Intersex rights in Australia

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Intersex rights in Australia
Australia (orthographic projection).svg
Protection of physical integrity and bodily autonomy No
Reparations No
Protection from discrimination Federal, some States
Access to identification documents Yes
Access to same rights as other men and women No
Changing M/F sex classifications Yes
Third gender or sex classifications Yes
MarriageYes

Intersex rights in Australia are protections and rights afforded to intersex people through statutes, regulations, and international human rights treaties, including through the Sex Discrimination Act 1984 (Cth) which makes it unlawful to discriminate against a person based upon that person's intersex status in contexts such as work, education, provision of services, and accommodation. [1]

Intersex Innate variations in sex characteristics such that individuals differ from norms for male or female bodies

Intersex people are individuals born with any of several variations in sex characteristics including chromosomes, gonads, sex hormones, or genitals that, according to the UN Office of the High Commissioner for Human Rights, "do not fit the typical definitions for male or female bodies". Such variations may involve genital ambiguity, and combinations of chromosomal genotype and sexual phenotype other than XY-male and XX-female.

Sex Discrimination Act 1984 Act of the Parliament of Australia, currently registered as C2017C00383

The Sex Discrimination Act 1984 is an Act of the Parliament of Australia which prohibits discrimination on the basis of sex, marital or relationship status, actual or potential pregnancy, sexual orientation, gender identity, intersex status or breastfeeding in a range of areas of public life. These areas include work, accommodation, education, the provision of goods, facilities and services, the activities of clubs and the administration of Commonwealth laws and programs. The Australian Human Rights Commission investigates alleged breaches of the Act. The office of Sex Discrimination Commissioner, created in 1984 alongside the Act, is a specialist commissioner within the AHRC.

Contents

Australia was the first country to conduct a parliamentary inquiry into involuntary or coerced medical interventions on intersex people. A 2016 Family Court case authorising a gonadectomy and consequential surgery on a young child [2] has attracted public commentary for disclosing those medical interventions, their rationales, and a prior clitorectomy and labiaplasty. [3] [4] [5]

Family Court of Australia Australian federal court dealing with with family law matters

The Family Court of Australia is a superior Australian federal court of record which deals with family law matters, such as divorce applications, parenting disputes, and the division of wealth when a couple separate. Together with the Federal Circuit Court of Australia, it covers family law matters in all states and territories of Australia except for Western Australia. Its core function is to determine cases with the most complex law, facts and parties, to cover specialised areas in family law, and to provide national coverage as the national appellate court for family law matters.

Labiaplasty

Labiaplasty is a plastic surgery procedure for altering the labia minora and the labia majora, the folds of skin surrounding the human vulva. There are two main categories of women seeking cosmetic genital surgery: those with congenital conditions such as intersex, and those with no underlying condition who experience physical discomfort or wish to alter the appearance of their genitals because they believe they do not fall within a normal range.

In March 2017, Australian and New Zealand community organizations issued a joint call for legal reform, including the criminalization of deferrable intersex medical interventions on children, an end to legal classification of sex, and improved access to peer support. [6]

Intersex rights in New Zealand

Intersex rights in New Zealand are protections and rights afforded to intersex people. Protection from discrimination is implied by the Human Rights Act and the Bill of Rights Act, but remains untested. The New Zealand Human Rights Commission states that there has seemingly been a "lack of political will to address issues involved in current practices of genital normalisation on intersex children".

Intersex medical interventions

Intersex medical interventions are surgical, hormonal and other medical interventions performed to modify atypical or ambiguous genitalia and other sex characteristics, primarily for the purposes of making a person's appearance more typical and to reduce the likelihood of future problems. The history of intersex surgery has been characterized by controversy due to reports that surgery can compromise sexual function and sensation, and create lifelong health issues. Timing, evidence, necessity and indications for surgeries in infancy, adolescence or adult age have been controversial, associated with issues of consent.

