What lawyers should know about dealing with intersex clients

Starting with terminology, we are talking about the “I” in LGBTIQA+, but what is the best way to refer to this community?

Terminology is a sensitive topic for this community, as for many vulnerable populations, as language has been used historically to denigrate, medicalise and pathologise. The golden rule is to use the terminology favoured by the person you are describing or interacting with. More generally, respectful language is key, and there are fluctuations and differences in language used by those within the population.

The term ‘intersex’ was reappropriated by intersex activists in the 1990s, who used it as a means to bring together and identify commonalities among groups with different diagnoses.

There was and is ongoing contestation over the term, including concerns that it emphasises identity, or that it carries overtones of a third sex category, or that it stigmatizes. It has become intertwined with LGBTIQA+ spaces which has been the cause of lateral violence. The ‘I’ has been ‘buried’ within the rainbow alliance, where other groups within the alliance attract significantly more attention.

Despite these concerns, the term intersex continues to be used by many people within the population. It has the advantage of being increasingly familiar in the general community.

Increasingly activists are adopting more pragmatic terminology of ‘people diagnosed with innate variations of sex characteristics’ or ‘IVSC’ as a more neutral descriptor.

This terminology has some helpful implications.

• ‘innate’ meaning a person who is born with these characteristics ie they are not acquired.
• ‘variations’ meaning not typical to social or medical norms
• ‘sex characteristics’ to denote the physical components of sex.

Either term is intended to bring together around 40 different diagnoses under one category. It is a fuzzy demographic, and a very diverse population, which includes mostly people who are cis-gendered and heterosexual as well as significant numbers who identify as gay, lesbian, bisexual, trans, gender fluid, or non-binary. Either term does not tell us about a person’s gender or sexuality.

People within the community will use different language in different contexts to communicate effectively. For example, diagnostic language may be used in a medical context because of recognition and use by health professionals. An example of diagnostic-specific language is “5 alpha reductase deficiency,” sometimes termed a “46XY DSD”. While diagnostic terms reinforce medical norms, and the violence used to uphold those norms, they also are important because they may be the first language that a person is exposed to in describing and explaining their sex characteristics.

Diagnostic terms may be used in communicating with parents and family, who were also exposed to such language early on. Diagnostic language can lead to recognition of common experiences and link to pathways for peer support. Diagnostic language is sensitive and intimate because it may embed information about a person’s body and experiences. It is better to follow an intersex person’s lead in deciding whether it is appropriate to use diagnostic terms.

In this text, I use both ‘intersex’ and ‘IVSC’ when speaking about the community, but in most contexts, the terminology “innate variations of sex characteristics” or “IVSC” has advantages and should be adopted.

How are the experiences of people with variations in sex characteristics distinct from the LGBTQA+s?

Thanks for this important question. While there may be many overlaps across the LGBTIQA community, first and foremost it is important to appreciate that intersex is NOT a gender identity. Conflation of intersex and trans experiences within both the LGBTIQA+ community and the general community has caused considerable harm for people with IVSC diagnoses.

People with IVSC experience discrimination, stigma and human rights violations, including harmful practices in medical settings. These shared experiences unite the intersex community in their diverse histories, identities and bodies. Another shared experience is that of epistemic injustice – a phrase used to describe wrongs committed on an individual or a group because their knowledge credibility is devalued and marginalised. ‘Testimonial injustice arises when the credibility of a speaker is unduly diminished because of the speaker’s characteristics. Hermeneutical injustice occurs when an individual has no access to concepts and terms that can describe their experience.’ (Carpenter 2024 4). Epistemic injustice ‘perpetuates stigma, restricts access to appropriate medical care and essential medication, hinders legal recognition, and contributes to systemic invisibility of IVSC bodies within society, including educational contexts.’ (Monjal,  Brömdal,  Zavros-Orr, et al,  2026).

Still, it is important to recognise the reasons why the rainbow alliance makes sense for people with innate variations of sex characteristics. The LGBTIQA+ alliance is grounded in violence and marginalisation of LGBTIQA+ people, rooted in rigid norms of sex and gender which are sustained by a binary system which categorises all sexes, sexualities and gender identities as fixed, abiding states of being ‘male’ or ‘female.’ There is a clear affinity between the medicalisation of intersex bodies and the medicalisation of same sex attraction and gender diversity, produced by a shared history of pathologisation rather than shared identity. Medicalisation is, in part, intended to construct people with heterosexual and cisgender identities, and bodies that can fulfil normative heterosexual functions. The intersex population, like the broader LGBTIQA+ community, works to combat rigid binary constructs and promote diversity as valid and valuable.

