The Federal Government's human rights arm plans to invent a new official status called "intersex" adding it to male and female as a legally recognised gender.The draft Proposal hasn't just been circulated to a number of "special interests", but is available online in Word format on the Human Rights Commission website.
The Human Rights and Equal Opportunities Commission wants people to be able to change their gender on their passports and driving licences even if they do not undergo surgery.
The extraordinary proposals are contained in a discussion paper quietly issued to transgender and transexual advocates by the commission, a statutory body that advises the Government on such matters.
The paper, entitled Sex Files - The legal recognition of sex: Proposed reform, says the introduction of the new "intersex" gender is a "key feature of the reform proposal being developed by the commission".
"Recognition of intersex: Persons who cannot or do not identify as either male or female would be able to choose to be identified on their birth certificate and passport as intersex," it says.
"A person who cannot or chooses not to undergo surgery would not be automatically ineligible to request a change in their legal sex."
In fact, a "third gender" category has been available on passports and in some states since 2003, as the result of a court case involving Alex MacFarlane. The "third sex" proposal would merely regularise the situation and make treatment across the states consistent.
There are a number of legal difficulties though. Here's what I wrote in commentary to the HRC on the proposal:
Excellent recommendations, striking a balance between ideals and what can be practically achieved in the medium term.One of the issues in regularising the existing situation is the fact that those neither male nor female are in a legal limbo when it comes to a lot of legislation. The current Marriage Act states that marriage is between a man and a woman - so one can assume that those who are biologically, actually, and legally neither are denied this human right. Their position as regards Equal opportunities legislation is also as clear as mud.
I Am Not A Lawyer, and I hope Ms Wallbeck and other legal professional may comment, but...
Trying to get the states and territories to co-ordinate on such a controversial issue will be like herding cats. Various large and influential religious groups will have severe bovinosity - they'll have large and influential religious cows. Also conniptions. That would happen anyway, but some state governments would feel the pressure more than others.
It is not clear that the Federal Government has the constitutional power to make such rules though. Now it is just barely possible they may have, via the Universal Declaration of Human Rights via the Yogyakarta principles.(Section 51.xix) or alternatively, with the agreement of the states (ignoring territories) 51.xxxviii.
Note that in Australia, the declaration is *not* self-executing. Australia had the following reservation at signature to the International Covenant on Civil and Political Rights:"Declaration:
"Australia has a federal constitutional system in which legislative, executive and judicial powers are shared or distributed between the Commonwealth and the constituent States. The implementation of the treaty throughout Australia will be effected by the Commonwealth, State and Territory authorities having regard to their respective constitutional powers and arrangements concerning their exercise." "
So by the reservation, it's arguable that the Commonwealth has already delegated its power over compliance to the states, and they will implement the legislation in their own sweet time at some unspecified future date.
But again, IANAL.
Most Intersexed people are intersexed women, or intersexed men. Women and Men for short. Only a handful are not, and I have heard it argued by some IS people that such tiny minorities are negligible.
I disagree - for I've heard exactly the same arguments, in exactly the same terms, concerning all Intersexed people. We, of all people, should know enough not to take the same inhuman line as regards others who we don't understand.
This proposal has also caused some extreme concern in both Intersexed and Transsexual groups. The fear is that men and women with a minor somatic anomaly will be categorised by others, quite against their will, as "Intersexed", and so denied human rights on that basis.
Given the past treatment of such people by medical and legal authorities, this fear is by no means unreasonable. It needs addressing. Here's what I wrote about the subject on another discussion group, where grave fears and even outrage had been expressed:
Having an official "3rd sex" merely regularises the situation for the tiny, miniscule minority - most notably Alex MacFarlane et al - who have X on their BCs out of their own choice. Or at least, that is the intent.For an example of one such, a very brave and admirable young human being, see the eFeminate blog, where she chronicles her journey of self-discovery.
I think this should be an option for Intersexed people who identify as neither male nor female. It most certainly and emphatically should NOT be a "default' for Intersexed people, most of whom identify as either Male or Female. There is a strong danger here, and we must tread most carefully. It also has some interesting legal ramifications, vis a vis marriage etc. Again, I cannot stress too highly that this must be an exceptional and entirely voluntary SELF-categorisation, not something others put us into. This categorisation is entirely consistent with existing international law, and the ICAO standards for passports. We must be extremely vigilant that the APO and others do not use it as a tool of oppression.
Basically, an intersexed woman is a woman, an intersexed man is a man. Only those intersexed people who are androgenous or neutrius, neither M nor F, would find this categorisation useful to them. They are few, but they exist.
You might notice that I singled out the APO - the Australian Passports Office - for special mention. I think that in view of my own experiences with them, they richly deserve it. In matters great and small, whether with goodwill or malice, they manage to make mistakes. For example, here is an excerpt from correspondence by Kathy Anne Noble with them:
Kathy,Er No. X stands for "Indeterminate, Unspecified or "non-specified" (emphasis added). Instead of allowing reasonable latitude for exceptional cases, they in their infinite wisdom have decided unilaterally to lock it down to matters of state birth registration, and not medical reality. The ICAO's wording was carefully chosen to allow human judgement and basic humanity to play a role. The APO carefully and deliberately removed those from consideration. We're not asking them to "move away" from the standards, but to follow them. From ICAO Document 9303
X is for indeterminate sex. Following is the text from our manual which explains the term indeterminate sex. Unfortunately, it cannot be used for persons who identity as both male and female but is limited to those people whose sex cannot be physically determined at birth and their birth certificate records that fact. Australia closely follows ICAO standards and would not at this time contemplate moving away from those standards.
The term ”indeterminate” sex refers to persons whose sex cannot be determined as either male or female. This status is determined by the relevant Registrar of Births, Deaths and Marriages. In accordance with the International Civil Aviation Organisation (ICAO) standard for unspecified sex, the symbol X in the sex field is to be used in such cases. This sex identifier will be used in cases where a person presents a birth certificate with the sex recorded as “Indeterminate” or the equivalent.
Within the new few weeks (depending on our IT people) the APO website should contain some FAQ for sex and gender diverse passport applicants*. We hope it will be of assistance.
Kathy Anne Noble
Sex of the passport holder, M for males, F for females, and < for non-specified.And while we're at it, rather than "Male, Female or Intersex" on the birth certificates, how about "Male, Female or Unspecified". That way allowing gender to be re-determined later in life, and to allow some "slop" in the system to cater for Hard Cases. Or we will have Bad Law.
* - Oh yes, that "few weeks" bit was written on or before August. Their site still has nothing. But that is only to be expected.