Cosmetic Genital Surgery ('CGS') and Sterilisation of Intersex Children
At least 65-70 intersex children are born each year who may be at risk of unnecessary sterilisation and CGS.[1]There is no publicly available data on the prevalence of either procedure,[2] though one hospital has confirmed they are conducted there each year.[3]This submission briefly describes the applicable family law and some problems with the current regime. There have been 4 reported cases in which court approval was sought prior to CGS or sterilisation,[4] suggesting the majority of decisions are made by medical practitioners and guardians.[5]
S67ZC of the Family Law Act has been held to grant jurisdiction to authorise CGS and sterilisation, with s60CC dictating considerations.[6] The Court's 'paramount consideration' must be the child's 'best interests'.[7] '[P]rimary considerations' are the desirability of protecting the child from abuse, and preserving the relationship with the child's parents.[8]'Additional considerations' include the views of the child[9] and 'lifestyle, culture and traditions... of the child and [their] parents'.[10]
S60CC's emphasis on familial harmony is ill-suited to decisions about gender assignment. Its application mirrors the tendency of intersex children's doctors to ‘[regard] the parent instead of the child as the patient’. For example, in Lesley and Sean and Russell the Court gave weight to medical opinions that if sterilisation were not carried out, the children's parents might develop anxiety and depression.[11] S60CC discussion was not balanced by a consideration of the child's human rights in any of the 4 reported cases.
Marion[12]is often used to interpret s67ZC applications for medical procedures.[13] The majority held 'therapeutic' sterilisations can be authorised by parents.[14] '[N]on-therapeutic' sterilisations also fall within the scope of parental authority, unless there is a 'significant risk of making the wrong decision, either as to a child's present or future capacity to consent or about what are the best interests of a child who cannot consent' and 'the consequences of a wrong decision are particularly grave' – in which instance a court can still authorise it.[15]Where sterilisation is 'non-therapeutic', it must not be authorised if it is merely a 'convenien[t]' solution – it must be 'necessary to enable [the child] to lead a life in keeping with [their] needs and capacities.'[16]
.
Interventions generally are 'non-therapeutic' where they are 'inappropriate or disproportionate',[17] or where they are 'invasive, permanent and irreversible' and 'not for the purpose of curing a malfunction or disease.'[18]
Interpretations of s67ZC 'consistent with international law' must be favoured.[19]In a case concerning a transgender teenager, the Court held the Convention on the Rights of the Child ('CRC') should be upheld in s67ZC medical decisions – specifically, the Court found children have the right to ‘express [their] views freely’ and to have those views ‘given due weight in accordance [with their] age and maturity’.[20] Children must also have ‘the opportunity to be heard’, including through a ‘representative'.[21] However, the Court is not required to appoint an independent children’s lawyer.[22]
Other relevant rights include the rights to 'maximum possible... development',[23] to health,[24] to 'privacy' (including ‘personal autonomy/self-determination in relation to medical treatment’),[25] to 'found a family',[26] to be free from 'torture or to cruel, inhuman or degrading treatment or punishment'[27] '(including... nonconsensual scientific or medical experimentation)',[28] and the right to freedom from discrimination.[29]
The Court must favour interpretations of s67ZC consistent with Australia's obligation to strive for 'the elimination of... practices which are based on... stereotyped roles for men and women.'[30]CGS and unnecessary sterilisation of infants are carried out in an attempt to bring the child's body into alignment with 'stereotyped roles for men and women'.[31]This obligation is often cited as a basis for prohibition of female genital mutilation[32] - it could also be used as a basis for prohibition of CGS and sterilisation of intersex children, particularly considered in conjunction with the freedoms incorporated within the right to health.[33]
Early CGS is sometimes considered ‘therapeutic’ on the assumption it will prevent future psychological distress, in spite of serious risks and scant medical evidence supporting it.[34] With such a limited research basis, early CGS (and, sometimes, sterilisation) may breach the right to health and freedom from 'nonconsensual scientific or medical experimentation'.[35]
CGS and involuntary sterilisation have been found to violate the right to freedom from torture.[36] In light of the risks and the impact on their human rights, CGS on infants and young children should be regarded as ‘inappropriate or disproportionate’.[37]
The Federal Court has previously acknowledged intersex and transgender status can ‘be seen as [examples] of the diversity in human sexual formation’ rather than malfunctions.[38] These four cases, though, have relied heavily on the idea of intersex status as a 'disease', reinforcing the therapeutic/non-therapeutic model.
