Australia has become the first country in the world to offer federal protection to intersex people. Jemima Skelley reports.

New legislation came into effect on the first of August, which has made it unlawful to discriminate based on sexual orientation, gender status or intersex status. An intersex person is one whose sex cannot be clearly defined as male or female. The government has decided to give formal recognition that intersex is a biological attribute.

Australia is now offering protection to intersex people. Photo: lewishamdreamer / Foter / CC BY-NC.

The new laws mean that any Lesbian, Gay, Bisexual, Transgender, Queer or Intersex (LGBTQI) person who has been discriminated against can now take their complaint to the Australian Human Rights Commission.

Dr Justin Koonin of the NSW Gay and Lesbian Rights Lobby Co-convenor says, “These laws represent the culmination of over 25 years of advocacy, and will provide much needed protection at a federal level to LGBTI people.”

Intersex, transgender and gender diverse Australians receive an alarmingly high level of discrimination, says president of Organisation Intersex International Australia (OII) Gina Wilson. “We welcome the full, authentic inclusion of intersex status, a biological attribute, in anti-discrimination law for the first time. We have not previously been recognised in law, and our inclusion is of huge practical benefit,” she says.

Although this legislation is welcomed by the intersex and transgender community, some believe this is only the first step in securing equality for everyone. OII maintains that the world is based on a two-sex system, and “all human beings should have the right to opt out of that system by not specifying their sex,” says Wilson.

Australian passports have three options for gender: M, F or X. The third category is available to people with a medical certificate affirming they live as neither male nor female. However, only Victoria offers a third sex on birth certificates. Former Attorney General Mark Dreyfus says he recognises the importance for an individual’s official gender on personal records to match the one they live by, and will work to make this standard consistent nationwide.

According to Ms Wilson, this can “impinge on some federal legislation, for example marriage legislation.” She says, “If the states were to allow for X on birth certificates, then they’re effectively casting a person into a situation where they are ‘un-marryable’. The marriage act stipulates that a marriage is between a man and a woman. Legalising same-sex marriage would still exclude people who had X on their cardinal documents. We need marriage equality, not same-sex marriage.”

The legislation changes in August follow many advancements in the protection of the intersex community, particularly in health and aged care. Collection of data by government agencies now include intersex and gender diverse people. Gradually, government documentation will include extra categories, which will allow intersex people to specify neither male nor female. All Medicare services have also been de-sexed. Medicare services are now provided on the basis of need. People who are seen as female, but have some male anatomical parts, can now be treated without having a male Medicare card.

While the changes to federal legislation over the past few years are helping to ease stigma and discrimination for intersex, trans, and gender diverse people, Ms Wilson says many more changes are needed. “There needs to be a fully-funded intersex organisation in Australia. There are none in the world, and current organisations are on a volunteer basis. The government has recognised our difficulties. I think it is incumbent to provide funding so we can address those inequalities.”

Ms Wilson says, “The other huge issue that needs to be addressed is the way intersex is looked at by medicine. Intersex is currently regarded by medicine as a disease or a disorder, and medicine tries to cure us of our intersex. That has been a historical failure, and has created enormous sadness and disruption to the lives of intersex people.

“Society should come to regard us as having natural differences.”