Federal election 2019 – party positions on intersex human rights and health

Ahead of the federal election on 18 May 2019, IHRA, AISSGA, Equality Australia, the National LGBTI Health Alliance, People with Disability Australia and others have identified key priorities for our populations, put questions to the major parties, and participated in a virtual town hall meeting.

Our election priorities

Intersex priorities, drawn from the Darlington Statement, include to:

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
Resource intersex-led organisations to provide peer and family support, and systemic and individual advocacy
Implement reforms to anti-discrimination law to protect intersex and other people on grounds of “sex characteristics”
Ensure that the intersex population is not treated as a third sex, by changing guidelines and policies in relation to sex and gender refer to a third classification as “nonbinary” and not terms such as “intersex/indeterminate/unspecified”
Resource research on effective inclusion and data collection with meaningful community input, and ensure that publicly-funded research on people born with intersex variations benefits from meaningful community input

Virtual town hall

Equality Australia, IHRA and the National LGBTI Health Alliance have also hosted a virtual town hall with Senators Louise Pratt (ALP, WA) and Janet Rice (Greens, Vic), and NSW Liberal Senate candidate Andrew Bragg.

During the virtual town hall, Morgan Carpenter asked a question on intersex human rights at 45:50. Watch the video on Facebook

Election surveys

IHRA, AISSGA and Equality Australia have put pre-election surveys to the major parties ahead of the federal election on 18 May. These include a survey by IHRA and AISSGA, and an Equality Australia survey on LGBTI issues with IHRA input.

Only Labor and the Greens responded to the IHRA/AISSGA survey. To include relevant Coalition statements in addition, the following responses are drawn from the Equality Australia survey, with permission.

How will your party develop policies and programs to meet the needs of LGBTIQ+ people and their families? Will you have a dedicated spokesperson, or Minister and branch or unit if elected to Government? Will you establish a community consultation mechanism such as advisory council? Will you establish a Commissioner for LGBTIQ+ people?

Will your party develop a whole-of-government LGBITQ+ social inclusion strategy that identifies and addresses the specific needs of different parts of the community?

Morrison government:

The Coalition legalised same-sex marriage in 2O17 to give effect to the wishes of the overwhelming majority of the Australian people to change the law to allow same-sex couples to marry.
The Morrison Government will continue to consult with the LGBTIQ+ organisations across the broad range of policy issues affecting LGBTIQ+ Australians within our existing frameworks. Government funding for community bodies, including LGBTIQ+ stakeholders, are subject to normal competitive grants processes.

lssues facing the LGBTIQ+ community are handled across government according to Ministerial responsibilities and administrative arrangements. lssues relating to LGBTIQ+ equality generally fall within the Attorney-General’s portfolio.

The Attorney-General is responsible for the Australian Human Rights Commission which is the nation’s independent human rights body and is tasked with identifying and building awareness around human rights issues faced by lesbian, gay, bisexual, trans and intersex people. ln 2O14, the Coalition appointed a full time Human Rights Commissioner, Tim Wilson, who was a strong advocate for the LGBTIQ+ community. When Tim was elected as the member for Goldstein in the Australian Federal Parliament in 2016, Ed Santow, continued this role, seeking to find practical and long-term solutions to the human rights issues facing the LGBTIQ+ community in Australia, and building greater understanding and respect for human rights in the community.

lssues relating to LGBTIQ+ abuses within the Human Rights Council and other forums such as the Organisation for Security and Cooperation in Europe (eg. the imprisonment and alleged torture of LGBTIQ+ individuals in Chechnya) have been raised by the Foreign Minister.

Australian Labor Party:

In Opposition, Labor has appointed a Shadow Assistant Minister for Equality, a first for a major party in the nation’s Parliament. If Labor forms government, we will maintain this arrangement, to lead the development of policies and programs for LGBTIQ people and their families.

Labor believes the best way to promote the rights of LGBTIQ Australians and develop policies that recognise their needs is by listening to and consulting with LGBTIQ Australians.

That’s why Labor will establish an LGBTIQ Ministerial Advisory Council. Once a quarter, we will convene the council to have input into policy development on issues that affect the rights and lives of LGBTIQ Australians and their families.

