Towards a model bill to eliminate harmful practices affecting sex characteristics in medical settings

In February this year, Intersex Human Rights Australia commenced work to develop a model bill to provide protections from forced or coercive medical interventions to modify sex characteristics. This work occurs in response to a number of developments:

  • Leadership, research and analysis by intersex-led organisation on the human rights of intersex people, including ascertainment of evidence on continuing harmful practices in medical settings.
  • Lack of action to that date by Australian governments to implement the recommendations of the 2013 Senate Community Affairs References Committee report on the involuntary or coerced sterilisation of intersex people.
  • Publication in 2017 of the Darlington Statement, a community consensus statement, and the Yogyakarta Principles plus 10 on the application of human rights law in relation to sex characteristics and other attributes.
  • UN Treaty Body recommendations to Australia, calling for explicit legal protections from harmful practices.
  • The commencement of work at the end of 2020/early 2021 by two Australian governments – the ACT and Victoria – to consider reform proposals. Both governments have now made a public commitment to reform.

Some of the key goals of the model bill work are to:

  • Construct an independent ideal model bill that can help us to evaluate State/Territory proposals.
  • Develop community and organisational expertise on key issues associated with legal reform.
  • Facilitate conversations and enable learning between jurisdictions and siloed reform processes in different jurisdictions.

This work is some of the most important and complex that IHRA is undertaking. Within IHRA, this work is being led by Morgan Carpenter and Aileen Kennedy. IHRA is grateful for the generous pro bono assistance of Gilbert + Tobin in advising on the legal aspects of the model bill.

In this process, we have identified six key issues and questions that help to define the content and focus of a bill:

  1. The potential for any reform to have adverse or beneficial impacts on endosex (non-intersex) populations, and unexpected impacts on people with intersex variations. This may mean that the scope can be broad, reflecting universal human rights principles, or it may have to be narrow in response to concerns by other overlapping groups.
  2. These concerns about unexpected consequences also lead IHRA to narrow the scope of the proposed legislation to surgical procedures, and feminising or masculinising hormonal interventions. In consultation, we know that dilation is another procedure that should be included. Are these appropriate? This restriction on scope means that puberty blockers are not proposed to be regulated.
  3. Emergency and certain other procedures need to be exempted from a prohibition or from regulation. How can this be effective, not too broad and not too narrow?
  4. Even if the bill adopts a universalist approach, we are still likely to need to define the population of people with innate variations of sex characteristics. As with many other terms, this raises questions about accuracy and contestability.
  5. The potential for non-coercive supported decision-making to give effective voice to individuals affected by medical interventions. A move towards supported decision- making in place of substitute decision-making is long sought by the disability movement. This approach reflects principles that we value on the right to self- determination, but we need to address the circumstances of multiple different age groups.
  6. Consideration of ways to ensure transparency and accountability through an oversight body, to ensure the efficacy of a new approach to a long-neglected area of law. How can an oversight body affirm our preferred approach of supported decision-making? Should it have a decision-making role, and if so, on what? What procedures should it have oversight of? Who should be a member of the body? How will it function?

To help us do this work, we have convened multiple discussions and consultations with stakeholders, including within the intersex community, but also legal professionals, disability law experts and people and organisations that represent gender diverse people.

In our view, publication of these key questions is necessary now to help other stakeholders consider these questions. Our work on these issues will inform our responses to current consultations on reforms in Victoria and the ACT. IHRA will continue this work beyond consultation sessions on Victorian and ACT proposals, with the goal of achieving the best possible outcomes, and most effective protections, in law reform.