Second submission to Senate Inquiry on involuntary sterilisation; the Chief Justice of the Family Court on infant clitorectomy

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The Senate’s community Affairs Reference Committee is currently conducting an inquiry into the involuntary or coerced sterilisation of people with disabilities, and intersex people. The deadline for submissions was 12 March, and the Committee has just published a supplementary submission (PDF) by OII Australia, alongside submissions by the AISSGA, People with Disabilities Australia, the National LGBTI Health Alliance, and the Chief Justice of the Family Court of Australia, amongst many others.

Our initial submission was made on 15 February, and our supplemental submission has been necessitated by 3 publications since then:

The documents are unrelated but, individually and together, they highlight issues of great relevance to the inquiry and to our initial submission.

Victorian Health Department framework document

In our submission we note the major, but significantly incomplete, improvements to decision making around healthcare for intersex kids in Victoria. In part, the submission is a response to the framework document.

Our concerns about “psychosocial” rationales remain. These rationales relate to an individual’s position in a family and in society, and social expectations of the individual’s role in those environments. They mean, for example, that a clitorectomy will be considered “therapeutic” if it is deemed too large for an intersex girl infant to “have the appearance of” a girl.

Clitorectomy, sterilisation and the Family Court

The larger part of our submission focuses on the submission of the Chief Justice of the Family Court. We note an illuminating partisan (and misquoted) usage of medical language, and an approach that demonstrates what the UN Special Rapporteur on Torture (PDF) described in February 2013 as a “structural inequality”:

Structural inequalities, such as the power imbalance between doctors and patients, exacerbated by stigma and discrimination, result in individuals from certain groups being disproportionately vulnerable to having informed consent compromised.

The Chief Justice included reference to three cases affecting intersex kids in her submission. The first of those is “In the Matter of the Welfare of a child A (1993) FLC 92-402 (per Mushin J)”:

5. At the time of A’s birth he was diagnosed as suffering from a condition known as congenital adrenal hyperplasia…
9. The application which is made by the mother seeks authorisation from the court that A be permitted to undergo bilateral mastectomies, a hysterectomy and oophorectomy…
10. The background for this is well expressed by the surgeon. His report, to the extent that it is relevant, is in the following terms:

Following investigation after birth, this child was
correctly assessed as being a genetic female with an
extreme degree of masculinization. The degree of
masculinization is variable and depends on the severity of
the original abnormality in the adrenal gland. In some
children this is mild and in others it is severe. However,
in all cases it would be standard medical practise (sic) to
raise the child as a female with a potential for normal
female fertility. The genitalia are therefore operated on
in the postnatal period to make them feminine in
appearance. This advise (sic) and treatment was carried
out in (A’s) early years and she had genital reconstruction
to give her a feminine appearance. She was also given
cortisone hormone treatment to replace the absent hormone
and prevent any further masculine hormones being produced
by the abnormal adrenal gland…

12. Further in that report the endocrinologist states:

As (A’s) endocrinologist, I consider her to be completely
male in her outlook due to the prenatal and postnatal
exposure to excessive levels of adrenal androgen. I do not
believe that this situation is reversible. If a
satisfactory operation to make male genitalia can be
performed, I believe that (A) should have it…

13. I am critical of both the parents, and particularly the mother, that the treatment recommended by the doctors at the time of the A’s birth was not pursued. It appears on the basis of the material which is available to me that had that treatment been undertaken it may well have been possible to avoid the appalling situation which has now arisen and in respect of which I am asked to make this decision.
14. …A has already had suicidal thoughts arising directly out of the very ambiguous situation in which he finds himself.

We summarise our analysis of the case:

