Third sex, redux

Important note: this paper should not be regarded as a guide to our current policy on identification documents and data collection. Our approaches have been informed by a 2013 Senate inquiry into involuntary or coerced sterilisation, by community-building and evidence-building, and are defined (as of March 2017) in the Darlington Statement.

For information on data collection, see our pages on forms and research surveys.

After fielding a few phone calls it is clear that many people can’t grasp our position in opposing the creation of a third sex while supporting X sex descriptors on birth certificates and passports.

To be clear, intersex is not an arbitrary third sex category, but rather a spectrum of possibilities, and nor is it an arbitrary third gender.

Even though some intersex people define their identity as intersex, this is a political statement, and not necessarily anything about their gender or preference for sex classification. Identity is not what defines intersex: intersex is contingent on innate physical bodily characteristics. Intersex is not a gender identity because it is a matter of sex. As we said in our submission to the Human Rights and Anti-Discrimination Bill, rather than define a catch-all “other” category, we would prefer to 
minimize our participation in gender constructs; we do not wish for the creation of an equally confining third box.

OII Australia supports the right of all Australians over the age of 18 (and perhaps even all people who have “Gillick” competency) to not specify their sex. That is, to remain silent on the matter of our sex anatomy or chromosomes.

We say we should have that right in the same way we have the right to remain silent on our gender identity, our sexual orientation, our race, our religion and our political affiliation. None of those things are marked on birth certificates or passports, though they are in some ways more indicative of who a person is than sex anatomy.

However, we resist the creation of a third sex category where anatomical differences of sex are the required qualification and only intersex people qualify.

OII has extensive experience with third sex categories through our international network. Such categories only serve to reinforce sex binaries by othering “diseased and deformed” people out of the two dominant categories and so, in a way, purifying them. The medical system already attempts to “fix” intersex by modifying the appearance of infants’ genitals.

We note that, in countries where third sex categories exist, those so categorised are on the lowest possible social rung, many not even qualifying for citizenship in their own countries.

In the current Australian two sex system, that fails to deliver equality for those not classified as male, there seems little sense in creating another sex which will deliver further inequality.

It is no more necessary for a third sex to be placed on birth certificates to collect data and provide services than it is to have sexual orientation, race or ethnicity placed on cardinal documents in order to be counted in the census or other government data collection programs.

The argument that a person should have the right to a third sex category must account for three things and weigh up the possible unintended consequences:

  1. In seeking that right you do not further stigmatise and marginalise others or appropriate their lives to win your argument.
  2. That you do not create categories that you are not a part of, and that may be used on people without their consent, and that work against their right to equal treatment.
  3. You do not advocate for experimental social categories that intersex children might be assigned to.

We have heard many times in the last week or so that the recent NSW appeals court decision is good for intersex people. It is not. The above points were not considered. The matter was a matter for non-binary transgender people under the provisions for transgender people in NSW legislation. No intersex people were involved in the case, no intersex people were witnesses, no intersex people had representation.

That judgement only applies to transgender people who have undergone sex affirmation surgery, and where that surgery has failed. Application to other circumstances is likely to have unintended negative consequences.

As we’ve stated before, identity issues are not our top priority. Freedom from discrimination, and autonomy over our own bodies are our key priorities. We wish these issues could benefit from as much media and public interest.

More information