Gender diverse people and people born with diverse sex characteristics

9.1 Introduction

“Intersex and transgender people are different, their needs are different, and the discrimination they face is different. Both of these communities often face discrimination and it is important our laws reflect their different needs.” [1]

For this reason, this section separates some issues affecting gender diverse people, and those issues faced by people born with diverse sex characteristics (intersex people).

9.1.1 Explanations and terminology — transgender and transsexual[2]

Section 38A of the Anti-Discrimination Act 1977 (NSW) uses the term “transgender” to refer to anyone:

(a) 

who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or

(b) 

who has identified as a member of the opposite sex by living as a member of the opposite sex, or

(c) 

who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex,

and includes a reference to the person being thought of as a transgender person, whether the person is or was, in fact a transgender person.

This definition does not include people who cross-dress — unless they live or seek to live as a member of the gender whose clothes they are dressing in.

The Gender Centre notes that the legislative definition has limitations and that the “transgender community itself allows for a far more multi-coloured umbrella definition that is inclusive of anyone who transgresses gender norms”.[3]

Transsexual” is an older term for people whose gender identities don’t match the sex that was assigned at birth and who desire and/or seek to transition to bring their bodies into alignment with their gender identities. Some people find this term offensive, others do not.[4] Unlike transgender, transsexual is not an umbrella term.

9.1.2 Male-to-female (MtF) and female-to-male (FtM)

Male-to-female (and its abbreviation MtF), and female-to-male (and its abbreviation FtM), are used to describe the gender transition that a transgender or transsexual person has taken, or wants to undertake to affirm their gender.

The terms “male-to-female transgender person” or “male-to-female transsexual person”, and “female-to-male transgender person” or “female-to-male transsexual person” are the best terms to use when describing a person who is transitioning.

However, those with legal recognition of their gender (see 9.5) may wish to be described as “female” or “male” instead of “male-to-female”, or “female-to-male”.

9.1.3 Cross-dressing and transvestism

The term “Transvestite” describes a person who cross-dresses rather than someone who believes that their gender identity is different to their assigned gender.

Some people cross-dress only in private or only on stage. However some do so more widely than this and may, for example, appear in court in cross-dress.[5]

Some cross-dressers are gay or lesbian and some are heterosexual.

9.1.4 Other terms

Other terms used to describe transgender people (for example, “tranny” or “trannies”, “gender-bender”, “butch”, “drag queen”, “she-man”, “she-male”, “tomboy”) are extremely derogatory terms.

9.2 Transgender and transsexual people[6]

9.2.1 Some information

  • In Tien-Lao and Tien-Lao [2018] FamCA 953, the Family Court stated at [29]: “…it is now accepted that gender is not a binary construct: either male or female … The concept of gender is fluid and contemporary understanding of the fluidity means that gender differences are now better regarded as lying along a continuum, rather than presenting a polarising election between two stark alternatives.”

  • There are no reliable statistics on the number of NSW residents who have had issues with their gender identity. For example, there are no reliable statistics on the number of NSW residents who:

    • Suffer gender dysphoria as a consequence of not identifying with their biological sex and therefore need to change their gender identity or who have changed their gender identity[7]

    • Cross-dress but have no wish to change their gender identity.

  • The general community, however, is starting to recognise the existence of greater numbers of people who have, or might be perceived as having, gender identity issues as they become more open about their desires and needs, and as Australian society, government services and the law slowly adapt to their needs.

  • There are no reliable statistics on whether the majority of transgender or transsexual people are male to female (MtF) or female to male (FtM).[8] Most members of the general community are less aware of people who have changed or wish to change from the female to male gender, than vice versa — partly because it is often easier for women who change their gender identity to male to “pass” as male (that is, to not be recognised as originally female), than vice versa.

  • Some protections against discrimination on transgender grounds were introduced in 1996 under NSW anti-discrimination law.[9] However people with, or perceived as having, gender issues are some of the most discriminated against and marginalised people in Australian society.[10] Many people regard gender as a fixed matter. The majority of the transgender community also see their gender as a fixed matter. For the majority of transgender people, once their bodies conform to their own innate understanding of gender, they are then happy to live for all intents and purposes with that gender. Those who act against that norm sometimes have a very difficult time in accepting their own gender identity needs and in being accepted by others. People who wish to surgically change their bodies to conform with their innate gender have to go through extensive and lengthy medical and administrative processes.

