UN Treaty Body statements on intersex human rights in Australia

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The logotype of the Office of the High Commissioner for Human Rights
Multiple UN Treaty Body committees including Committee on the Rights of Persons with Disabilities (CRPD) and the Committee on the Rights of the Child (CRC) have issued concluding observations to Australia.

Australia appeared before two UN Treaty Body committees in September 2019: the Committee on the Rights of Persons with Disabilities (CRPD) and the Committee on the Rights of the Child (CRC). Both Committees subsequently issued strong recommendations on the rights of children with intersex variations. During the hearings, 3 members of each Committee asked questions of the Australian government, based on clear evidence put to them by Intersex Human Rights Australia (IHRA), in joint NGO submissions, and NHRI submissions.

Similar concluding observations were published by CEDAW in July 2018 and the Human Rights Committee in December 2017. In June 2017, the Committee on Economic, Social and Cultural Rights also expressed concern with involuntary or coerced medical interventions.

Background

IHRA has provided evidence of human rights violations in Australia, as described in our submission to the UN CRPD:

A pattern of human rights abuses on infants, children, adolescents and adults born with intersex variations occurs in Australia, without effective, independent oversight, often based on gender stereotypes, and lacking a scientific basis. Evidence includes a Family Court of Australia case Re: Carla (Medical procedure) (2016) which facilitated the unnecessary “therapeutic” sterilisation of a 5-year old child. Incidental disclosure in that child’s medical history of an unnecessary clitorectomy and labioplasty (a “vulvoplasty”) was described by the judge as follows:

“Surgery already performed on Carla has enhanced the appearance of her female genitalia” (at [2]);
“In 2014, Carla underwent two operations. In March that year, Dr B, performed a ‘clitoral’ recession and labioplasty to feminise Carla’s external appearance”. (at [16])

The case is notable for presenting gender stereotypes in support of her sterilisation, including her toys and attire: Carla wore a “floral skirt and shirt with glittery sandals and Minnie Mouse underwear and had her long blond hair tied in braids”. The clinical evidence in support of her sterilisation was obsolete and incomplete. These interventions took place with parental substitute consent. The Court found that parties to the case supported surgery as in the best interests of the child, judicial oversight was not required.

As we show in this report, it appears likely that around 70 similar “vulvoplasties” take place each year. Additional types of medical intervention also occur. In 2018, a urology committee has sought to increase fees payable for the performance of paediatric vaginoplasties (construction of a vagina in a child) (Medicare Benefits Schedule Review Taskforce 2018, 127). Larger numbers of “masculinising” genital surgeries also take place (Carpenter 2018b, 471–73). CEDAW has described these as “harmful practices” in concluding observations on Australia (2018, para. 26). These harmful practices occur despite rhetoric by Australian governments that denies them or asserts changes to clinical practices (for example, Department of Communities 2012, 14), and that asserts recognition and valuing of intersex people (Carpenter 2016b).

A 2013 Senate committee inquiry made recommendations for change to clinical practice (Community Affairs References Committee, Senate of Australia 2013). The Australian government has rejected those recommendations (Attorney General’s Department 2015); federal and State governments have failed to implement them. The Family Court has been unable to perform an independent role that protects children’s rights.

A 2017 intersex community consensus statement defines a set of demands, the Darlington Statement, in response to this situation (AIS Support Group Australia et al. 2017)

Committee on the Rights of the Child

The Committee on the Rights of the Child, in document CRC/C/AUS/CO/5-6 dated 30 September 2019, positioned forced and coercive medical interventions on intersex children within its framework on harmful practices:

Harmful practices

31. The Committee welcomes the criminalization of forced marriage and taking note of target 5.3 of the Sustainable Development Goals, urges the State party to:

(a) Strengthen its measures to raise awareness on the harmful effects of child marriage on the physical, mental health and well-being of girls;

(b) Enact legislation explicitly prohibiting coerced sterilisation or unnecessary medical or surgical treatment, guaranteeing bodily integrity and autonomy to intersex children as well as adequate support and counselling to families of intersex children.

Sustainable Development Goal target 5.3 refers to the elimination of harmful practices.

Committee on the Rights of Persons with Disabilities

The Committee on the Rights of Persons with Disabilities in document CRPD/C/AUS/CO/2-3 dated 23 September 2019 positioned their recommendations within its comments on Article 17, “Protecting the integrity of the person”:

Protecting the integrity of the person (art. 17)

33. The Committee is seriously concerned about:

(a) Ongoing practice of forced sterilization, forced abortion and forced contraception of persons with disabilities, particularly women and girls, without their free and informed consent, which remains legal;

(b) Unregulated use of involuntary surgery on infants and children born with variations in sex characteristics, and other intrusive and irreversible medical interventions, without their informed consent or evidence of necessity.

