InterAction: We welcome Senator McKim's Anti-Discrimination Legislation Amendment Bill
Michael Barnett OAM
We welcome Senator McKim's Anti-Discrimination Legislation Amendment Bill
We welcome the introduction into the Senate of the Anti-Discrimination Legislation Amendment (Sexual Orientation, Gender Identity and Sex Characteristics Discrimination Commissioner) Bill 2026 by Senator Nick McKim.
The Bill proposes to establish a Sexual Orientation, Gender Identity and Sex Characteristics Discrimination Commissioner. It also proposes to replace "intersex status" with a new attribute of "innate variations of sex characteristics". This attribute addresses a longstanding demand of the intersex movement, and a commitment made by the Albanese Labor government in 2022.
In the Sex Discrimination Act, "intersex status" is currently defined in this way:
intersex status means the status of having physical, hormonal or genetic features that are:
(a) neither wholly female nor wholly male; or
(b) a combination of female and male; or
(c) neither female nor male.
Senator McKim's bill creates two new definitions:
innate variations of sex characteristics, in relation to a person, means having innate sex characteristics that differ from typical medical or social norms for male or female bodies.
sex characteristics, in relation to a person, means the person’s physical features and development relating to sex, including the following:
(a) the person’s genitalia, gonads and other sexual and reproductive parts of the person’s anatomy;
(b) the person’s chromosomes, genes and hormones related to sex;
(c) the person’s secondary physical features that emerge as a result of puberty.
Why "innate variations of sex characteristics"?
An attribute of "innate variations of sex characteristics" is required in federal law in order to satisfy the comparator test. This is a test created in the legislation to establish whether or not an individual has experienced discrimination. It compares people with the attribute to people without the attribute.
Absent broader reform, as in the ACT and Victoria, to replace the comparator test with a "less favourable treatment" test, Senator McKim's bill addresses our key concerns with "intersex status" in current legislation.
Our concerns are that the current language is defined in a manner that is overly broad and does not express the fact that intersex traits are innate. This has given rise to misunderstanding in public policy.
Current language in the bill is also based on deficits, on what intersex people lack in comparison to endosex (non-intersex) people.
Finally, while "intersex status" is defined in the Sex Discrimination Act in purely biological terms, contemporaneous policy developments repeatedly mis-frame intersex status as a matter of identity and identification. These issues have limited the utility of the current attribute.
The proposed definitions address these concerns.
Inaction on prior commitments
In 2022, the Hon. Tony Burke committed the Albanese government to replace the attribute of "intersex status" with "sex characteristics" in both the Sex Discrimination Act and the Fair Work Act. He did this in his role as Minister for Employment and Workplace Relations on the floor of the House of Representatives.
The following extract of Hansard has been provided to us by Minister Burke:
The discussion unfortunately provides an example of how "intersex status" has become reduced to a matter of identity despite its biological definition in the Sex Discrimination Act.
Minister Burke has since changed portfolio. We have raised our concerns with the Hon. Amanda Rishworth, the new Minister for Employment and Workplace Relations, and with Attorneys General Mark Dreyfus and Michelle Rowland.
The following letter to the Hon. Michelle Rowland on 4 June 2025 addresses this and related concerns:
Thank you to Senator McKim and his team
Particularly given the absence of follow-through by the Albanese government on their commitment to reform, we are profoundly grateful for the introduction of the new Anti-Discrimination Legislation Amendment (Sexual Orientation, Gender Identity and Sex Characteristics Discrimination Commissioner) Bill 2026 by Senator Nick McKim. We thank him and his team for their generous engagement and work.