  • As a result:

    • Approximately 10% of transgender people are unemployed[11] — which may mean that this community experiences much greater than average levels of poverty. According to an American study, transgender people are nearly four times more likely to live in extreme poverty and were twice as likely to be unemployed compared to the general population.[12] The Human Rights and Equal Opportunity Commission have stated that people who are transsexual or transgender have an unemployment rate of 9.1 per cent; more than twice the national average.[13]

    • Of those who are employed — many have felt the need to (or have felt forced to) change jobs during or following their gender identity change, or are working in jobs below their capacity, or are in less than optimal occupations.

    • Many have lost touch with their families and/or previous friends in the process of expressing their desired gender identity, although others, for example, have kept and are actively supported by the same partner throughout their gender identity change, and/or have maintained or managed to re-establish their family relationships.

    • Many have been victims of violence — There is limited Australian research that records the level of domestic and family violence in LGBTQ relationships. However, transgender individuals may suffer from an even greater burden of intimate partner violence than gay or lesbian individuals. Transgender victims of intimate partner violence are more likely to experience threats or intimidation, harassment and police violence within intimate partner violence, including use of offensive pronouns such as “it” to refer to the transgender partner and ridicule regarding their body or appearance.[14] Other aspects of LGBTQ violence include threatening to “out” the person as a method of control; not allowing the person to form relationships and seek support within the LGBTQ community and a feeling of embarrassment about the abuse leading to limited reporting to police or health professionals.[15] Yet many persons with gender identity issues are “reluctant to report violence directed against them due to a number of factors, including low expectations of arrest, the trauma of reporting, and a widespread, shared experience of negative police attitudes”.[16]

    • Many (although by no means all) did not achieve their full potential during their schooling — Same sex attracted, transgender and gender diverse young people suffer high levels of verbal and physical abuse in the community, with the most common place of abuse (80%) being at school.[17] Gender diverse young people usually experience high levels of anxiety and depression. This has a profound impact on their well-being, attendance and educational outcomes.[18]

    • Many have experienced, or continue to experience, greater than average levels of depression, drug and alcohol abuse and general ill health, and, as a result, there are relatively high levels of criminality within this community.[19] Gender diverse and transgender individuals are more likely to experience mental health conditions than the general population. Research has found that gender diverse and transgender young people were four times as likely as the cisgender young people to experience significant depressive symptoms (41% compared to 12%). Despite these high levels of depression, research has also found that amongst transgender and gender diverse people there is a reluctance to seek medical advice and assistance.[20]

    • Compared to the general population, transgender people are more likely to have thoughts of suicide, specifically those aged 18 and over are nearly 11 times more likely.[21]

    • Almost all (if not all) will have been discriminated against — often many times, by employers and/or various types of service providers, so are much more likely to be sensitive to this possibility. This may make some of them more likely to name any perceived problem, or any perceived difference in treatment from the way in which they think people born as male or female would have been treated as being a form of transgender discrimination — even when it is not. However, if you follow the guidance provided in 9.6, below, this should be less likely to occur. Bullying and violence at work is a major issue for a significant number of LGBT people. A report found that 90% of those identifying as gender diverse had experienced some form of discriminatory behaviour in the workplace.[22] Transgender people report that they commonly experience discrimination in the workplace, including in both gaining and maintaining employment.[23]

  • In NSW Registrar of Births, Deaths and Marriages v Norrie (2014) 250 CLR 490 at [2], [46], the High Court recognised that there may be genders other than “male” and “female” and that the NSW BDM has the power to register someone’s sex as “non-specific”.

9.2.2 Common misconceptions regarding gender diversity[24]

There are many false assumptions made about people who have gender identity issues or who are perceived as having gender identity issues. Some of the most common are that:

  • The desire for a change in gender identity is related to or even based on sexual preference or sexuality, and that if only the person could come to terms with their sexuality they would not need to change their gender identity — Gender identity is very different from sexuality. Some people who change their gender were previously homosexual, some were previously heterosexual and some were previously bisexual. Once they change or move towards changing their gender identity, some keep their original sexual preference towards people of a particular gender, or towards people of both genders, and some change their preference. For example, a person who has changed their identity from male to female may be attracted to men and identify as heterosexual, or they may be attracted to women and identify as lesbian. And, the majority of gay men and lesbians do not have any issues with their gender identity — see Section 8 for more about this.