What do you wish the legal profession knew about people with variations in sex characteristics?

People with IVSC are likely to experience the same legal issues as the general population, but their intersex status may not be central to their experiences with the law except in particular circumstances, such as discrimination law or criminal law.

While it is important to appreciate that being intersex is not the same as being trans, and is not about gender identity, many of the problems that trans and LGB people encounter also impact on people with IVSC. They experience discrimination, stigma, trauma and shame which frequently lead to anxiety, depression and suicidality. There is long-standing evidence of poor educational achievements and low employment.

In addition to experiencing many of the same burdens as trans and non-binary people, intersex people experience trauma and abuse in medical settings. Medical interventions, including genital surgeries and sterilizing gonadectomies, are routinely performed on intersex minors, often in infancy. These interventions are authorised by parental consent rather than personal consent. Many people diagnosed with an IVSC experience profound distress and alienation as well as ongoing medical needs following these interventions. There is a history of medical mismanagement, such as repeated traumatising genital examinations, often performed with an audience of medical students, and including intimate genital photography which finds its way into medical journals and books available publicly. Another historical medical practice has been keeping information about their variation a secret from people with IVSC, which has included hiding or destroying medical records.

Medical practices often expose people with IVSC to repeated boundary violations of their intimate and private bodies and behaviours, reinforced by loss of autonomy. Such violations are witnessed and consented to by parents and guardians and contribute to a feeling of loss of control and self-worth. Not all intersex people feel that their innate variation in sex characteristics makes them a vulnerable person, but for many intersex people, experiences of systemic injustice, medical harm, a lack of information and other such considerations can leave them feeling unsupported or on the back foot when navigating relationships. The experience of early medical intervention or non-consensual medical intervention can produce harm and trauma. When a person’s consent or boundaries are not respected, they can come to expect that this will happen again, and in other settings, making it difficult to identify some of the early indicators and warning signs of abuse. In other words, they may be particularly vulnerable to abusive, controlling relationships or family violence.

Lawyers know that stigmatised and vulnerable populations are disproportionately represented in legal and carceral settings. There is a long history in Australia of criminalizing conduct that was once seen as transgressive and unnatural, including homosexuality, cross-dressing and claiming identities of the opposite sex, impacting on intersex people as well as trans and gender diverse people. This long history of criminalising intersex and transgender people impacts on their participation in the legal system today.

Available data on legal impacts on trans and gender diverse people is scant, but there is even less data on intersex people. This is not because intersex people don’t end up before the courts or in prison, but because as a population their experiences are under-researched and poorly understood.

Intersex people often find that medical professionals are ignorant about their variation and many in the general community report having to educate their doctors. In prison, it is equally if not more likely that medical staff will not be aware of health issues and medical needs of people with IVSC.

The information on Intersex prisoners that does exist is concerning, with one case in Australia of a person with IVSC being placed in a correction center against her legal and lived sex/gender and subject to discrimination and isolation.

AZA is an Australian women born intersex, assigned female at birth, but given a male name. She transitioned to male but then re-transitioned back to female and undertook hormone replacement therapy. She was legally female. Following her arrest, the presiding Magistrate recommended she should be placed in female prison, but she was taken to a male prison. During her remand in custody she was denied access to hormone therapy and medication for depression. The original charges were subsequently withdrawn and she was released. She was later arrested and charged with further offences and remanded in custody. Initially she was placed in female prison but then moved to a male prison subsequently.

AZA brought a Discrimination claim and in a hearing before the relevant tribunal SACAT found that SA Department of Corrections ignored its own ‘transgender and intersex offenders prison policy’

Cases like AZA’s provide anecdotal evidence that people with IVSC who are tangled up in the legal system are being misgendered and their legal and lived sex is ignored when making decisions about placement and provision of medical treatment. The dearth of evidence about the experiences of intersex people in the criminal justice system is not because they are not in the justice system, but because their lived experiences are undervalued and ignored.

What is a myth you would love to bust about people with variations in sex characteristics?

The most serious myth about people with IVSC is that intersex is a gender identity. This leads to conflation with trans experiences, shifts focus away from the most urgent issues and ignores the lived experience of intersex people. This can have serious repercussions.

One example is how intersex or IVSC is defined in the Anti-Discrimination Act 1977 (NSW) Part 3A, which deals with discrimination on transgender grounds. Section 38A is an interpretation section which includes an amendment intended to extend protection to people with intersex variations. It defines a transgender person as, inter alia, a person ‘who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex.’ This definition is deficient for a number of reasons. Having an intersex variation does not equate to ‘being of indeterminate sex’. Having an IVSC does not make a person transgender and the majority of people diagnosed with an IVSC identify with the sex assigned in infancy, which is their legal sex. As a result of these deficiencies, the Anti-Discrimination Board has acknowledged in private correspondence with advocates that the legislation, because of this provision, does not provide effective protection for people with intersex variations. This exemplifies definitional problems embedded in legislation, policy and governance documents where the consequence is that intersex people are even more marginalised and bereft of important legal protections.

