Submissions to the UN Committee on the Rights of the Child

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The logotype of the Office of the High Commissioner for Human Rights
In line with previous submissions to UN Treaty Bodies, IHRA has made a formal submission to the UN Committee on the Rights of the Child, in respect of a current review of Australia’s actions to meet obligations under the Convention on the Rights of the Child.

As a member of the Australian Child Rights Taskforce, IHRA also participated in the development and submission of a joint shadow report by that taskforce. This process was led by UNICEF, and we thank the report authors – in particular Freyana Irani – for their work.

The Committee made strong recommendations in their concluding observations on 30 September 2019.

IHRA submission

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 Convention on the Rights of the Child (CRC) sets out obligations to recognise the human rights of children. The joint CRC and CEDAW General Comment 18 calls for the elimination of harmful practices.

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 of such practices 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 (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])

The judgment cites “Minnie Mouse underwear”, “glittery sandals”, “Barbie bedspreads” and other gender stereotypes (at [15]) in support of the sterilisation of the child.

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.

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.

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

Recommendations

We respectfully request that the Committee asks the government of Australia to recall “Joint general recommendation No. 31 of the Committee on the Elimination of Discrimination against Women/general comment No. 18 of the Committee on the Rights of the Child on harmful practices” and:

  1. Ensure that no one is subjected to unnecessary medical or surgical treatment during infancy or childhood, guaranteeing the rights of children to bodily integrity, autonomy and self-determination.
  2. Specifically, to “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”.
  3. Promptly investigate incidents of surgical and other medical treatment of intersex children without informed consent and adopt legal provisions to provide redress to victims of such treatment, including adequate compensation.
  4. Provide families with intersex children with adequate independent counselling and support.
  5. Educate and train medical and psychological professionals on the range of biological and physical sexual diversity and on the consequences of unnecessary surgical and other medical interventions on intersex children.
  6. Develop and implement a transparent human rights and child rights-based health-care protocol for intersex children, setting the procedures and steps to be followed by health teams.

Australian Child Rights Taskforce submission

While brief, the Australian Child Rights Taskforce provides a brief overview of the situation facing people born with intersex variations, and cites a key CEDAW recommendation.

5.2.3 Forced medical interventions on children born with intersex variations

Invasive and irreversible surgeries and other medical interventions are performed on children born with variations of sex characteristics without their informed consent or evidence of medical necessity, in an attempt to ensure ‘normalisation’ of sex and permanent sex assignment.

The consequences of these procedures can be profound, including impaired sexual function and sensation, and incorrect gender assignment. In 2018, the Committee on the Elimination of Discrimination against Women recommended that the Australian Government explicitly legislate to prohibit these procedures.

Recommendation:
That the Australian Government:
38. enact legislative provisions explicitly prohibiting forced medical interventions on children born with intersex variations before they reach an age when they are able to provide their prior, fully informed and free consent.

The Committee’s concluding observations

The Committee made strong recommendations in their concluding observations on 30 September 2019:

Harmful practices
31. The Committee welcomes the criminalization of forced marriage and taking note
of target 5.3 of the Sustainable Development Goals, urges the State party to:

(a) Strengthen its measures to raise awareness on the harmful effects of child
marriage on the physical, mental health and well-being of girls;

(b) Enact legislation explicitly prohibiting coerced sterilisation or
unnecessary medical or surgical treatment, guaranteeing bodily integrity and
autonomy to intersex children as well as adequate support and counselling to families of intersex children.

Sustainable Development Goal target 5.3 refers to the elimination of harmful practices:

The Sustainable Development Goal on gender equality (SDG 5) target 5.3 aims to eliminate all harmful practices, such as child, early and forced marriage and FGM by 2030. (International Institute for Sustainable Development, 2018)

More information

Intersex Human Rights Australia. 2018. ‘CRC Shadow Report on Australia’. https://ihra.org.au/wp-content/uploads/2018/11/IHRA-2018-CRC.pdf

Australian Child Rights Taskforce. 2018. ‘NGO Coalition Report to the UN Committee on the Rights of the Child’. https://ihra.org.au/wp-content/uploads/2018/11/NGO-coalition-CRC-2018.pdf

Committee on the Rights of the Child. 2019. ‘Concluding Observations on the Combined Fifth and Sixth Periodic Reports of Australia’. CRC/C/AUS/CO/5-6. Geneva: United Nations. https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRC%2fC%2fAUS%2fCO%2f5-6&Lang=en

International Institute for Sustainable Development. 2018. ‘UN Leaders Call for Accelerated Action on SDG 5.3’. February 13. http://sdg.iisd.org/news/un-leaders-call-for-accelerated-action-on-sdg-5-3/.