  • All those with gender identity issues wish to medically and surgically change their gender — While this is true of some, it is not true of all. Some choose to use only some of the medical and surgical changes available — for example, they may choose to take hormones, but not undergo any surgical changes. Some are medically unable to make use of medical and/or surgical options. Some cannot afford surgery or have religious or philosophical convictions against it, and some simply choose not to do anything medical or surgical.

  • All those with gender identity issues identify so strongly with their chosen gender identity that they behave and dress in a way that represents the more extreme masculine end of the male spectrum of dress and behaviour for those who have chosen to identify as or change to male, or the more extreme feminine end of the female spectrum of dress and behaviour for those who have chosen to identify as or change to female — In fact, a person assigned a male gender who now identifies as female might or might not dress in an ultra-feminine style, and vice versa. Often there is a progression towards an appearance that coincides more closely with the general community’s view of the relevant person’s age, socio-economic status and occupation.

  • There is something mentally wrong with people who wish to change their gender identity — There is increasing medical and research evidence that there is a biological basis for many people’s innate gender identity conflicting with their assigned gender.[25] Given the huge repercussions for every aspect of their life, no-one takes the decision to change their gender identity lightly. For some, this will be a decision starting to form, or actually taken, in childhood or adolescence. For others, this will be a decision taken much later in life, once they realise that it is no longer possible for them to live a life that is at odds with their innate identity.

9.3 Intersex population

According to the UN and a range of human rights institutions, “intersex people are born with physical or biological sex characteristics (such as sexual anatomy, reproductive organs, hormonal patterns and/or chromosomal patterns) that do not fit the typical definitions for male or female bodies.” [26]

Intersex status” is defined separately from gender identity in s 4 of the Sex Discrimination Act 1984, recognising that intersex relates to an individual's biology. Intersexuality occurs in many species, including humans, and it represents a range of genetic, chromosomal and hormonal circumstances. [27]

Intersex variations may be regarded by medicine and in the Family Court’s welfare jurisdiction as “sexual development disorders”[28] or “disorders of sex development”, while the law may regard intersex people as “hermaphrodites”,[29] or members of a third sex, and so disregard the person’s lifelong legal sex. These contradictions are the subject of criticism[30] and debate, with increasing attention by human rights institutions to the ways that intersex people are treated by medicine and law.

There are at least 40 different intersex variations. Intersex traits can be identified early in life, such as in infancy, but also at puberty, or later in life such as when trying to conceive a child, or prenatally through the use of genetic screening technologies. Relevant diagnostic classifications include androgen insensitivity syndrome, Klinefelter syndrome, congenital adrenal hyperplasia (with XX sex chromosomes), 5-alpha reductase deficiency, 17-beta hydroxysteroid dehydrogenase 3 deficiency, gonadal dysgenesis, and others. This means that intersex people have diverse sex classifications, gender identities and gender expressions.

Intersex people are generally male or female, living as men or women who are comfortable with their gender. It is uncommon for an intersex person to reject the sex they were assigned at birth, however there is a significant number who do.

9.3.1 Common misconceptions regarding intersex persons

Intersex status is not about sexual orientation, nor gender identity. There are as diverse a range of sexual orientations and gender identities as non-intersex people. Intersex people have non-heteronormative bodies. Intersex bodies do not meet societal expectations.[31] Cultural, familial and medical attitudes govern which sex is assigned. Surgical and other medical interventions are made to ensure people conform to those norms and to erase intersex differences.[32]

In Australia, some people born with variations in sex characteristics may be subject to medical interventions without themselves providing informed consent. It has been reported that this may be done where there is no medical need — for example, it may take place to conform to ideas about what male and female bodies should look like.[33]

Most surgery conducted on intersex newborns is not life preserving, rather it is cosmetic and an attempt to provide parents with an apparently normal child.[34] Given that some people with genital ambiguity do not require medical treatment in order to be healthy and thrive, experts are developing guidelines regarding sex assignment at birth. Intersex activists and experts have spent at least 25 years disclosing and bringing to light strong evidence against unconsented and unnecessary medical interventions on intersex people. Long-term consequences of these interventions are not well documented.[35]