History

Early common law, like canon law, [7] held that hermaphrodites were to be treated as male or female depending on the prevailing sex. [8] [9] However, in 1979 the Family Court of Australia annulled the marriage of an intersex man who had been "born a male and had been reared as a male" on the basis that he was an hermaphrodite. [10] [11]

Common law Law developed by judges

In law, common law is that body of law derived from judicial decisions of courts and similar tribunals. The defining characteristic of “common law” is that it arises as precedent. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts, and synthesizes the principles of those past cases as applicable to the current facts. If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision. If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, and legislative statutes are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue. The court states an opinion that gives reasons for the decision, and those reasons agglomerate with past decisions as precedent to bind future judges and litigants. Common law, as the body of law made by judges, stands in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch. Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of all common law systems.

Canon law is a set of ordinances and regulations made by ecclesiastical authority, for the government of a Christian organization or church and its members. It is the internal ecclesiastical law, or operational policy, governing the Catholic Church, the Eastern Orthodox and Oriental Orthodox churches, and the individual national churches within the Anglican Communion. The way that such church law is legislated, interpreted and at times adjudicated varies widely among these three bodies of churches. In all three traditions, a canon was originally a rule adopted by a church council; these canons formed the foundation of canon law.

The Androgen Insensitivity Syndrome Support Group Australia is thought to be world's oldest intersex civil society organization, founded in 1985. [12] Intersex Human Rights Australia (formerly OII Australia) [13] was established in 2009. [14] The two organizations have campaigned for political recognition and bodily autonomy, with some success. [15] [16]

The Androgen Insensitivity Syndrome Support Group Australia (AISSGA) is possibly the oldest known intersex organization, established in 1985. It provides peer and family support, information and advocacy. The group is run by volunteers, for people with intersex variations such as androgen insensitivity syndrome.

Intersex Human Rights Australia organization

Intersex Human Rights Australia (IHRA) is a voluntary organisation for intersex people that promotes the human rights and bodily autonomy of intersex people in Australia, and provides education and information services. Established in 2009 and incorporated as a charitable company in 2010, it was formerly known as Organisation Intersex International Australia, or OII Australia. It is recognised as a Public Benevolent Institution.

Alex MacFarlane is believed to be amongst the first people worldwide to legally secure a birth certificate and passport recording sex as indeterminate, reported in January 2003. [17] Phoebe Hart directed the award-winning autobiographical road trip movie Orchids, My Intersex Adventure with her sister, Bonnie Hart, in 2010, promoting awareness of intersex issues. Tony Briffa became the world's first openly intersex mayor, [18] and "the first known intersex public office-bearer in the Western world", [19] serving as Deputy Mayor of the City of Hobsons Bay, Victoria, between 2009 and 2011, and Mayor between 2011–2012. [18] [19] [20] [21]

Alex MacFarlane is an intersex person born with XXY sex chromosomes in Victoria, Australia. Alex MacFarlane is believed to be the first holder of an indeterminate birth certificate and passport.

Phoebe Hart is a film maker, lecturer and intersex rights activist, born with Androgen Insensitivity Syndrome. Hart lectures in film, television and digital media at the Queensland University of Technology, and is principal of Hartflicker, a video and film production company. She is known particularly for her autobiographical road trip movie, Orchids, My Intersex Adventure.

Orchids, My Intersex Adventure is an auto-biographical 2010 documentary about one woman's struggle to understand her own intersex condition while interviewing other intersex people. Director Phoebe Hart used digital cameras and a small crew including her sister, Bonnie Hart, while on a road trip of self-discovery through various areas of Australia, recording some personal stories disclosed to her by the other intersex individuals.

In 2013, Australia became the first country to pass a standalone attribute protecting intersex people in anti-discrimination law, and the first to conduct a parliamentary inquiry into intersex medical interventions. [22] In 2014, Morgan Carpenter took part in the "first United Nations Human Rights Council side event on intersex issues" in March 2014, alongside Mauro Cabral and representatives of Intersex UK and Zwischengeschlecht. [23]

However, while Australian terminology has expanded from "LGBT" to "LGBTI" to include intersex people, the experience of intersex people remains poorly understood. [24] In June 2016, Intersex Human Rights Australia made a submission to the UN Committee Against Torture which stated that the dignity and rights of LGBT and intersex people are recognized while what it and the UN Committee state to be harmful practices on intersex children continue. [25]

