Last November/December, I was very kindly invited to Geneva for a meeting with Dainius Pūras, the UN Special Rapporteur on health, in connection with a report now published on sport and healthy lifestyles and the right to health.
The report (A/HRC/32/33) is an important one, particularly given an exemption in federal Australian anti-discrimination law that permits discrimination in sport against people born with intersex traits. Around the time that the exemption was introduced, several women athletes from low to middle income countries were discovered to have intersex traits during testosterone testing to confirm their eligibility for competition. The policy sought to “actively investigate any perceived deviation in sex characteristics”. The women were subjected to gonadectomies (sterilisation) and “partial cliteridectomies” under duress, in order to return to competition.
This report by the UN Special Rapporteur on health is likely the first to recognise what happened to these women as Female Genital Mutilation.
Last year, the case of Chand v. Athletics Federation of India and the International Association of Athletics Federations in the Court of Arbitration in Sport suspended the policy of the IAAF on testosterone testing as there is insufficient scientific evidence to support discriminatory treatment. There is no evidence that high innate testosterone levels in women athletes confer a performance advantage.
In my view, Australia has a responsibility to end discrimination against intersex women in sport not just because I understand it was held up in that court case as a justification for the exclusion of women athletes with intersex traits, but also because, like the US bathroom bills, it shows the logical consequences of policy frameworks that seek to enforce cultural standards of femininity. Intersex women and other intersex people are excluded from sport in Australia, and subjected to bullying and discrimination because of our physical characteristics.
Additionally, girls with intersex traits are routinely subjected to similar human rights violations in Australian hospitals, facilitated in part by an exemption in the national policy framework on Female Genital Mutilation. OII Australia has made repeated submissions to national inquiries on this and related issues.
Thank you to Dainius Pūras and his team for responding to this very important issue.
The text relating to intersex people in the report on sport and healthy lifestyles reads:
55. Current and historic policies have resulted in intersex people — those born with sex characteristics that do not fit with typical binary sex categorization — experiencing multiple rights violations. Sex testing has frequently been conducted to avoid the apparent threat of “sex fraud” (participating under an assumed gender to obtain a competitive advantage).However, no single test “determines” gender. In the recent past, women athletes have undergone chromosomal testing, only to discover that they do not possess two X chromosomes. This has led to stigmatization and to spurious exclusion from competitive sport.
56. Recently, certain international and national sporting federations have instead introduced policies banning women with testosterone levels exceeding a certain threshold from participating in competitive sport. However, there is insufficient clinical evidence to establish that those women are afforded a “substantial performance advantage” warranting exclusion. Although currently suspended, following the interim judgement in Chand v. Athletics Federation of India and the International Association of Athletics Federations, these policies have led to women athletes being discriminated against and forced or coerced into “treatment” for hyperandrogenism. In fact, a number of athletes have undergone gonadectomy (removal of reproductive organs) and partial cliteroidectomy (a form of female genital mutilation) in the absence of symptoms or health issues warranting those procedure
57. Sporting organizations must implement policies in accordance with human rights norms and refrain from introducing policies that force, coerce or otherwise pressure women athletes into undergoing unnecessary, irreversible and harmful medical procedures in order to participate as women in competitive sport. States should also adopt legislation incorporating international human rights standards to protect the rights of intersex persons at all levels of sport, given that they frequently report bullying and discriminatory behaviour,and should take steps to protect the health rights of intersex women in their jurisdiction from interference by third parties.
 Australia, Attorney General’s Department. Questions on Notice, Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 [Internet]. 2013. Available from: http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5026
Carpenter M, Organisation Intersex International Australia. Submission on the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill, 2013 [Internet]. Sydney: Organisation Intersex International Australia; Apr 2013 [cited 31 Aug 2013]. Available from: http://oii.org.au/22142/submission-sda-intersex-status/
 Jordan-Young RM, Sonksen PH, Karkazis K. Sex, health, and athletes. BMJ. 2014;348(apr28 9):g2926–g2926. Available from: http://www.bmj.com/cgi/doi/10.1136/bmj.g2926
 Gillespie K. Dutee Chand was only able to compete after arbitration court suspended IAAF policy to force surgery or therapy for women with unusually high testosterone levels. The Toronto Star [Internet]. 25 Feb 2016 [cited 27 Feb 2016]; Available from: http://www.thestar.com/sports/amateur/2016/02/25/ioc-wont-introduce-rules-that-would-block-indian-sprinter-from-rio-games.html
 Australia, Attorney General’s Department. Review of Australia’s Female Genital Mutilation legal framework – Final Report [Internet]. Attorney General’s Department; May 2013 [cited 25 May 2013]. Available from: http://www.ag.gov.au/Publications/Pages/ReviewofAustraliasFemaleGenitalMutilationlegalframework-FinalReportPublicationandforms.aspx
 for example, Carpenter M, Organisation Intersex International Australia. August submission to the Senate Inquiry on the involuntary or coerced sterilisation of people with disabilities [Internet]. Sydney: Organisation Intersex International Australia; Aug 2013 Aug [cited 31 Aug 2013]. Available from: http://oii.org.au/23387/august-submission-senate-inquiry-sterilisation