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Promoting human rights and equality for all intersex people through arts, education and action.

OII Australia welcomes intersex-inclusive new federal guidelines on sex and gender recognition

By  on  isexandgenderguidelines

The federal government has finally released the “Australian Government Guidelines on the Recognition of Sex and Gender”. We warmly welcome their publication and implementation, 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.

Necessity

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 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. In this regard, we are glad that the awful, homogenising “sex and gender diversity” and “diverse sex and gender” terms have been consigned to history. 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.

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”.

The guidelines recognise the biological, innate nature of intersex. They do not oblige intersex people to identify with a specific gender, and they don’t affect assignments at birth, only self-assignment as an adult. They recognise that intersex is not a gender identity, and that we might choose to identify as male, female, or intersex, unspecified or indeterminate. 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 all of these considerations.

Medical issues

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.

Passports

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.

A caveat

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.

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