Changing the legal definition of sex

Two inter-related federal law reform proposals extending legal protection and recognition to intersex people are currently being considered: the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 and draft Australian Government Guidelines on the Recognition of Gender.

The Sex Discrimination Amendment Bill will amend the existing federal prohibitions against sex discrimination to extend protections to cover sexual orientation, gender identity and intersex status. The draft Guidelines on the Recognition of Gender propose a new national standard for the recognition of sex and gender in Australia. The Guidelines distinguish between biological sex, and gender which relates to social identity. If the Guidelines are adopted the federal government will ordinarily only collect data regarding an individual’s gender, not their sex, and individuals will able to indicate their sex and/or gender is M (male), F (female) or X (indeterminate/intersex/unspecified).The Guidelines also propose a new standard for the recognition of change of gender in Australia. It is recommended that the Australian Government recognise each of the following as sufficient evidence of an individual’s sex and/or gender:

a)   a ‘Gender Recognition Certificate’  signed by a  doctor which states the gender in which the person lives;
b)   a valid Passport, which specifies their preferred gender, or
c)    an amended State or Territory birth certificate, which specifies their preferred gender.

Adelaide Law School academics Dr Laura Grenfell and Anne Hewitt recently made submissions regarding both these proposed reforms. While they supported the spirit of both reforms, Anne and Laura did question some of the content of the proposals. Their complete submission regarding the Sex Discrimination Amendment Bill can be seen here. However, one particular concern regarding the Bill was that the proposed amendments would not offer protection to individuals who suffer discrimination because they are in the process of changing their sex or gender status. In their submission regarding the draft Guidelines, Anne and Laura indicated their support the creation of a uniform national approach to the recognition of gender and noted the impact that inconsistent legislative and policy approaches can have on the lives of affected persons. However, they criticised the Guidelines for continuing to embed a medicalised understanding of sex and gender. They also noted that the Sex Discrimination Amendment Bill includes a significant exemption regarding the collection of data which would undermine the operation of the Guidelines, and suggested that exemption be narrowed.


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