34.The Committee urges that the State party to:

(a) Review and amend the Family Law Rules 2004 relating to Medical Procedure Applications in line with the Convention and adopt uniform legislation prohibiting, in the absence of free and informed consent, the sterilization of adults and children, the administration of contraception and abortion procedures on women and girls with disability;

(b) Adopt clear legislative provisions that explicitly prohibit the performance of unnecessary, invasive and irreversible medical interventions, including surgical, hormonal or other medical procedures on intersex children before they reach the legal age of consent … without their free and informed consent of the person concerned; also provide adequate counselling and support for the families of intersex children and redress to intersex persons having undergone such medical procedures.

Committee on the Elimination of Discrimination against Women

The Committee on the Elimination of Discrimination against Women (CEDAW), in document CEDAW/C/AUS/CO/8 dated 25 July 2018, positioned forced and coercive medical interventions on intersex children within its framework on harmful practices:

Harmful practices

25. The Committee takes note of the State party’s commitment to providing support for women who are victims of forced marriage, regardless of their cooperation with the prosecution authorities. It is concerned, however, about the following:

(a) The low number of prosecutions of cases of forced marriage;

(b) The lack of systematic data collection on the number of women who have been subjected to forced marriage or female genital mutilation;

(c) The conduct of medically unnecessary procedures on intersex infants and children before they reach an age when they are able to provide their free, prior and informed consent, as well as inadequate support and counselling for families of intersex children and inadequate remedies for victims;

(d) The non-consensual administration of contraceptives to, performance of abortions on and sterilization of women with disabilities.

26. Recalling the joint general recommendation No. 31 of the Committee on the Elimination of Discrimination against Women/general comment No. 18 of the Committee on the Rights of the Child (2014) on harmful practices, the Committee recommends that the State party ensure adequate protection and support for victims of forced marriage, regardless of their collaboration with the prosecution authorities, and also recommends that the State party:
…
(c) Adopt clear legislative provisions that explicitly prohibit the performance of unnecessary surgical or other medical procedures on intersex children before they reach the legal age of consent, implement the recommendations made by the Senate in 2013 on the basis of its inquiry into the involuntary or coerced sterilization of intersex persons, provide adequate counselling and support for the families of intersex children and provide redress to intersex persons having undergone such medical procedures;

Human Rights Committee

The Human Rights Committee, in document CCPR/C/AUS/CO/6 dated 1 December 2017, positioned forced and coercive medical interventions on intersex children within the context of articles of the International Covenant on Civil and Political Rights on non-discrimination (articles 3 and 24), protection from torture and experimentation (article 7), the right to liberty and security (article 9), privacy (article 17), and equality before the law (article 26):

Sexual orientation, gender identity and intersex status

25. The Committee is concerned that infants and children born with intersex variations are sometimes subject to irreversible and invasive medical interventions for purposes of gender assignment, which are often based on stereotyped gender roles and are performed before the children concerned are able to provide fully informed and free consent (arts. 3, 7, 9, 17, 24 and 26).

26. The State party should give due consideration to the recommendations the Senate Standing Committee on Community Affairs made in its 2013 inquiry report on involuntary or coerced sterilization of intersex persons, and move to end irreversible medical treatment, especially surgery, of intersex infants and children, who are not yet able to provide fully informed and free consent, unless such procedures constitute an absolute medical necessity.

Committee on Economic, Social and Cultural Rights

The Committee on Economic, Social and Cultural Rights (CESCR) has more limited scope to consider the issues we raise. However, in document E/C.12/AUS/CO/5 dated 23 June 2017, the Committee stated:

Intersex persons

49. The Committee is concerned that children born with intersex variations are subject to early surgeries and medical interventions before they are able to provide full and informed consent (art. 12).

50. The Committee recommends that the State party study and implement the recommendations put forward in the 2013 Senate Community Affairs References Committee report on the ‘Involuntary or coerced sterilisation of intersex people in Australia’.

Brief summary

The CRC recommendations mark the first time that we have seen harmful practices in Australia linked to the UN Sustainable Development Goals, and target 5.3 on eliminating harmful practices.

The CRPD and CEDAW call for redress for individuals who have experienced such practices. The CRC, CRPD and CEDAW call for provision of counselling and support for families.

The federal government declined to act on the recommendations of the 2013 Senate committee report on the involuntary or coerced sterilisation of intersex people. States and Territories have also failed to act. These growing voices must provoke effective action.

More information

We’d like to thank our friends in People with Disability Australia who assisted at both CRC and CRPD hearings in Geneva in September 2019.

All documents relating to Australia’s appearances before UN Treaty Body committees can be found at https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Countries.aspx?CountryCode=AUS&Lang=EN.

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