia appear male while the
internal genitalia are those typically associated with females. According to UK
paediatricians the Prader Scale provides 'a standard to set surgical procedures
Intersex and fertility
The prospective fertility of a person born intersex is important to
medical treatment decisions that may be made, and was important to the
committee's inquiry. However, assessing fertility can be complex, particularly
in infants. In addition, developments in reproductive medicine may change the
future capacity of a person to have a child.
The committee was advised that intersex people may experience reduced
fertility compared to the general population, however fertility effects vary
greatly between different types of intersex. It also varies according to the
severity of the condition.
The submission from the multidisciplinary team at Royal Children's
Hospital, Melbourne indicated that people with XY complete gonadal dysgenesis
were infertile, because 'their gonads are neither testes nor ovaries, but
rather underdeveloped structures without potential for hormone production or
There is however a varying degree of fertility according to the severity of the
In those with complete androgen insensitivity syndrome or partial
androgen insensitivity syndrome, hormone production occurs in the testes but,
again, they are not fertile, at least given current medical technology.
Medical experts did however draw to the committee's attention an example where
that technology may lead to changes in fertility:
Patients with the severe form CAIS are infertile; however
most recently a case report describes fertility in a patient with moderate
partial androgen insensitivity following high dose testosterone treatment and
intracytoplasmic sperm injection.
In contrast, fertility exists in a range of other types of intersex. Women
with congenital adrenal hyperplasia experience reduced fertility, though the
reasons are varied;
fertility can be preserved in people with 46,XX ovo-testicular DSD and some
other forms of intersex such as 5α-Reductase
There are other types of intersex where the potential for fertility is unknown,
such as 17β-hydroxysteroid dehydrogenase deficiency.
OII indicated that some infertility in intersex people has not been
caused by their form of intersex, but by medical intervention that has removed
ovaries or testes.
Submissions to the committee stated that fertility, including potential
for future medically-assisted fertility, should be an important consideration
when medical interventions are planned for an intersex person.
Ladies and gentlemen, boys and girls?
This chapter began by explaining that intersex describes people who
cannot be comprehensively described by the labels 'male' or 'female'. Often
they will have a genetic make-up that varies from the standard chromosomal
arrangements in a male or female person.
Australian culture currently has strong expectations of 'binary' gender,
expecting people to appear 'normal' and to be either male or female. This attitude
is evident in the introduction to a chapter in the current medical reference
text on intersex, written by Australian medical practitioners:
Genital ambiguity in a baby is almost as devastating in the
delivery room as a perinatal death.
Such medical attitudes to the birth of an intersex baby are analogous to
those often displayed at the birth of a baby with a disability. Given that some
people with genital ambiguity do not require medical treatment in order to be
healthy and thrive, the extraordinary statement in this reference text is cause
for reflection on the way we consider intersexuality. If this sentence reflects
the clinical and social environment into which intersex people are born, it is
not surprising that both parents and doctors feel great pressure, and wish as
quickly as possible to ensure they have a child that is 'normal', and in
particular that gender conforms to sex or vice versa.
This is not how all cultures approach intersex. As Newman documents,
some North American Indians 'do not allocate sex at birth regardless of the
appearance of external genitalia, as there is a belief that it may change'. In
other societies, a change in gender identity at puberty occurs for some
intersex people, in a process that is culturally 'usually unproblematic'.
Similar arrangements exist in some societies in relation to transgender people,
such as in Samoa, where a kind of 'third gender' exists, fa’afafine, for
males who adopt a more feminine role.
In contrast, in Australia, the United States and elsewhere, the
prevailing cultural norm is to attempt to ensure 'normalisation' of sex and
permanent sex assignment. Still, not all individual parents and doctors
approach the issue in Australia and other western developed countries in this
way. To a limited degree, the most recent guidelines for medical management of
intersex, discussed in a later chapter, are less insistent on immediate sex
assignment. Even so, individuals who do not conform to this view may be placed
in a difficult position. Researcher Georgiann Davis records an instance when
parents who queried proposed surgery to normalise their child were told they
should 'see a psychiatrist'.
