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. Discrimination on the ground of intersex status.
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 has attracted public commentary for disclosing those medical interventions, their rationales, and a prior clitorectomy and labiaplasty.
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.
History
Early common law, like canon law, held that hermaphrodites were to be treated as male or female depending on the prevailing sex.E Coke, The First Part of the Institutes of the Laws of England, Institutes 8.a. (1st Am. Ed. 1812). 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.
Intersex Peer Support Australia (formerly the Androgen Insensitivity Syndrome Support Group Australia) is thought to be world's oldest intersex civil society organization, founded in 1985. Intersex Human Rights Australia (formerly OII Australia) was established in 2009.About IHRA , Organisation Intersex International Australia, 24 July 2013 The two organizations have campaigned for political recognition and bodily autonomy, with some success.OII Australia, submission on the Exposure Draft of Human Rights and Anti-Discrimination Bill 2012
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. 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, and "the first known intersex public office-bearer in the Western world", serving as Deputy Mayor of the City of Hobsons Bay, Victoria, between 2009 and 2011, and Mayor between 2011 and 2012.
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. 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.
However, while Australian terminology has expanded from "LGBT" to "LGBTI" to include intersex people, the experience of intersex people remains poorly understood. 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.
Darlington Statement In March 2017, representatives of Intersex Peer Support 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. 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.
Physical integrity and bodily autonomy
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. These practices have been criticised by human rights institutions and practitioners, and intersex advocates, 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 Children's Research Institute. The principles include minimizing "psychosocial risks" to children through medical intervention, including risks of "impaired bonding" with parents and "reduced opportunities for marriage". The guidelines were criticized by Alice Dreger and two colleagues for being focused on infant genital surgeries. 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".
The government of Victoria produced a "derivative" version in 2013. This later version was criticised by one academic and Intersex Human Rights Australia for being irrelevant to clinical practice. Victoria later removed a "psychosocial" rationale for intersex medical interventions focused on "marriageability".
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. The Report stated:
The committee made 15 recommendations, including that: medical treatment of intersex people take place under guidelines that ensure treatment is managed within a human rights framework, and which "favour deferral of normalising treatment until the person can give fully informed consent, and seek to minimise surgical intervention on infants undertaken for primarily psychosocial reasons"; and proposed intersex medical interventions on children and adults without the capacity to consent should require legal authorisation by an administrative tribunal or the Family Court of Australia. 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),. 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".
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. A commentary by the Human Rights Law Centre described the case as a "particularly disturbing misapplication of the principles in Re Marion".
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". Melinda Jones has compared the interventions in this and other cases to female genital mutilation. Fiona Kelly and Malcolm Smith have written that the evidence put to the Court was incomplete, and its reasoning lacked rigor. Morgan Carpenter has written that the case demonstrated a "failed narrative of continuous" clinical "technical improvement".
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.New South Wales Legislative Council, Minutes of Proceedings, 11 November 2014 , p. 250, retrieved from NSW Parliament website on 19 February 2017.
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". 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.
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. In March 2017, an Australian and Aotearoa/New Zealand community statement called for acknowledgement, an apology, and compensation for intersex people who have been subjected to "involuntary or coercive medical interventions".
In March 2017, an Australian and Aotearoa/New Zealand community statement called for the criminalization of deferrable intersex medical interventions. 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. 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". 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. 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.
In 2023, the Australian Capital Territory became the first place in Australia to outlaw surgeries that are deferrable from being performed on intersex children without their consent.
Protection from discrimination
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. The Act defines intersex status as: