Intersex people and the federal election 2022

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In this post, we present statements by the main federal political parties on or relating to people with intersex variations.

Election forum

We joined with our friends in Equality Australia, LGBTIQ+ Health Australia and AFAO to hold an election forum on 5 May. Hosted by Patricia Karvelas and held with Senators Penny Wong, Janet Rice and Andrew Bragg, the event discussed a range of issues that matter to people with intersex variations and LGBTQ people this election. We collaborated on a briefing paper supplied to all participants in the event. Not all participants read it.

IHRA vice-chair Dr Alice de Jonge asked a question for us. Here’s a proof-edited transcript:

59:16 Dr Alice de Jonge:

My name's Alice and I'm from the board of Intersex Human Rights Australia. I was 13 when I was diagnosed with an intersex condition but many Australians born with innate variations of sex characteristics are subjected to so-called normalizing medical interventions surgical and medical without their personal consent at a much earlier age. What will your government do to prevent such unnecessary procedures and support intersex Australians and their families [Applause]

1:00:04 Patricia Karvelas:

So Senator Rice, you can take that one. Do you think that there needs to be legislation?

1:00 Senator Janet Rice:

Absolutely there needs to be national legislation to make sure that surgery without consent is not undertaken for these so-called normalizing procedures there's been a massive amount of work done by the intersex organizations particularly the Intersex Human Rights association and intersex advocates across the country a number of years ago prepared the Darlington Statement which outlines everything that needs to occur. In our platform we are committed to, we would spend 132 million dollars over the next four years to implement the Darlington Statement which would basically work through funding for the for the public service working to get that nationally consistent legislative approach up, three million dollars a year for additional funding to better understand, support the needs of people with intersex variations, funding for the community organizations to support advocacy and peer support, and another four million dollars a year for additional funding for the education of health welfare and allied professionals in issues regarding people with intersex variations.

1:01:05 Patricia Karvelas:

Thank you. Senator Wong?

1:01:11 Senator Penny Wong:

We have a platform commitment in general terms about the [need?] to
support your intersex lead organizations to provide support to intersex persons and their families and to advocate on intersex issues ... we have ... funded ... and I announced tonight a consultation for the broader LGBTIQ+ community... I'll be frank, I'm not as familiar as Janet is with the work your community has done. It might be good to grab you afterwards because I would have thought some of the existing medical requirements around consent as they have been modernized over the years should at least ensure that people are not put in the position that you describe. So I'm trying to look at [what?] would you describe as having been pressured to behave in a certain way um or to to have certain um health advice provided to you at an age of 13, so I would have thought that that should be dealt with, so I'm happy to talk to you afterwards.

1:02:34 Patricia Karvelas:

Senator Bragg it does seem like one of those issues that actually politicians are probably just not aware of enough. Do you think there needs to be some some reform and research in this area given that clearly the parliament's not up to date on it?

1:02:53 Senator Andrew Bragg:

There has been a[n Australian] Human Rights Commission inquiry that has looked at some of these matters and that reported to the Attorney General at the end of last year, and that has recommended there'd be a a panel established to make uh to provide advice about how these judgments are made and so there's more more oversight and frankly integrity in how this is undertaken, and I will be raising this with the Attorney General if we are returning to government. We need to give a proper response to this you know within the first few months.

1:03:24 Patricia Karvelas:

Okay thank you very much. I think that's a pretty interesting answer actually.

Our briefing to participants utilised a one page briefing provided to the parties in February 2022.

Pre-election survey of political parties

We provided the following survey to the ALP, Greens and Liberal parties on 14 and 15 February 2022.

One page briefing

People with intersex variations have any of a range of traits affecting sex chromosomes, development of gonads, genitals, and/or other sex characteristics. Early surgical and hormonal interventions to modify the appearance and function of atypical sex characteristics remain routine in Australia. For example, a 2020 paper in the Australian Journal of General Practice, identifies ‘surgical options’ as a factor in determining ‘sex assignment’ in situations of doubt. Community organisations and human rights institutions have profound concern about historic and continuing medical practices and norms. In 2021, the Australian Human Rights Commission (AHRC) made 12 recommendations in a report, ‘Ensuring health and bodily integrity’. This report builds on recommendations of a 2013 Senate committee inquiry on the ‘Involuntary or coerced sterilisation of intersex people’. To date, the recommendations of neither report have been implemented.

