IHRA has made a submission to the Australian Law Reform Commission review of the family law system. It has been kindly endorsed by the AIS Support Group Australia, Disabled People’s Organisations of Australia, National LGBTI Health Alliance, and People with Disability Australia.
The submission makes a number of recommendations for reform, based upon the 2017 Darlington Statement by Australian and New Zealand intersex advocates, and the Yogyakarta Principles plus 10, and it reports on the federal policy context, judgments and statements by the Family Court of Australia, and several States and Territories.
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.
We make the following recommendations:
- The family law system must fully recognise the human rights of infants, children, adolescents and adults born with variations of sex characteristics, and must protect their rights, including their rights to bodily integrity.
- The family law system must ensure that there is oversight to ensure protection of the human rights of infants, children, adolescents and adults born with variations of sex characteristics.
- Family law legislation should prohibit deferrable medical interventions, including surgical and hormonal interventions, that alter the sex characteristics of infants, children and adolescents. Such interventions should be deferred until the child has sufficient capacity to consent on their own behalf.
- Any non-deferrable interventions which alter the sex characteristics of infants and children proposed to be performed before a child is able to consent on their own behalf should be identified as medical treatment outside the scope of parental consent and requiring authorisation of an independent body (hereafter referred to as the ‘decision-making forum’). A decision-making forum must bring together human rights experts, clinicians, and intersex-led community organisations.
- Whether consent is provided by the intersex minor or a decision-making forum, the pros and cons of medical treatment must be properly ventilated and considered, including the lifelong health, legal, ethical, sexual and human rights implications. Consent or authorisation for treatment must be premised on provision of all the available medical evidence on necessity, timing, and evaluation of outcome of medical interventions. Where there is no clinical consensus, this must be disclosed.
- Where interventions are performed on intersex minors with capacity to consent, such consent must be fully informed, with individuals and families having access to funded, independent counselling and peer support.
- Medical interventions must not be approved by the decision-making forum on the basis of rationales based on gender stereotypes, social norms or financial rationales. Interventions accompanying, following or reinforcing a sex assignment must never be based on technical considerations associated with surgery (for example, relative ease of construction of a vagina compared with relative difficulty of constructing a phallus).
- To ensure adherence and transparency with these provisions, the decision-making forum should be advised, post facto (after the event), of the details of each case where informed consent and/or non-deferrable medical necessity have been asserted.
- Consideration should be given to writing the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child into federal law.
- The current threshold criteria to determine whether or not a procedure is within the scope of parental authority is whether it is therapeutic or non-therapeutic. This criterion has failed to distinguish between interventions that are strictly clinically necessary and those that are not; between interventions based on culturally-specific social norms and gender stereotypes and those that are not. This criterion should be abandoned as a threshold test of whether a medical procedure requires oversight or authorisation from a decision-making forum.
- Children born with variations of sex characteristics must be treated by multi-disciplinary teams. Multi-disciplinary teams must operate in line with transparent, human rights-based standards of care for the treatment of intersex people and bodies. Multi-disciplinary teams in hospitals must include human rights specialists, child advocates, and independent intersex community representatives.
- Infants, children, adolescents and adults born with variations of sex characteristics must have resourced access to necessary and appropriate health, medical and allied services and treatment, including surgeries and hormone treatment, psychosocial, psychosexual and psychological support, and including reparative treatments. Standards of care must support reparative treatments. Treatment must not require conformity with stereotypical and clinical norms for female or male bodies, women and men, nor impose inappropriate psychiatric eligibility assessments.