We welcome the Tasmanian Law Reform Institute inquiry report

IHRA welcomes the report of the Tasmanian Law Reform Institute (TLRI) on “legal recognition of sex and gender”. In particular, we warmly welcome aspects of recommendations 7, 8 and 10, in relation to medical procedures on children with intersex variations, and recognition of the rights of the child. However, we are concerned at the detail.

Recommendation 7

The Criminal Code should be reformed to criminalise non-consensual medical interventions in the following terms:

178F Unnecessary medical intervention to change the sex characteristics of children.

(1) Any person who performs a surgical, hormonal or other medical intervention to alter or modify the sex characteristics of a child is guilty of a crime, unless:

(a) it is performed to address a clear danger to the life or health of the child and it cannot be deferred until the child is able to give informed consent; or

(b) it takes place with the informed consent of the child.

(2) Nothing in this Section is intended to apply to interventions involving a consenting transgender child seeking treatment to delay puberty or secondary sexual differentiation.

Charge: Performing unnecessary medical intervention to change the sex characteristics of a non-consenting child.

Recommendation 8

The TLRI recommends that intersex people should be able to pursue claims for compensation for personal trespass and breach of professional duty against doctors where medical interventions to alter intersex variations of sex characteristics have resulted in physical or mental harm, irrespective of any parental consent to the intervention at the time it was performed. Provision to this effect should be made in the Civil Liability Act 2002 (Tas).

The informed consent of the child on whom the intervention is performed should provide a defence in such cases. However, consent itself should not be a defence if the intervention was performed negligently and the child did not voluntarily assume the risk of such negligence.

The primary remedy should be compensatory damages for harm caused by any medical intervention to alter sex characteristics that did not satisfy the relevant factors.

Recommendation 9

The Tasmanian Government enact a Consent to Medical Treatment Act that covers the field with respect to children’s consent to medical care. The TLRI recommends that this Act should enable a child of 16 years or older to obtain medical treatment and undergo surgical procedures when they consent to treatment and surgical procedures.

For children under 16, the TLRI recommends that Gillick competence be enshrined in this Act. The South Australian Consent to Medical Treatment and Palliative Care Act 1995 may provide useful guidance in this regard.

The TLRI does not recommend that counselling be a mandatory precondition to children receiving medical treatment or undergoing surgical procedures.

Recommendation 10

The Government give consideration to including in the Consent to Medical Treatment Act proposed in Recommendation 9 all the reforms recommended in Part 3 of this Report. The Act would be comprehensive in providing the entire legal framework for surgical intervention to alter the sex characteristics of children.

These recognise the harm caused by forced and coercive medical interventions on children to make their sex characteristics more typically female or male, and they respond to the Darlington Statement, the Yogyakarta Principles plus 10, and submissions and materials supplied by IHRA and other organisations.

However, in relation to recommendation 7, we are unable to support the exception for trans children accessing puberty blockers. The premise for this excemption seems to be a misconception that a prohibition of deferrable irreversible medical interventions without personal consent will impact access to puberty blockers. Properly used, puberty blockers are not irreversible, and some non-transgender children with intersex variations need access to the same medical interventions. A failure to understand this reflects an inadequate understanding of the information we put to the Institute.

In line with the Darlington Statement and the Malta Declaration, we do not support recommendation 3, which proposes to register some children with intersex variations in a discriminatory way:

Recommendation 3

The TLRI recommends that an additional birth registration option, ‘Unspecified’, be available to allow parents who, after 120 days, are not in a position to nominate the sex of their child as either male or female.

In our discussions with the TLRI, we note that, while a small proportion of parents have chosen no sex/gender marker for their infant on their child’s birth certificate, all births are reported as female or male to the Tasmanian Registry of births, deaths and marriages, prompting this recommendation. However, the evidence in other jurisdictions including the ACT and Germany is that parents avoid such registration, hence the need for recommendations 7 and 8.

Morgan Carpenter comments:

Despite our reservations about recommendation 7, the recommendations in this report on the treatment of children with intersex variations represent a major step forward, in calling for concrete legislative reform. We hope these recommendations will not be overshadowed in discussion about the report.

We note in the report that the Tasmanian DPP did not support criminalisation, stating that precedent setting 2015 Maltese legislation was “inconsistent” with the State’s Criminal Code, and presupposed “existence of a multidisciplinary team formed to address surgery on intersex people. No such team is mandated under Tasmanian legislation.” This represents a mistaken understanding of the 2015 Maltese legislation. The oversight teams established and not presupposed in that legislation were not clinical multidisciplinary teams. The DPP comments also highlight that clinical services in Tasmania do not even meet clinical standards, let alone human rights norms.

We are particularly shocked by comments by Women Speak Tasmania, which employed a narrow definition of intersex and supported surgeries on children with intersex variations. For a feminist organisation to support medical interventions of the type seen in the Family Court case Re: Carla, where a male judge described surgeries on a young child as having “enhanced the appearance of her female genitalia” is abhorrent.

Tony Briffa comments:

I am encouraged by the recommendations of the Tasmanian Law Reform Institute on particular matters relating to the protection of the human rights of intersex children, and encourage the Tasmanian Attorney General to accept and adopt these recommendations promptly. I also encourage other Australian Attorneys General to note these recommendations and introduce similar protections in their jurisdictions.

We’ve seen good recommendations about intersex human rights in Australia before, but we need them backed up with legislation. Perhaps Tasmania will be the first state in Australia to finally protect intersex children from harm.

Simone-lisa Anderson states:

As the Tasmanian Representative of IPSA, I believe this report and its recommendations are the beginning to some remarkable changes that will benefit many of the community that I support, especially those that are yet to have a voice or control over their futures.

I encourage all the State MPs to support the above recommendations and implement the legislation reform so any unnecessary and non-consensual medical interventions on infants and children with variations in their sex characteristics cease.

More information

Read the Tasmanian Law Reform Institute report (PDF)

Our submission to the TLRI

Our statement at the establishment of the Inquiry

Our comment on Re: Carla