Making the invisible visible: intersex rights are human rights which should be protected under new equality laws

By on .


Gina Wilson

Date first published:

February 3, 2012

Location first published:

Human Rights Law Centre, Equality Law Reform Project

INTERSEX rights are human rights. Although this statement might seem self-evident, the rights and experiences of intersex people have been consistently ignored and rendered invisible across the world and throughout history.

In the run up to International Human Rights Day, US Secretary of State Hillary Clinton delivered a widely celebrated speech which championed “LGBT rights” but did not refer to intersex people at all. Similarly, the Yogyakarta Principles – often viewed as the foremost international human rights authority for people of diverse sex and gender – are framed in sex binary terminology. They do not refer to intersex people or anatomical differences of sex in any way. The recent Australian Government discussion paper on consolidating federal anti-discrimination laws is over 60 pages long but does not include the word intersex once.*

However, recent roundtable discussions have indicated that the Australian Government is aware of the need and willing to take the steps to recognise intersex people in the consolidation of anti-discrimination laws. Australia has the opportunity to lead the charge and become the second country, after South Africa, to include specific protections for intersex people in anti-discrimination law.

What intersex means

Many people do not know what intersex means. Intersex refers to biological differences in which the development of chromosomal, gonadal or anatomic sex is atypical. Individuals who are intersex commonly possess a combination of what are traditionally classed as male and female sex characteristics. Intersex is not just about physical differences in reproductive organs, but also physical differences in secondary sexual characteristics and chromosomal and hormonal differences. However, intersex is not always visibly apparent because people usually do not look at others’ genital and internal organs.

A lot of people get confused and think that what intersex people want is the same as what lesbian, gay or bisexual people want, or what trans people want. This makes it even more difficult for intersex organisations to be heard by governments and society more broadly. It is incorrect to subsume intersex under “sexual orientation and gender identity” because intersex is not actually about who a person is attracted to or their gender, it is about anatomical differences in sex.

As it stands, there is very little research concerning intersex people and almost no recognition in Australian law or policies of the human rights experiences of intersex people. Access to appropriate and adequate long term medical information, treatment and medication is severely limited. Surgery on intersex people – particularly infants – still takes place without all of the relevant information being made available and too often without our consent.

Intersex – nearly no legal protection

Intersex people have almost no protections under Australian law. Where protections are in place, they are generally not based on the status of the individual as intersex. This is compounded by a fundamental lack of understanding or awareness of what it means to be intersex in society more broadly. Intersex people are often subjected to discrimination because of their differences – often suffering homophobic, transphobic and intersexphobic discrimination all at the same time.

Intersex people need legal protection that recognises they are physically other than male or female. Acknowledging that intersex people are outside of the binary division often applied to sex identification would give intersex people the recognition they deserve and the certainty and freedom to live full and productive lives. To do this, Australia’s equality laws need to explicitly acknowledge that intersex people are protected from discrimination on the basis of their sex.

As well as protection against discrimination on the basis of their status as intersex individuals, intersex people also require protection against discrimination on the basis of their gender identity. Many intersex people identify as intersex men or intersex women, rather than as intersex. However, the existence of individuals who identify as intersex illustrates the importance of casting the new Act’s definition of gender identity broadly to encompass the full spectrum of gender identities.

The need to use intersex terminology

It is crucial that Australia’s equality laws and policies talk about intersex people using intersex terminology. Intersex people are consistently silenced, ignored and rendered invisible through obscure language, inaccurate euphemisms, appropriative terminology and medical diagnoses. Intersex people continually have to challenge how Disorders of Sex Development – DSDs – are imposed on us without complete information, adequate consultation or our full and informed consent. We resist any attempt to silence intersex people by cloaking us within other terms. Australia is finally beginning to recognise how intersex people face very particular and specific problems concerning discrimination.

It is important that intersex people be recognised as intersex, not as a subset of another category. My hope is that the Australian Government will rise to the challenge in reforming its anti-discrimination laws. intersex people want the world to accept us as we are. As a starting point, the Australian community has to know who we are – we make up a significant portion of the general population, with estimates indicating that between 1.9% and 4% of the population is intersex.

Where silence breeds harmful stereotypes and prejudice, open communication creates understanding and acceptance. The more we can talk about intersex in the public sphere, the higher the chance of addressing existing stereotypes and negative perceptions of intersex people and our bodies.

At this early stage in our fight for fundamental human rights, we need to be acknowledged loud and clear as intersex. Ensuring Australia’s anti-discrimination laws outlaw discrimination against intersex individuals could be a significant step to achieving true equality.


* Mentioning the word intersex once in the preamble to the Principles and not in the Principles themselves does not constitute inclusion in the Yogyakarta Principles.

If it was the intention of the organisers to include intersex then they would not have limited the Principles’ coverage to the attributes formula of “sexual orientation and gender identity” as intersex is neither of these.

A team of intersex activists arrived at the venue for the meetings that formulated The Yogyakarta Principles but were refused admission and the right to participate.