Some early surgical interventions are necessary for physical health and well-being, but others are justified through appeals to gender stereotypes and medical eminence, and overly loose conceptions of medical necessity and therapeutic treatment that permit these as rationales for treatment (pages 44 and 74 of the AHRC report). There is no firm evidence base for current medical practices (pages 74 and 119 of the AHRC report). Doctors specialising in aspects of physical health have argued that psychosocial factors and mental health are appropriate reasons for early surgical intervention, but professional bodies of psychiatrists and psychologists have rejected these rationales (pages 78 and 81 of the AHRC report). The AMA has called on doctors to respect the bodily integrity of intersex people.

On the one hand, medicine still seeks to construct future heterosexual, cisgender adults out of people with intersex variations. On the other hand, social policy frequently assumes that to be intersex is to be queer or gender diverse. The reality is that the intersex population is exceptionally diverse. People with intersex variations have no shared experience of identity, but we do have shared experiences of stigma and marginalisation, and we have a shared experience of others determining who we should be without reference to individuals’ values and preferences. There are no Standards of Care because there is no medical consensus and limited evidence to support them. Nevertheless, the 2021 AHRC and 2013 Senate committee reports provide a firm basis for legislative reform, and associated oversight, treatment standards, and resourcing of peer and family support and advocacy.

Currently, less than a handful of individuals are funded to provide part-time peer and family support, and systemic advocacy in Australia, largely through foreign philanthropy. There is no helpline or independent psychological support for individuals, parents, and families.

Survey questions

      1. Should early surgical interventions to modify the appearance and function of atypical sex characteristics only occur when necessary for physical health and well-being?
      2. Are gender stereotypes a valid reason for early surgeries to modify the appearance of atypical sex characteristics, before individuals can freely express their own values and preferences?
      3. Is parental distress a valid ‘best interests’ justification for early surgeries to modify the appearance of atypical sex characteristics in an infant or child?
      4. Should the bodies of children with intersex variations be modified to fit gender stereotypes and social norms, or should society adjust to accept people with innate atypical sex characteristics?
      5. Existing Medicare codes (e.g., the feminising procedures itemised in 37845, 37848 and 35565) promote paediatric vaginoplasties and genitoplasties, while limiting access to genital procedures as adults. Should surgeries to modify the appearance or function of atypical sex characteristics be available at time when individuals are able to determine what kinds of treatment fit their needs and values?
      6. Individuals subjected to surgeries without personal informed consent frequently need lifelong medical services, including hormone replacement, and sometimes including psychological support and consequential surgeries. Should Medicare, PBS and public hospitals fund adult procedures and services?
      7. When someone has had an early surgical intervention to modify the appearance or function of their genitals and it was not something that they would have consented to (it was not in line with their own preferences or values), should they be entitled to redress?
      8. Currently, peer and family support for people with innate variations of sex characteristics is not funded, or presumed to be funded within programs for queer adults. Should peer and family support, including psychological support be funded?
      9. Should intersex-led organisations be funded by the Commonwealth to provide peer and family support?
      10. Should intersex-led organisations be funded by the Commonwealth to provide systemic and individual advocacy to families and persons with innate variations of sex characteristics?
      11. Should intersex-led organisations be funded by the Commonwealth to support collaborative research to help people with atypical sex characteristics to flourish?
      12. Should independent community services for people born with atypical sex characteristics and their families be funded by the Commonwealth?
      13. If someone observed female at birth is found to have an intersex variation in childhood, adolescence, or adulthood, is it acceptable to reassign them to a different sex category against their wishes? If so, under what circumstances?
      15. Should cisgender women (observed female at birth) be reassigned to a different sex category in sport?
      16. Does the Commonwealth have any role in ensuring nationally consistent healthcare, norms and standards, and resourcing for individuals with intersex variations and their families?
      17. Should affirmative information about intersex traits be included in school education curricula, in order to help reduce stigma and distress amongst youth, parents and prospective parents?
      18. Current medical curricula frequently omit material on intersex variations, or present intersex as a problem to be treated through early surgery. Should medical and allied health professionals be trained in ways that affirm the human rights of patients with innate variations of sex characteristics?
      19. Current anti-discrimination protections on grounds of ‘intersex status’ are based on a model of deficit and frequently misunderstood to refer to a population of people with a particular identity. Best practice, implemented in ACT, Victoria and, to a lesser extent, Tasmania, is to implement protections on grounds of ‘sex characteristics’. Will your party initiate or support an update to legislation in line with this best practice?
      20. No protections exist on grounds of intersex status or sex characteristics in the Fair Work Act. Will your party initiate or support legislative protections on grounds of sex characteristics?
      21. The 2020 ABS Standard for Sex, Gender, Variations of Sex Characteristics and Sexual Orientation importantly distinguishes variations of sex characteristics from sex and gender. Will your party support action to ensure data collection consistent with this Standard in all Commonwealth Departments and other settings?
      22. What does your party policy or platform say about the human rights and health of people with innate variations of sex characteristics?

