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Recognition and protection for intersex persons

Feature Articles

Cite as: April 2015 89 (4) LIJ, p.52

Intersex people are now given greater protection in the workplace and employers need to be aware of their new obligations. 

By Mehnaz Yoosuf

The Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth) (SDAA) has recently amended the Sex Discrimination Act 1984 (Cth) (SDA) to include new and important legal protections for intersex persons. This article looks at the scope of these protections, and provides some practical suggestions to employers on how to comply with their new obligations.

What does “intersex” mean?

“Intersex” is a term which relates to a range of biological variations that do not allow a person to be distinctly identified as either male or female. For example, an intersex person may be born with both male and female biological attributes, or lack some of the biological attributes considered necessary to be clearly defined as either male or female.1 There is no authoritative figure as to the prevalence of intersex variations in the population, with estimates ranging from 0.05 per cent (1 in 2000 births) to 4 per cent of the population.2

A person’s “intersex status” is distinct from a person’s “gender identity”. Whereas a person’s “intersex status” refers to a person’s innate biological attributes, a person’s “gender identity” refers to a person’s social or psychological identity, that is, the way that a person presents to, or is recognised within, society. Accordingly, a person’s “gender identity” may differ from their biological sex at birth. Furthermore, intersex persons may experience the same range of gender identities as any other person.

Introduction of the Bill

On 21 March 2013, the federal government introduced the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 (the Bill) into Parliament.3 Among the changes introduced, the Bill sought to amend the SDA by introducing “intersex status” as a stand-alone ground upon which discrimination would be prohibited in the areas of public life regulated by the Act. On 25 June 2013, the Senate passed the Bill and on 28 June 2013, the Bill was given Royal Assent.4 The changes to the SDA commenced on 1 August 2013.5

The changes are significant for intersex persons. The SDA is reported to be the first piece of anti-discrimination legislation in the world to include specific protections for intersex persons irrespective of how they wish to identify.6 Furthermore, the changes mean that intersex persons will now be protected from discrimination in Australia in important areas of public life including work, education and accommodation.

“Intersex status” as a stand-alone attribute

The inclusion of “intersex status” as a stand-alone attribute departs from approaches taken in state anti-discrimination legislation to protect intersex persons from discrimination under gender-related definitions. Under s4 of the Equal Opportunity Act 1995 (Vic) (retained in s4 of the Equal Opportunity Act 2010 (Vic) (EO Act)), for example, the Victorian government has attempted to protect intersex persons from discrimination under the following definition of “gender identity”:

“Gender identity means:

(a) the identification on a bona fide basis by a person of one sex as a member of the other sex (whether or not the person is recognised as such):
(i) by assuming characteristics of the other sex, whether by means of medical intervention, style of dressing or otherwise;
(ii) by living, or seeking to live, as a member of the other sex; or

(b) the identification on a bona fide basis by a person of indeterminate sex as a member of a particular sex (whether or not the person is recognised as such):
(i) by assuming characteristics of that sex, whether by means of medical intervention, style of dressing or otherwise;
(ii) by living, or seeking to live, as a member of that sex.”

Such a definition raises several problems, arguably stemming from a fundamental mischaracterisation of intersex persons as a “subset” of transgender persons. For example, the definition only protects intersex persons who identify as either male or female. In doing so, the definition fails to recognise that many intersex persons do not identify as either male or female, and in fact identify according to their biological attributes, that is, as either both sexes or no sex at all. Furthermore, arguably due to mischaracterising intersexuality as raising “gender identity” issues similar to those faced by transgender persons,7 the definition only seeks to protect intersex persons who identify differently from their biological sex. In doing so, the definition fails to recognise that many intersex persons do not wish to identify differently to their own biological sex, but rather wish to simply be recognised as how they are physically born.

Additionally, by specifically prohibiting discrimination against intersex persons who identify in a particular way, the EO Act seemingly only protects intersex persons who have been discriminated against on the basis of their “gender identity”. This is unlikely to capture the vast majority of discrimination against intersex persons, which arises due to their specific biological attributes.8 To that end, Organisation Intersex International Australia states that it has attempted to bring anti-discrimination cases on behalf of intersex persons on several occasions under state anti-discrimination legislation, and has been unsuccessful in all of those cases on the basis that the discrimination is based on the person’s biological characteristics rather than their “gender identity”.9

Accordingly, in order to avoid these problems, the federal government has chosen to protect intersex persons from discrimination by introducing “intersex status”, as defined below, as a stand-alone attribute in s4 of the SDA:

“Intersex status means the status of having physical, hormonal or genetic features that are:

(a) neither wholly female nor wholly male; or

(b) a combination of female and male; or

(c) neither female nor male”.10

This definition rightly recognises that being intersex is a question of biology rather than “gender identity”.11 Furthermore, it recognises that discrimination against intersex persons is often based on an intersex person’s biological characteristics rather than their “gender identity”.12

Exemptions under the SDA

The SDAA has also amended existing exemptions in the SDA, as appropriate, so as to be applicable to intersex persons.

