Why intersex is not a gender identity, and the implications for legislation

Introduction

Numerous Australian reports have tended to presuppose that intersex people, like gay men, lesbians and transgender people, are included in legal frameworks to protect on the basis of “sexual orientation and gender identity”. This is not the case, and this article attempts to clarify why not.

In brief, people born with intersex variations have many different gender identities; what we share in common is being born with atypical and stigmatised sex characteristics that do not meet stereotypical expectations for men or women. In very many cases, defining intersex as a gender identity misgenders people born with intersex variations: it wrongly treats actual gender identities as invalid or suspect. In some cases, of course, being intersex may also inform an intersex person’s identity.

This article also presents some examples of how intersex people might be protected under anti-discrimination legislation, and recommends use of the term “sexual orientation, gender identity and sex characteristics, or “SOGIESC”.

[youtube http://www.youtube.com/watch?v=cAUDKEI4QKI]

Intersex people have all sorts of identities: Inter/Act (US) talk with Buzzfeed.

Sex and gender

In English, sex and gender describe different concepts, and the word “sex” can also mean many different things. On the one hand, sex may describe biological, physical sex: a person’s chromosomes, sex organs, and hormones. Sex can be male or female, or a continuum of possibilities in between. Sex may also simply mean “legal sex”; the classification that we are assigned on a birth certificate; this may be an approximation in some cases, and it may be inaccurate in some cases.

It’s also important to note that intersex is not an homogeneous classification: at least 40 different intersex variations are known to science, and intersex people have many different kinds of bodies, as well as different identities and lived experience. It’s more true to say that intersex people have diverse sex characteristics, than talk about intersex as an arbitrary sex.

Gender describes a person’s identity and belief about themselves and preferences for the social role they play, for example, as woman or man, or genderqueer.

Biological sex characteristics and gender are likely aligned in most people, but not all. And things get complicated when we consider how legal sex may be an approximation, or when our sex characteristics might be surgically modified to erase those differences in an attempt to reinforce a particular gender identity.

In practical terms, intersex people have just as diverse a range of gender identities as non-intersex people.

The Yogyakarta Principles

The Yogyakarta Principles “address a broad range of human rights standards and their application to issues of sexual orientation and gender identity”. Despite a focus on gender, and not sex, they mention intersex on one occasion. This is in the preamble, where they clearly seek to apply the Principles to intersex:

Preamble
RECALLING that all human beings are born free and equal in dignity and rights, and that everyone is entitled to the enjoyment of human rights without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status;

DISTURBED that violence, harassment, discrimination, exclusion, stigmatisation and prejudice are directed against persons in all regions of the world because of their sexual orientation or gender identity, that these experiences are compounded by discrimination on grounds including gender, race, age, religion, disability, health and economic status, and that such violence, harassment, discrimination, exclusion, stigmatisation and prejudice undermine the integrity and dignity of those subjected to these abuses, may weaken their sense of self-worth and belonging to their community, and lead many to conceal or suppress their identity and to live lives of fear and invisibility;

AWARE that historically people have experienced these human rights violations because they are or are perceived to be lesbian, gay or bisexual, because of their consensual sexual conduct with persons of the same gender or because they are or are perceived to be transsexual, transgender or intersex or belong to social groups identified in particular societies by sexual orientation or gender identity;

The Principles define sexual orientation in a welcome, broad way, that includes a range of sexual orientations, not only homosexual and heterosexual:

UNDERSTANDING ‘sexual orientation’ to refer to each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender;

Similarly, “gender identity” includes identities that match assignment at birth, as well as those that don’t:

UNDERSTANDING ‘gender identity’ to refer to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms;

The problem for intersex people is that sex assignments may not match actual biological sex characteristics or we might be surgically modified in a way that is not freely chosen, to suit societal, medical or familial preferences.

It is our sex characteristics that define us, not our gender identity. Responses to our sex characteristics may be based on fear of our possible gender identity or sexual orientation, but it’s our intersex status, or our sex characteristics themeselves, that needs protection.

It is likely the intention of the Yogyakarta Principles to include intersex, but the definitions are ambiguous in their application to our situation. Fundamentally, definitions of sex need to be broad enough to recognise that not everyone fits into a normative binary model. We should, in fact, be covered by the first paragraph in the Preamble:

…everyone is entitled to the enjoyment of human rights without distinction of any kind, such as race, colour, sex…

Australian states and territories

The NSW, Queensland and Victorian anti-discrimination acts all use near identical wording in their protection of “gender identity” or “transgender persons”.

Section 38A of the NSW Anti-Discrimination Act 1977 No. 48 defines “a recognised transgender person …

(a) who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or
(b) who has identified as a member of the opposite sex by living as a member of the opposite sex, or
(c) who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex,

Similarly, the Victorian Human Rights Commission reports:

The Equal Opportunity Act 2010 protects gender identify as a personal characteristic. Under the Act, gender identity is about people of one sex identifying as a member of the other sex, or people of indeterminate sex identifying as a member of a particular sex. People can do this by living, or seeking to live, as a member of a particular sex, or assuming characteristics of a particular sex. This could be through their dress, a name change or medication intervention, such as hormone therapy or surgery.

And in Queensland’s Anti-Discrimination Act 1991, the Schedule Dictionary defines “gender identity as follows:

gender identity, in relation to a person, means that the person–
(a) identifies, or has identified, as a member of the opposite sex by living or seeking to live as a member of that sex; or
(b) is of indeterminate sex and seeks to live as a member of a particular sex.