The frequency of intersex in the NSW population is unknown but generally expected to be similar to that in other countries. Between 0.5 and 1.7% of people may have intersex traits.[36] Numbers are vague, not only due to diagnostic challenges and the growing impact of genetic selection,[37] but also stigma. Disclosed by a doctor to a parent or an individual, an “exact diagnosis is lacking in 10 to 80% of the cases”.[38]

A 2015 Australian study[39] showed that people born with atypical sex characteristics (intersex) are both less well educated than the general population, and better educated. Bullying, developmental delays and medical interventions during puberty can adversely impact school participation. However, a high proportion of individuals succeed in higher education.[40]

Compared to the general population people with an intersex variation are more likely to have thoughts of suicide.[41] For many intersex people, there is also a negative impact on wellbeing as a result of having undergone medical interventions including a traumatising or unwanted surgery, beginning hormone therapies and feeling emotionally impacted and unlike themselves.[42]

NSW anti-discrimination law includes intersex people under the transgender umbrella,[43] providing the right to not be discriminated against in relation to employment and many types of service provision. It is important to reiterate that most intersex people identify with sex assigned at birth, while some do not.[44] The important thing to remember is that intersex people are not the same as transgender or transsexual, but the term describes natural biological traits or variations that lie between “male” and “female”. Intersex is always congenital and can originate from genetic, chromosomal or hormonal variations.[45]

9.4 Legal gender identity

In NSW, transgender people (and intersex people if the person requires a change of gender) may be legally recognised in terms of their affirmed gender upon application for alteration of the record of their sex in the registration of their birth (s 32B of the Births, Deaths and Marriages Registration Act 1995). Alternatively, a person may apply to register a change of sex (s 32DA).[46]

The landmark case of Kevin v Attorney-General (Cth)[47] (“Re Kevin”) and the subsequent appeal proceedings before the Full Court of the Family Court of Australia[48] decided that a female-to-male (FtM) “transsexual” (as the term was used in the judgment) was a man within the meaning of s 46(1) of the Marriage Act and s 43 of the Family Law Act at the time of the marriage, and that he was therefore legally entitled to marry a woman. In July 2013, the Federal Government issued guidelines on the recognition of sex and gender. These guidelines recognise “that individuals may identify and be recognised within the community as a gender other than the sex they were assigned at birth or during infancy, or as a gender which is not exclusively male or female.[49] These guidelines outline how sex and gender should be recognised and be reflected in personal records held by Australian Government departments and agencies.[50]

9.5 The possible impact of gender identity issues in court

Unless appropriate account is taken of any gender identity needs of those attending court, gender diverse people are likely to:

  • feel uncomfortable, resentful or offended by what occurs in court

  • feel that an injustice has occurred

  • in some cases be treated unfairly and/or unjustly.

Section 9.7, following, provides additional information and practical guidance about ways of treating gender diverse people, so as to reduce the likelihood of these problems occurring.

9.6 Practical considerations

9.6.1 Mode of address and gender to use

9.6.2 Appearance and behaviour

9.6.3 Language and terminology

9.6.4 The impact on any behaviour relevant to the matter(s) before the court

9.6.5 Directions to the jury — points to consider

As indicated at various points in 9.6, it is important that you ensure that the jury does not allow any ignorance of gender or sexual identity issues, or stereotyped or false assumptions about gender diverse people to unfairly influence their judgment.

9.6.6 Sentencing, other decisions and judgment or decision writing — points to consider

9.7 Further information or help

The following community organisations, funded by the Department of Family & Community Services and supported by the NSW Department of Health, can provide further information or expertise about sex or gender identity, and also about other appropriate organisations, individuals, and/or written material, as necessary.

