Shadow Report submission to the UN Human Rights Committee

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OII Australia has submitted a shadow report to the UN Human Rights Committee, in respect of a current review of Australia’s actions to meet obligations under the International Covenant on Civil and Political Rights.

The shadow report has been kindly endorsed by the Androgen Insensitivity Syndrome Support Group Australia, Disabled People’s Organisations of Australia, National LGBTI Health Alliance, and People with Disability Australia.

It makes a number of recommendations, based upon the 2017 Darlington Statement by Australian and New Zealand intersex advocates, and it reports on the federal policy context, judgments and statements by the Family Court of Australia, and several States and Territories including Victoria, ACT, New South Wales, Queensland and South Australia.

Overall, the document summarises the current situation for intersex people, in particular, the continued so-called “normalisation” of intersex bodies, claims of clinical consensus, the absence of empirical evidence for clinical practices, and the absence of any recognition of our right to bodily autonomy. The report provides evidence of continuing harmful, coercive practices in Australian hospitals, with the support of Australian governments and the Family Court.

Summary

The International Covenant on Civil and Political Rights guarantees freedom from ‘torture or to cruel, inhuman or degrading treatment or punishment’ including being subjected without ‘ free consent to medical or scientific experimentation’ (article 7), and guarantees the liberty and security of the person (article 9) including ‘freedom from injury to the body and the mind, or bodily and mental integrity’ (General Comment 35).[1] The Covenant also guarantees privacy (article 17), while article 14 guarantees equality before the courts and article 24 guarantees non-discrimination on the basis of sex and birth.[2]

A pattern of human rights abuses on infants, children and adolescents born with intersex traits (variations of sex characteristics) occurs in Australia, without any form of effective, independent scrutiny or oversight, often based on gender stereotypes, and lacking a scientific basis. Evidence of abuses includes the unnecessary sterilisation of a 5-year old child with the approval of the Family Court of Australia, and incidental disclosure in that child’s medical history of a clitorectomy and labiaplasty described by the judge, in 2016, as having “enhanced the appearance” of her genitalia. These interventions are abhorrent. The child in Re: Carla (Medical procedure) was described as having a “sexual development disorder”,[3] more usually described in clinical settings as a “disorder of sex development”. The framing of intersex variations using such terms, despite often only cosmetic (appearance “enhancing”) purposes for medical interventions is gravely disturbing. Such interventions violate articles 7 and 9 of the International Covenant on Civil and Political Rights. The involvement of the judicial system in ratifying clinical practices is also deeply troubling, and may contravene articles 24 and 14.

In many cases, harmful practices and other human rights abuses occur despite rhetoric by Australian governments that denies or asserts changes to clinical practices, and that asserts the recognition and valuing of intersex variations.[4]

In 2013, a Senate Community Affairs References Committee inquiry into the involuntary or coerced sterilisation of people with disabilities, and of intersex people made a series of recommendations for change to clinical practice.[5] Four years on, the Australian government has rejected the recommendations of that inquiry and both federal and State governments have failed to act. Further, recent Family Court cases show that the judicial system is unable to perform the independent role sought by the Senate inquiry,[6] and the weight of international evidence calls for stronger, more substantive action. A 2017 Australian-Aotearoa/New Zealand community consensus statement has adopted a set of demands, the Darlington Statement, in response to these deleterious situations.[7a]

We urge the Human Rights Committee to make strong recommendations in line with recommendations by other UN Treaty Bodies, to assist in breaking a continuing pattern of deferral and delay without action.

Recommendations

In March 2017, more than twenty current and future leaders of the intersex human rights movement in Australia and New Zealand gathered in Darlington, Sydney, and agreed on a common platform. We respectfully request that the Human Rights Committee acknowledges that platform, the Darlington Statement,[7b] and concluding observations of other UN Treaty Bodies, and asks the government of Australia to:

