Transcript: Intersex people at a public hearing of the Senate Inquiry on involuntary sterilisation

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Hansard transcripts of the March 2013 public hearings for the Senate Inquiry on involuntary or coerced sterilisation have been published.

Several issues are striking, not least the commonalities between the medical treatment of intersex people and the medical treatment of people with disabilities. We are grateful for the support of disability organisations like People with Disabilities Australia, and extend our support and endorsement of their submissions to the senate.

Australian Human Rights Commission

We are somewhat disappointed that the Australian Human Rights Commission was unable to make a submission on intersex; nor was mention made of intersex during the oral submission by Graeme Innes, Disability Discrimination Commissioner. This is particularly disappointing given that, in 2009, the Commission’s report Surgery on intersex infants and human rights effectively gave permission for surgeries on intersex children “to make the body appear more male or female”.

That report remains the Commission’s last word regarding medical interventions on intersex people. Human rights and biomedical ethics reports since 2009, and even a new Victorian treatment protocol, reinforce our case that surgery for appearance-related psycho-social rationales must cease (see here, for example).

Chief Justice of the Family Court of Australia

Our second submission to the Senate Inquiry focused in large part on a submission by the Chief Justice of the Family Court of Australia. At the oral hearing on 27 March, the Chief Justice commented on intersex cases, and the absence of any non-medical perspective.

Much of the discussion with the Chief Justice focused on the role of “contradictors”, independent lawyers for a child, with the same responsibility of acting on the best interests of the child. But the appointment of a contradictor is at the option of the judge in a case. Chief Justice also pointed to difficulties in obtaining a contradictor where sought:

The last cases are really applications involving intersex—and I am aware of three cases—Lesley, Child A, Re Sally and another one a long time ago… Really, you are looking at a pretty small number of medical procedure cases that we deal with.

We do not invite advocacy or special interest groups to participate. It would not normally happen in court proceedings. But we do, when appropriate, invite contradicta or try to get a contradicta. In Alex No. 2 everyone was supporting the application. I invited the intervention of the Public Advocate to try to get contradicta, but in fact they supported the application as well so I could not get a contradicta in the end.

The Chief Justice also drew attention to Re Sean and Russell:

I would like to put on the record, because I think it is worth repeating, what Justice Murphy said in the case of Re Sean and Russell. At paragraph 84 he said:

Where a decision falls properly within the ambit of parental responsibility, the authorisation or consent to a procedure is a parental decision. In saying that, I do not fail to recognise that the process of decision-making (likely, in many cases to involve a series of separate decisions) is, of course, exquisitely difficult and, in many cases, likely to involve much pain and proper prevarication.

…
He said at paragraph 91, and I think this is very important:

In my view, the law should tread very lightly in seeking to intrude in, or impose itself upon, those decisions. It would in my respectful view be sad indeed if the courtroom was to replace a caring, holistic environment within which approach by parents and doctors alike could deal with the (admittedly extremely difficult) medical and other decisions that need to be made.

OII Australia, AISSGA and LGBTI Health Alliance

Intersex organisations OII Australia and AISSGA, together with the National LGBTI Health Alliance, participated in the oral hearing on Thursday 28 March. This was the only session focussing specifically on intersex issues, and it was attended by Senators Rachel Siewert (chair), Claire Moore (deputy chair) and Sue Boyce. We thank the senators for their engagement, time and consideration.

The testimony of people representing the three organisations extends over 17 pages, and it’s probably the most detailed, and personal, testimony on intersex issues ever laid before the federal parliament.

It’s difficult for us to draw out any specific comments, except to note that there was consensus amongst the organisations representing intersex people in Australia. And this, by the Chair:

CHAIR: Thank you. I’m going to have to wind this up, because we have gone over time. It is really, really valuable evidence. I take the point—no pressure! I think people would be quite shocked when they understand it is still happening.

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