A Shorten Labor Government will also make history by appointing Australia’s first full time LGBTIQ Human Rights Commissioner to advocate for and advance the rights of LGBTIQ Australians.

The Commissioner will be located within Australian Human Rights Commission to work across government for the removal of discrimination and structural impediments to full participation in society for LGBTIQ Australians.

A Shorten Labor Government will work collaboratively with the LGBTIQ community to develop a National LGBTIQ Health and Inclusion Strategy.

Australian Greens:

Too often, LGBTIQ+ communities are shut out of decisions that affect them. LGBTIQ+ issues need to be heard at the highest levels of government and implemented across portfolios. That’s why the Greens would create an LGBTIQ+ Ministerial Advisory Group. This Group will sit within the Department of Prime Minister and Cabinet, and will provide strategic advice to ministers and ensure decisions affecting LGBTIQ+ communities are made only after meaningful consultation. The work of the group will be supported by working groups that will ensure a whole of government approach and diverse representation for LGBTIQ+ communities. The group will lead on the creation of a whole of government LGBTIQ+ strategy and will be resourced with public service secretariat support.

The Greens would also establish a Minister for Equality, which will ensure that issues affecting LGBTIQ+ communities are represented in cabinet. Having a minister responsible for LGBTIQ+ equality will raise the profile of the issues affecting LGBTIQ+ communities and will facilitate progress in the areas of legislative reform, community consultation and funding for LGBTIQ+ services and programs.

Finally the Greens would appoint an LGBTIQ+ Human Rights Commissioner. Appointing an LGBTIQ+ Human Rights Commissioner will ensure that LGBTIQ+ people are protected from discrimination on the basis of sex, sexuality, gender identity and intersex status. The LGBTIQ+ Human Rights Commissioner will work with communities and champion the rights of lesbian, gay, bisexual, intersex, trans and gender diverse Australians within the Government.

One of the core responsibilities of the Ministerial Advisory Group will be to work with the Department of Prime Minister and Cabinet to develop a whole-of-government plan to address the specific needs of different communities within the LGBTIQ+ rainbow.

This would be supported by appointing a Trans Advisory Board to the Department of Health and an Intersex Advisory Board with both the Department of Health and the Attorney General’s Department.

It is vital that the government engage with and better understand the needs of transgender and gender diverse people and people with variations of sex characteristics.

Will your party end medically unnecessary surgery and medical treatment performed on infants, children and adolescents born with intersex variations? Will your party fund peer support, and personal and systemic advocacy for intersex people? Will your party support the development of standards of care and effective oversight of medical interventions with meaningful community participation?

Morrison government:

The Australian Human Rights Commissions is currently conducting an inquiry into medical interventions of children born with variations in sex characteristics, which will report later in 2019. The Morrison Government will respond after considering the report.

The substantive regulation of medical treatment is a matter for states and territories. The treatment of intersex infants and children is predominately within the scope of parental responsibility, with matters only progressing to the Family Court of Australia where the treatment is non-therapeutic and may result in sterilisation.

The Family Court of Australia has held that, in appropriate circumstances, young people with gender dysphoria can access medical treatment without involvement of the court.

Following decisions of the Family Court in Re: Kelvin and Re: Matthew, where there is agreement between the child, parents, and treating medical practitioners, young people can access treatment for gender affirmation without requiring court orders. The court noted advances in medical science and treatment for gender dysphoria, and the risks involved in undergoing, withholding or delaying treatment. Where there is controversy as to the proposed course of treatment, Family Court involvement will be required. The Government will continue to monitor this issue.

Note by IHRA: the Family court cases mentioned focus on medical treatment for transgender children, and not intersex children. Relevant cases from an intersex perspective include Re: Carla, Re: Kaitlin, and Re Sally. The practices described in the intersex-related cases have been condemned by UN Treaty Bodies and others.

