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Penny's Blog: Intersex Australians overlooked in anti-discrimination laws

Penny Wright 23 Jan 2013

In this day and age, we rightly say it is unacceptable to discriminate against people because they are male or female. Over decades, politicians around the country have designed laws to prevent discrimination and give people an avenue of appeal against unfair treatment.

Under proposed new laws, it will be illegal to discriminate against someone on the basis of their sex or gender identity in all areas of public life. This is a welcome step.

However, there is still no legal protection from discrimination for those who are neither male nor female. 

Does this happen? Absolutely!

An intersex person may have the biological attributes of both sexes, or lack some of the biological attributes considered necessary to be clearly defined as either male or female.    Under current Australian law, sex is defined strictly as male or female, and "gender identity" is neither an accurate nor an appropriate term to describe intersex status. As such, the legislation explicitly excludes people who are neither biologically male nor female.

It is hard to be definite about how many people in Australia this affects - but it could well be more than we know.  While the number of people who identify themselves as intersex is around 1.9 per cent of the population, geneticists reckon it could be as high as 4 per cent.  Some people are not aware of their intersex status but increasing use of genetic and medical testing could result in more people being affected by the discrimination which can, and does, occur.

Intersex people face daily difficulties like not being able to book an airline flight using the same details as on their passport (where sex can now be marked as 'X' - not specified). They also experience much more personal forms of discrimination. Gina Wilson from Organisation Intersex International Australia this week told The Age that intersex people are "generally considered to be freaks or weirdos... People stop and stare and point and look.''

Discrimination against intersex people has led to workers losing their jobs, harassment at work and in the community, and receiving inappropriate medical advice and treatment.  One intersex person was moved from a hospital ward to a storeroom, because their presence was making the other patients uncomfortable. All this because of physiological and anatomical differences over which they have no choice or control.

When this happens, these people have no legal protection. On more than three occasions in the past three years, intersex people have attempted to use state laws to bring a discrimination cases. In each occasion, their applications were rejected on the basis that the issues were physical anatomical differences not gender identity.  The law failed to protect them.

A Senate Inquiry is currently underway into the new Human Rights and Anti-Discrimination Bill. Inquiries are always an excellent opportunity to hear from experts in the field and a chance to make legislation better. Today I asked more questions about how we can best protect all Australians from discrimination, including intersex people specifically.

In Tasmania, legislation is already before the parliament which would specifically list intersex as an attribute protected from discrimination. This the model the Federal Government should be considering. It is simply not fair to discriminate against people on the basis of their inherent physiological makeup.

Anti-discrimination legislation fails when it does not protect those who need it most.

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