Sterilisation to treat cancer must be distinguished from sterilisation to remove a 'possible risk of cancer'; the latter may not be therapeutic.[39] A Senate Committee found doctors often simplify and overstate intersex people's risk of cancer.[40]In Lesley, sterilisation was considered non-therapeutic on the basis of an opinion that the risk of cancer was 28%.[41] In Sean and Russell, the Court held a medical opinion of a 40% risk of developing cancer was sufficient to make sterilisation therapeutic.[42] Referring to these cases, the Australasian Pediatric Endocrine Group requested the law be clarified ‘urgently’[43] as decisions about whether sterilisation is 'therapeutic' are almost always made by medical practitioners and guardians.
In Lesley the Court discounted ‘anecdotal accounts’ of intersex adults who objected to ‘lifelong and irreversible’ surgical interventions on intersex infants and very young children.[44] The Court authorised immediate sterilisation even though the risk of cancer was ill-defined and virilisation was not expected to begin for 6-7 years.[45]
In Sally the Court ordered Sally's parents could authorise any of the interventions recommended by her doctor, even though Sally herself only requested sterilisation.[46]The Court did not differentiate between the different recommendations, one of which was for clitoridectomy.[47]The Court did not discuss the potential effect of a clitoridectomy on Sally's 'best interests'.
The cases scarcely mention the rights of the children, though s60B(4) may improve this.[48] An independent children's lawyer was not appointed in any of the 4 cases.[49] None of the medical practitioners were subject to cross-examination on the research bases for their opinions, and these opinions were given great weight by the court.[50]
BIBLIOGRAPHY
- Articles/Books/Reports
A Gender Agenda, Submission to the Senate Standing Committee on Community Affairs: Inquiry into the Involuntary or Coerced Sterilisation of People with Disabilities in Australia (2013)
Adult Guardian of Queensland and the Public Advocate of Queensland, Inquiry into the Involuntary or Coerced Sterilisation of People with Disabilities in Australia (2013)
Attorney-General's Department, Review of Australia's Female Genital Mutilation Legal Framework (2013)
Australasian Pediatric Endocrine Group, Submission of the Australasian Paediatric Endocrine Group to the Senate Inquiry into the Involuntary or Coerced Sterilization of People with Disabilities in Australia: Regarding the Management of Children with Disorders of Sex Development (2013)
Australian Bureau of Statistics, Births, Australia, 2012 (2013) < at 4 October 2014
Australian Constitution
Australian Guardianship and Administration Council, Protocol for Special Medical Procedures (Sterilisation) (2009)
Australian Human Rights Commission, Surgery on Intersex Infants and Human Rights (2009)
Beh, Hazel Glenn and Milton Diamond, 'David Reimer's Legacy: Limiting Parental Discretion' (2005-2006) 12 Cardozo Journal of Law & Gender 5
Benson, Sara R, 'Hacking the Gender Binary Myth: Recognizing Fundamental Rights for the Intersexed' 12.3 Cardozo Journal of Law & Gender 31
Bock, Andrew, Call to End Intersex Genital Operations (2013) The Age < at 8 August 2014
Creighton, S M, 'Long-term Outcome of Feminization Surgery: the London Experience' (2004) 93.3 British Journal of Urology International 44
Greenberg, Julie, 'Legal Aspects of Gender Assignment' (2003) 13.3 The Endocrinologist 277
Hutson, John M, 'The neonate with ambiguous genitalia', in John M Hutson, Garry L Warne and Sonia R Grover (eds), Disorders of Sex Development: An Integrated Approach to Management (2012) 103, as found in Senate Community Affairs References Committee, Parliament of Australia, Involuntary or Coerced Sterilisation of Intersex People in Australia (2013) [1.51]
Kerridge, Ian, Michael Lowe and Cameron Stewart, Ethics and Law for the Health Professions (4th ed, 2013)
Lee, Peter et al, 'Consensus Statement on Management of Intersex Disorders' (2006) 118.2 Paediatrics488
Lloyd, Erin 'Intersex Education, Advocacy & The Law: The Struggle For Recognition And Protection' (2004-2005) 11 Cardozo Women's Law Journal 283
Méndez, Juan E, Report of the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Punishment, Human Rights Council, 22nd sess, Agenda Item 3, UN Doc A/HRC/22/53 (1 February 2013)
Organisation Intersex International (Australia), Submission on the Involuntary or Coerced Sterilisation of People with Disabilities in Australia (2013)
Parlett, Kate and Kylie-Maree Weston-Scheuber, 'Consent to treatment for Transgender and Intersex Children' (2004) 9.2 Deakin Law Review 375
Rosato, Jennifer L, 'Using Bioethics Discourse to Determine When Parents Should Make Health Care Decisions for Their Children: is Deference Justified?' (2000) 73.1 Temple Law Review 1
