Intersex Human Rights Australia

IHRA and AISSGA have collaborated on an NSW election issues paper, which was distributed to parties to the NSW Parliamentary Friendship Group for LGBTIQ People at the end of January.

Responses are still anticipated ahead of the opening of early polling on Monday 11 March. All responses will be published in full shortly after that date.

Response from The Greens, NSW
Response from Alex Greenwich (Independent candidate for Sydney)

NSW election survey: intersex human rights and health issues

Background

Intersex people are born with sex characteristics that don’t fit medical norms for female or male bodies. Because our bodies are seen as different, we experience discrimination and stigmatisation, including forced surgeries and other medical interventions – often in childhood or adolescence – to make our bodies more typically female or male.

Intersex issues are often associated with LGBT issues, and LGBTI frameworks favour identity-focused policy responses, but intersex organisations also have a long history of close collaboration with disability organisations, particularly around our work to end forced and coercive medical interventions.

IHRA and the AISSGA are national, charitable intersex-led organisations. We engage in systemic and individual advocacy and peer and family support. In 2017, we and other intersex advocates from around Australia and New Zealand collaborated to create the Darlington Statement, a statement of the demands and needs of the intersex population in our countries.[1]

Bodily integrity, and freedom from harmful practices

The Senate Community Affairs References Committee report on the Involuntary or coerced sterilisation of intersex people in Australia recommended an effective end to forced and coerced medical practices on intersex people in 2013, with independent oversight, and clinical practices operating “within a human rights framework”.[2]

Subsequent anecdotal evidence, Family Court cases and research shows that such practices continue,[3] with hundreds of relevant surgeries happening each year.[4]

The UN Human Rights Committee (2017),[5] Committee on Economic Social and Cultural Affairs (2013)[6] and the Committee on Eliminating Discrimination against Women (2018)[7] have also made strong recommendations for reform to nonconsensual clinical interventions on children with intersex variations. CEDAW and the UN Committee on the Rights of the Child regard such interventions as harmful practices, analogous to forced marriage and female genital mutilation. The UN Committee on the Elimination of Discrimination Against Women states that Australia must “Adopt clear legislative provisions that explicitly prohibit the performance of unnecessary surgical or other medical procedures on intersex children before they reach the legal age of consent”, provide adequate counselling and support, and provide redress.[8] Currently, the Australian Human Rights Commission is undertaking a specific project on how to protect the human rights of people born with variations in sex characteristics within the context of medical interventions.[9]

Will any government your party participates in:

• Protect infants, children and adolescents born with intersex variations from forced/deferrable medical interventions intended to modify our sex characteristics?
• Ensure the establishment of lifetime standards of care for healthcare pathways for people born with intersex variations, devised and reviewed with meaningful consultation with peer-led intersex organisations?
• Ensure effective, independent human rights-based oversight for all relevant medical interventions?
• Ensure that individuals, parents and families are able to access adequately resourced, independent and affirmative peer support?
• Resource intersex-led organisations to provide peer and family support, and systemic and individual advocacy?
• Make a formal apology to individuals who have undergone forced or coercive medical practices intended to make our bodies more typically female or male?
• Provide redress to people who have undergone such forced or coercive medical practices?
• Provide resourced access to ongoing medical, psychological, and reparative treatments for individuals who need them?

Freedom from discrimination

Unlike LGBT populations, religious bodies do not seek to discriminate against intersex people because of our intersex variations. Indeed, Western legal approaches to intersex people, regarding “hermaphrodites” as either female or male depending on prevailing characteristics, have antecedents in church law, and in Roman law.[10]

While “intersex status” was groundbreaking at the time it was introduced in law in 2013, the attribute has offered only limited protections, in part because of imputations of identity despite the attribute being phrased in relation to physical features. Internationally, the attribute has not travelled, and it has been superseded by a more universal attribute of “sex characteristics”.[11] This attribute is not intended to replace existing sex or gender attributes, and is comparable in some ways to an attribute called “physical features” in Victorian anti-discrimination law.[12] Federal law facilitates discrimination against women with intersex variations, with lifelong social and legal identities as women, in sport, despite a lack of evidence to support such exemptions.[13]

Will any government your party participates in:

• Implement reforms to anti-discrimination law to protect intersex and other people on grounds of “sex characteristics”?
• Ensure that no religious exemptions are created?
• End exemptions that discriminate in sport against women born with intersex variations who have lived their entire lives as women?
• Ensure that intersex people who need it are able to access reasonable adjustments in workplaces?

