InterAction: Response to proposed amendments to the Sex Discrimination Act by Senator Cash and Alison Penfold MP
Michael Barnett OAM
Response to proposed amendments to the Sex Discrimination Act by Senator Cash and Alison Penfold MP
On 1 July, the Leader of the Opposition in the Senate, and former Attorney General, the Hon. Michaelia Cash introduced the Sex Discrimination Amendment (Restoring Common Sense and Recognising Biological Sex) Bill 2026 into the Senate. The bill would amend the definition of sex and and add text to define it for people with "an intersex status". It follows introduction of a Sex Discrimination Amendment (Sex-based Rights) Bill 2026 by Nationals backbencher Alison Penfold in May.
In Senator Cash's bill, the proposed definition of sex was:
A reference in this Act to a person’s sex is a reference to the person’s sex at birth, being either male or female as determined by the person’s chromosomal and reproductive characteristics.
The proposed text on intersex status was:
Where a person has an intersex status and the person’s biological sex was incorrectly identified at birth, the person’s sex for the purposes of this Act is the person’s biological sex.
In our view, the underlying assumption seems to be, as in a recent bill by Nationals backbencher Alison Penfold, that intersex people always have a neatly definable sex even if they are "expressed in anatomical sex characteristics that are atypical for that person's sex".
It is not clear who defines what is "incorrectly identified" or how.
The effect of both bills could be to forcibly reclassify many people with innate variations of sex characteristics out of categories lived in since birth. The proposals seek to determine access not only to sport but also to toilets and other sanitary facilities, single sex services and more.
Actual practices do not align with the bills
Both bills disregard the science on the complexity and diversity of sex characteristics, and they ignore actual processes of sex determination and classification as they happen in Australian public hospitals.
What actually happens is that children with innate variations of sex characteristics are registered female or male on the basis of sex characteristics observed at birth and, in some few cases, further analysis and testing. This does not mean that sex registration aligns with chromosomes, SRY gene, gametes, or any other populist determinant of sex.
Australian researcher Prof Andrew Sinclair led the team that discovered the SRY gene, and he has rejected its use in classification of sex in sport.
NSW paediatric endocrinologists Komal Vora and Shubha Srinivasan stated, in 2020 in the Australian Journal of General Practice that:
“Sex assignment is a dilemma in a small percentage of patients with DSD and requires an individualised approach taking into consideration prenatal androgen exposure, fertility potential, quality of sexual function, surgical options, gonadal pathology/malignancy risk and potential adult gender identity”
From our point of view, so-called "surgical options" are the most disturbing part of this statement. We can see the impact of this decision making in medical practices that not only register many children with XY innate variations of sex characteristics as female, but subject them to surgical interventions before they can consent. In these cases, sex registration has occurred on the basis of diagnosis and sex characteristics and, as described by the NSW clinicians, some more subjective factors.
These clinical practices are described in more detail in these sources:
- Equality Australia. 2025. The Missing Voice: A Thematic Analysis and Stories of Ongoing Medical Interventions on Intersex Children in Australia. https://equalityaustralia.org.au/take-action/campaigns/intersex-human-rights/
- Carpenter, Morgan. 2025. Decision-Making by Australian Hospital Multidisciplinary Teams Regarding Treatment of Children with Innate Variations of Sex Characteristics, 2018-2023. https://interaction.org.au/resource/carpenter-foi-technical-report/
- Carpenter, Morgan. 2018. ‘Intersex Variations, Human Rights, and the International Classification of Diseases’. Health and Human Rights 20 (2): 205–14. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6293350/
Lack of clarity in how to interpret the bills
Senator Cash's bill states that sex is "determined by the person's chromosomal and reproductive characteristics". Its seems to us to be challenging to resolve this in any way other than by the actual clinical process of classification that takes place for each person at birth. However, we can't be sure that a court of law would see things in this way.
The diverse reality of people’s bodies and the reality of what happens in maternity and paediatric hospitals is not acknowledged or anticipated at all.
Thank you to community members, board and staff members and allies who have been engaging with parliamentarians and their advisors on these bills.
Comment by Tony Briffa and Morgan Carpenter
InterAction co-chair Tony Briffa comments on Senator Cash's bill:
“This Bill would force many women born with natural variations of sex characteristics out of the only lives we’ve ever known. Women who were raised as girls and have always lived, been recognised and accepted as women could suddenly be told they are legally men and excluded from women’s spaces. Where are we expected to go?”
“Human biology is more complex than this Bill pretends. It ignores the reality of intersex people and replaces it with a rigid definition that simply doesn’t reflect the diversity of human bodies. This Bill will not protect women. It’s a clumsy attempt to force people into legal categories that has serious unintended consequences for many women and their families.”
InterAction executive director A/Prof Morgan Carpenter comments:
"Proposals to define biological sex in law don't respect people whose innate characteristics are not typically female or typically male. They don't respect the science, nor account what happens in maternity and paediatric hospitals. Too many people with intersex variations have experienced unwanted coercive medical interventions to reinforce their sex registration. These proposals coercively reassign many of us to categories we've never lived in. They compound one injustice with another."
Thank you to Dean Arcuri at QNews for reporting on Michaelia Cash's bill.
Read the two bills
Alison Penfold's Sex Discrimination Amendment (Sex-based Rights) Bill 2026
References
Vora, Komal A., and Shubha Srinivasan. 2020. ‘A Guide to Differences/Disorders of Sex Development/Intersex in Children and Adolescents’. Australian Journal of General Practice 49 (7): 417–22. https://doi.org/10.31128/AJGP-03-20-5266.