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What is the issue

Intersex people, like other people, may be convicted of offences, or may be detained awaiting trial. People with observable variations in sex characteristics may face harassment and stigma in places of detention, and may be vulnerable to harm. Internationally, few published cases exist of intersex people in places of detention, but those that do exist are alarming in their depictions of harm and vulnerability.

Amongst these, in the case of Richard Muasya v. the Hon. Attorney General, High Court of Kenya (2 December 2010), an intersex man who had suffered lifelong exclusion and stigma due to a lack of a birth certificate was convicted of armed robbery with violence. He was subjected to invasive body searches, abuse and stigmatisation (ICJ undated). The Kenyan High Court found that unnecessary searches were cruel and “brought ridicule and contempt”, they were “motivated by an element of sadism and mischievous curiosity” (ICJ undated).

Prison systems are disproportionally populated by stigmatised minorities, including racialised and disabled minorities. Historically, places of detention have also provided convenience samples for clinical research. This has resulted in consequential ascertainment bias leading to an association between sex chromosome variations (such as 47,XXY) and criminality (see, for example, Bartholomew 1972). Nevertheless, experiences of stigma, developmental delays, undiagnosed cognitive issues and related poverty may adversely impact the life experience of some 47,XXY people (Stochholm and others 2012). Poorly-informed or poorly-supported treatment with sex hormones may also have an adverse impact (Palma and others 2018). These issues are indicative of a lack of appropriate supports to enable people with XXY to flourish.

Many press reports involving intersex people brought before the courts appear salacious and likely to provoke ridicule and contempt, including reporting in Australia (Fewster 2014; Fewster 2016).

Many jurisdictions have introduced policies in relation to intersex people in detention within the context of policies in relation to transgender people. However, these have significant limitations. Policy frameworks predicated on experiences of gender transition or matters of identity and self-identification are not designed to be sufficiently aware of the needs of people with intersex variations who do not transition, or who use different language to terms associated with matters of identity. Nor do they acknowledge the circumstances of people who have no knowledge of their trait or a different self-conception about their body. Irrespective of an individual’s terminological preferences and awareness of their characteristics, individuals may still experience stigma, or otherwise be vulnerable to harm, due to their physical characteristics.

What do we know about the situation in Australia?

Unfortunately, in Australia as in many other jurisdictions, the prison system is disproportionately populated by people with significant disadvantage, including racialised populations, and people with mental health issues and other disabilities (Whitbourn 2018; Human Rights Watch 2018; Sharma and Human Rights Watch 2018).

Individuals in detention

We have observed criminal cases where the medicalisation of an intersex variation – and the reporting of this – means that a trait is not necessarily recognisable as an intersex variation, except to people with lived experience. In some cases, such reports have formed part of a defendant’s testimony. It is understandable that individuals may use their experience of their intersex variation and medical treatment in their defence, but this can have an adverse impact on individuals with that variation and their families.

Kathleen Worrall was convicted in 2010 of murdering her 18-year-old sister when she was aged 20. She died at age 22 in prison in NSW. Congenital adrenal hyperplasia was blamed in part for her actions. Worrall underwent multiple genital surgeries as a child, and also required lifelong medical treatment. Salacious press reporting included descriptions of a “hormonal rage”, “cocktail of drugs”, and detailed descriptions of personal physical characteristics and behaviours, some of them linked directly in reporting to non-compliance with medication (LIAC Library 2017; The Independent 2011).

Mark Errin Rust has been convicted as a serial sex murderer, and is currently in prison in South Australia. His sex chromosome variation, XXY or Klinefelter syndrome, was blamed. The standard treatment for men with XXY is provision of testosterone. Media reporting included unnecessary detail about his physical sex characteristics (Fewster 2014) and a statement about being “incapable of controlling his sexual instincts” (Fewster 2016).

Policies on detention

Currently Australian jurisdictions have inadequate policies in relation to intersex people in detention.

Multiple jurisdictions have created policy on intersex people in detention by adding the word intersex or the phrase ‘people born with variations in sex characteristics’ to policies on transgender people in detention. This is an inadequate and inappropriate response to the needs of intersex persons in detention settings. It reflects a lack of understanding of the population they are attempting to cover. Policy responses to detainees with disabilities are likely to have more utility, but the current situation facing people with disabilities in detention does not appear to serve this population well (Human Rights Watch 2018).