Accordingly, under s39 of the SDA, voluntary organisations may now also lawfully discriminate against intersex persons in relation to the admission or provision of services, benefits or facilities. Furthermore, under s42 of the SDA, it may now also be lawful to exclude intersex persons from participating in any competitive sporting event where the strength, stamina or physique of competitors is relevant.

Qualifications made to the religious exemption in s37 of the SDA, however, will prevent religious bodies which provide Commonwealth-funded aged care services from discriminating against intersex persons in certain respects. Section 37(2) of the SDA now prevents religious bodies that provide Commonwealth-funded aged care services from discriminating in the provision of their services. This means that such service-providers will not be able to discriminate against intersex persons in the provision of their services. Additionally, while s37(2) of the SDA makes it clear that such bodies may still discriminate in relation to employment decisions, this does not include in relation to the employment of intersex persons. This is because religious organisations expressed a view during consultations that they perceive the physical nature of a person’s “intersex status” as conceptually different to a person’s “gender identity” or “sexual orientation”.13

Additionally, the SDAA has introduced three new exemptions into the SDA.

First, under s40(2A) of the SDA, it may be lawful to discriminate against intersex persons in order to ensure compliance with the Marriage Act 1961 (Cth). This exemption has been introduced so as not to affect current government policy on marriage which only allows marriage to take place between “a man and a woman”.14

Second, under s40(2B) of the SDA, it may be lawful to discriminate against intersex persons in order to ensure compliance with a prescribed law of the Commonwealth, or of a state or territory. Laws covered by this exemption will be prescribed by regulation.15 The SDAA amended s5 of the Sex Discrimination Regulations 1984 to prescribe all Commonwealth, state and territory laws as in force at 1 August 2013 for a period of a year to allow Commonwealth, states and territories a transition period in which they could assess whether their laws complied with the new protections against discrimination in the SDA. The Sex Discrimination Amendment (Exemptions) Regulation 2014 (Exemptions Regulation) further amended the Sex Discrimination Regulations 1984 in August 2014 to remove the prescription of Commonwealth laws, having found that Commonwealth laws were consistent with the new protections, and therefore no longer need to be prescribed. However, the Exemptions Regulation prescribes all state and territory laws as in force at 1 August 2013 for an additional year in order to allow states and territories with additional time to review their laws for consistency with the new protections against discrimination in the SDA. After this date, only specific laws will be prescribed, provided there is a clear policy rationale for their prescription.16

Third, under s43A of the SDA, government agencies may lawfully a) make requests for information and/or b) make or keep records which do not allow for a person to identify as neither male nor female. The Explanatory Memorandum to the SDAA explains that this exemption was included, as amending all forms so as to offer categories of sex other than “male” or “female” would impose a regulatory burden on organisations that would be disproportionate to the number of people who would identify as neither male nor female.17

As acknowledged in the Explanatory Memorandum,18 however, this exemption may become unnecessary in light of the introduction of the Australian Government Guidelines on the Recognition of Sex and Gender (the Guidelines) which commenced on 1 July 2013.19 Paragraphs 18 and 29 of the Guidelines require Australian government departments and agencies which collect and record sex and/or gender information for a) personal records or for b) statistical or other purposes not linked with individual records, to provide individuals with multiple options when selecting their sex. These options are: M (male), F (female) or X (Indeterminate/intersex/unspecified). Australian government departments and agencies have until 1 July 2016 to comply with these standards.20

Helping employers comply

Amendments made to s14 of the SDA mean that it is unlawful for employers to discriminate against intersex applicants or employees at any stage of the employment lifecycle. Section 14 highlights that the employment cycle covers the recruitment process through to the termination of employment, and includes the provision of training opportunities and promotion during the course of a person’s employment.

The introduction of the new attribute may raise novel situations for employers that need to be dealt with carefully.

