Intersex Human Rights Australia

The Western Australian Parliament is currently debating a Births, Deaths and Marriages Bill that will make it easier for gender diverse people to change their sex or gender marker on birth registration documents. However, much of the debate makes erroneous assumptions about the implications of the bill for people with innate variations of sex characteristics. These show a form of decision-making on the basis of polite fictions, and not evidence.

Do intersex people need the Gender Recognition Board?

One Nation MP Ben Dawkins commented in the Legislative Council on 14 August that

“Let us be clear—this was raised in debate yesterday—that intersex people, people with chromosomal abnormalities and abnormalities relating to genitals, for example, require bodies such as the Gender Reassignment Board.”

We do not support this assertion, and nor do we welcome the language used. No reports published by the Gender Reassignment Board refer to people with innate variations of sex characteristics. No other jurisdiction in Australia has such a board.

Most people with innate variations of sex characteristics live in sex/gender observed/assigned at birth. Proposals in the Bill to simplify access to legal gender recognition will benefit some people with innate variations of sex characteristics (intersex variations/differences of sex development) who need to change sex/gender marker, and we support this.

How are people with innate variations of sex characteristics registered at birth?

Labor MP the Hon. Matthew Swinbourn spoke for the WA Government on 15 August in response to comments by Liberal MP Tjorn Sibma. He commented that:

“Hon Tjorn Sibma also expressed concern that there was a lack of clarity regarding how intersex people will be treated under this bill. The birth registration process currently enables children who are born with variations of sex characteristics to be registered as indeterminate, intersex or unspecified, should the family wish to pursue this option… The current process, outlined above, will therefore remain.”

This statement does not provide clarity. It is misleading because no live births in WA have been registered as “indeterminate, intersex or unspecified”. In line with our expectations, Attorney General John Quigley has confirmed to us that this classification has only ever been used by the WA Registrar to register stillbirths. The evidence that we have on stillbirths, published by the Australian Bureau of Statistics, is even more striking: in analysis by Dr Morgan Carpenter (2022) on the period 2016-2020, all stillbirths with identifiable innate variations of sex characteristics in Australia have been assigned female or male.

Our correspondence with the WA Government on this issue illustrates three concerns:

• Firstly, public statements by Mr Swinbourn and other parliamentarians continue to associate intersex people with a third category of sex, despite no relevant births being assigned to that category. The government is debating a policy in a way that misrepresents how people with innate variations of sex characteristics are actually treated. This does not do justice to our population.
• Ministers Cook and Quigley (2024) have previously proposed to introduce “indeterminate/intersex” in regulation as a sex/gender category. We don’t support the association of our heterogeneous population with any narrow, singular sex/gender category; people with innate variations of sex characteristics are too diverse. Comments by Mr Swinbourn suggest that our views on this have been heard, and we are grateful for this. We support access to a non-binary option for individuals that seek it.
• Thirdly, the nomenclature used by the WA Registrar is itself misleading as its refers to indeterminate and intersex, when no stillbirths with relevant traits are so classified. Registrars should change their nomenclature to align with actual practices.

Is existing judicial oversight of clinical practices meaningful?

Labor MP the Hon. Matthew Swinbourn spoke for the WA Government on 15 August:

“The Family Court of WA is considered to be the appropriate decision-maker due to its existing jurisdiction of approving medical procedures for intersex and trans and gender-diverse minors in circumstances in which a child is unable to give informed consent or when there is disagreement between the parents or guardians about the medical procedure. When reaching a decision, the Family Court may make the order that it is satisfied it is in the child’s best interests.”

This apparently refers to a statement of law. It reflects a legal possibility that has never been used: we are aware of no (zero) intersex-specific cases taken to the Family Court of WA. Current and former Health Ministers have, however, defended surgical interventions on children with innate variations of sex characteristics. Minister Sanderson (2024) has stated that they only occur due to “urgent clinical need to reduce the risk of malignancy and to ensure urinary tract functionality is preserved”. No evidence has been shared in support of this statement: we have no data on numbers and types of procedures.

Unfortunately cosmetic issues are also considered clinically-valid rationales for medical intervention on girls with innate variations of sex characteristics, and cultural norms that boys need to stand to urinate are used to justify medical intervention on boys with innate variations of sex characteristics. The former has long taken place outside the scope of the Family Courts and mention of it is omitted from the Minister’s remarks. The latter is explicitly labelled by many clinicians as a “functional” requirement of being a boy or man (McLennan 2021).

We know people with innate variations of sex characteristics who have had surgery in WA, without personal informed consent, that does not reflect their own values and preferences, and that has lifelong harmful physical and psychological effects.

