Overnight, the UN Human Rights Committee made a number of recommendations on Australia’s obligations under the 1966 International Covenant on Civil and Political Rights. These binding recommendations call on the government to incorporate that Treaty into domestic law, to ensure comprehensive implementation of the Covenant.
OII Australia made a Shadow Report submission, endorsed by the AIS Support Group Australia, Disabled People’s Organisations of Australia, National LGBTI Health Alliance, and People with Disability Australia. It provided evidence of continuing forced and coercive practices in Australian hospitals, with support from Australian governments and the Family Court. The Shadow Report made a number of recommendations, based upon the 2017 Darlington Statement.
We are pleased that the Committee has made strong recommendations in response, citing Treaty articles on non-discrimination (articles 3 and 24), protection from torture and experimentation (article 7), the right to liberty and security (article 9), privacy (article 17), and equality before the law (article 26). These citations highlight the many ways in which current medical practices violate our human rights.
25. The Committee is concerned that infants and children born with intersex variations are sometimes subject to irreversible and invasive medical interventions for purposes of gender assignment, which are often based on stereotyped gender roles and are performed before they are able to provide fully informed and free consent (arts. 3, 7, 9, 17, 24 and 26).
26. The State party should give due consideration to the recommendations made by the Senate Standing Committee on Community Affairs in its 2013 inquiry report on involuntary or coerced sterilisation of intersex people, and 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
These statements contain a clear recommendation to end irreversible medical treatment that is not absolutely medically necessary, in addition to citing the 2013 Senate inquiry report on the involuntary or coerced sterilisation of intersex people. The statements contain language highlighting the human rights implications of interventions deliberately timed to take place before a child can comprehend a procedure and provide informed consent.
The Committee’s recommendations extend beyond surgeries to include other forms of intervention, which may include hormone treatment (as in the 2017 Family Court case Re: Kaitlin). The mention of gender stereotyping is also helpful, reflecting in part the decision in the 2016 Family Court case Re: Carla. Gender stereotyping and unfounded expectations of certainty are often evident in decision-making processes affecting infants and children born with variations of sex characteristics.
In addition, for those individuals who need to change birth certificates, the document has some good language on removing State requirements for surgery and non-married status. A statement on equal treatment also appears, as part of a statement on marriage:
30. The State party should revise its laws, including the Marriage Act, to ensure, irrespective of the results of the Australian Marriage Law Postal Survey, that all its laws and policies afford equal protection to LGBTI persons, couples and families, taking also into account the Committee’s Views in communications No. 2172/2012, G v. Australia, and 2216/2012, C. v Australia.
The report also contains important and welcome language on ending forced sterilisation of women with disabilities, as well as important recommendations on the human rights of refugees and asylum seekers, Indigenous people, and other issues.
Morgan Carpenter, co-executive director, states:
OII Australia welcomes the statements of the Human Rights Committee. Most people are able to take for granted their right to bodily integrity, but this is not true of intersex people. Medically unnecessary surgeries on children with intersex variations that take place without their consent are human rights violations. Conducting such surgeries deliberately before children are able to understand the nature of the procedure is a human rights violation. There is no clinical consensus on the conduct, nature, timing or outcome of such practices. Australian governments need to act to protect our right to make decisions about interventions on our own bodies, and ensure that all deferrable interventions are deferred until we can personally consent.
Steph Lum, chair of OII Australia, states:
We are pleased to see the UNHRC deliver strong recommendations to Australia, in line with the Darlington Statement, on ending irreversible medical interventions that are not medically necessary and without fully informed and free consent. We are also pleased to see recognition that it is gender stereotyping that often forms the basis of these decisions and is often the source of the violence inflicted upon the bodies and lives of people with intersex variations.
While we were not able to participate in the hearings of the Committee in Geneva in October, Morgan Carpenter was fortunate to be able to meet individuals with roles on the Committee during September this year. We thank the Committee for their consideration of our report and for these very helpful (and necessary) recommendations. We also thank our friends in People with Disabilities Australia for their engagement with the Committee on our behalf, and the Human Rights Law Centre and Kingsford Legal Centre for their work coordinating a joint NGO submission.