In what circumstances might a person having variations in sex characteristics impact their needs and experiences as a client engaging legal services?

The diversity of the intersex/IVSC population makes it difficult to predict how their variation might impact on their needs in engaging legal services. People with variations will be unlikely to share their intersex status unless it is directly relevant to their legal needs, and may be communicated using medical diagnostic language such as ‘complete androgen insensitivity syndrome’ or ‘17-β/HSD deficiency.’ In such cases, professionals they encounter may not appreciate that the person has an intersex variation, and may not appreciate the significant burdens that a lifetime being pathologized, medicalized and rendered invisible can impose on an intersex person.

Some people with IVSC may have an appearance that does not conform to stereotypical expectations for their legal and assigned sex of identification. This frequently leads to assumptions that they are transgender or gender diverse. This can lead to discrimination in employment, education, religious practices, and in dealing with public institutions.

There has been legislation enacted in the ACT and Victoria to better protect the rights of young people born with variation in sex characteristics, can you tell us about this? (What harm is it trying to prevent, what has been implemented and what is next for other states and territories?)

As Morgan Carpenter has explained, ‘It remains the norm for children with intersex variations who have a diagnosis to be subjected to surgical and/or hormonal interventions early in life. These interventions are intended to make children’s bodies appear or function in ways that are more typical for observed/assigned sex and gender.’ (Carpenter 2024,13) and further ‘the pre-emptive treatment model has been perpetuated by lack of disclosure and awareness of medical practices and by the marginalisation and exclusion of both people with lived experience and psychosocial professionals’ (Carpenter 2024, 14).

ACT was the first Australian state [or territory], and one of the first jurisdictions worldwide, to respond to calls for reform by human rights and advocacy organisations to regulate medical interventions on minors and prohibit non-essential, irreversible medical treatments performed for cosmetic reasons rather than out of medical necessity until the person is able to consent on their own behalf. The Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 (ACT) was passed in March 2023 and the scheme of regulation became operational in late 2024/early 2025. The legislation establishes an Approval Board to review treatment plans for restricted procedures – defined in s 8 as medical or surgical treatment that irreversibly alters a person’s sex characteristics. Performing any restricted medical intervention without Board approval is a criminal offence. Importantly, the statute includes an extra-territorial provision which makes it a criminal offence to take minors out of the jurisdiction to obtain restricted treatments without approval.

In 2026, a similar scheme of regulation was introduced in Victoria. The Victorian scheme is similar to the ACT provisions, with an independent expert panel to oversee proposed treatment plans for children and adults who lack capacity.

Both programs aim to protect children and those who do not have capacity to consent from irreversible procedures performed before they are able to decide for themselves what interventions they want or need. Both programs also foreground the provision of psycho-social and peer support and counselling to children and families to ensure that personal consents are well-informed.

Work in other jurisdiction proceeds, with involvement of Australian advocacy and peer support organisation, InterAction. While other governments have not committed to legislative reform they are listening to people with lived experience and hopefully will consider a similar program of reform.

How can the legal profession further reform to improve rights and experiences for clients with variations in sex characteristics?

Intersex people experience significant epistemic injustice when their lived experiences, testimonies, and expertise regarding their own bodies are systematically dismissed, disbelieved, or ignored by medical, legal, and social institutions. This injustice is deeply ingrained in the medicalization of intersex traits, where dominant, often harmful, “normalizing” practices are justified by pathologizing natural bodily variations.

This injustice is particularly harmful in medical settings, but the problems also burden intersex people in their everyday interactions and experiences. The legal profession can fight epistemic injustice by become aware of the lived experiences of people with IVSC. A good starting point is to read and endorse the Darlington Statement. This is a consensus statement developed in 2017 by intersex organisations and advocates in Australia and New Zealand. Those seeking more information can access the many resources available on the InterAction website.

Another important step would be familiarising lawyers with the protective legislation in ACT and Victoria. Victoria has also comprehensive policies on protecting the human rights and health of people with innate variations in sex characteristics.

The questions in this article were prepared with the assistance of Georgia Burke, Rezana Karim and Jennifer Dawes, members of the Law Society of NSW’s Diversity & Inclusion Committee’s LGBTQIA+ Subcommittee.