Education

Australian sociological research published in 2016 showed that 19% of people born with atypical sex characteristics failed to complete secondary school.[14] Reasons included bullying and stigmatisation because of physical characteristics and assumptions about identities, the impact of medical intervention during puberty, developmental delays, and non-inclusive school curricula. NSW research also shows that early exposure to general anaesthetic is associated with developmental delays in children.[15]

Will any government your party participates in:

• Ensure that school biology and human development curricula include respectful material on intersex variations?
• Promote teacher training on intersex-inclusive education?
• Ensure that intersex students are supported in schools through access to appropriate psychosocial supports including peer support?

Sex/gender recognition and data collection

There are at least 40 different intersex variations, most of them genetic. Intersex traits can be discovered at many different life stages. Intersex people are assigned female or male at birth in Australia and almost everywhere else. Most of us identify with sex assigned at birth, while some of us identify in other ways, including as male and female, or nonbinary. Some individuals who have undergone forced early genital surgeries have been told that they need to undergo further surgery to change their registration details in NSW.[16] Research and data collection have historically been hampered by clinical concealment of diagnostic information from people born with intersex variations, and forms of inclusion that disregard the actual legal and social status of intersex people.

Will your government:

• Ensure that intersex people are not treated as a third sex, by ensuring that guidelines and policies in relation to sex and gender refer to a third classification as “nonbinary” and not terms such as “intersex/indeterminate/unspecified” which refer to intersex?
• Ensure that government guidelines make sure that individuals who need to correct or change registration details are able to do so without proof of surgery?
• Ensure that data on sex and gender is only collected when and where necessary for a legitimate purpose?
• Resource research on effective inclusion and data collection with meaningful community input?
• Ensure that publicly-funded research on people born with intersex variations benefits from meaningful community input?

Whole of government

The Darlington Statement represents a definitive community consensus statement on intersex human rights, health, education and other issues in Australia and New Zealand.[17] It has been publicly affirmed by individuals, family members and institutions across our countries, and allies in the LGBT and disability movements.

Will your government:

• Acknowledge the Darlington Statement as a guide to intersex policy development in Australia?
• Commit to meaningful and effective consultation and inclusion of intersex-led organisations in policy development, both within and outside LGBTI frameworks?

More information

Survey response from The Greens, NSW
Survey response from Alex Greenwich (Independent candidate for Sydney)