Senate Community Affairs References Committee, Parliament of Australia, Involuntary or Coerced Sterilisation of Intersex People in Australia (2013)
Senate Community Affairs References Committee, Parliament of Australia, Involuntary or Coerced Sterilisation of People with Disabilities in Australia (2013)
State of Victoria Department of Health, Decision-Making Principles for the Care of Infants, Children and Adolescents with Intersex Conditions (2013)
Zwischengeschlecht.org, Intersex.ch, and SI Selbsthilfe Intersexualität, Intersex Genital Mutilations - Human Rights Violations of Children with Variations of Sex Anatomy: NGO Report to the 2nd, 3rd and 4th Periodic Report of Switzerland on the Convention on the Rights of the Child (2014)
- Case law
Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Re A (1993) 16 Fam LR 715
Re Jamie [2013] FamCAFC 110 (Unreported, Bryant CJ, Finn and Strickland JJ, 31 July 2013)
Re Lesley (Special Medical Procedure) [2008] FamCA 1226 (Unreported, Barry J, 12 December 2008)
Re Sally (Special Medical Procedure) [2010] FamCA 237 (Unreported, Murphy J, 22 March 2010)
Re Sean and Russell (Special Medical Procedures) [2010] FamCA 948 (Unreported, Murphy J, 26 October 2010)
Secretary, Department of Health and Community Services v JWB (1992) 106 ALR 385
- Legislation
Births, Deaths and Marriages Registration Regulation 1997 (ACT)
Charter of Human Rights and Responsibilities Act 2006 (Vic)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Crimes Act 1900 (ACT)
Crimes Act 1900 (NSW)
Crimes Act 1958 (Vic)
Criminal Code Act 1983 (NT)
Criminal Code Act 1899 (Qld)
Criminal Code Act 1924 (Tas)
Criminal Code Act 1913 (WA)
Criminal Law Consolidation Act 1935 (SA)
Gender Reassignment Act 2000 (WA)
Guardianship and Administration Act 1995 (Qld)
Guardianship and Administration Act 1995 (Tas)
Family Law Act 1975 (Cth)
Family Law Legislation Amendment (Family Violence and Other Measures) Act2011 (Cth)
Family Law Rules 2004 (Cth)
Human Rights Act 2004 (ACT)
- Treaties
Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 18 December 1979, 1249 UNTS 13
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3
International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171
International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3
Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948)
- Other
Evidence to the Inter-American Commission on Human Rights, 13 March 2013 at 10 September 2014
Evidence to Senate Community Affairs References Committee, Parliament of Australia, Sydney, 28 March 2013 (Morgan Carpenter)
Evidence to Senate Community Affairs References Committee, Parliament of Australia, Sydney, 28 March 2013 (Tony Briffa)
Human Rights (2014) Advocates for Informed Choice < at 10 September 2014
Intensifying Global Efforts for the Elimination of Female Genital Mutilations, GA Res 11331, UN GA, 67th sess, UN Doc A/Res/67/146
Intersexion (Directed by Grant Lahood, Ponsonby Productions Limited, 2012)
O'Rourke, M, 'Dilemmas When Gender is Uncertain', The Weekend Australian (Sydney), 19 March 2005, archived at <
Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, Committee on Economic, Social and Cultural Rights, 22nd sess, E/C.12/2000/4
Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity (2007) <
[1]Estimate based on the the 2012 birth rate of 309,582 from Australian Bureau of Statistics, Births, Australia, 2012 (2013) < at 4 October 2014, and the estimate of incidence of genital ambiguity at birth from Australasian Pediatric Endocrine Group, Submission of the Australasian Paediatric Endocrine Group to the Senate Inquiry into the Involuntary or Coerced Sterilization of People with Disabilities in Australia: Regarding the Management of Children with Disorders of Sex Development (2013), 1.
[2]Senate Community Affairs References Committee, Parliament of Australia, Involuntary or Coerced Sterilisation of Intersex People in Australia (2013) [4.26].
[3]Andrew Bock, Call to End Intersex Genital Operations (2013) The Age < at 8 August 2014.
[4]Re A (1993) 16 Fam LR 715, Re Lesley (Special Medical Procedure) [2008] FamCA 1226 (Unreported, Barry J, 12 December 2008), Re Sally (Special Medical Procedure) [2010] FamCA 237 (Unreported, Murphy J, 22 March 2010), Re Sean and Russell (Special Medical Procedures) [2010] FamCA 948 (Unreported, Murphy J, 26 October 2010).
[5]Organisation Intersex International (Australia), Submission on the Involuntary or Coerced Sterilisation of People with Disabilities in Australia (2013) [3.14], State of Victoria Department of Health, Decision-Making Principles for the Care of Infants, Children and Adolescents with Intersex Conditions (2013). See also: Peter Lee et al, 'Consensus Statement on Management of Intersex Disorders' (2006) 118.2 Paediatrics488, 491.
