Update: In June 2020, the Tasmanian Law Reform Institute published its final report from this inquiry. You can find a copy here.
In terms of its review of the Tasmanian Parliament’s ground-breaking 2019 birth certificate reforms, it found that:
“The Final Report concludes that the changes made by the Justice and Related Legislation (Marriage and Gender Amendments) Act 2019 (Tas) achieve the objective of reducing discrimination and trauma experienced by intersex and gender diverse Tasmanians by making it easier to obtain identification documents that accords with their gender identity… The Final Report further concludes that the new laws are generally consistent with best practice international human rights approaches and approaches being considered in other Australian jurisdictions.”
That is both a welcome finding by itself, and confirmation other states and territories should be looking to the Tasmanian legislation as a ‘best practice’ approach on which to base their own laws.
In terms of medical interventions on children born with intersex variations of sex characteristics, the “Report makes a number of recommendations intended to eliminate the practice of non- consensual surgical interventions and to enshrine existing legal principles regarding the capacity of children to consent, or not consent, to medical treatment.”
Recommendation 7 in particular stated that:
The Criminal Code should be reformed to criminalise non- consensual medical interventions in the following terms:
178F Unnecessary medical intervention to change the sex characteristics of children.
(1) Any person who performs a surgical, hormonal, or other medical intervention to alter or modify the sex characteristics of a child is guilty of a crime, unless:
(a) it is performed to address a clear danger to the life or health of the child and it cannot be deferred until the child is able to give informed consent; or
(b) it takes place with the informed consent of the child.
(2) Nothing in this Section is intended to apply to interventions involving a consenting transgender child seeking treatment to delay puberty or secondary sexual differentiation.
Charge: Performing unnecessary medical intervention to change the sex characteristics of a non-consenting child.
Once again this is a welcome development. It is now up to the Tasmanian Government to implement these reforms as quickly as possible (although obviously in consultation with intersex advocates and organisations like Intersex Human Rights Australia) and hopefully start the process of ending this significant human rights abuse.
Original post: The Tasmanian Law Reform Institute is currently conducting an inquiry into matters arising from the passage of trans and gender diverse birth certificate reforms earlier this year, as well as issues relating to coercive surgeries and other medical treatments on children born with variations of sex characteristics.
The following is my personal submission, focusing on the latter topic. Submissions are due Tuesday 20 August, and you can find more details here.
Submission to Tasmanian Law Reform Institute Inquiry into Legal Recognition of Sex and Gender
Tasmanian law Reform Institute
Private Bag 89
Hobart, TAS 7001
Wednesday 14 August 2019
To whom it may concern
Submission re Inquiry into Legal Recognition of Sex and Gender
Thank you for the opportunity to provide a submission to this important inquiry.
I make this submission as a long-term advocate for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community and, particularly for the purposes of this inquiry, as an ally to intersex Australians.
In this submission I will respond, generally, to those questions (5 through 9) that are focussed on the question of coercive surgeries and other medical treatments on children born with variations of sex characteristics.
These invasive and involuntary medical interventions, which continue in Australia today, are one of the biggest human rights violations against any members of the LGBTI community.
Indeed, given the serious, lifelong consequences of these human rights violations, I believe addressing coercive surgeries and medical treatments on intersex children is one of the most important human rights issues in Australia. Period.
Which is why it is so disappointing that so little action has been taken since the ground-breaking 2013 Senate Inquiry into Involuntary or Coerced Sterilisation of Intersex People in Australia.[i]
Specifically, in the past six years, the Commonwealth Liberal-National Government has failed to make any progress whatsoever in ending these unjustified and unacceptable practices.
In this context, I obviously welcome the additional focus on this issue by the Tasmanian Law Reform Institute.
This includes asking relevant questions in terms of what should be done to address this problem, especially in question 5 (which includes consideration of court approvals, legislative prohibitions with possible criminal penalties, independent advocates, independent counselling and advice, and specialist tribunals).
However, I also note that the same issues are being considered, at the moment, by the Australian Human Rights Commission (AHRC) as part of its own investigation of this topic. [ii]
This has included a public consultation process from July to September 2018,[iii] and ongoing involvement of and consultation with intersex people.
I understand that this investigation is expected to conclude by the end of 2019, with a report and recommendations for how these human rights violations should be addressed nation-wide.
The AHRC is relevant to this submission in three main ways.
First, I reiterate the five recommendations made to that investigation, including:
Recommendation 1. Australian Governments must introduce legislation to prohibit deferrable medical interventions, including surgical and medical interventions, that alter the sex characteristics of infants and children without personal consent, including penalties for breaching such laws.
Recommendation 2. Individuals who are asked to provide consent to necessary, non-deferrable medical interventions must have access to counselling and peer support, including from intersex people and intersex-led community organisations.
Recommendation 3. Australian governments must explicitly prohibit the ability of parents and guardians to provide consent to modifications to the sex characteristics of children born with variations of sex characteristics on the basis of social or cultural rationales.
Recommendation 4. That a new independent oversight body be created to review necessary, non-deferrable, therapeutic medical interventions on children born with variations of sex characteristics, comprising clinicians, human rights experts, child advocates and intersex-led community organisations.
Recommendation 5. That Commonwealth, state and territory governments provide ongoing funding to intersex-led community organisations, for the purposes of:
- Peer support of individuals and families to inform decision-making about medical interventions
- Serving on the new independent oversight body that reviews medical interventions
- Broader peer support for all members of the intersex community, and
- Systemic advocacy for all people with variations of sex characteristics.
Second, I express my support for the submission made by Intersex Human Rights Australia (IHRA) to the AHRC investigation[iv] (a submission that was also endorsed by the AIS Support Group Australia, Disabled People’s Organisations Australia, LGBTI Legal Service, and People with Disability Australia).
I note in particular that on page 66 of their submission, in response to the question ‘Should all non-emergency and/or deferrable medical interventions that alter a child’s sex characteristics, where the child does not have legal capacity to consent, be prohibited by law? If so, should this prohibition be civil or criminal?’ IHRA responded that:
We support the Darlington Statement’s call for criminal prohibitions of all non-deferrable medical interventions that alter a child’s sex characteristics [emphasis added].
I encourage the Tasmanian Law Reform Institute to adopt the IHRA submission as the primary foundation of its approach to these issues (and, wherever there are conflicts between my own recommendations and the position of IHRA, I defer to them on the basis that intersex people should have the right to self-determination as well as the right to bodily autonomy).
Third, given the ongoing AHRC investigation – covering largely the same issues as those featured in questions 5 through 9 of this inquiry – I encourage the Tasmanian Law Reform Institute to consider how it can work together with the Australian Human Rights Commission, and contribute to its efforts. This would potentially avoid any duplication in work (including duplication in the calls on intersex people to make multiple submissions on the same subject matter).
As indicated earlier, I welcome the focus provided by the Tasmanian Law Reform Institute to the issue of ongoing human rights violations against children born with variations of sex characteristics.
It is my sincere hope that the AHRC process, possibly with input from the Tasmanian Law Reform Institute, can make a series of practical recommendations to end coercive surgeries and other involuntary medical treatments on intersex children.
And that ultimately, the Commonwealth Government, and all State and Territory Governments, work together to implement these recommendations as quickly as possible so that these human rights violations end once and for all.
Thank you for taking this submission into consideration. Please do not hesitate to contact me, at the details below, should you require further information.
[i] See the Final Report of that Senate Inquiry here and my personal submission to that inquiry here.
[ii] See the Australian Human Rights Commission website.
[iii] See my submission to that consultation here.
[iv] The IHRA submission to the AHRC investigation can be found here, and is attached with this submission.