We commend the Full Court of the Family Court in deciding to permit a competent transgender adolescent to make their own informed decision about stage 2 hormone treatment, in consultation with clinicians and their parents. We hope that Kelvin is also well connected with his peers. As the Australian Human Rights Commission has noted, this decision is in line with best international practice and the observations of the UN Human Rights Committee earlier this month.
However, we note that children born with intersex variations are not afforded the same right. Evidence put by us to the UN, based on Family Court decisions and other sources shows that unnecessary, irreversible medical interventions take place on intersex children in Australia, with and without court approval. This is not a question of access to treatment, as medical interventions are forced, or imposed, prior to a child’s ability to consent and without clear evidence of necessity. The question of consent is as central to decision-making as it is in the Court’s decision in Re: Kelvin.
In the same report by Human Rights Committee earlier this month, the Committee stated:
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.
The Committee cited the 1966 International Covenant on Civil and Political Rights 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).
International best practice, as in the case of Malta, is to prohibit deferrable medical interventions to modify the sex characteristics of children until they are old enough to consent. This human rights situation of intersex children also needs urgent action, to ensure that all individuals are able to provide fully informed consent to non-urgent medical interventions.
Statement by the Australian Human Rights Commission
The decision of the Family Court in Re: Kelvin
Concluding Observations by the UN Human Rights Committee
OII Australia submission to the UN Human Rights Committee
The legislative situation in Malta