In 2003, the first Australian passport with an ‘X’ sex marker was issued to Alex MacFarlane, on the basis that Alex’s birth certificate, issued by the State of Victoria, showed no sex marker. Access was limited to people in the same circumstance, and only Victoria issues such certificates to intersex adults on request.
In 2011, the Australian government greatly improved access to ‘X’ passports. This enabled any intersex citizen, and any person with a non-binary identity, to obtain an X passport.
Now the government is rolling out the same standards across federal institutions, in the “Australian Government Guidelines on the Recognition of Sex and Gender”.
We warmly welcome the publication and implementation of these guidelines, and also the consultation process that has led to publication. Such wide consultation is necessary to prevent adverse consequences for any of the communities affected by the guidelines.
The impact of the guidelines is broad, and every aspect of the commonwealth government is affected. The agreement of these guidelines across government departments and agencies, along with evidence of strong input from affected communities, is a very significant achievement. The Attorney General’s Department must be commended for it.
Data collection only when necessary
The guidelines restrict the collection of data on sex and gender to occasions when there is a demonstrable need. We regard this as a very positive development.
Respectful, accurate terminology
The language used in the guidelines has evolved to a point where we feel comfortable, despite not achieving everything we might have hoped for, and despite some legislative confusion about the differences between sex and gender.
The guidelines speak accurately about intersex people, transgender people, and gender diverse people. They are respectful towards intersex people, and also towards trans people and gender diverse people – acknowledging also the existence of trans people who do not identify with a binary gender. They acknowledge our distinctive characteristics, and also the needs that we share in common.
Recognition that intersex people have many different gender identities
They acknowledge that intersex is not a gender identity and that we may have any gender identity. The guidelines do not oblige intersex people to identify with a specific gender:
People who are intersex may identify their gender as male, female or X.
In full, the guidelines recognise that an intersex person might choose to identify as male, female, or unspecified or indeterminate.
State and territory legislation has often, erroneously in our view, referred to intersex as “intermediate sex”. We regard this as a somewhat euphemistic term. While “indeterminate sex or gender” has been retained in these guidelines, it has now been disassociated from intersex status. Intersex is innate; indeterminate sex is not necessarily so. On this point, we liked the National LGBTI Health Alliance’s recommendation that X be short for “Unspecified/intersex/non-binary” rather than “Indeterminate/Intersex/Unspecified”.
Recognition that intersex has a biological basis
The guidelines recognise the biological, innate nature of intersex:
An intersex person may have the biological attributes of both sexes or lack some of the biological attributes considered necessary to be defined as one or the other sex. Intersex is always congenital and can originate from genetic, chromosomal or hormonal variations. Environmental influences such as endocrine disruptors can also play a role in some intersex differences.
They don’t affect assignments at birth, only self-assignment as an adult.
The guidelines do not single intersex people out as a separate group from birth; something that we would regard as experimental treatment on intersex infants.
We support these considerations.
We are glad that evidencing for the necessary documentation has opened up beyond the medical profession – we didn’t think this was likely. We are especially pleased that “the necessity of a medical service or associated benefit should be determined by the physical need, regardless of a person’s recorded sex and/or gender”. We hope and expect that this will have repercussions within Medicare and PBS.
We are very glad that the validity of binary M/F passports for people who otherwise prefer X is recognised. This was an issue we raised in our submission. In our consultation submission, we said:
There may be a conflict between a person’s identity living in Australia, and potentially adverse consequences that may arise from the disclosure of that identity while travelling internationally, whether for work or pleasure… concern about such issues limits their attractiveness to many intersex people… There is a strong case for the availability of passports with a binary (M/F) sex descriptor for people who otherwise are intersex or identify as indeterminate/unspecified.
Other implementation issues
We are similarly glad that “Departments and agencies should pay particular attention to the use of titles in forms and personal records”; this is something else that we raised.
We didn’t win in seeking a change in the name of the document (to “Guidelines on recognition of gender identity and intersex status”), a shorter implementation time frame, or the placement of the guidelines onto a regulatory or statutory footing. The first is a minor issue, the other subject to broader considerations and unlikely.
Support by other Australian governments
We hope that other Australian governments will also implement these guidelines so that we can have consistent interactions with government departments and agencies, regardless of whether they are commonwealth, state or territory-based. The Attorney General’s Department notes that:
These Guidelines support the Australian Government’s introduction of legal protections against discrimination on the grounds of gender identity and intersex status in Commonwealth anti-discrimination law
Given the Sex Discrimination Amendment Bill’s lack of controversy in the House of Representatives, we hope that these guidelines will be supported by any incoming new government in September.
Finally, identity issues always seem to generate significant interest, but they are not top of our list of priorities. The Senate is currently conducting an Inquiry into involuntary or coerced sterilisation. We know that very few non-intersex organisations have commented on the intersex aspects of the Inquiry, but we hope that as much interest will be shown in the outcomes of that Inquiry as there is in these guidelines.
A third sex?
We don’t think so – see Third Sex Redux for more information.
OII Australia, together with the National LGBTI Health Alliance, A Gender Agenda, Transformative and Transgender Victoria, recently made a joint submission to the federal Attorney General’s Department proposing to change the definition of “X” in federal guidelines to mean “non-binary”. More information: Joint submission on recognition of non-binary gender in federal sex/gender guidelines
- Third sex, redux
- Australian Government Guidelines on the Recognition of Sex and Gender.
- About the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill, 2013
- The guidelines are scheduled to come into effect on 1 July 2013, and will be implemented over a three year period.
- Our submission on the draft Sex and Gender Recognition Guidelines, and more information on the consultation draft.