OII described how cultural norms have social and medical consequences
for intersex people:
Intersex variations affect perceptions of our realness as men
or women, and society still generally requires people to live and identify as
male or female. As a result, intersex bodies do not meet societal expectations
and intersex people experience homophobia and prejudice. Cultural, familial and
medical attitudes towards our differences from sex norms govern which sex we
are assigned, and what surgical and other medical interventions will be made to
ensure we conform to those norms. Medical interventions seek to erase intersex
Concillor Tony Briffa talked about some of the problems that come from
sex being assigned, despite Tony's desire not to be pigeonholed in that way:
I feel, and the support group feels, that this is an amazing
time for intersex. We see the human rights and antidiscrimination legislation
referencing intersex at the moment, which is brilliant, as well as an
acknowledgement that we exist and that it is a biological variation, which has
been wonderful... My birth certificate, from the state of Victoria, does not
classify me as male or female. I have certainly had a female birth certificate,
I had a male birth certificate at one stage and I have a blank birth
certificate now. But we are hoping that one day in the future our birth
certificates will actually be able to reflect, for those who want it, the way
nature made us. If people feel female that is great, and if they feel male that
is great, but there are also people like me: I just accept the way nature made
me. I am happy for my birth certificate to say that I am both male and female.
One day, hopefully, we will have that as well.
A number of experts have been critical of the binary, normalising
approach to sex that is facilitated by the medical model of treatment of
intersex. Regarding the role of sexual desire in intersex treatment, Karkazis
Typically, heterosexuality is seen as the natural sexuality
and the successful sexual outcome for treated children; penile-vaginal
intercourse as the exclusive or most important sexual act; and genital appearance
as taking priority over sexual pleasure and sensation.
Or as biologist Fausto-Stirling put it, 'penetration in the
absence of pleasure takes precedence over pleasure in the absence of
Psychiatrist Professor Louise Newman has observed:
For the clinician, it is important that adoption of a Western
model and formulation of gender identity and development does not preclude an
understanding of possible alternative frameworks, and a particular normative
model of gender development is not rigidly imposed on children and families
seeking to understand gender variation.
The expectation that children are assigned and will adhere to a binary
sex, and for their genitals to appear 'normal', increases pressure for medical
decisions to be made during infancy. This is discussed further in chapter
Recent developments in Australian law and practice
The sterilisation of intersex persons is influenced by medical protocol,
societal attitude and legal requirements. This report will canvass in detail
the medical and social frameworks relevant to the sterilisation of intersex persons.
The legal framework for the authorisation of sterilisation procedures will also
However, this inquiry is part of recent and growing recognition within
Australian society of intersexuality and intersex individuals. The committee
notes the advances within Commonwealth, State and Territory legislation that
give long overdue recognition to intersex persons, including legal protection against
discrimination on the basis of a person's intersex status. As this inquiry does
not exist in a vacuum but is in part a response to a wider movement to acknowledge
intersexuality, the committee has considered key legislative reforms that
recognise intersexuality. These legislative developments will inform the
committee's consideration of whether the medical, social and legal regulation
of the sterilisation and medicalisation of intersex persons is not only best
practice but is in keeping with the expectations of Australian governments and
Recent legislative reforms increasingly refer to 'intersex' as a recognised
biological trait. Notable developments have occurred in Commonwealth, territory,
and state legislation and administrative practice. Overall, the changes point
to a growing view within Australian legislatures, and Australian society, that
intersex as a biological trait should be recognised, respected and
accommodated, and that intersex individuals should not suffer discrimination on
the basis of their biology or gender identity.
Commencing on 1 August 2013,
Schedule 1 of the Sex Discrimination Amendment (Sexual Orientation, Gender
Identity and Intersex Status) Act 2013 extends anti–discrimination protections
under Commonwealth law to discrimination that occurs as a result of sexual
orientation, gender identity, and intersex status.
For the purpose of Commonwealth anti–discrimination legislation, intersex is
recognised as a biological characteristic; a product of a person's physical,
hormonal and genetic features that are neither wholly female nor wholly male,
are a combination of female and male, or are neither female nor male.
'Intersex status' is defined separately from gender identity, recognising that
intersex relates to an individual's biology.
'Gender identity' is defined as 'the gender–related identity, appearance or
mannerisms or other gender–related characteristics of a person (whether by way
of medical intervention or not), with or without regard to the person’s
designated sex at birth.'