The Gender Centre
41-43 Parramatta Rd
PO Box 266
Annandale NSW 2038
Ph: (02) 9519 7599
Fax: (02) 9519 8200
www.gendercentre.org.au

Inner City Legal Centre
Basement, Kings Cross Library
50–52 Darlinghurst Rd
Kings Cross NSW 2011
PO Box 25
Potts Point NSW 1335
Phone: 1800 244 481
Fax 02 9360 5941
www.iclc.org.au

An intersex non-government organisation, whose work focuses on intersex human rights, bodily autonomy and self-determination, and on evidence-based, patient-directed healthcare:

Intersex Human Rights Australia Ltd (IHRA)
PO Box 46
Newtown NSW 2042
email: info@ihra.org.au

9.8 Further reading

T Alexander, “The medical management of intersexed children: an analogue for childhood sexual abuse”, Intersex Society of North America, 1997.

American Psychiatric Association, The Diagnostic and Statistical Manual of Mental Disorders (DSM-V), 5th edn, Text Revision, American Psychiatric Association, Washington, DC, 2013.

Australian Human Rights Commission, “Sex Files: the legal recognition of sex in documents and government records”, 2009, at www.humanrights.gov.au/genderdiversity/sex_files2009.html, accessed 4 April 2019.

Australian Human Rights Commission, “Face the facts: Lesbian, Gay, Trans and Intersex people”, at www.humanrights.gov.au/education/face-facts/face-facts-lesbian-gay-bisexual-trans-and-intersex-people, accessed 4 April 2019.

Australian Research Centre in Sex, Health & Society, Tranznation: A report on the health and wellbeing of transgendered people in Australia and New Zealand, 2007, at www.glhv.org.au/files/Tranznation_Report.pdf, accessed 4 April 2019.

M Carpenter, “The ‘Normalisation’ of Intersex Bodies and ‘Othering’ of Intersex Identities”, in The Legal Status of Intersex Persons, J Scherpe, A Dutta and T Helms (eds), 2018, Cambridge, Intersentia, pp 445–514.

M Carpenter, “Intersex Variations, Human Rights, and the International Classification of Diseases” (2018) 20(2) Health and Human Rights 205 at www.ncbi.nlm.nih.gov/pmc/articles/PMC6293350/, accessed 11 March 2019.

M Carpenter, “Detention”, Intersex Human Rights Australia, February 2019 at https://ihra.org.au/detention/, accessed 4 April 2019.

L Elphick E Webb, “Yesterday once more: discrimination and LGBTI+ seniors”, (2017) 43 Mon LR 530

The Gender Centre’s website, at www.gendercentre.org.au, accessed 29 November 2017.

Judicial College (UK), Equal Treatment Bench Book, 2013, Chapter 8, “Gender reassignment” at www.judiciary.gov.uk/publications/equal-treatment-bench-book/, accessed 29 November 2017.

Supreme Court of Queensland, Equal Treatment Benchbook, 2nd edn, 2016, Supreme Court of Queensland Library, Brisbane, Chapter 15, “Gender identity and sexual orientation” at www.courts.qld.gov.au/__data/assets/pdf_file/0004/94054/s-etbb.pdf, accessed 29 November 2017.

S Winter, M Diamond, et al, “Transgender people: health at the margins of society”, (2016)The Lancet 388

Young and Well Cooperative Research Centre, Growing up queer: Issues facing young Australians who are gender variant and sexuality diverse, 2014, at www.glhv.org.au/files/Growing_Up_Queer2014.pdf, accessed 29 November 2017.

M Telfer et al, “Australian standards of care and treatment guidelines for trans and gender diverse children and adolescents”, Version 1.1, Royal Children’s Hospital Melbourne, 2018.

9.9 Your comments

The Judicial Commission of NSW welcomes your feedback on how we could improve the Equality before the Law Bench Book.

We would be particularly interested in receiving relevant practice examples (including any relevant model directions) that you would like to share with other judicial officers.

In addition, you may discover errors, or wish to add further references to legislation, case law, specific Sections of other Bench Books, discussion or research material.

Section 11 contains information about how to send us your feedback.



[1] Ms Roslyn Dundas, MLA, ACT Parliament, Media release following the amendment to the Legislation Act 2001 (ACT).

[2] The information in 9.1.1 is drawn from The Gender Centre’s website, at www.gendercentre.org.au, accessed 3 April 2019.

[3] Gender Centre website, “Kits and Fact Sheets”, at https://gendercentre.org.au/resources/kits-fact-sheets/family-friends, accessed 3 April 2019.

[5] Supreme Court of Queensland, Equal Treatment Benchbook, 2nd edn, p 188.

