IHRA welcomes aspects of the Justice and Related Legislation (Marriage Amendments) Bill 2018, that has been passed by the Tasmanian Parliament. In particular, insertion of the attribute of “sex characteristics” in law is very welcome.
However, we note that anti-discrimination protections on grounds of sex characteristics only apply to persons with intersex variations of sex characteristics. This is counter to the intent of the attribute as defined in the Yogyakarta Principles plus 10 (2017) and the Darlington Statement (2017): “sex characteristics” is intended to be universal, in the same way that attributes of sexual orientations and gender identity are universal. It appears that “intersex variations of sex characteristics” are not defined in Tasmanian law.
The idea that sex and gender classifications need not be stated on birth certificates is not a new one – it is implicit in UN Treaties dating back to 1966 (IHRA 2019) – but the creation of an ability to opt-out is helpful. It may be that the opt-out represents what is politically possible here and now, however, the implementation of this opt-out gives us some cause for concern. In particular, some policy-makers have framed this as only for intersex and gender diverse people (River 2019), or as benefitting an intersex population, in particular infants and children. These are pious wishes that lack evidence, and lack support by intersex-led organisations. When framed for our benefit, they amount to a de facto third classification, and a form of segregation that does not acknowledge our diversity. As in the ACT, the likelihood is that no children will be so assigned, as parents seek to avoid stigma and disclosure, and doctors continue to seek sex assignments that will produce future heterosexual adults who identify with sex assigned at birth. These assignments are not themselves contested by IHRA.
A short extension on the allowable period for birth registrations is also being framed as benefitting an intersex population. The reality is that few individuals will be directly impacted, as intersex traits may be identified at many different life stages. Moreover, as described by Martine Delaney in The Guardian (8 April 2019), such developments do not change an existing medical model:
[The reforms] will allow us the choice to take gender off our birth certificate altogether, or allow parents to do this in the case of newborns. They will give parents of intersex infants much longer to decide how they register their child’s birth sex, so they can access expert advice and support.
This unchanged medical approach is not simply about sex assignment; it frames intersex traits as “disorders of sex development”, that can be “fixed” by forced or coercive medical interventions. Such practices are “harmful practices”, the subject of profound concerns due to their human rights implications (CEDAW 2018; Public statement 2016; Carpenter 2018). Staff of IHRA are currently members of an expert reference group for an Australian Human Rights Commission inquiry (2018) on protecting the human rights of people born with variations in sex characteristics in the context of medical interventions.
Without change, as described in the Darlington Statement (2017), the reforms exacerbate a situation where intersex bodies are “normalised” as either female or male while intersex identities are “othered” as neither female nor male (Carpenter 2018; IHRA 2019).
The Tasmanian government opposed the new law and tasked the Tasmanian Law Reform Institute to investigate. The terms of reference for a new “Transgender and Intersex Project” (2019) give us cause for concern. The terms of reference include the following items:
What steps should be required to register a change of sex or intersex status on official documents
This language, “register a change of sex or intersex status” appears to presume that intersex status is a sex classification that can be adopted or changed at will, when all reputable definitions of intersex used around the world recognise intersex as a range of innate traits, and such definitions of intersex do not presuppose any particular sex classification or gender identity (Public statement 2016; IHRA 2013). This term of reference can also be read in a different way, where changing intersex status means to modify the sex characteristics of an infant or child so that they more closely fit a gender stereotype and binary sex assignment; a form of conversion process. Both readings of this term of reference are of great concern to us.
What, if any, reforms should be made in relation to consent to medical treatment to alter a person’s sex or gender
The language around consent to “alter a person’s sex or gender” presupposes that medical intervention to modify sex characteristics can alter a person’s sex or gender. The new Tasmanian Act does away with medical requirements for changes to legal sex markers, and this is welcome. It is unclear if this term of reference is intended to apply to “intersex status”, but forced or coercive interventions take place routinely in Australia on infants, children and adolescents with intersex variations, often on the basis of poorly-informed parental consent. Parents should not be asked to consent to such interventions. However, similar interventions may be undertaken on members of other populations, such as a hysterectomy, for example, to address cancer and other medical issues. These treatments are generally not regarded as changing their sex or gender. Aspects of this term of reference appear to be under consideration in a far more nuanced, longer-term national inquiry by the Australian Human Rights Commission.
These terms of reference are unclear in their intent and in their comprehension of the issues at stake. They represent unfinished business. We have invited discussion with the Tasmanian Law Reform Institute prior to their publication of an issues paper.
– Morgan Carpenter JP was a member of the drafting committee and a signatory of the Yogyakarta Principles plus 10.
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. ‘Darlington Statement’. Sydney, New South Wales, March 2017. https://darlington.org.au/statement
Australian Human Rights Commission. 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, 2018.
Carpenter, Morgan. ‘The “Normalization” of Intersex Bodies and “Othering” of Intersex Identities in Australia’. Journal of Bioethical Inquiry 15, no. 4 (December 2018): 487–95. https://doi.org/10.1007/s11673-018-9855-8
CEDAW (Committee on the Elimination of Discrimination against Women). ‘Concluding Observations on the Eighth Periodic Report of Australia’, 25 July 2018. CEDAW/C/AUS/CO/8.
Delaney, Martine. ‘How Tasmania Is Going from Worst to Best on Transgender Human Rights’. The Guardian, 8 April 2019. https://www.theguardian.com/commentisfree/2019/apr/08/how-tasmania-is-going-from-worst-to-best-on-transgender-human-rights
Intersex Human Rights Australia. ‘What Is Intersex?’ Intersex Human Rights Australia, 2 August 2013. https://ihra.org.au/18106/what-is-intersex/
Intersex Human Rights Australia. ‘Submission to the Australian Human Rights Commission: Protecting the Human Rights of People Born with Variations in Sex Characteristics’, 30 September 2018. https://ihra.org.au/32490/ahrc-submission-2018/
Intersex Human Rights Australia. ‘Identification Documents’. Intersex Human Rights Australia, 4 January 2019. https://ihra.org.au/identities/
Public statement of UN and regional human rights experts. ‘End Violence and Harmful Medical Practices on Intersex Children and Adults, UN and Regional Experts Urge’, 24 October 2016. http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20739&LangID=E
Parliament of Tasmania. Justice and Related Legislation (Marriage Amendments) Act 2018 (2019). http://www.parliament.tas.gov.au/bills/pdf/47_of_2018.pdf
River, Dede. ‘Tasmania’s New Gender Laws Recognise Trans People at Last’. OPENLY, 15 April 2019. https://www.openlynews.com/i/?id=cc32341e-4c1d-4f5f-94e0-5aea0c0378f5
Tasmania Law Reform Institute. ‘Statement on Transgender & Intersex Project’. News Item. Tasmania Law Reform Institute – University of Tasmania, Australia, 3 April 2019. http://www.utas.edu.au/law-reform/news-and-events/tlri-news/statement-on-transgender-and-intersex-project
Yogyakarta Principles. 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, 2017. http://www.yogyakartaprinciples.org/principles-en/yp10/