Communication in the workplace

The introduction of the new attribute will require communication in the workplace to reflect a new sensitivity and respect. It may also lead to the introduction of language which has not been commonly used in workplaces but has been used among LGBTI communities.

As a result of the changes, employers should aim to use “inclusive language” in the workplace at all times. Inclusive language is language that avoids expressions or words which might be considered to exclude particular groups of people. It is also language that is free of prejudiced, stereotyped or discriminatory views of particular groups of people.21 For example, employers might encourage employees to use gender-neutral expressions and phrases such as “colleagues” or “fellow members” (as appropriate) rather than “ladies and gentlemen” when presenting to a group. Using such language would make a person in the room who might be intersex feel included and equally valued, and would prevent them from feeling that they are “outside the norm”.

If an employee has specifically disclosed their “intersex status”, employers should respect the language with which that employee describes their biological sex and/or gender identity.22 This may include in relation to the intersex employee’s preference for honorofics and pronouns. Accordingly, following disclosure of an “intersex status”, an employer should discreetly ask an intersex employee about their preferred use of language. Upon confirming an employee’s preferences, employers should then direct other employees to use the employee’s preferred language even when the employee is not present, and may need to provide other employees with training in relation to the matter.

Honorifics

An intersex employee may prefer the use of “Mx” (Mixter), an honorific that has been used by LGBTI communities instead of Mr, Mrs, Ms or Miss.23

Pronouns

The LGBTI Health Alliance has issued an information sheet entitled “Inclusive Language Guide: Respecting People of Intersex, Trans and Gender Diverse Experience”, which may provide employers with guidance on the appropriate use of pronouns when communicating with and referring to intersex employees.24

Intersex employees who identify as either male or female may prefer the use of pronouns such as “he” or “she” when referring to them.25 Alternatively, such employees may prefer the use of their first name instead of a gendered pronoun.26 Intersex employees who do not identify as either male or female, on the other hand, may prefer the use of their first name, the non-binary pronoun “they”, or the interchangeable use of he and she as pronouns.27 Alternatively, such employees may prefer the use of “zie” (or “ze” or “sie”), that have been used among the LGBTI community instead of “he” or “she” to refer to people who do not identify as either male or female. When “zie” (or “ze” or “sie”) are used, they are typically accompanied by the use of “hir” (or “zir”) instead of “his” or “her”.28

Toilet and shower facilities

The new attribute may also raise questions about employer obligations in relation to the use of toilet and shower facilities by intersex persons.

Intersex employees who do not identify as either male or female may prefer to use unisex toilet and shower facilities. It is, however, inappropriate to direct intersex employees to use unisex toilets for disabled persons, as to do so risks sending a message to other employees that being intersex is similar to having a disability.

It is possible that intersex employees will request unisex toilet and/or shower facilities to be built – other than for the purposes of disabled persons – where they are not already available. If this situation arises, it remains to be seen how courts and tribunals would balance the need to treat intersex employees no less favourably than other employees with the need to not impose unreasonable financial burdens on employers.

Intersex employees who identify as either male or female may prefer to use the toilet and/or shower facilities of the gender with which they identify. Nonetheless, employers may face some resistance from other employees in introducing such arrangements. To that end, the Victorian Equal Opportunity and Human Rights Commission’s guidelines in relation to avoiding discrimination against transgender persons at work may provide employers with some useful guidance on how to deal with this situation.29

First, employers should discuss how to best approach the issue with the intersex employee.30 Second, employers should discuss these arrangements with other employees without the intersex employee being present.31 The creation of an open and safe forum in which employees can raise their concerns will allow employees to feel heard.32 Employees may express deep-seated prejudices or gaps in knowledge about intersexuality and/or “gender identity” in these discussions. In such cases, employers should provide employees with information which may assist them to more fully understand the issues involved.33

While employers should listen to employees’ concerns, it is important to remind employees that discriminatory conduct against intersex employees is not acceptable (and indeed, is unlawful).34

Additional recommendations

Employers should also consider the following steps to ensure that their work practices comply with the new laws:

  • update polices to include “intersex status” as an attribute upon which discrimination will be unlawful in the workplace;
  • train staff on their additional obligations in relation to intersex applicants and/or employees;
  • consider whether it is necessary to record employees’ sex in forms and record-keeping mechanisms. If not, then avoid doing so. If so, however, consider whether those mechanisms need to be amended so as to provide individuals with the option of selecting X (indeterminate/intersex/unspecified) as their sex.

