Joint NGO submission to the UN Committee on Economic, Social and Cultural Rights

OHCHR
OII Australia has participated in a joint NGO submission to the UN Committee on Economic, Social and Cultural Rights. The resulting document marks the first time where a joint Australian NGO submission to a UN committee has called for the criminalisation of “non-medically necessary deferrable medical interventions that alter the sex characteristics of infants and children without personal consent”.

This is most welcome, and we warmly thank the project leads, the National Association of Community Legal Centres and Kingsford Legal Centre. The submission is endorsed, in whole or in part, by 46 peak and civil society organisations.

The language in the submission recommendations is drawn from the Darlington Statement, published by Australian and New Zealand intersex organisations and independent advocates, in March 2017.

In full, the relevant recommendations (pages 93-94) on article 12, the right to health, are:

THAT Australia develop and enact legislation prohibiting non-medically necessary sterilisation, genital normalising and hormonal interventions on people with intersex variations without their prior, fully informed and free consent.

THAT Australia criminalise non-medically necessary deferrable medical interventions that alter the sex characteristics of infants and children without personal consent.

THAT Australia ensure any decision-making on medical treatment of intersex children be made under a human rights framework.

The submission also comments that the effectiveness of existing anti-discrimination legislation is “not certain as human rights violations are known to persist, including in institutional settings.”

Indeed, recent cases before the Family Court of Australia, including descriptions of unnecessary and harmful cosmetic genital surgeries as “enhancements”, provides incontrovertible evidence of current clinical and legal attitudes and treatment models for intersex infants, children and adolescents. Such evidence cannot be dismissed as dated or anecdotal.

At the same time, at least one State government has systematically been removing documented evidence of human rights violations from its websites and public documents. These have taken place in interim updates with no proper document control, suggestive of haste. They occur without evidence of any change in practice.

Australia’s hearing before the UN Committee on Economic, Social and Cultural Rights takes place on 30-31 May. Representatives of People with Disabilities Australia (PWDA) are attending.

UPDATE: here are some tweets by Dean Price at PWDA – thanks to Dean, PWDA and the Committee:

UPDATE 2:

Unfortunately, a UN record of the hearing, dated 9 June, shows that the Australian government misrepresented the intersex population as a transgender population.

Question:

22. Mr. Uprimny (Task Force Member) said that he would like to know whether the forced sterilization of persons with disabilities was allowed if consent was given not by the person concerned but by a surrogate. He asked what the Government’s policy was regarding non-consensual genital surgery for intersex individuals and whether such surgery could be performed with surrogate consent.

Response:

33. Mr. Walter (Australia) said that state and territorial laws included provision for compulsory treatment orders for individuals with a serious medical condition who were incapable of giving valid consent to treatment. Such orders were overseen by special tribunals, such as the Mental Health Tribunal in Victoria. Australia was committed to respecting the physical integrity and reproductive rights of all. Sterilization could only be performed with the person’s consent or, where the person was unable to give consent, with the authorization of the court or guardianship tribunal. All states and territories had set up guardianship tribunals. The Family Court was competent to rule on the sterilization of children. Following an inquiry into involuntary or coerced sterilization in 2013, a Senate committee had made a range of recommendations regarding the need for education and uniform legislation. Although the Government had considered the recommendations, it had no immediate plans for reform. Nevertheless, additional funding had been made available to standardize data collection across jurisdictions.

34. The treatment of intersex children was typically carried out in two stages: firstly, the administration of hormones to suppress the advancement of puberty in the gender of birth and, secondly, the administration of hormones to promote the affirmed gender. Authorization from the Family Court was required for stage 2 but not for stage 1. The third stage, namely surgery, was not usually considered for minors. The number of applications to the Family Court had risen from 5 in 2013 to 23 in 2016. The Government was conscious of the fact that requiring judicial authorization could delay treatment and lead to depression, suicidal thoughts and self-harm and was, therefore, looking into possible reforms. In that connection, a number of recent Family Court decisions concerning treatment for intersex children were under review by the Government.

The rules that apply to transgender children simply do not apply to intersex children.

Read the hearing record
The Family Court case Re: Carla (Medical procedure) [2016] FamCA 7
The Family Court case Re: Kaitlin [2017] FamCA 83

More information

Download the joint Australian NGO submission from the UN Treaty Bodies extranet.

General comment No. 22 (2016) on the right to sexual and reproductive health (article 12 of the International Covenant on Economic, Social and Cultural Rights) for the states:

59. Violations of the obligation to protect occur when a State fails to take effective steps to prevent third parties from undermining the enjoyment of the right to sexual and reproductive health. This includes the failure to prohibit and take measures to prevent all forms of violence and coercion committed by private individuals and entities, including domestic violence, rape (including marital rape), sexual assault, abuse and harassment, including during conflict, post-conflict and transition situations; violence targeting lesbian, gay, bisexual, transgender and intersex persons or women seeking abortion or post-abortion care; harmful practices such as female genital mutilation, child and forced marriage, forced sterilization, forced abortion and forced pregnancy; and medically unnecessary, irreversible and involuntary surgery and treatment performed on intersex infants or children.

– thanks to Daniela Truffer, Zwischengeschlecht for help with this reference and the record of the hearing.