Darlington Statement

In March 2017, representatives of Androgen Insensitivity Syndrome Support Group Australia, Intersex Trust Aotearoa New Zealand, and Intersex Human Rights Australia participated in an Australian and Aotearoa/New Zealand consensus "Darlington Statement" by intersex community organizations and others. [6] The statement calls for legal reform, including the criminalization of deferrable intersex medical interventions on children, an end to legal classification of sex, and improved access to peer support. [6] [26] [27] [28] [29]

Physical integrity and bodily autonomy

Legal prohibition of non-consensual medical interventions
Regulatory suspension of non-consensual medical interventions Protection of intersex children from harmful practices.svg
  Legal prohibition of non-consensual medical interventions
  Regulatory suspension of non-consensual medical interventions

Intersex infants are often subjected to medical operations to their genitalia and other sex characteristics to make them conform to a male or female appearance or nature. [30] These practices have been criticised by human rights institutions and practitioners, [31] [32] and intersex advocates, [33] as human rights abuses, violating rights to live free from violence and harmful practices, and rights to bodily autonomy, integrity and dignity, drawing parallels to female genital mutilation.

Decision-making principles

Decision-making principles were published in 2010 by Gillam, Hewitt and Warne, three clinicians associated with the Royal Children’s Hospital, Melbourne and Murdoch Childrens Research Institute. [34] The principles include minimizing "psychosocial risks" to children through medical intervention, [35] including risks of "impaired bonding" with parents and "reduced opportunities for marriage". [34] The guidelines were criticized by Alice Dreger and two colleagues for being focused on infant genital surgeries. [36] Gillam, Hewitt and Warne stated in 2011 that the principles were then being extended nationally, that is, they were now "being extended to other centres in Australia". [37]

The government of Victoria produced a "derivative" version in 2013. [38] [11] This later version was criticised by one academic and the Organisation of Intersex International Australia for being irrelevant to clinical practice. [39] [40] Victoria later removed a "psychosocial" rationale for intersex medical interventions focused on "marriageability". [11]

Senate report on involuntary or coerced sterilization

In October 2013, the Australian Senate Community Affairs References Committee published a report entitled Involuntary or coerced sterilisation of intersex people in Australia. The Senate found that "normalising" surgeries are taking place in Australia, often on infants and young children. [22] The Report stated:

normalisation surgery is more than physical reconstruction. The surgery is intended to deconstruct an intersex physiology and, in turn, construct an identity that conforms with stereotypical male and female gender categories...

The evidence suggests that a human rights consistent framework ... must necessarily operate from a presumption in favour of maintaining the status quo for as long as possible...

Enormous effort has gone into assigning and ‘normalising’ sex: none has gone into asking whether this is necessary or beneficial. Given the extremely complex and risky medical treatments that are sometimes involved, this appears extremely unfortunate. [22]

The Committee made 15 recommendations, including that: [22]

The recommendations have not been adopted.

Re: Carla (Medical procedure)

In December 2016, The Australian and SBS reported on a Family Court of Australia case published in January 2016, Re Carla (Medical procedure), [2] where the parents were able to authorize the sterilization of their 5-year child with 17-beta-hydroxysteroid dehydrogenase III deficiency. The child had previously been subjected to intersex medical interventions including a clitorectomy and labiaplasty, without requiring Court oversight. These were described by the judge as having "enhanced the appearance of her female genitalia". [2] [3] [4] [5]

Intersex Human Rights Australia found this "disturbing", and stated that the case was reliant on gender stereotyping and failed to take account of data on cancer risks, and demonstrating a lack of scrutiny and transparency in the treatment of intersex infants and children. [41] [42] A commentary by the Human Rights Law Centre described the case as a "particularly disturbing misapplication of the principles in Re Marion ". [43]

Numerous academics have commented on the issues raised by the case. Bernadette Richards wrote that it stretched the bounds of parental authority by removing "external review of invasive treatment". [44] Melinda Jones has compared the interventions in this and other cases to female genital mutilation. [45] Fiona Kelly and Malcolm Smith have written that the evidence put to the Court was incomplete, and its reasoning lacked rigor. [46] Morgan Carpenter has written that the case demonstrated a "failed narrative of continuous" clinical "technical improvement". [47]

