The Chief Justice of the Family Court, the Hon. Diana Bryant AO, recently wrote a submission  to the Senate on the Human Rights and Anti-Discrimination Bill Exposure Draft. In her submission, she wrote in support of one of the recommendations in our submission – that a person should not need to possess a binary gender identity on a “genuine basis” in order to receive protection from anti-discrimination legislation.
We are grateful for this, but we are concerned that she did not explicitly accept the need for protection for intersex people with non-binary gender identities. We were most concerned to note her implicit support for medical intervention aimed at creating “the appearance of a particular sex”, especially in a context where the proposed legislation only offers protection to intersex people who live as a “particular sex”. The Chief Justice wrote that she had decided:
…applications by or in respect of young people born with an ambiguous or indeterminate sex to undertake medical treatment (surgical or otherwise) that would enable them to have the appearance of a particular sex. 
Here’s our analysis.
It is the considered position of OII Australia that medical intervention to create an appearance of a particular sex is no longer warranted, and in this we are supported by a 2012 report by the Swiss National Advisory Commission on Biomedical Ethics .
The focus of OII Australia is on the human rights of intersex people from cradle to grave, and our recommended principles for medical interventions are the following:
- Medical intervention should not assume crisis in our difference, nor normalisation as a goal.
- Medical, and in particular surgical, interventions must have a clear ethical basis, supported by evidence of long term benefit.
- Necessary medical intervention on minors should preserve the potential for different life paths and identities until the patient is old enough to consent.
- Medical intervention should be deferred wherever possible until the patient is able to freely give full and informed consent; this is known as “Gillick competence”.
- The framework for medical intervention should not infantilise intersex.
- The framework for medical intervention must not pathologise intersex through the use of stigmatising language.
These principles lead us to support a focus on family counselling, rather than surgical intervention; the majority of these principles are supported by the Swiss National Advisory Commission on Biomedical Ethics.
Current medical protocols for intersex children are based on a 2006 “Consensus Statement on Intersex Disorders and Their Management” . We believe that this model was flawed in many respects, but most notably in its inclusion of the following rationales for “early reconstruction”:
…minimizing family concern and distress, and mitigating the risks of stigmatization and gender-identity confusion of atypical genital appearance.
“Psychosocial adjustment”, “gender-identity confusion” and “family … distress” are directly associated with “looking different” and being known by others to “appear different”. The Swiss Biomedical Ethics Commission report is the first that we are aware of to be critical of these rationales for medical intervention, and their long term impact on future adults. It comments (the Commission’s emphasis):
Especially delicate are those cases where a psychosocial indication is used to justify the medical urgency of surgical sex assignment in children who lack capacity. Here, there is a particularly great risk of insufficient respect being accorded to the child’s (future) self-determination and its physical integrity…
Decisions on sex assignment interventions are to be guided by the questions of what genitalia a child actually requires at a given age (apart from a functional urinary system) and how these interventions will affect the physical and mental health of the child and the future adult. Treatment needs to be carefully justified, especially since – in functional, aesthetic and psychological respects – surgically altered genitalia … are not comparable to natural male or female genitalia.
Decisions are to be guided, above all, by the child’s welfare… The harmful consequences may include, for example, loss of fertility and sexual sensitivity, chronic pain, or pain associated with dilation (bougienage) of a surgically created vagina, with traumatizing effects for the child. If such interventions are performed solely with a view to integration of the child into its family and social environment, then they run counter to the child’s welfare. In addition, there is no guarantee that the intended purpose (integration) will be achieved.
These harmful consequences are supported by extensive research . On early childhood surgical interventions, the Commission concludes:
…on ethical and legal grounds, all (non-trivial) sex assignment treatment decisions which have irreversible consequences but can be deferred should not be taken until the person to be treated can decide for him/herself.