[6]Family Law Act 1975 (Cth) s 60CC, 67ZC(1), Re Sally (Special Medical Procedure) [2010] FamCA 237 (Unreported, Murphy J, 22 March 2010) [65], Re Lesley (Special Medical Procedure) [2008] FamCA 1226 (Unreported, Barry J, 12 December 2008), Re Sally (Special Medical Procedure) [2010] FamCA 237 (Unreported, Murphy J, 22 March 2010), Re Sean and Russell (Special Medical Procedures) [2010] FamCA 948 (Unreported, Murphy J, 26 October 2010).
[7]Family Law Act 1975 (Cth) s 67ZC(2), Secretary, Department of Health and Community Services v JWB (1992) 106 ALR 385, 408, 409-412.
[8]Family Law Act 1975 (Cth) s 60CC(2)(a), (b).
[9]Family Law Act 1975 (Cth) s 60CC(3)(a).
[10]Family Law Act 1975 (Cth) s 60CC(3)(g).
[11]Re Sean and Russell (Special Medical Procedures) [2010] FamCA 948 (Unreported, Murphy J, 26 October 2010) [229], Re Lesley (Special Medical Procedure) [2008] FamCA 1226 (Unreported, Barry J, 12 December 2008) [18].
[12]Secretary, Department of Health and Community Services v JWB (1992) 106 ALR 385.
[13]Re Sean and Russell (Special Medical Procedures) [2010] FamCA 948 (Unreported, Murphy J, 26 October 2010) [23].
[14]Secretary, Department of Health and Community Services v JWB (1992) 106 ALR 385, 404, Kate Parlett and Kylie-Maree Weston-Scheuber, 'Consent to treatment for Transgender and Intersex Children' (2004) 9.2 Deakin Law Review 375, 393.
[15]Secretary, Department of Health and Community Services v JWB (1992) 106 ALR 385, 412.
[16]Ibid.
[17]Ibid.
[18]Re Jamie [2013] FamCAFC 110 (Unreported, Bryant CJ, Finn and Strickland JJ, 31 July 2013) [22].
[19]Re Jamie [2013] FamCAFC 110 (Unreported, Bryant CJ, Finn and Strickland JJ, 31 July 2013) [120], Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287.
[20]Re Jamie [2013] FamCAFC 110 (Unreported, Bryant CJ, Finn and Strickland JJ, 31 July 2013) [121]-[122], Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3, art 12(1).
[21]Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3, art 12(2).
[22]Family Law Act 1975 (Cth) s 68L(2), Family Law Rules 2004 (Cth) div 4.2.3.
[23]Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3, art 6(2), State of Victoria Department of Health, Decision-Making Principles for the Care of Infants, Children and Adolescents with Intersex Conditions (2013) 17-18.
[24]Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3, art 24, International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3, art. 12.
[25]Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948), art 12, Senate Community Affairs References Committee, Parliament of Australia, Involuntary or Coerced Sterilisation of Intersex People in Australia (2013) [3.82].
[26]International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171, art 23.
[27]Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948), art 5.
[28]Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, Committee on Economic, Social and Cultural Rights, 22nd sess, E/C.12/2000/4, 8, Senate Community Affairs References Committee, Parliament of Australia, Involuntary or Coerced Sterilisation of Intersex People in Australia (2013) [3.81].
[29]Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948), art 7.
[30]Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 18 December 1979, 1249 UNTS 13, art 5(a).
[31]Ibid.
[32]Intensifying Global Efforts for the Elimination of Female Genital Mutilations, GA Res 11331, UN GA, 67th sess, UN Doc A/Res/67/146.
[33]For further discussion of the human rights implications of CGS and sterilisation, see Senate Community Affairs References Committee, Parliament of Australia, Involuntary or Coerced Sterilisation of Intersex People in Australia (2013) [3.79]-[3.97], Australian Human Rights Commission, Surgery on Intersex Infants and Human Rights (2009).
[34]Re Lesley (Special Medical Procedure) [2008] FamCA 1226 (Unreported, Barry J, 12 December 2008) [28], S M Creighton, 'Long-term Outcome of Feminization Surgery: the London Experience' (2004) 93.3 British Journal of Urology International 44, 45.
[35]Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, Committee on Economic, Social and Cultural Rights, 22nd sess, E/C.12/2000/4, 8.
[36]Juan E Méndez, Report of the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Punishment, Human Rights Council, 22nd sess, Agenda Item 3, UN Doc A/HRC/22/53 (1 February 2013), 88.
[37]Secretary, Department of Health and Community Services v JWB (1992) 106 ALR 385, 419.
[38]Re Jamie [2013] FamCAFC 110 (Unreported, Bryant CJ, Finn and Strickland JJ, 31 July 2013) [68].
[39]Senate Community Affairs References Committee, Parliament of Australia, Involuntary or Coerced Sterilisation of Intersex People in Australia (2013) [4.40]-[4.41].