The situation in New South Wales is complicated by the application in a policy on transgender and intersex detainees of different standards for “recognised transgender persons” who have had a change in sex marker recognised by the State government and who “must be treated as a member of the sex recorded on their identification documents” (Justice and Corrective Services NSW 2017). This status cannot apply to intersex persons who have no desire to change sex marker assigned at birth.

In ACT, a new corrections policy refers to “people who identify as transgender and/or born with variations in sex characteristics” (ACT 2018), positing identification – likely self-identification – as the determinant for risk of vulnerability.

Our position

The prison system should not be seen as a legitimate response to psychological and minority distress, nor cognitive and psychosocial disabilities. Our position is set out in the 2017 Darlington Statement, an Australian – Aotearoa/New Zealand intersex community declaration, where:

33. We call for respect for the privacy, integrity, and security of our medical records.

38. We call for equitable access to social and welfare services for people with intersex variations. The needs of people with intersex variations in aged care, home care, state care, and disability services require further investigation, with full and meaningful participation by intersex-led organisations.

51. We acknowledge that stigma is often the result of misconceptions about intersex which is compounded by a lack of education and awareness.

52. We recognise that the stigmatisation and pathologisation of people born with variations of sex characteristics hinders self-acceptance, access to community, help-seeking, and accessing of services including healthcare.

53. We acknowledge the impacts of stigma, trauma and unwanted medical interventions on access to education and on employment, and consequences that include high rates of early school leaving, poverty, self-harm and suicidality.

Principle 9 of the Yogyakarta Principles, “The Right to Treatment with Humanity while in Detention” states:

Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the human person. Sexual orientation and gender identity are integral to each person’s dignity.

The Yogyakarta Principles plus 10 interpolate the distinct ground of “sex characteristics” into the Yogyakarta Principles, and so Principle 9 should be interpreted to also include this ground.

Australia should abide by international treaty obligations in relation to all people with intersex variations in places of detention.

Article 5 of the Universal Declaration of Human Rights states that

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 11 of the Universal Declaration of Human Rights states that:

Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

These articles have relevance to situations where people born with intersex variations are, or are at risk of being, singled out for humiliation, harassment and stigmatisation because of their bodily characteristics.

It is our view that policies focused on identity are likely to be of limited relevance to people with particular embodiments that do not share those identities. On the other hand, policies designed to safely accommodate people with many different kinds of body are likely to benefit detainees with non-normative identities as well as detainees with intersex variations.

We recommend implementation by Australian governments of the recommendations of the 2018 Human Rights Watch report (Sharma and Human Rights Watch 2018).

Recommendations for policies on detention

Policies should:

  • Recognise the diversity of intersex people and intersex variations
  • Recognise specific issues affecting people with particular variations, for example, cognitive and health issues that may affect people with sex chromosome variations; health risks associated with salt wasting/adrenal insufficiency in congenital adrenal hyperplasia; potential experiences of forced and coercive medical interventions.
  • Respect the diversity of genders and identities of intersex persons, and the specific genders and identities of individual detainees.
  • Define policy and procedures relating to harassment and stigmatisation on grounds of sex characteristics and related bodily diversity.
  • Define procedures for strip searches, including appropriate selection by gender of person performing searches; and including provisions ensuring the privacy of the detainee.
  • Define policies and procedures in relation to detainee separation and isolation, including in transit; and defining mandatory timeframes for decision-making regarding initial placement location.
  • Define policies and procedures that ensure accommodation in gendered facilities appropriate for the detainee’s gender/sex of living.
  • Ensure access to sanitation facilities that maximise privacy.
  • Ensure access to medication and medical treatment.
  • Ensure privacy in relation to medical records, and information disclosure to non-medical staff. It should not be necessary to identify individuals born with variations of sex characteristics, particularly where such identification has no impact on institutional management.
  • Ensure staff training by individuals with lived experience.
  • Manage and mitigate risks of perceptions of “special treatment”.
  • Provide for effective oversight.