Existing forms of judicial oversight are not working; a reference to an ability to use them is a polite fiction that provides no practical protections. The Australian Human Rights Commission (2021) has provided a way to provide genuine oversight. The Commission has called for legislative reform to protect the rights of people born with variations in sex characteristics in medical settings. So far the WA Government has not meaningfully engaged with its recommendations.

The current Gender Reassignment Act (2000) does something that used to be more widespread in Australia: in regulating the recognition of transgender people, it defined a “reassignment procedure” in a way that explicitly permits harmful practices on children with innate variations of sex characteristics, as including:

“in relation to a child, any such procedure (or combination of procedures) to correct or eliminate ambiguities in the child’s gender characteristics”.

This definition even exempts such procedures from a prohibition of female genital mutilation in the WA Criminal Code (306 section 1d).

The current bill will replace this wording but, until the WA Parliament legislates to end harmful practices in medical settings, the removal of this wording simply removes a form of evidence of such practices.

Assisted reproductive technologies

At the same time as these events take place, the WA Government is considering legislation that will facilitate access to assisted reproductive technologies by LGBTI people, but that will also eliminate the possibility of live births with innate variations of sex characteristics.

This arises out of acceptance of recommendations 5 and 15 of a report on assisted reproductive technologies. Recommendation 5 supports non-discriminatory access to treatment. Recommendation 15 is for the WA Government to adopt a foreign list of genetic traits as permissible to eliminate. The foreign (UK) list includes a wide range of innate variations of sex characteristics, including androgen insensitivity, congenital adrenal hyperplasia, 5 alpha reductase deficiency, and many more (Human Fertilisation & Embryology Authority 2024).

We do not support this. A foreign list should not be adopted into WA law. Australian work on gene selection for a national preconception screening program has been far more carefully considered (Kirk et al 2020). Crucially, this work has acknowledged the role of stigma in constructing intersex traits as suitable for elimination.

Our submission addressed these issues, but they have not been taken into account.

We believe that polite fictions make it harder to construct policies that actually benefit our population.

Notes

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.

Carpenter, Morgan. 2022. ‘Ambivalent Attention and Indeterminate Outcomes: Constructing Intersex and DSD in Australian Data’. University of Huddersfield. http://www.intersexnew.co.uk/wp-content/uploads/2023/04/Morgan-Carpenter-MNC-publication-version-aihw-paper.pdf.

Cook, Roger, and John Quigley. 2024. ‘Reforms to Remove Barriers for LGBTQIA+ Community | Western Australian Government’. 16 April 2024. https://www.wa.gov.au/government/media-statements/Cook-Labor-Government/Reforms-to-remove-barriers-for-LGBTQIA%2B-community–20240416.

Government of Western Australia. 2023. ‘MEP on ART and Surrogacy – Government Response to MEP Report Recommendations’. https://www.health.wa.gov.au/Articles/N_R/New-assisted-reproductive-technology-and-surrogacy-legislation-for-WA.

Human Fertilisation & Embryology Authority. 2024. ‘PGT-M Full Approved Conditions List’. https://www.hfea.gov.uk/media/hpvbff41/2024-04-25-pgt-m-full-approved-condition-list.xlsx.

Intersex Human Rights Australia. 2022. ‘Submission on “Contemporary Assisted Reproductive Technology and Surrogacy Legislation for Western Australia: Public Discussion Paper on Behalf of the Ministerial Expert Panel”’. Intersex Human Rights Australia. https://ihra.org.au/40020/assisted-reproductive-technologies-wa/.

Kirk, Edwin P., Royston Ong, Kirsten Boggs, Tristan Hardy, Sarah Righetti, Ben Kamien, Tony Roscioli, et al. 2020. ‘Gene Selection for the Australian Reproductive Genetic Carrier Screening Project (“Mackenzie’s Mission”)’. European Journal of Human Genetics, July. https://doi.org/10.1038/s41431-020-0685-x.

Legislative Council, Western Australia. ‘Parliamentary Debates: Legislative Council’. 14 August 2024.

Legislative Council, Western Australia. ‘Parliamentary Debates: Legislative Council’. 15 August 2024.

McLennan, April. 2021. ‘Advocates Push to Outlaw Gender Assignment Surgery on Intersex Children in Tasmania’. 14 March 2021. https://www.abc.net.au/news/2021-03-14/push-to-outlaw-gender-assignment-surgery-on-intersex-children/13234680.

Sanderson, Amber-Jade. 2024. ‘Health – Medical Interventions – Intersex Children’. Parliament of Western Australia.

Western Australia. Criminal Code Act Compilation Act 1913.

Western Australia. Gender Reassignment Act 2000.