A casual read might suggest that these provisions would protect intersex people but, in fact, they require people to identify as either men or women.

However, they do not simply fail to protect intersex people who identify in other ways, they fail to protect all people whose innate physical sex characteristics are intersex because they are grounded in the idea that only two normative sexes are valid. This also means that the provisions help to reinforce coercive medical interventions intended to make intersex bodies fit normative ideas about male and female bodies.

The normative approach to sex is clearly given in case law:

  1. Sex is interpreted as a binary. The case of a trans person seeking “sex not specified” documentation, Norrie v Registry of Births Deaths and Marriages [2011] NSWADT 102, found that references to “sex” are:

    …premised on a binary division between the sexes into “male” and “female”… the Act is predicated on an assumption that all people can be classified into two distinct and plainly identifiable sexes, male and female.

  2. Anti-discrimination legislation, the only legislation that defines trans people and people of indeterminate sex, was designed to provide for people who transition gender. It fails to protect intersex people who do not change legal sex classification but who still face discrimination because of our sex characteristics. For example, the NSW Administrative Decisions Tribunal reports in the case of Norrie v Registry of Births Deaths and Marriages [2011] NSWADT 102:

    Part 5A of the Act deals with changes of sex. Part 5A (not including sections 32DA – 32DD) was inserted into the Act by the Transgender (Anti-Discrimination and Other Acts Amendment) Act 1996 on 3 October 1996. The same Act also inserted Part 3A (‘Discrimination on transgender grounds”) into the Anti-Discrimination Act 1977. The second reading speech for the underlying Bill stated that its purpose was “to provide for the legal recognition of post-operative transgender persons”, in particular “to enable persons who were born in this State and have undergone sexual reassignment surgery to apply for new birth certificates showing their new sex” (Hansard, Legislative Assembly, Minister Yeadon, 1 May 1996).

Despite the legislation in NSW, Queensland, Victoria and elsewhere, the NSW Anti-Discrimination Board concluded, in their 2008-2009 Annual Report, that intersex people are not protected. Page 27 reads:

Intersex discrimination – intersex people are not protected against discrimination anywhere in Australia.

Current legislation on gender identity fails to protect intersex people. It similarly fails to provide protection for people with a gender identity that is neither man nor woman.

Proposals in the National Human Rights Action Plan do not extend this protection. They appear to merely reproduce, at a federal level, existing language on “sexual orientation and gender identity”.

Protecting intersex people from discrimination

Two countries provide useful examples of how intersex people might be protected from discrimination on the basis of our sex.

Recent federal case law in the US has determined that discrimination on the basis of “gender non-conformity” constitutes sex discrimination (United States Court of Appeals Eleventh Circuit, Glenn v Brumby, No. 10-14833, 10-15015, dated 6 December 2011).

In South Africa, Judicial Matters Amendment Act, 2005 (Act 22 of 2005) amended the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act 4 of 2000) to include intersex in its definition of sex:

(a) by the insertion in subsection (1) after the definition of “HIV/AIDS status” of the following definition:
“ ‘intersex’ means a congenital sexual differentiation which is atypical, to whatever degree;”; and
(b) by the insertion in subsection (1) after the definition of “sector” of the following definition:
“ ‘sex’ includes intersex;”.

Finally, the Anti-Discrimination Board of New South Wales has recommended to the federal Attorney General’s Department that intersex people should be protected on the basis of our sex, or sex characteristics:

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.

OII Australia supports these approaches, and in particular the recommendations of the Anti-Discrimination Board of NSW.

OII Australia’s recommendations for legislation

OII Australia has made the following recommendations to Australia’s Attorney General’s Department:

  • Intersex people must be specifically provided for in anti-discrimination legislation.
  • OII Australia believes that definitions of sex should never assume that everyone conforms to a binary consisting of male and female. It is critically important that the definition of sex is broad enough to acknowledge and include intersex variations in human biology.
  • OII Australia proposes that the sexes could be defined as female, male or unspecified. Alternatively, OII Australia proposes that sex be defined as “sex characteristics” which are typically, but not always, male or female.

Update

“Intersex status” was added to anti-discrimination law, independently of sex, gender identity, and sexual orientation, in 2013. More information.

Internationally, the language around intersex-inclusive terminology is evolving but we currently favour ‘SOGIESC: ‘sexual orientation, gender identity and gender expression, and sex characteristics’.

In Malta a new attribute, introduced in 2015, called “sex characteristics” protects people with intersex variations from discrimination and non-consensual medical interventions, and this approach is recommended by the Council of Europe (although “intersex status” is also supported). The Organisation of American States talks about “body diversity” when talking about protecting people with intersex variations.

On 4 May 2015, the United Nations Office of the High Commissioner for Human Rights comdemned violence against intersex children, calling for an end to non-necessary medical interventions, and also called for member states to address discrimination by (our emphasis):

Ensuring that anti-discrimination legislation includes sexual orientation and gender identity among prohibited grounds, and also protects intersex persons from discrimination

[youtube http://www.youtube.com/watch?v=tGo-drndBRY]

Bonnie Hart, Morgan Carpenter, a parent and a clinician talk with SBS.
Watch on SBS website; medical interventions still continue on health infants and children, read follow-up article at SBS

Note: This article received a partial update in June 2015 in light of legislative developments since first being written, and a minor clarifying update in September 2016.

More information