Policies should not:

  • Assume a difference between legal sex and gender presentation.
  • Assume an experience of gender transition.
  • Assume any particular identity or an experience of identification.
  • Assume comprehension or familiarity with particular words, including the word intersex.
  • Assume a person is aware of their complete medical history.
  • Assume staff can tell if a person has an intersex variation.
  • Conflate intersex with being gay, lesbian, bisexual, trans, gender diverse or being about gender identity or sexual orientation.

What have we done about this?

This is one of a series of briefing papers on discrimination, stigma and policy in specific settings:

We continually engage in evidence-building, including through supporting independent research. We engage with policy-makers and local, national, regional and international human rights institutions. We promote governmental and institutional responses to our findings, and we build community expertise through community gatherings and mentoring. Our primary focus is on protecting the bodily integrity of people born with variations of sex characteristics, but we have been drawn into a range of other policy areas, including detention, initially through the aggregation of intersex issues with LGBT issues.

We have sought to provide constructive feedback on policies in ACT, New South Wales, and Victoria.

Further reading

R v Worrall [2010] NSWSC 593 (4 June 2010)

Richard Muasya v. the Hon. Attorney General, High Court of Kenya (2 December 2010)

Australian Capital Territory. 2018. Corrections Management (Management of Transgender Detainees and Detainees Born with Variations in Sex Characteristics) Policy 2018 | Notifiable Instruments.

Bartholomew, Allen A. 1972. ‘Psychopathy, Sex Chromosome Abnormalities, and the Criminal Law’. The Adelaide Law Review 4 (2): 273–93.

Corrective Services Victoria. 2017. ‘2.4.1 Management of Prisoners Who Are Trans, Gender Diverse or Intersex’.

Fewster, Sean. 2014. ‘Mark Errin Rust, Who Murdered Megumi Suzuki and Maya Jackic, Will Ask SA Supreme Court to Grant Him a Non-Parole Period’. The Advertiser, 22 September 2014.

Fewster, Sean. 2016. ‘Serial Sex Predator, Murderer Mark Errin Rust Is Struggling in Prison without a Non-Parole Period, Court Told’. News.Com.Au, 22 November 2016.

Human Rights Watch. 2018. ‘Australia: Prisoners with Disabilities Neglected, Abused’. Human Rights Watch. 6 February 2018.

The Independent. 2011. ‘Tragedy of Kathleen Aged 20 Who Stabbed Her Sister Susan (18) to Death in Hormonal Rage’. Independent.Ie, 26 September 2011.

International Commission of Jurists. 2010. ‘Richard Muasya v. the Hon. Attorney General, High Court of Kenya (2 December 2010)’. International Commission of Jurists.

Judicial Commission of NSW. 2019. Equality before the Law Bench Book. 13th ed.

Justice and Corrective Services NSW. 2017. ‘3.8 Transgender and Intersex Inmates’.

Kerry, Stephen. 2011. ‘Representation of Intersex in News Media: The Case of Kathleen Worrall’. Journal of Gender Studies 20 (3): 263–77.

LIAC Library. 2017. ‘Research Guides: LIAC Crime Library: R v Worrall’. 21 September 2017.

Palma, J., P.-Y. Sarron, V. Camus, and W. El-Hage. 2018. ‘Klinefelter’syndrome: A predisposition to sexual crime?’ L’Encephale, September.

Sharma, Kriti, and Human Rights Watch. 2018. ‘I Needed Help, Instead I Was Punished’: Abuse and Neglect of Prisoners with Disabilities in Australia.

Stochholm, Kirstine, Anders Bojesen, Anne Skakkebæk Jensen, Svend Juul, and Claus Højbjerg Gravholt. 2012. ‘Criminality in Men with Klinefelter’s Syndrome and XYY Syndrome: A Cohort Study’. BMJ Open 2 (1): e000650.

United Nations. ‘Universal Declaration of Human Rights’.

Whitbourn, Michaela. 2017. ‘Mental Illness and Cognitive Disability the “norm” among Prisoners: Report’. The Sydney Morning Herald, 10 August 2017.

Yogyakarta Principles. 2007. The Yogyakarta Principles. Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity.

Yogyakarta Principles. 2017. The Yogyakarta Principles Plus 10: Additional Principles and State Obligations on the Application of International Human Rights Law in Relation to Sexual Orientation, Gender Identity, Gender Expression and Sex Characteristics, to Complement the Yogyakarta Principles.

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