Australian Labor Party:

Parents of intersex children can be pressured to hormonally or surgically intervene on their children if they don’t receive medically correct advice, information or support about how to parent an intersex child. Labor will ensure deferral of non-necessary medical intervention on infants and children with intersex variations until such time as the person concerned can give their informed consent. Labor commits to promote and support a human rights-based patient consent model for accessing lifetime medical treatments and procedures. Labor will prohibit modifications to sex characteristics undertaken for social rationales without informed consent and ensure intersex persons’ right not to undergo sex assignment treatment is respected.

Australian Greens:

No one’s body should be stigmatised, and the rights of people with variations of sex characteristics must be upheld. Intersex people have the right to bodily integrity, including personal consent to medical or surgical interventions.

The Greens will ensure that the rights of intersex people are protected in law by requiring fully informed personal consent before any deferrable medical interventions that alter sex characteristics can be performed.

We recognise the importance and benefits of affirmative peer support for people born with variations of sex characteristics and their families. Through the $70 million LGBTIQ+ grants program, the Greens will invest in intersex-led peer support organisations to run in-person and online peer support programs so that no intersex person or their families need to feel like they are alone.

One of the roles of the Intersex Advisory Boards within the Department of Health would be to support the development of standards of care and effective oversight of medical interventions with meaningful community participation. This would work in complement with the Greens’ plan to establish a national LGBTIQ+ health strategy.

Will your party commit to conducting a review of the Australian Government Guidelines on the Recognition of Sex and Gender across departments and agencies in consultation with trans, gender divers and intersex people? As part of this review, will your party ensure that intersex people are no longer treated as a third sex/gender and that medical evidence is no longer required for change of sex/gender?

Morrison government:

The Coalition commenced an evaluation of the Guidelines in March 2017, which is currently ongoing. Updated guidelines should be available mid-2019, following careful consideration of a range of issues raised during the evaluation and following further targeted discussions with the LGBTIQ+ stakeholders. The evaluation has included informal discussions with intersex, transgender and non-binary clients of government services, consultations with LGBTIQ+ stakeholders, as well as a broad cross-section of public facing Australian Government agencies.

Australian Labor Party:

Labor will continually review documentation requirements to make sure they are inclusive of all Australians.

Australian Greens:

The Greens have been questioning and challenging the Department’s on both the design and implementation of the Australian Government Guidelines on the Recognition of Sex and Gender for the life of the 45th Parliament, particularly in relation to the treatment of intersex people as a third sex/gender and the status of trans and gender diverse changing gender or affirming a non-binary gender. Further work is clearly necessary, and part of the role of both the Ministerial Advisory Group and the Intersex Advisory Board within the Attorney General’s Department will be to ensure that the Guidelines on the Recognition of Sex and Gender are in line with global best practice and effectively address the needs and concerns of trans and gender diverse people and people with variations in sexual characteristics.

Survey responses and party statements

Morrison government:

Australian Labor Party:

Australian Greens:

Watch the virtual town hall meeting on Facebook
More details on the Equality Australia survey

People with Disability Australia election priorities

Commentary

Morgan Carpenter states:

We warmly welcome the acknowledgement by all parties of the need to address the distinct needs and concerns of intersex people. We are particularly grateful of the long engagement and strong statements by Labor and the Greens on the need to end deferrable surgeries on infants and children born with variations of sex characteristics where these take place without their consent.

We note the Coalition’s commitment to consideration of a forthcoming Australian Human Rights Commission report on these issues. However, we are troubled the Coalition statement that refers to transgender Family Court cases and to gender dysphoria, and not to intersex-related cases like Re: Carla, Re: Kaitlin and Re: Lesley. Those intersex-related cases raise concerns about unwanted forced hormone treatment, and genital surgeries on a 3-year old described by a judge as having “enhanced the appearance of her female genitalia”. In noting this, we express our sadness that transgender people are currently the subject of politically-motivated attacks by some media outlets. In this context, an erroneous conflation of intersex and transgender issues offers an explanation for inaction on human rights violations.

Acknowledgments

We thank the representatives of political parties, Equality Australia, the AISSGA and the National LGBTI Health Alliance for their warm and welcome collaboration and discussions on these surveys and town hall event.

This post will be updated as more information is published.

Previous federal elections

IHRA collaborated with other organisations to survey major parties in previous elections:
2016 federal election
2013 federal election