Conclusion

The absence of legal protections for intersex persons has, until recently, left intersex persons vulnerable to discrimination. Amendments recently made to the SDA will finally provide intersex persons with important legal protections in areas of public life which include work. Employers should ensure that they make relevant adjustments to their policies and procedures in order to comply with these new obligations.


MEHNAZ YOOSUF wrote this article while working as a lawyer with Justitia Lawyers and Consultants, an employment, discrimination and labour relations law firm. The author would like to thank Mary-Jane Ieorodiaconou, Sarah Rey and Magda Marciniak from Justitia Lawyers and Consultants for their invaluable comments during the drafting of this article.

  1. Organisation Intersex International Australia, Submission No 12 to the Senate Legal and Constitutional Affairs Legislation Committee, Exposure Draft of the Human Rights and Anti-Discrimination Bill 2012, 9 December 2012, 5.
  2. Organisation Intersex International Australia, How Common is Intersex (28 September 2013) http://oii.org.au/16601/intersex-numbers.
  3. Parliament of Australia, Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013; www.aph.gov.au/Parliamentary_Business/ Bills_Legislation/Bills_Search_Results/Result?bId=r5026.
  4. Note 3 above.
  5. Australian Human Rights Commission, New Protection (1 August 2013), www.humanrights.gov.au/new-protection.
  6. Multiple authors, “LGBTI Groups Welcome the Passage of ‘Historic’ National Discrimination Laws” (Press Release, 26 June 2013), http://oii.org.au/wp-content/uploads/2013/06/MEDIA-RELEASE-LGBTI-groups- welcome-passage-of-historic-anti-discrimination-laws- 26-June-2013-FINAL.pdf; Ming Yu, Amnesty International, Are you Male, Female or Intersex? (11 July 2013), www.amnesty.org.au/features/comments/32251.
  7. Organisation Intersex International Australia, Submission No 12 to the Senate Legal and Constitutional Affairs Legislation Committee, Note 1 above, 6.
  8. Note 7 above.
  9. Note 7 above, 14.
  10. This definition is based on a definition first adopted in s3 of the defeated Tasmanian Anti-Discrimination Amendment Bill 2012 (Tas), and then recommended by the Senate Legal and Constitutional Affairs Committee in its report into the now abandoned Exposure Draft of the Human Rights and Anti-Discrimination Bill 2012 (Cth).
  11. Explanatory Memorandum, Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 (Cth), at [15].
  12. Note 11 above, at [16].
  13. Note 11 above, at [9].
  14. Note 11 above, at [74].
  15. Note 11 above, at [75].
  16. Explanatory Statement, Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Regulation 2013.
  17. Note 16 above, at [7].
  18. Note 16 above, at [85].
  19. The Attorney-General’s Department, The Australian Government, Australian Government Guidelines on the Recognition of Sex and Gender (July 2013), [40], www.ag. gov.au/Publications/Documents/AustralianGovernment GuidelinesontheRecognitionofSexandGender/Australian GovernmentGuidelinesontheRecognitionofSexand Gender.PDF.
  20. Note 19 above, at [40].
  21. Department of Education, The Tasmanian Government, Guidelines for Inclusive Language (10 August 2012), www.education.tas.gov.au/documentcentre? Documents/Guidelines-for-Inclusive-Language.pdf.
  22. Y Gavriel Ansara, National LGBTI Health Alliance, Inclusive Language: Respecting Intersex People, Trans People and Gender Diverse People (April 2013), www.ianz.org.nz/images/FINAL%20Alliance%20Health%20Information%20Sheet%20Inclusive%20Language%20on%20Intersex,%20Trans%20&%20Gender%20Diversity%209-04-13.pdf.
  23. Catherine McNamara, “Mx – When Mr, Mrs, Miss and Ms just won’t do”, Huffington Post (22 October 2013), www.huffingtonpost.co.uk/catherine-mcnamara/non-gendered-titles_b_4135999.html.
  24. Note 22 above.
  25. Note 24 above, 2.
  26. Note 25 above.
  27. Note 25 above.
  28. Note 25 above. See also Wikipedia, Gender-specific and Gender-neutral Pronouns, http://en.wikipedia.org/wiki/Gender-neutral_pronoun.
  29. Victorian Equal Opportunity and Human Rights Commission, “Guideline: Transgender People at Work: Complying with the Equal Opportunity Act 2010 in Employment” (May 2013).
  30. Note 30 above, 10.
  31. Note 31 above.
  32. Note 31 above.
  33. Note 31 above.
  34. Note 31 above.

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