Shadow Report submission to the Committee on the Elimination of Discrimination against Women

IHRA has made a Shadow Report submission to the Committee on the Elimination of Discrimination against Women (CEDAW), on the situation of intersex people in Australia. This submission builds upon our recent submissions to the Australian Law Reform Commission and the UN Human Rights Committee, within parameters set by a much reduced word count. It makes similar recommendations to those in our 2017 submission to the UN Human Rights Committee.

Summary

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) seeks to eliminate discrimination against women, and eliminate prejudices and customary practices based on gender stereotypes.[1] Joint CEDAW and CRC General Comment 31 calls for the elimination of harmful practices.[2]

A pattern of human rights abuses on infants, children and adolescents born with intersex traits occurs in Australia, without effective, independent oversight, often based on gender stereotypes, and lacking a scientific basis. Evidence includes the 2016 Family Court of Australia case Re: Carla (Medical procedure) which facilitated the unnecessary sterilisation of a 5-year old child. Incidental disclosure in that child’s medical history of a clitorectomy and labioplasty was described by the judge as follows:

Surgery already performed on Carla has enhanced the appearance of her female genitalia[3] (at [2])

In 2014, Carla underwent two operations. In March that year, Dr B, performed a ‘clitoral’ recession and labioplasty to feminise Carla’s external appearance. (at [16])

Harmful practices occur despite rhetoric by Australian governments that denies or asserts changes to clinical practices, and that asserts recognition and valuing of intersex people.[4]

A 2013 Senate committee inquiry made recommendations for change to clinical practice. The Australian government has rejected those recommendations; federal and State governments have failed to act. The Family Court has been unable to perform an independent role sought by the Senate inquiry. A 2017 intersex community consensus statement defines a set of demands, the Darlington Statement, in response.[5]

We urge the Committee to make strong recommendations in line with its prior recommendations,[6] and those of other Treaty Bodies.

Recommendations

We respectfully request that the Committee 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.[7]
  2. Prohibit unnecessary deferrable surgical or other medical treatment on intersex children until they reach an age at which they can provide their free, prior and informed consent.[8] For example, by criminalising deferrable medical interventions, including surgical and hormonal interventions, that alter the sex characteristics of infants and children without personal informed consent by the recipient.
  3. Provide redress and access to justice to people who have undergone unwanted medical interventions to “normalise” sex characteristics.[9]
  4. Commit to development, with meaningful community participation, of appropriate, transparent, human rights-based standards of care for treatment of persons born with sex characteristics that do not fit norms for female or male bodies.[10]
  5. Ensure that all necessary medical interventions to modify the sex characteristics of children with intersex variations are subject to oversight, for example, post facto oversight, to ensure compliance with human rights norms.
  6. Ensure that medical and psychological professionals, and parents, are educated on bodily and sexual diversity, on human rights norms, and on the consequences of unnecessary interventions for children born with non-normative sex characteristics.
  7. 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.[11]

Government submission

We find it difficult to square our understanding of current medical practices and recent Family Court cases with the following statements from the government submission, dated 22 March 2018:

158. The Australian Government is committed to respecting the rights of all persons to physical integrity and reproductive rights.
159. A procedure for the purposes of sterilisation may only occur in Australia with the person’s consent or with authorisation from a court or guardianship tribunal if the person is unable to give valid consent. Australia does not propose any changes to these arrangements.
160. In 2013, an Australian Senate Committee completed an Inquiry into the involuntary or coerced sterilisation of people with disability and intersex people. The Australian Government considered the Committee’s recommendations, but does not propose any changes to existing arrangements.

Committee response

On 23 July, the Committee issued its Concluding Observations. These are exceptionally clear and strong, and IHRA thanks the Committee for its work. The language on forced and coercive medical interventions on intersex infants and children appears in the section on harmful practices, also including forced marriage, FGM and forced sterilisation of women with disabilities:

Harmful Practices

5 (c) The conduct of medically unnecessary procedures on intersex infants and children before they reach an age when they are able to provide their free, prior and informed consent, and at inadequate support and counselling for families with intersex children and remedies for victims

The Committee recommends, in paragraph 26(c):

Adopt clear legislative provisions explicitly prohibiting the performance of unnecessary surgical or other medical treatment on intersex children before they reach the legal age of consent, implement the recommendations of the 2013 Senate inquiry on involuntary or coerced sterilisation of intersex persons, provide families with intersex children with adequate counselling and support, and provide redress to intersex persons having undergone medical treatment

The Concluding Observations also contain helpful recommendations on combatting gender stereotypes that impact upon intersex people, tackling educational awareness, and discrimination in healthcare settings.

More information

CEDAW
IHRA submission to CEDAW (PDF format)
Government submission
All public submissions
Read the concluding observations by CEDAW

IHRA submission to the Australian Law Reform Commission, May 2018
IHRA submission to the UN Human Rights Committee, August 2017

Citations

[1] United Nations. Convention on the Elimination of All Forms of Discrimination against Women. 1981. http://www.ohchr.org/Documents/ProfessionalInterest/cedaw.pdf.
[2] CEDAW, CRC. Joint general recommendation No. 31 of the CEDAW/general comment No. 18 of the CRC on harmful practices. 2014. Report: CEDAW/C/GC/31-CRC/C/GC/18.
[3] Family Court of Australia. Re: Carla (Medical procedure) [2016] FamCA 7. 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] AISSGA, ITANZ, IHRA, Black E, Bond K, Briffa T, et al. Darlington Statement. 2017. https://darlington.org.au/statement
[6] CEDAW, Concluding Observations on Germany, CEDAW/C/CHE/CO/7-8, 2017, para 24(6).
[7] Similar wording in CRC/C/NZL/CO/5, 2016, para 25, and CRC/C/ZAF/CO/2, 2016, paras. 39 to 40.
[8] Similar wording in CEDAW/C/CHE/CO/7-8, 2017, para 24(d).
[9] Similar recommendations in CEDAW/C/CHE/CO/7-8, 2017, para 24(6).
[10] Similar relevant recommendations in CRC/C/NZL/CO/5, 2016, para 25; and CEDAW/C/FRA/CO/7-8, 2016, para 19(f).
[11] Similar wording in CAT/C/DEU/CO/5, 2011, and CRC/C/IRL/CO/3-4, 2016, para 40.