Responses to developments

On 11 November 2014, the New South Wales Legislative Council passed a motion recognising stigma and human rights abuses, and calling on that State government to "work with the Australian Government to implement the recommendations" of the 2013 Senate committee report. [48]

The Asia Pacific Forum of National Human Rights Institutions states that Australian regulations that prohibit female genital mutilation give "explicit permission for genital surgeries to ‘normalise’ the bodies of intersex infants and children". [35] In the same month, the United Nations Committee Against Torture asked the Australian government to confirm whether or not such medical interventions persist, and asking about implementation of the 2013 Senate report. [49]

In March 2017, an Australian and Aotearoa/New Zealand community statement called for the criminalization of deferrable intersex medical interventions. [6] [26]

In June 2017, and in response to a joint submission by almost 50 non-governmental organizations, the UN Committee on Economic Social and Cultural Rights stated concern that "children born with intersex variations are subject to early surgeries and medical interventions before they are able to provide full and informed consent", calling for implementation of the 2013 Senate report. [50] [51] The United Nations Human Rights Committee recommended in December 2017 that Australia "move to end irreversible medical treatment, especially surgery, of intersex infants and children, who are not yet able to provide fully informed and free consent, unless such procedures constitute an absolute medical necessity". [52] In July 2018, the UN Committee on the Elimination of Discrimination against Women issued concluding observations on harmful practices, recommending that Australia adopt "Adopt clear legislative provisions explicitly prohibiting the performance of unnecessary surgical or other medical treatment on intersex children before they reach the legal age of consent". The Committee also called for implementation of the 2013 Senate committee report, the provision of redress, counselling and support to families. [53]

In mid 2018, the Australian Human Rights Commission commenced a project on protecting the rights of Australians born with variations in sex characteristics in the context of medical interventions. [54]

Reparations

In December 2016, the United Nations Committee Against Torture asked the Australian government to confirm the availability of civil and criminal remedies for irreversible medical interventions as children, including the applicability of statutes of limitations. [49] In March 2017, an Australian and Aotearoa/New Zealand community statement called for acknowledgement, an apology, and reparations for intersex people who have been subjected to "involuntary or coercive medical interventions". [6]

Protection from discrimination

Explicit protection from discrimination on grounds of sex characteristics
Explicit protection on grounds of intersex status
Explicit protection on grounds of intersex within attribute of sex Inclusion of sex characteristics in anti-discrimination law.svg
  Explicit protection from discrimination on grounds of sex characteristics
  Explicit protection on grounds of intersex status
  Explicit protection on grounds of intersex within attribute of sex

At the federal level, "intersex status" became a protected attribute in the federal Sex Discrimination Act 1984 (Cth), making it unlawful to discriminate against a person based upon that person's intersex status in contexts such as work, education, provision of services, and accommodation. [1] The Act defines intersex status as:

the status of having physical, hormonal or genetic features that are: (a) neither wholly female nor wholly male; or (b) a combination of female and male; or (c) neither female nor male. [1]

The Act contains exemptions in religion and sport. A religious exemption applies solely to the internal appointment, training or practices within religious bodies. [55] Exemptions apply to competitive sport in certain instances, but this is not applicable to sporting activities involving children aged less than 12 years old, or persons participating in coaching, refereeing, or administering sporting activities. [56]

Tasmania has also passed legislation precluding discrimination on the basis of intersex status, [57] and similar legislative amendments passed in the Australian Capital Territory [58] and South Australia, [59] went into full effect in 2017. Furthermore in 2019, Tasmania replaced the attribute of intersex status with the more internationally accepted attribute of sex characteristics, becoming the first Australian jurisdiction to do so. [60] Intersex Human Rights Australia has expressed concern about a lack of public awareness of these protections. [61] [62]

Research on intersex Australians published in 2016 shows that, while 2% of Australians fail to complete secondary school, 18% of Australians born with intersex variations fail to do so due to issues around bullying, discrimination and pubertal medical interventions. [63] [64]

In 2014, Intersex Human Rights Australia and Pride in Diversity partnered to publish a guide on intersex employees for employers. [65]