 
References

The background note refers to the following reports with recommendations for action by Commonwealth and State and Territory governments:

Australian Human Rights Commission. 2021. Ensuring Health and Bodily Integrity: Towards a Human Rights Approach for People Born with Variations in Sex Characteristics. Sydney, Australia: Australian Human Rights Commission. https://humanrights.gov.au/intersex-report-2021.

Senate of Australia Community Affairs References Committee. 2013. Involuntary or Coerced Sterilisation of Intersex People in Australia. http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/Involuntary_Sterilisation/Sec_Report/index.

Read the responses and party platforms

At time of posting, we have received responses from the Greens and Labor Party. While we have endeavoured to obtain concrete responses to our questions from all parties, we have not received a response from the Liberal Party, and the Labor Party response only gives general statements largely applicable to LGBT people.

Media stories on transgender people

While media attention to news stories on transgender women in sport, and on “gender reassignment” surgeries have sought to respond to attempts to politicise participation of transgender people in society, some of these issues also impact on people with intersex variations.

Cisgender women athletes with intersex variations have been discussed in news reports as if they are transgender, for example, in 10 News reporting. This is irresponsible and inaccurate reporting that, as is evident in the election forum, adversely impacts comprehension of intersex people and our health and human rights concerns.

In May, the Prime Minister commented that gender diverse children are undergoing surgery. Some news reports have suggested, in response, that no children undergo “gender reassignment” surgeries.

Such reporting is also an example of media reporting that makes issues affecting people with intersex variations incomprehensible.

In fact, the Gender Reassignment Act 2000 (Western Australia) defines “reassignment procedures” to mean procedures that “alter the genitals and other gender characteristics of a person” including “in relation to a child, any such procedure (or combination of procedures) to correct or eliminate ambiguities in the child’s gender characteristics”. In the same jurisdiction, the Criminal Code Amendment Act 2004 prohibits female genital mutilation with an exemption for “reassignment procedures” within the meaning of the Gender Reassignment Act 2000.

These provisions are mirrored in most jurisdictions, reflecting nationally consistent model law to prohibit female genital mutilation. These provisions facilitate harmful practices on children with intersex variations.

Our position is described in Principle 32 of the Yogyakarta Principles plus 10:

Everyone has the right to bodily and mental integrity, autonomy and self-determination irrespective of sexual orientation, gender identity, gender expression or sex characteristics. Everyone has the right to be free from torture and cruel, inhuman and degrading treatment or punishment on the basis of sexual orientation, gender identity, gender expression and sex characteristics. No one shall be subjected to invasive or irreversible medical procedures that modify sex characteristics without their free, prior and informed consent, unless necessary to avoid serious, urgent and irreparable harm to the concerned person.

We have made submissions on these issues repeatedly since at least 2013:

  • Our June 2013 submission to the Senate inquiry on the involuntary or coerced sterilisation of people with disabilities in Australia, on female genital mutilation
  • These include submissions to the Law Reform Commission of Western Australia (our submission of October 2021) and written on multiple occasions to WA Health Ministers regarding legislation and practices in that jurisdiction
  • Legislative and regulatory reforms to respect, protect and fulfil the human rights of people with intersex variations in medical settings are on the agenda in the ACT and Victoria