The Commission also makes a strong case in other crucial areas, shifting the emphasis towards supportive family counselling, with the aim of facilitating a close bond between parents and child:
The initial aim of counselling and support is … to create a protected space for parents and the newborn, so as to facilitate a close bond. In addition, the parents need to be enabled to take the necessary decisions on the child’s behalf calmly and after due reflection. In this process, they should not be subjected to time or social pressures. Parents’ rapid requests for medical advice or for corrective surgery are often a result of initial feelings of helplessness, which need to be overcome so as to permit carefully considered decision-making.
It is important to bear in mind and also to point out to the parents that a diagnosis does not in itself entail any treatment or other medical measures, but serves initially to provide an overview of the situation and a basis for subsequent decisions, which may also take the form of watchful waiting.
The medical interventions that are conducted on intersex infants are essentially the same as that which is given to trans kids only after Family Court approval, yet we believe that the majority of cases where genital surgery is conducted on infants with indeterminate or ambiguous genitalia do not reach the Family Courts.
It is our view that where cases have been taken to the Family Courts, the position of medical doctors in the legal process has been privileged as experts, while self-help and patient advocates, such as adult intersex people who have undergone medical intervention in the past, have been absent from the process.
In relation to our submission on the Human Rights and Anti-Discrimination Bill, Exposure Draft, we quote the following extract from the Swiss Commission report:
The long-established constitutional principle that no-one is to be subjected to discrimination on grounds of sex also applies to people whose sex cannot be unequivocally determined. Any discrimination resulting from existing regulations must be eliminated…
Categorization as male or female which is driven by social factors or a desire for legal certainty, rather than being based on medical considerations or the sincere wishes of the individual concerned, represents an unacceptable violation of personal liberty. It also leads to unjustifiable discrimination.
In this regard, we do not only see proposals for the protection in legislation only of intersex people who authentically self-define as male or female as a desire for legal certainty, we see all appearance-based rationales for medical intervention as driven by a desire for legal certainty.
Finally, we briefly note the different usages in terminology, in the Swiss Commission report, the Chief Justice’s submission on the Human Rights and Anti-Discrimination Bill, our own submission, and current medical sources. OII Australia is not alone in supporting the use of “intersex” as a term for people with innate biological sex differences. Submissions to the Senate Inquiry by the Androgen Insensitivity Syndrome Support Group Australia (AISSGA) , and by Councillor Tony Briffa JP , also support this position.
More information on the Senate Inquiry can be found on the OII Australia website here:
- Submission to the Senate Inquiry on the Human Rights and Anti-Discrimination Bill
- First thoughts on the federal anti-discrimination proposals
More information on the report of the Swiss National Advisory Commission on Biomedical Ethics can be found on our website here:
 Submission 345 to the Senate Inquiry on the Human Rights and Anti-Discrimination Bill, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte%2Fanti_discrimination_2012%2Fsubmissions.htm, accessed 22 December 2012.
 National Advisory Commission on Biomedical Ethics (Switzerland), November 2012, Opinion 20/2012, On the management of differences of sex development, Ethical issues relating to “intersexuality”, http://www.bag.admin.ch/nek-cne/04229/04232/index.html?lang=en, accessed 29 November 2012.
 Houk, Hughes, Ahmed, Lee, Writing Committee for the International Intersex Consensus Conference Participants, 2006, Summary of Consensus Statement on Intersex Disorders and Their Management, in Pediatrics, doi:10.1542.peds.2006-0737. http://www.pediatrics.org/cgi/doi/10.1542/peds.2006-0737, accessed 2 March 2012.
 Summaries of relevant research can be found in https://oii.org.au/downloads/OII+
Australia+intersex+health+summary%2C+24+August+2012, and https://oii.org.au/
 Submission 298 to the Senate Inquiry on the Human Rights and Anti-Discrimination Bill, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte%2Fanti_discrimination_2012%2Fsubmissions.htm, accessed 22 December 2012.
 Submission 203 to the Senate Inquiry on the Human Rights and Anti-Discrimination Bill.
The OII Australia submission to the Senate is numbered submission 12.