[6] The information in 9.2 is drawn from The Gender Centre’s website, at www.gendercentre.org.au, accessed 3 April 2019.

[7] “Data from smaller countries in Europe with access to total population statistics and referrals suggest that roughly 1 per 30,000 adult males and 1 per 100,000 adult females seek sex gender reassignment surgery” — American Psychiatric Association, The Diagnostic and Statistical Manual of Mental Disorders (DSM-V), 4th edn, Text Revision, American Psychiatric Association, Washington, DC, 308.9. Note that these statistics only identify those who seek a sex affirmation procedure and therefore indicate a much lower incidence than the reality. These figures are under constant revision. According to information received from The Gender Centre, the population trend is towards parity for MtF and FtM change.

[8] Although see n 7, above.

[9] Anti-Discrimination Act 1977 (NSW), Pt 3A. The Australian Human Rights Commission released a Discussion Paper in October 2010 and announced a consultation into federal protection from discrimination on the basis of sexual orientation and sex and/or gender identity. In 2013, the Federal Government amended the Sex Discrimination Act 1984 (Cth) with the introduction of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth) which added protections for gender identity (s 5B) and intersex status (s 5C).

[10] See, for example, J Irwin, “The pink ceiling is too low — Workplace experiences of lesbians, gay men and transgender people”, Australian Centre For Lesbian and Gay Research, University of Sydney, 1999.

[11] However, according to Elizabeth Riley, General Manager, Gender Centre, some studies undertaken may not be statistically reliable, but supported a much higher figure of 60%. She confirmed that anecdotal information collected in 2011 from The Gender Centre about their clients supports this figure.

[12] JM Grant, L Mottet, et al (2011) Injustice at every turn: A report of the National Transgender Discrimination Survey, Washington: The National Gay and Lesbian Task Force and the National Center for Transgender Equality.

[13] Queer Rights At Work, Queer Rights At Work Conference, Brisbane, 20 June 2008, Graeme Innes AM, Human Rights Commissioner, Human Rights and Equal Opportunity Commission.

[15] Inner City Legal Centre, Another Closet, LGBTIQ Domestic Violence Tnteragency; ACON, p 13, at www.anothercloset.com.au, accessed 21 May 2019.

[16] Supreme Court of Queensland, Equal Treatment Benchbook, 2005, Supreme Court of Queensland Library, Brisbane, p 252.

[17] L Hillier et al, Writing themselves in 3, 2010, La Trobe University, Melbourne.

[18] See at http://lgbtihealth.org.au/wp-content/uploads/2016/07/SNAPSHOT-Mental-Health-and-Suicide-Prevention-Outcomes-for-LGBTE; E Smith et al, “From blues to rainbows: the mental health needs of gender diverse and transgender young people in Australia”, The Australian Research Centre in Sex, Health, and Society, Melbourne, at http://beingproud.org.au/from-blues-to-rainbows-the-mental-health-needs-of-young-people-with-diverse-gender/, accessed 2 November 2017.

[19] According to an American study, sexual minorities were disproportionately incarcerated: 9.3% of men in prison, 6.2% of men in jail, 42.1% of women in prison, and 35.7% of women in jail were sexual minorities. See IH Meyer et al, “Incarceration Rates and Traits of Sexual Minorities in the United States: National Inmate Survey, 2011–2012” (2017) 107(2) American Journal of Public Health 234.

[20] E Smith et al, “From blues to rainbows: mental health and wellbeing of gender diverse and transgender young people in Australia”, The Australian Research Centre in Sex, Health, and Society, Melbourne, 2014.

[21] See National LGBTI Health Alliance, “Snapshot of Mental health and suicide prevention statistics for LGBTI people”, July 2016, at http://lgbtihealth.org.au/wp-content/uploads/2016/07/SNAPSHOT-Mental-Health-and-Suicide-Prevention-Outcomes-for-LGBTI-people-and-communities.pdf, accessed 4 April 2019.

[22] PwC, LGBTI perspectives on workplace inclusion, 2016, p 5, at https://pwc.com.au/publications/pdf/workplace-inclusion-survey-jun16.pdf, accessed 4 April 2019.

[23] M Couch, et al, Tranznation: A report on the health and wellbeing of transgendered people in Australia and New Zealand, 2007.

