Government tables Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013

OII Australia welcomes the tabling* of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 in Parliament today.

Intersex people even get a mention in the title of the bill.

It adds the following definitions to a list of protected attributes:

7 Subsection 4 (1) Insert:

intersex status means the status of having physical, hormonal or genetic features that are:
(a) neither wholly female nor wholly male; or (b) a combination of female and male; or
(c) neither female nor male.

6 Subsection 4(1) Insert:

gender identity means 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.

12 Subsection 4(1) Insert:

sexual orientation means a person’s sexual orientation towards:
(a) persons of the same sex; or
(b) persons of a different sex; or
(c) persons of the same sex and persons of a different sex.

The explanatory text reads:

A separate ground of discrimination on the basis of intersex status is also introduced. People who are intersex may face many of the same issues that are sought to be addressed through the introduction of the ground of gender identity. However, including the separate ground of intersex status recognises that whether a person is intersex is a biological characteristic and not an identity.

This implements the relevant part of the Senate Inquiry report on anti-discrimination legislation, which stated:

7.17 The committee agrees with the evidence presented by Organisation Intersex International Australia, and other submitters, that intersex status is a matter of biology rather than gender identity, and as such should not be covered within the definition of gender identity in the Draft Bill.

We are also pleased to note, from the Explanatory Memorandum, that religious exemptions are unlikely to apply:

The Bill will not extend the [religious] exemption to cover the new ground of intersex status. During consultation, religious bodies raised doctrinal concerns about the grounds of sexual orientation and gender identity. However, no such concerns were raised in relation to ‘intersex status’. As a physical characteristic, intersex status is seen as conceptually different. No religious organisation identified how intersex status could cause injury to the religious susceptibilities of its adherents. Consequently, prohibiting discrimination on the basis of intersex status will not limit the right to freedom of thought, conscience and religion or belief.

Of course, those intersex people who identify as, for example, queer, lesbian, gay and/or trans may fall subject to intersectional discrimination on multiple bases. We hope that religious exemptions on those grounds will cease in future, if not as part of this bill.

We also note that an exemption on record keeping will not mandate the amendment of forms to recognise people who are neither/both male or female. We hope that this might be regarded as good practice. We also note, from the Explanatory Memorandum:

The Government is currently developing guidelines on gender recognition for departments and agencies. Changes as a result of these guidelines may mean those departments and agencies would no longer require this exemption.

We would like to express our gratitude to the government, and to the activists and political figures who have helped to bring this bill forward, and we hope that the bill will enjoy multilateral support in its passage through parliament.

More information

More information on the bill.

* note to US visitors: “tabling” in Australia and the rest of the English-speaking world means that the bill is now under active consideration in parliament. See