  1. Guarantee bodily integrity, autonomy and self-determination to children born with non-normative sex characteristics, and ensure that no-one is subjected to medically unnecessary medical or surgical treatment during infancy or childhood.[8] In particular, to ensure the right of children born with variations of sex characteristics not undergo irreversible cosmetic interventions to “fix” sex characteristics, or otherwise assign sex, “enhance”, or reinforce a sex assignment, when sex characteristics do not fit medical norms for females or males.
  2. Implement legislation to prohibit unnecessary surgical or other medical treatment on intersex children (i.e. forced and coercive interventions) until they reach an age at which they can provide their free, prior and informed consent.[9] For example, by criminalising deferrable medical interventions, including surgical and hormonal interventions, that alter the sex characteristics of infants and children without personal consent of the recipient.
  3. Ensure the mandatory availability of independent, community-run counselling services for all intersex children and their parents.
  4. An arbitrary and unclear legal distinction between “therapeutic” and “non- therapeutic” medical interventions ensures that decision-making rationales to manage physical health issues are intertwined with non-therapeutic and cosmetic rationales. The government should ensure that medical interventions necessary for physical health are carefully distinguished from interventions designed to “normalise” bodies of children born with non-normative sex characteristics.
  5. Provide redress and access to justice to people who have undergone unwanted sterilisations and other medical interventions to “normalise” sex characteristics.[10]
  6. Commit to ensuring the development, with meaningful community participation, of appropriate, transparent, human rights-based standards of care for the treatment of persons born with sex characteristics that do not fit norms for female or male bodies.[11]
  7. Ensure that all medical interventions where rationales or justifications are contested are subjected to independent, human rights-based scrutiny, bringing together human rights experts, clinicians and intersex-led community organisations. Ensure that pros and cons for and against necessary medical treatment will be properly ventilated and considered, including the lifetime health, legal, ethical, sexual and human rights implications.
  8. Ensure that medical and psychological professionals, and parents, are educated on bodily and sexual diversity and on human rights norms, and on the consequences of unnecessary interventions for children born with non-normative sex characteristics.[12]
  9. Ensure that adults with intersex variations are able to freely access medical interventions to manage sex characteristics, including unwanted iatrogenic (medically induced) changes to sex characteristics.

UN Human Rights Committee response

In November 2017, the UN Human Rights Committee responded with the following statement:

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 they 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 made by the Senate Standing Committee on Community Affairs in its 2013 inquiry report on involuntary or coerced sterilisation of intersex people, 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

In doing so, the Committee cited Treaty articles 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).

More information

Notes

[1] Committee on Civil and Political Rights, United Nations. General Comment No. 35: Article 9 (Liberty and security of person). 2014 Dec. Report No.: CCPR/C/GC/35.
[2] Office of the High Commissioner for Human Rights. International Covenant on Civil and Political Rights. 1966.
[3] Family Court of Australia. Re: Carla (Medical procedure) [2016] FamCA 7. Available from
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCA/2016/7.html
[4] Carpenter M. The human rights of intersex people: addressing harmful practices and rhetoric of change. Reproductive Health Matters. 2016;24(47):74–84.
[5] https://twitter.com/deanpwda/status/869848554617151488
[6] https://twitter.com/deanpwda/status/869850421497655296
[7a, 7b] Androgen Insensitivity Support Syndrome Support Group Australia, Intersex Trust Aotearoa New Zealand, Organisation Intersex International Australia, Black E, Bond K, Briffa T, et al. Darlington Statement [Internet]. 2017 [cited 2017 Mar 10]. Available from: https://oii.org.au/darlington-statement/
[8] This wording was adopted by the Committee on the Rights of the Child in Concluding Observations on New Zealand (CRC/C/NZL/CO/5), 2016, para 25; Concluding Observations on South Africa, (CRC/C/ZAF/CO/2), 2016, paras. 39 to 40.
[9] This wording was adopted by the Committee on the Elimination of All Forms of Discrimination against Women in Concluding Observations on Germany, (CEDAW/C/CHE/CO/7-8), 2017, para 24(d).
[10] Similar recommendations have been made by the Committee on the Elimination of All Forms of Discrimination against Women in Concluding Observations on Germany, (CEDAW/C/CHE/CO/7-8), 2017, para 24(6).
[11] Similar relevant recommendations have been made by the Committee on the Rights of the Child in Concluding Observations on New Zealand (CRC/C/NZL/CO/5), 2016, para 25; and the Committee on the Elimination of All Forms of Discrimination against Women in Concluding Observations on France, (CEDAW/C/FRA/CO/7-8), 2016, para 19(f).
[12] Similar relevant recommendations have been made by the Committee against Torture in Concluding Observations on Germany, (CAT/C/DEU/CO/5), 2011; and the Committee on the Rights of the Child in Concluding Observations on Ireland, (CRC/C/IRL/CO/3-4), 2016, para 40.