The Australian Capital Territory Government has released a consultation draft law to protect the rights of intersex people.
If approved, the bill would ban deferred medical interventions on children with intergenerational characteristics until they are old enough to decide on treatment themselves. There will be exceptions for emergency and urgently needed procedures. The bill would criminalize unnecessary medical interventions, and create an independent body to determine if other proposed procedures are urgently needed.
After the consultation period, a bill is likely to be tabled in the ACT parliament later this year. The ACT is the first Australian jurisdiction to continue with such laws. It complies with long-standing community demands and recommendations by the Australian Human Rights Commission.
So far, only a handful of jurisdictions such as Malta, Portugal, Germany and Iceland have implemented similar reforms, making the ACT a world leader.
What are intersex characteristics?
Congenital variations of gender characteristics include a wide range of traits that influence chromosomes, sexual anatomy, or hormones. They are also referred to as “intersex” characteristics or “differences in gender development”. These include, for example, people born with both testicular and ovarian tissue, and people born with atypical genitals.
Because these traits are stigmatized, children with intergenerational traits are at risk of medical interventions in early childhood.
In some situations, the presence of a visible intersex trait at birth can raise questions about sex assignment. In these situations, some Australian doctors consider surgical options as an acceptable factor in determining sex assignment. This assumes that sex assignment for children with visible intersex characteristics should always be enhanced by early irreversible operations. In countries like Australia it often leads to female assignment, making it easier to build female-typical anatomy than male-typical anatomy.
Early surgeries are aimed at altering appearance or function in accordance with social and cultural norms for female and male bodies.
For example, in Australia, girls with intersex characteristics were subjected to cosmetic surgery to improve the “appearance” of their genitals.
Baby boys can undergo surgery to ensure that they can urinate “appropriately” – that is, while standing.
Read more: Intersex children in New Zealand regularly undergo unnecessary surgeries – this must change
Sterilizing surgeries were performed to strengthen gender assigned or observed at birth, and gender identity. For example, in one case, the sterilization of a preschool child was justified by reference to her long, blonde hair and enjoyment of Barbie toys, and previous surgery that, according to the judge, “improved the appearance of her female genitals.”
Some surgeries are performed in the belief that it can improve parent-child bonding, produce certainty about future identity, or reduce stigma risks.
There is poor evidence for such medical interventions, and they are often based on gender stereotypes.
They are also poor substitutes for psychological and social support.
Early surgery can cause lifelong damage, including impaired sexual function and sensation, shame, and a need for ongoing interventions or treatment.
Until now, the law was complicit in supporting early interventions before a child was old enough to express their own preferences.
Build on a long history
The intersex movement has been challenging such interventions for decades, both in Australia and internationally. This has won allies and increasing recognition of human rights institutions.
The ACT government has made a commitment to reform in 2019. It builds on a 2017 intersex community statement known as the Darlington Statement.
It also responds to a 2013 Senate committee report, statements to Australia by UN treaty bodies and international norms expressed in the Yogyakarta principles plus 10.
It implements recommendations of a Landmark 2021 report by the Australian Human Rights Commission on promoting health and physical integrity for people born with variations in gender characteristics.
Dr. Phoebe Hart, Author provided
If the law succeeds, families and their clinical teams will be able to develop individual treatment plans for their children, or rely on general treatment plans.
General treatment plans are intended to facilitate access to low-risk treatments, or treatments that preserve options for the future. An example could be surgery for undetermined testes, to move testes into the scrotum to help preserve future fertility.
All treatment plans will be evaluated by a panel of experts in medicine, ethics, human rights, psychological and social support, people with intergenerational characteristics and parents of children with intergenerational characteristics. It is intended to provide accountability and transparency while protecting the privacy of people undergoing treatment.
The laws will, for the first time in the ACT, provide a detailed definition of “consent to treatment”. In line with the Convention on the Rights of Persons with Disabilities, it represents a major shift towards assisted decision-making, rather than substitute decision-making where parents or carers make decisions about treatment.
Supported decision-making processes respect that we all need information, resources and support to make informed decisions for ourselves. Some people, including the youth, may need access to additional support to work through such information to make a balanced and authentic decision.
The reforms were developed through consultation with community as well as clinical, ethics, human rights and legal experts. They are part of a package that is also aimed at improving access to peer support for individuals and families.
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Where to next?
The Victorian government committed itself to similar reforms. The Government of New South Wales has recognized a need to respond to these developments in its first LGBTI health strategy.
All Australian jurisdictions must be involved in legislative reform programs.
The federal government must proactively support these reforms and ensure national consistency. It must act to improve information and peer support access for parents and individuals. State and territorial reforms must be supported by changes to pediatric Medicare codes, and support for the development of national standards of care that affirm human rights.
More can also be achieved through the meaningful inclusion of accurate information on intersex characteristics in schools to reduce stigma and promote better understanding among youth and future parents.
