A number of organisations are now starting to realise that there is no business requirement for actually storing this data.
It is a cost saving in maintenance in both staff and technical effort if sex or gender is not stored at all. This saving comes from not having to have staff trained and procedures in place to handle the situation when a customer requests their sex or gender details to be changed.
A number of organisations are already recognising that it is cost effective to not store sex or gender, and is also customer friendly when they do that. In the ACT in Canberra Australia, the ACT Motor Registry do not store sex or gender on
the drivers certificate.
When it comes to storing sex, an organisation should be asking why do we need to know customer medical details? Customers should be asking the same question of an organisation if they are asked this. When the question is phrased this way, it becomes more obvious what the answer should be. In the case of a medical facility which has procedures in place to safe guard the data, then this question is medically sound and makes sense to ask. Even though, not all medical institutions need to know the answer to this question depending on the services they are providing.
Individuals should remember that unless there is a legally proven requirement to provide a correct answer to this question, then the question about an individuals sex does not have to be answered. It is up to the individual based on the situation to determine whether they should enter in M, F or X.
An organisation insisting on requesting a correct answer for the purpose of identification regarding sex is not legally entitled to do this. They should also realise that using sex for the purpose of identification is not a sound method and there are simpler and better methods out there that are available. Most states employ a 100 point system. This is more accurate and easier to use for validation.
Storing gender might be a preferable solution, but again the question has to be asked, in that, what business benefit is there storing the gender of an individual? Is it being stored because culturally that is what one is used to doing? If an individual is asked this question by an organisation, they have the right to provide an answer they want including M, F, X. There is no current legal requirement requiring any organisation to obtain proof or accuracy in having an individual answer the question about their gender. This is important to note. If any organisation requests the gender of an individual, that person has the right to answer the question any way they feel comfortable doing. This includes answering X indicating “I don't want you to know”. X can also indicate their sex is not classifiable.
As stated in section 2, organisations should ensure that all data is securely kept and access to it controlled to prevent unauthorised access to it. If an organisation does not store this information, then there is no risk of theft or unauthorised access. This protects the organisation from any potential future legal action if this data was kept and was improperly handled.
Because of this, some organisations are beginning to realise that there is no sound business justification for storing sex or gender of an individual.
A number of sites follow a similar practice when it comes to storing credit card information about a customer. The security and safeguards can be so difficult to enforce that its best to let the bank handle all these transactions themselves and not store any credit card information locally within the organisation. The storage of credit card information is also subject to the Australian Privacy Act.
The Australian Sex Discrimination Act 1984.
The Australian Sex Discrimination Act entitles some organisational bodies exemptions to the Act. This includes charities, religious bodies, certain cases in insurance, superannuation, educational institutions and combat duties.
In these cases it is up to the organisation to determine whether it is sex or gender they are using as justification for that discrimination. The Act does not define sex. The Act does not mention or define gender. The closest the Act gets is “woman means a member of the female sex irrespective of age.” “man means a member of the male sex irrespective of age.” The Act does not cover the scenario where an individuals sex is medically diagnosed as unclassifiable. The interpretation one can then make is that the Act refers only to the medically diagnosed sex of the individual and not to their gender.
The Act does not give cart-Blanche access to discriminate, but rather describes the scenarios where they are entitled to do so. In this case, the organisation should make it clear to the individual when collecting information regarding sex that they are entitled under the Sex Discrimination Act to use that information as a form of discrimination and clearly describe the situation in which this applies.
Regarding Sporting Organisations:
Section 42 of the Australian Sex Discrimination Act (1984) states “Nothing in Division 1 or 2 renders it unlawful to exclude persons of one sex from participation in any competitive sporting activity in which the strength, stamina or physique of competitors is relevant.”
A sporting association might request a document proving the sex of an individual. In this case it is up to the sporting associations procedures to correctly determine the proper course of action. They might ask for a birth certificate or identity document, but a medically more accurate method is to request a blood test which will look at hormone levels. The answer to this question gets very complicated to correctly answer when one factors in the intersexed/sex diverse population, and in some cases a medical doctor might not be able to actually determine the sex. Additionally most sporting organisations
are handling situations regarding sex and/or gender diverse people.
As stated, due to the legal difficulties one can encounter just trying to protect, interpret and ensure there is no sex discrimination, if there is no business benefit in an organisation storing sex, it is more cost effective and simpler if they do not store it.