  • The case describes an individual aged 14 3⁄4 who was treated since infancy under the standard “therapeutic” protocol for their diagnosis of Congenital Adrenal Hyperplasia (46,XX CAH).
  • The “psychosocial” therapeutic rationale for treatment involved a clitorectomy/removal of phallus, and irreversible genitoplasty during infancy, to give a “feminine appearance”.
  • In other 46,XX children this would commonly be described as “female genital mutilation”.
  • The case was brought before the court to provide for surgeries to enable the child to live as male, i.e. the original sex-of-rearing assignment, and the postnatal surgery “to make them feminine in appearance” were inappropriate.
  • Reassignment was given to require sterilisation through oophorectomy, even though there’s no evidence that this was necessary to enable male sex of living.
  • The child was suicidal.
  • The judge in the case expressed no critical evaluation of the validity of the medical protocol put forward in this case nor more generally; the standard therapeutic protocol was regarded as unremarkable. Why was the prior assessment of the child as female ‘correct’ in the face of the case under review?
  • The judge was egregious in criticism of the parents (why also “particularly the mother”?) in an assertion that they had “failed” to properly suppress androgen production through postnatal medication, as if this might have an impact. It is strongly implied (in point 13) that the child’s self assessed gender identity was a consequence of this. We are unaware of any evidence to support this, while the evidence on adult gender identities refutes such simplistic arguments.
  • This case was endorsed by the Chief Justice in February 2013, through her discussion of it in her submission on involuntary sterilisation to the Senate.

We also note that 1 in 10 children with 46,XX CAH will go as far as to permanently change gender assignment as adults.

More details and explanatory information on this, and the other recent developments, can be found in our full supplemental submission. Our initial submission is also available, and is not replaced by this later additional document.

Conclusions

The court system
The absence of community resourcing, our absence from Family Court processes, our historic absence from dialogue over treatment protocols all create a situation where medical evidence supplied has been considered uncritically and without any evaluation of alternative medical data or community voices.

The case mentioned by the Chief Justice of the Family Court in her submission to the Senate Inquiry demonstrates the failure of the court system and the government to deal with structural inequalities that impact directly on the lives of intersex people in Australia. We believe that the court system has been deficient and lacks the competencies required. We believe that this structural inequality must be addressed.

We support the establishment of an expert tribunal to adjudicate on such cases in place of the Family Court, but only where the tribunal can effectively include resourced community participation on an equal footing.

The nature of therapeutic treatment
Most cases where we have concern do not progress to the Family Court, but are managed according to standard therapeutic protocols. It is in this area that we have the most significant concerns.

If therapeutic protocols for 46,XX CAH children are to regard them uncritically as girls, then why does legislation prohibiting female genital mutilation not apply? With what degree of “success” or “necessity” does a cosmetic but irreversible surgical treatment become “therapeutic”?

Why is sterilisation considered necessary to live as a different gender to that previously (legally, surgically and hormonally) assigned, especially when the patient is not an adult able to freely express their own preferred identity?

Why do gonadectomies take place on infants when, as we pointed out in our initial submission, the standard protocol in London is to wait until the patient is 18, post puberty and with informed consent?

Excluding psychosocial rationales for treatment
We believe that the nature of what is regarded as a therapeutic protocol needs to be changed to exclude psychosocial rationales until an intersex person is old enough to be able to consent.

‘Looking different’ should not be a reason for irreversible genital surgery.

Clitorectomies and related surgeries must no longer be carried out on intersex infants anywhere in Australia; they should be regarded in the same light as clitorectomies on non- intersex infants.

Gonadectomies should be carefully justified, avoided if sex-of-rearing changes, and generally take place once a patient can give fully informed consent.

Counselling, education and consultation
Protocols should focus first and foremost on counselling and education, including family and patient counselling. Protocols must be kept under review, with full community participation in the review and appraisal process.

Data
The lack of good data is a common theme in studies on intersex health, including the lack of useful sample sizes, non-standardised measures, lack of control groups, and selection bias in research. We wish for children to continue to receive a male or female assignment with recognition that this is mutable but, independent of this, there is a need for children and adults with an intersex status to be tracked through the health system, and more broadly.

Redress
We believe that the issue of an apology and redress for people who have been through non- consensual and inappropriate surgical and hormonal treatments must be considered.

Resourcing
The intersex community must be resourced to support a more active role in our own health care management, and in policy development.

Acknowledgement

Both sterilisation inquiry submissions were written by Morgan Carpenter, who would like to thank everyone who assisted during their drafting or the consultation process, including OII Australia members but also AIC, AISSGA, HRLC, PWDA and others.

Download the Inquiry reports on involuntary or coerced sterilisation

Recent developments

OII Australia submissions

AISSGA and National LGBTI Health Alliance submissions

Clinician submissions

Legal submissions

Documents tabled by OII Australia

More information