Intersex Human Rights Australia

Here we look in detail at a case selected by the Chief Justice for mention in her February 2013 submission to the current Senate inquiry into the involuntary or coerced sterilisation of people with disabilities, and intersex people. The case is entitled, 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…

6. …although the child has been known by a female name, a male name was in fact given and the birth certificate of the child shows the registration of the male name…

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.

To summarise the situation:

• The case describes an individual aged 14¾ who was treated since infancy under the standard “therapeutic” protocol for their 46,XX CAH diagnosis.
• 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 (continue to) live as male, and the postnatal surgeries “to make them feminine in appearance” were inappropriate.
• The child’s actual birth assignment is unstated, but it is stated that he was given a male name. It is common in discourse at the time (for example in relation to the 1979 Family Court case In the marriage of C and D (falsely called C)) to ignore actual legal birth assignment and describe surgeries designed to reinforce a sex assignment as “reassignment” or “sex change”.
• Surgical 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.
• The case was brought by the mother, not clinicians involved in the case.
• This case was endorsed by the Chief Justice through her discussion of it in her 2013 submission to the Senate.

As the infant genital surgery described is considered “therapeutic”, it does not ever need to go before the Family Court; this case demonstrates the subjective nature of an assessment that the “wrong decision about such surgery would be less significant”. It is of lifetime significance to Child A.

In fact, Child A’s circumstances are not unusual. While it remains the standard protocol for 46,XX CAH children to undergo the same “therapeutic” treatment, 10% of these children will go on to identify as male.

Furtado, who has stated that “between 8.5–20% of individuals with DSDs” go as far as to permanently change their gender assignment, also stated that “[e]arly surgery seems to be a safe option for most” patients with CAH – even while acknowledging that one in ten cases with that diagnosis have been shown to change gender assignment.

The 2006 Clinical “Consensus” Statement reaches similar conclusions on surgical intervention, despite recognition that patients later undergo gender changes at rates as high as 40% with some intersex diagnoses.

The therapeutic treatment applied in infancy this case, endorsed by the Chief Justice, is by no means universally held and has been criticised in evidence leading to the decision of the UN Special Rapporteur on Torture.

Furthermore, if 46,XX CAH children are to be regarded uncritically as girls, then why does legislation prohibiting female genital mutilation not apply? The Swiss National Advisory Commission on Biomedical Ethics published a globally significant document on intersex in November 2012 which went as far as recommending:

Recommendations
12. There should be a legal review of the liability implications of unlawful interventions in childhood, and of the associated limitation periods. Questions of criminal law, such as the applicability of offences of assault (Art. 122 and 123, StGB) and the prohibition on genital mutilation (Art. 124, StGB), should also be investigated.

It is our view that this case demonstrates the failure of the Family Court and the government to identify or manage structural inequalities that impact directly on the lives of intersex people in Australia. The case shows, to us, that the court system operates in a self referential manner, consulting the adults already involved in a decision without the skills or expertise to question the data it is supplied. There are no independent parties, and no patient advocates from the intersex community involved in the decision making process.

The impact of the initial surgical intervention (not taking into account later surgeries following Family Court assent) is lifelong.

Section 9 of our initial submission to the Senate Inquiry deals with surgical outcomes in more details.

Two final, crucial, points:

• The standard therapeutic protocol for 46,XX CAH infants, including clitorectomy and other “psychosocial rationales” remains unchanged everywhere in Australia outside Victoria.
• The therapeutic protocol appears unchanged under the new Victorian framework, in practice. This is because, as described by Murphy et al, the standard protocol is widely considered one where there is “more certainty about future gender identity” and the psychosocial rationale for genital surgeries remains.

More information

This is an extract of our March 2013 submission to the Senate inquiry on involuntary or coerced sterilisation

Welfare of A Child A [1993] FamCA 68; (1993) FLC 92-402 16 Fam Lr 715 Children (30 June 1993)