Intersex persons are not required to identify as male or female in order
to access anti–discrimination protections under Commonwealth law. However, the
Australian Government has made clear that the anti–discrimination amendments do
not establish a third gender category.
The amendments also do not have the effect of broadening the application of the
Marriage Act 1961.
The Australian Government has also committed to amending its administrative
practice to recognise intersexuality in Commonwealth personal records. Published
in July 2013, the Australian government guidelines on the recognition of sex
define intersex as a "biological condition" linked to a
person's biological sex but not necessarily a person's gender;
outline the Australian Government's preferred approach to
collecting information about gender rather than biological sex;
establish three data recording options for biological sex and/or
gender information, namely, M (male), F (female) and X
allow a person to request changes to the biological sex or gender
information on their Commonwealth personal records - for proof of gender or
biological sex, it will be sufficient to provide a valid Commonwealth travel
document, a statement from a registered medical practitioner or an amended
state or territory birth certificate.
The changes to Commonwealth administrative record-keeping practices will
be introduced incrementally. All Commonwealth departments and agencies are
expected to be fully compliant with the new guidelines by 1 July 2016.
The Australian government guidelines on the recognition of sex and
gender have implications for medical practice. The guidelines affirm that the
'necessity of a medical service or associated benefit should be determined by
physical need, regardless of a person's recorded sex and/or gender.'
Consequently, the Australian Government has announced changes to the Medicare
framework. All references to gender will be removed from the descriptions of
the approximately 6000 clinical services covered by Medicare. Procedures will
be described in detail in using anatomical rather than gender-based language.
Patients will not be required to disclose their gender in order to access
Medicare benefits, nor will patients be barred from accessing certain benefits
on the basis of their gender identity. In announcing the changes, the
government recognised that current gender identity requirements may be
discriminatory and inappropriate for 'intersex Australians, who may not wish to
identify as any gender'.
Australian Capital Territory
In the Australian Capital Territory, there is growing recognition of the
legal rights of transgender and intersex persons. While implementation of the
reforms currently underway in the territory differs in certain respects to
Commonwealth developments, the territory's reform share a commitment to increasing
social and legal recognition of the rights of intersex persons.
In 2011, the Australian Capital Territory government commissioned an inquiry
into the measures necessary to provide for the legal recognition of transgender
intersex people in the ACT. Conducted by the Law Reform Advisory Council, the inquiry
reported in June 2012. Recommendations were made, several of which relate to
the recognition of intersex individuals. The ACT government responded in 2013
Figure 1: ACT Government response to ACT Law Reform Advisory Council's
3. In ACT legislation, when necessary, specific
reference should be made to 'intersex', and 'intersex person' and 'intersex
people' to refer to people who, because of their physiological
characteristics at birth, do not identify only as female or only as male.
The Government supports this recommendation in
7. In the Legislation Act 2001 in the
definition of intersex, reference to a genetic condition as the reason for a
person's intersex status is inappropriate, and it is sufficient to refer to the
fact that intersex person's reproductive organs or sex chromosomes are not
exclusively male or female.
The Government supports this recommendation.
11. The sex of the child when notified [under the Births,
Deaths and Marriages Registration Act 1997] should be any of female,
male, intersex, to be advised or indeterminate.
The Government supports this recommendation.
13. At the time that the sex of a child is notified
as 'intersex' or 'to be advised', the parents and any health practitioners
involved in caring for the child should be provided with printed information,
advice and resources, developed in consultation with representatives of the
intersex community and expert health practitioners, which explain intersex
and set out considerations for decisions that can be made about the child's
sex and gender identity.
The Government supports this recommendation in
principle...The Government will review current policies and practices in this
area to ensure that parents and health practitioners are provided with
relevant information, advice and resources to provide adequate assistance in
caring for the child.
19. When intersex person seek to change the record
of sex on the [Births, Deaths and Marriages] register, whether to female,
male or intersex, the person need only rely on medical confirmation of
The Government supports this recommendation in
principle. There is an accepted medical definition of 'intersex' that enables
a medical practitioner to clearly identify a person as intersex. This recommendation
will be considered further for change of sex.
29 & 30. In the ACT public sector, at least female, male or
intersex should be used in all ACT government activity. Person should be
asked for their 'sex and gender identity', and should be given the option of
female, male, intersex or none of the above.
The Government supports these recommendations in principle.
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