The Anti-Discrimination Board of NSW supports our case for protection of intersex in federal law, and makes a case for protection “on grounds of actual or perceived sex, sexual orientation and/or gender identity”.

The Attorney General’s Department has recently consulted on proposals for consolidated Commonwealth anti-discrimination legislation, and on a proposed National Human Rights Action Plan (NHRAP).

OII Australia has made submissions on both counts, setting out a case for inclusion of intersex in definitions of sex or sex characteristics. Inclusion in federal legislation will be hugely important to us, a first.

We set out our case in the NHRAP submission by referring to existing state legislation in NSW, Queensland, Victoria and the ACT which uses near identical language on “gender identity” or “transgender status” – but which doesn’t protect intersex people. The Attorney General’s Department used the same terms in its consultation documents.

We noted that the Anti-Discrimination Board of NSW itself acknowledged our lack of protection in legislation in its 2008-9 Annual Report.

We are trying to build awareness of these issues and create dialogue with political leaders and institutions, including human rights and anti-discrimination bodies, so we are very pleased to see that the Anti-Discrimination Board of NSW has put forward similar proposals to our own.

In a letter of 20 March 2012, Stepan Kerkyasharian AO, President of the Anti-Discrimination Board of New South Wales writes:

I am aware that Oii Australia made a submission on the proposed consolidation of Commonwealth anti-discrimination laws. The Anti-Discrimination Board of NSW also made a submission …

The Anti-Discrimination Board recommends broad, inclusive coverage of sexual orientation, gender identity, sex characteristics, and gender expression under a Consolidated Federal Act.

Any definition should ensure that it includes variations in sex characteristics, and people who are neither wholly male nor wholly female. In this way people who are intersex, androgynous and other individuals who do not fit within the current binary approach to defining sex would be afforded protection under anti-discrimination law in this context. The Board recommends that broad and inclusive language be used in any definitions of discrimination. In particular, any definition should be wide and inclusive enough to cover people who are intersex without a requirement that any person should identify as either male or female. Discrimination should be prohibited on grounds of actual or perceived sex, sexual orientation and/or gender identity.

Inclusion of intersex in definitions of sex is important not only because intersex is a matter of biological sex, but also because of the potential impact of religious exemptions. Intersex variations are often diagnosed at birth or during infancy, with surgical consequences, so the application of religious exemptions from provisions relating to sexual orientation and/or gender identity could impact on intersex people from birth and throughout schooling. We realise that children of LGBTI parents are often similarly affected, but a focus on the best interests of the child mean that parental relationships rarely have an impact in practice.

We hope that the momentum builds – please help if you can.

A copy of the letter from the Anti-Discrimination Board of NSW (with recipient name partially redacted) can be downloaded here (PDF format).

More information

Copies of our submissions can be found below.

Categories: Anti-discrimination.