Identification documents

Australian research has shown that 19% of people born with atypical sex characteristics selected an "X" or "other" classification, while 52% are women and 23% men and 6% unsure. [66] [67]

Alex MacFarlane received the first Australian passport with an 'X' sex descriptor, reported in January 2003. [68] [17] [69] Australian government policy between 2003 and 2011 was to issue passports with an 'X' marker only to people who could "present a birth certificate that notes their sex as indeterminate" [70] [71] In 2011, the Australian Passport Office introduced new guidelines for issuing of passports with a new gender, and broadened the availability of the X descriptor to all individuals with documented "indeterminate" sex. [72] [73] From 2013, federal guidelines enable all people to identify gender as male, female or X on federal documents, including passports. Documentary evidence must be witnessed by a doctor or psychologist, but medical intervention is not required. [74]

In Australia, birth certificates are issued by States and Territories. Intersex Human Rights Australia states that identification changes are managed as an administrative correction. [75]

Alex MacFarlane is also believed to be the first person in Australia to obtain a birth certificate recording sex as indeterminate, reported in January 2003. [17] [68] [69]

In March 2017, an Australian and Aotearoa/New Zealand community statement called for an end to legal classification of sex, stating that legal third classifications, like binary classifications, were based on structural violence and failed to respect diversity and a "right to self-determination". [6] [26]

Marriage

Marriage regardless of sex, gender or intersex status has been legally recognised in Australia since 9 December 2017. [76] The Marriage Amendment (Definition and Religious Freedoms) Act 2017 permits any “2 people” to marry.

Prior to that date, marriage was only permitted between a "man and a woman", [77] meaning that intersex people who had other sex classifications, or sex classifications that matched their partner, could not legally marry each other. [11]

Historically, two legal cases are known to involve the marriages of intersex people. In the early twentieth century, the marriage of missionary Florrie Cox was annulled due to "malformation frigidity". [78] In 1979, the Family Court of Australia, annulled the marriage of an intersex man, who had been "born a male and had been reared as a male" on the basis that he was an hermaphrodite. [10]

Right to life

The Androgen Insensitivity Syndrome Support Group Australia and Intersex Human Rights Australia have expressed concerns about the use of genetic selection via preimplantation genetic diagnosis, including in submissions to the National Health and Medical Research Council recommending that deselection of embryos and foetuses on grounds of intersex status should not be permitted. [79] The organisations have also expressed concern about pregnancy termination rates of up to 88% in 47,XXY in circumstances where the World Health Organization describes the intersex trait as "compatible with normal life expectancy", and "often undiagnosed". [80] [81] [82]

In 2016, Intersex Human Rights Australia wrote about the sponsorship of lesbian, gay, bisexual, transgender and intersex (LGBTI) events by IVF clinics in Australia, stating that, in addition to ethical issues raised by the elimination of intersex traits, "sponsorship of "LGBTI" events by such businesses raises more ethical issues still, including the nature of community and comprehension of issues relating to intersex bodily diversity." [83]

Rights advocacy

Notable intersex rights organizations in Australia include Intersex Human Rights Australia and Androgen Insensitivity Syndrome Support Group Australia. Notable advocates include Tony Briffa, Morgan Carpenter, Bonnie Hart, Phoebe Hart, Alex MacFarlane and Gina Wilson.

See also

Related Research Articles

Organisation Intersex International global advocacy and support group for people with intersex traits

The Organisation Intersex International (OII) is a global advocacy and support group for people with intersex traits. According to Milton Diamond, it is the world's largest organization of intersex persons. A decentralised network, OII was founded in 2003 by Curtis Hinkle. Upon Hinkle's retirement, American intersex activist Hida Viloria served as Chairperson/President elect from April 2011 through November 2017, when s/he resigned in order to focus on OII's American affiliate, OII-USA's transition into the independent American non-profit, the Intersex Campaign for Equality.

In law, sex characteristics refers to an attribute defined for the purposes of protecting individuals from discrimination due to their sexual features. The attribute of sex characteristics was first defined in national law in Malta, in 2015. The legal term has since been adopted by United Nations, European, and Asia-Pacific institutions, and in a 2017 update to the Yogyakarta Principles on the application of international human rights law in relation to sexual orientation, gender identity, gender expression and sex characteristics.