[24] The information in 9.2.2 is drawn from The Gender Centre’s website, at www.gendercentre.org.au, accessed 4 April 2019.

[25] Note the debate about definitions of sex and gender diversity at 4.1 of Australian Human Rights Commission, “Sex Files: the legal recognition of sex in documents and government records”, 2009, at www.humanrights.gov.au/genderdiversity/sex_files2009.html, accessed 4 April 2019.

[26] United Nations Human Rights, Office of the High Commissioner, “End Violence and Harmful Medical Practices on Intersex Children and Adults, UN and Regional Experts Urge”, 2016 at http://ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20739&LangID=E, accessed 2 April 2019.

[27] See “Involuntary or coerced sterilisation of intersex people in Australia”, Second Report, Parliament of Australia, Ch 1, October 2013 at www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/Involuntary_Sterilisation/Sec_Report/index , accessed 11 March 2019.

[28] See Re Carla [2016] FamCA 7.

[29] Tien-Lao & Tien-Lao [2018] FamCA 953 at [53] and [55].

[30] M Carpenter, “The ‘normalisation’ of intersex bodies and ‘othering’ of intersex identities”, in J Scherpe, A Dutta and T Helms (eds) The legal status of intersex persons, September 2018, pp 445–514; M Carpenter, “The ‘normalisation’ of intersex bodies and ‘othering’ of intersex identities in Australia”, (2018) 15(4) Journal of Bioethical Inquiry 487–95.

[31] See further M Carpenter, “Intersex health – Morgan Carpenter’s presentation to Health in Difference Conference”, 22 April 2013 at https://ihra.org.au/22160/intersex-health-hid2013-plenary/, accessed 4 April 2019.

[32] ibid.

[33] See AHRC, “Protecting the human rights of people born with variations in sex characteristics” at https://humanrights.gov.au/background-and-terminology, accessed 28 March 2019.

[34] ibid.

[35] See further, M Carpenter, “The human rights of intersex people: addressing harmful practices and rhetoric of change” (2016) 24(17) Reproductive Health Matters 74; F Kelly, and M Smith, “Should court authorisation be required for surgery on intersex children? A critique of the family court decision in Re Carla” (2017) 31(2) Australian Journal of Family Law 118; A Kennedy, “Fixed at birth: medical and legal erasures of intersex variations’, (2016) 39(2) UNSW Law Journal 813 at https://austlii.edu.au/au/journals/UNSWLJ/2016/30.pdf, accessed 4 April 2019.

[36] M Carpenter, “The human rights of intersex people addressing harmful practise and rhetoric of change”, ibid, quoting United Nations, Office of the High Commissioner for Human Rights, Free & Equal Campaign Fact Sheet: Intersex, 2015, at https://unfe.org/system/unfe-65-Intersex_Factsheet_ENGLISH.pdf, accessed 4 April 2019.

[37] Organisation Intersex International Australia, “M Carpenter, Submission on the Review of Part B of the Ethical Guidelines for the Use of Assisted Reproductive Technology in Clinical Practice and Research”, 2007; Organisation Intersex International Australia, Sydney, 2014 at http://oii.org.au/25621/submission-ethics-genetic-selection-intersex-traits/, accessed 4 April 2019.

[38] ibid.

[39] see T Jones, “The needs of students with intersex variations”, (2016) 16(6) Sexuality, Society and Learning 602 at https://tandfonline.com/doi/full/10.1080/14681811.2016.1149808, accessed 4 April 2019.

[40] ibid.

[41] People with an intersex variation aged 16 and over are nearly five times more likely to have suicidal thoughts: see National LGBTI Health Alliance, “Snapshot of Mental health and suicide prevention statistics for LGBTI people”, July 2016, at http://lgbtihealth.org.au/wp-content/uploads/2016/07/SNAPSHOT-Mental-Health-and-Suicide-Prevention-Outcomes-for-LGBTI-people-and-communities.pdf, accessed 4 April 2019.

[42] ibid.

[43] Anti-Discrimination Act 1977 (NSW), Pt 3A. The Australian Human Rights Commission released a Discussion Paper in October 2010 and announced a consultation into federal protection from discrimination on the basis of sexual orientation and sex and/or gender identity. In 2013, the Federal Government amended the Sex Discrimination Act 1984 (Cth) with the introduction of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth) which added protections for gender identity (s 5B) and intersex status (s 5C).