NSW Parliamentary Friendship Group for LGBTIQ People on Facebook

Notes

[1] Androgen Insensitivity Syndrome Support Group Australia, Intersex Trust Aotearoa New Zealand, Organisation Intersex International Australia, Eve Black, Kylie Bond, Tony Briffa, Morgan Carpenter, et al. 2017. ‘Darlington Statement’. Sydney, New South Wales. https://darlington.org.au/statement
[2] Community Affairs References Committee, Senate of Australia. 2013. Involuntary or Coerced Sterilisation of Intersex People in Australia. Canberra: Community Affairs References Committee. http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/Involuntary_Sterilisation/Sec_Report/index
[3] Carpenter, Morgan. 2018. ‘The “Normalization” of Intersex Bodies and “Othering” of Intersex Identities in Australia’. Journal of Bioethical Inquiry, May, 1–9. https://doi.org/10.1007/s11673-018-9855-8. Carpenter, Morgan. 2018. ‘Intersex Variations, Human Rights, and the International Classification of Diseases’. Health and Human Rights 20 (2): 205–14. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6293350/. Kelly, Fiona, and Malcolm K Smith. 2017. ‘Should Court Authorisation Be Required for Surgery on Intersex Children? A Critique of the Family Court Decision in Re Carla — (2017) 31 AJFL 118’. Australian Journal of Family Law 31 (2): 118–33.
[4] Carpenter, Morgan. 2018. ‘The “Normalisation” of Intersex Bodies and “Othering” of Intersex Identities’. In The Legal Status of Intersex Persons, edited by Jens Scherpe, Anatol Dutta, and Tobias Helms, 445–514. Cambridge, England: Intersentia. Carpenter, Morgan. 2019. ‘Bodily Integrity’. Intersex Human Rights Australia. 4 January 2019. https://ihra.org.au/bodily-integrity/.
[5] Human Rights Committee. 2017. ‘Concluding Observations on the Sixth Periodic Report of Australia’. CCPR/C/AUS/CO/6. http://undocs.org/en/CCPR/C/AUS/CO/6
[6] Committee on Economic, Social and Cultural Rights, and United Nations. 2017. ‘Concluding Observations on the Fifth Periodic Report of Australia’. E/C.12/AUS/CO/5. http://undocs.org/en/E/C.12/AUS/CO/5
[7] Committee on the Elimination of Discrimination against Women. 2018. ‘Concluding Observations on the Eighth Periodic Report of Australia’. CEDAW/C/AUS/CO/8. http://undocs.org/en/CEDAW/C/AUS/CO/8
[8] Committee on the Elimination of Discrimination against Women, 5 supra.
[9] Australian Human Rights Commission. 2018. Protecting the Human Rights of People Born with Variations in Sex Characteristics in the Context of Medical Interventions Consultation Paper. Sydney: Australian Human Rights Commission.
[10] Finlay, Henry A. 1980. ‘Sexual Identity and the Law of Nullity’. Australian Law Journal 54 (3): 115–26. Greenberg, Julie. 1999. ‘Defining Male and Female: Intersexuality and the Collision Between Law and Biology’. Arizona Law Review 41.
[11] Malta. 2018. Gender Identity, Gender Expression and Sex Characteristics Act. http://www.justiceservices.gov.mt/DownloadDocument.aspx?app=lom&itemid=12312&l=1. Yogyakarta Principles. 2017. The Yogyakarta Principles Plus 10: Additional Principles and State Obligations on the Application of International Human Rights Law in Relation to Sexual Orientation, Gender Identity, Gender Expression and Sex Characteristics, to Complement the Yogyakarta Principles. http://www.yogyakartaprinciples.org/principles-en/yp10/.
[12] Victoria. n.d. Equal Opportunity Act 2010 No. 16 of 2010.
[13] Karkazis, Katrina, and Morgan Carpenter. 2018. ‘Impossible “Choices”: The Inherent Harms of Regulating Women’s Testosterone in Sport’. Journal of Bioethical Inquiry, August. https://doi.org/10.1007/s11673-018-9876-3.
[14] Jones, Tiffany. 2016. ‘The Needs of Students with Intersex Variations’. Sex Education16 (6): 602–18. https://doi.org/10.1080/14681811.2016.1149808.
[15] Schneuer, Francisco J, Jason P Bentley, Andrew J Davidson, Andrew JA Holland, Nadia Badawi, Andrew J Martin, Justin Skowno, Samantha J Lain, and Natasha Nassar. 2018. ‘The Impact of General Anesthesia on Child Development and School Performance: A Population-Based Study’. Pediatric Anesthesia, April. https://doi.org/10.1111/pan.13390.
[16] David, Alex. 2017. ‘“I Don’t Know If I’ll Ever Have a ‘Normal Life’ Again”’. SBS, 7 November 2017. http://www.sbs.com.au/news/insight/article/2017/11/07/i-dont-know-if-ill-ever-have-normal-life-again.
[17] Androgen Insensitivity Syndrome Support Group Australia et al, 1 supra