Tony Briffa is an Australian-Maltese who has Partial Androgen Insensitivity Syndrome. Briffa is an independent councillor, and former mayor and deputy mayor in the City of Hobsons Bay, Victoria Briffa is considered the world's first openly intersex mayor and public office-bearer.

International Intersex Forum

The International Intersex Forum is an annual event organised, then later supported, by the ILGA and ILGA-Europe that and organisations from multiple regions of the world, and it is believed to be the first and only such intersex event.

Gina Wilson is an intersex human rights activist, born in Victoria, Australia in 1952. She was the founding president of Intersex Human Rights Australia.

Morgan Carpenter is a bioethicist, intersex activist and researcher. He became president of Intersex Human Rights Australia in September 2013, and is now a co-executive director. In 2013 he created the intersex flag, and in 2015, he cofounded a project to mark Intersex Awareness Day. Australia's Gay News Network included him in their "LGBTI people to watch in 2014".

Founded by Mani Mitchell in 1996, Intersex Trust Aotearoa New Zealand, also known as Intersex Awareness New Zealand is a national advocacy and peer support organisation for intersex people in New Zealand.

Intersex human rights

Intersex people are born with sex characteristics, such as chromosomes, gonads, or genitals, that, according to the UN Office of the High Commissioner for Human Rights, "do not fit typical binary notions of male or female bodies."

Legal recognition of intersex people

Intersex people are born with sex characteristics, such as chromosomes, gonads, or genitals that, according to the United Nations Office of the High Commissioner for Human Rights, "do not fit typical binary notions of male or female bodies".

Discrimination against intersex people

Intersex people are born with sex characteristics, such as chromosomes, gonads, or genitals that, according to the UN Office of the High Commissioner for Human Rights, "do not fit typical binary notions of male or female bodies". "Because their bodies are seen as different, intersex children and adults are often stigmatized and subjected to multiple human rights violations".

Intersex and LGBT

Intersex people are born with sex characteristics, such as genitals, gonads, and chromosome patterns that, according to the UN Office of the High Commissioner for Human Rights, "do not fit the typical definitions for male or female bodies".

Malta declaration (International Intersex Forum) statement of the Third International Intersex Forum, which took place in Valletta, Malta, in 2013

The Malta declaration is the statement of the Third International Intersex Forum, which took place in Valletta, Malta, in 2013. The event was supported by the ILGA and ILGA-Europe and brought together 34 people representing 30 organisations from multiple regions of the world.

Intersex rights in Germany

Intersex people in Germany have no recognition of their rights to physical integrity and bodily autonomy, and no specific protections from discrimination on the basis of sex characteristics. In response to an inquiry by the German Ethics Council in 2012, the government passed legislation in 2013 designed to classify some intersex infants to a de facto third category. The legislation has been criticized by civil society and human rights organizations as misguided.

Intersex rights in the United Kingdom

Intersex people in the United Kingdom face significant gaps in legal protections, particularly in protection from non-consensual medical interventions, and protection from discrimination. Actions by intersex civil society organizations aim to eliminate unnecessary medical interventions and harmful practices, promote social acceptance, and equality in line with Council of Europe and United Nations demands. Intersex civil society organizations campaign for greater social acceptance, understanding of issues of bodily autonomy, and recognition of the human rights of intersex people.

Intersex rights in China

Intersex rights in China including the People's Republic of China, the Hong Kong Special Administrative Region and Taiwan, are protections and rights afforded to intersex people through legislation and regulation. Obligations also arise in United Nations member states that sign international human rights treaties, such as the People's Republic of China. Intersex people in China suffer discrimination. Issues include both lack of access to health care and coercive genital surgeries.

Intersex human rights reports

Intersex people are born with sex characteristics, such as chromosomes, gonads, or genitals that, according to the UN Office of the High Commissioner for Human Rights, "do not fit the typical definitions for male or female bodies". Such variations may involve genital ambiguity, and combinations of chromosomal genotype and sexual phenotype other than XY-male and XX-female.

References

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