Arguably, from the perspective of law, that status is as much a legal construction as it is a biological 'fact' beyond contention or "developmental disorder" that can/should be "corrected" through medical intervention.
The Initiative states that
After careful examination, we have come to oppose the "inclusion" of "intersex" or "intersex status" in any legislation that prohibits discrimination in employment, housing or public accommodation.It justifies exclusion on the basis that
1) The vast majority of people born with intersex conditions [the initiative claims 1 in 2,000 but figures in other sources suggest that the incidence of conditions at birth is much rarer] do not view "intersex" as part of their identity. In fact, many people would not even describe their condition as "intersex," as they feel that they simply have a medical condition, like congenital adrenal hyperplasia or androgen insensitivity syndrome, and not "intersex status." Its inclusion along with "lesbian, gay, bisexual and transgender" further spreads the inaccurate perception that "intersex," like "lesbian, gay, bisexual and transgender," is an identity group.The Initiative goes on to suggest that
2) The whole point of intersex human rights violation is that it is erased out of existence, and as such one is rarely recognized as an "intersex" person unless that information is disclosed. There are many other serious human rights violations that occur in the lives of people born with intersex conditions, and the "inclusion" of intersex in the non-discrimination law would give the false impression that they have done enough to protect intersex people's rights.
3) When people say that they were discriminated because of their intersex condition, what they usually mean is that they were discriminated against on the basis of their perceived sexual orientation, gender identity, or gender expression. These types of discrimination should be treated as that, the discrimination on the basis of perceived sexuality and gender; intersex people who are perceived to have different sexuality or gender are better protected by establishing and strengthening LGBT civil rights laws rather than creating an entirely new protected class of "intersex."
Whether an intersex person identifies as gay or trans is irrelevant here, since non-discrimination laws do not protect people on the basis of their identities, but on the basis of how others perceive them to be. For example, a straight person could be discriminated on the basis of his or her perceived homosexuality, and that person deserves the same exact protection as someone who is actually gay.
4) As more people "come out" publicly as "intersex," there is a possibility that some of them will face discrimination for having that status. The discrimination based on medical conditions, such as those categorized as intersex, is considered a disability discrimination, which is already illegal in the United States. One could draw a parallel here between intersex people and people living with HIV/AIDS here: aside from all possible health issues to worry about, both groups have medical diagnoses that could make them vulnerable to discrimination and violence if revealed to the wrong people.
whether or not an intersex individual "identifies" as "disabled" is irrelevant (many other conditions covered under disability rights laws are not generally viewed as "disability" either), and intersex people are better protected from this type of discrimination by strengthening the existing laws against disability discrimination, rather than creating a new law.The Statement offers one perspective on advocacy and 'community identification' (interest or affinity group development) explored in 'Intersex and Intrasex Debates: Building Alliances to Challenge Sex Discrimination' by Julie Greenberg in 13(2) Cardozo Journal of Law and Gender (2006) 101-118 [SSRN here].
In fact, it would be impossible to make a convincing case for creating a new protected class of "intersex" because we cannot document (or even conceive of) any actual case of "intersex discrimination" that isn't already covered under existing (e.g. disability rights) or emerging (e.g. sexual orientation and gender civil rights) statutes. ... adding the specific class of "intersex" to non-discrimination laws spreads false impressions about people born with intersex conditions, and trivializes more serious human rights violations specific to intersex. Intersex people are already covered from common forms of discrimination under existing disability rights laws as well as under sexual orientation and gender non-discrimination laws where they exist.
Questions about Australian law's ambivalence regarding intersex - centred on gender reassignment and marriage - are highlighted in 'Twisting the Knife: Discrimination in Law' by Karen Gurney in 9(2) Deakin Law Review [2004] 339-364 [here] and in case law such as O'Keefe v Sappho's Party Inc [2009] SAEOT 4 and In Re Kevin (Validity of Marriage of Transsexual) [2001] FamCA 1074.