[44] M Carpenter, “Identification documents” IHRA, January 2019 at https://ihra.org.au/identities/, accessed 4 April 2019.

[45] The gender identities of intersex people may match sexes assigned at birth, or may not. As with transgender persons, intersex persons can suffer “misgendering”, a failure to acknowledge the validity of individuals’ gender identities. Uniquely, intersex people also face failures to acknowledge the validity of sexes assigned at birth. See further M Carpenter, “The human rights of intersex people addressing harmful practise and rhetoric of change”, (2016) 24 (47) Reproductive Health Matters 74.

[46] Births, Deaths and Marriages Registration Act 1995 (NSW), ss 32B and 32DA.

[47] (2001) 165 FLR 404.

[48] Attorney-General (Cth) v Kevin (2003) 172 FLR 300.

[49] “Australian Government Guidelines on the Recognition of Sex and Gender”, November 2015, at www.ag.gov.au/publications/documents/australiangovernmentguidelinesontherecognitionofsexandgender/australiangovernmentguidelinesontherecognitionofsexandgender.pdf, accessed 4 April 2019.

[50] For a discussion of Kevin v Attorney-General (Cth) by the lawyer who appeared for Kevin, see R Wallbank, “The legal environment following Re Kevin: new perceptions and strategies for effective law reform in respect of the legal rights of people who experience variation in human sexual formation and expression”, Discussion paper produced for the Neglected Communities Forum, NSW Parliament House, 25 February 2003, at http://antidiscrimination.justice.nsw.gov.au/Documents/the%20legal%20environment%20following%20re%20kevin.pdf, accessed 4 April 2019.

[51] Supreme Court of Queensland, Equal Treatment Benchbook, 2005, p 251.

[52] Note that s 41 of the Evidence Act 1995 (NSW) provides that a judicial officer must disallow improper questions (for example, misleading or confusing, or unduly annoying, harassing, intimidating, offensive, humiliating or repetitive) questions. and also provides that questions must not be put to a witness in a “manner or tone that is belittling, insulting or otherwise inappropriate” or “has no basis other than a stereotype (for example, a stereotype based on the witness’s sex, race, culture, ethnicity, age or mental, intellectual or physical disability”. Sections 26 and 29(1) of the Evidence Act 1995 also enable the court to control the way in which witnesses are questioned and the manner and form of questioning of witnesses, and s 135(b) of the Evidence Act 1995 allows you to exclude any evidence that is unfairly prejudicial to a party or is misleading or confusing.

[53] ibid.

[54] Crimes Act 1900 (NSW), s 61HA.

[55] See above, n 51.

[56] ibid.

[57] Judicial Commission of NSW, Criminal Trial Courts Bench Book, 2002–, Sydney, at <www.judcom.nsw.gov.au/publications/benchbks/criminal>, accessed 4 April 2019.

[58] Judicial Commission of NSW, Local Courts Bench Book, 1988–, Sydney, at <www.judcom.nsw.gov.au/publications/benchbks/local>, accessed 14 April 2019.

[59] The “Court of Morals” Direction, NSW Criminal Law Review Division, Homosexual Advance Defence: Final Report of the Working Party, 1998, para 6.11, at www.justice.nsw.gov.au/justicepolicy/Documents/homosexualadvancedefence1998.doc, accessed 4 April 2019.

[60] See also Judicial Commission of New South Wales, Sentencing Bench Book, 2006, Sydney, “Sentencing procedures generally” at [9-700], at www.judcom.nsw.gov.au/publications/benchbks/sentencing/toc-sentencing_procedures_generally.html, accessed 29 November 2017 and R v Henry (1999) NSWLR 346 at [10]–[11].

[61] Crimes (Sentencing Procedure) Act 1999, s 30A. See Pt 3, Div 2 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the Charter of Victims Rights (which allows the victim access to information and assistance for the preparation of any such statement). Note that any such statement should be made available for the prisoner to read, but the prisoner must not be allowed to retain it.

[62] M Carpenter, “Detention”, IHRA, 2019 at https://ihra.org.au/detention/, accessed 4 April 2019.

[63] ibid.

[64] ibid.