This is a speech delivered at the Australian Human Rights Commission‘s RightsTalk, “Creating Equality – The Role of Law in Protecting SOGII Rights” on 22 February 2017. The event was hosted by Human Rights Commissioner Ed Santow, with Anna Brown, Director of Advocacy and Strategic Litigation, Human Right Law Centre and Imam Nur Warsame, Founder of Marhaba, a social support group for LGBTIQ Muslims.
— Edward Santow (@esantow) February 22, 2017
Yahma. Thank you, Commissioner for the opportunity to be here, Aunty Norma Ingram for the welcome. I pay my respects to Indigenous elders, and it’s a pleasure to be speaking – on Gadigal Land – about the role of law in protecting intersex people.
People in Australia have been talking about “LGBTI” for at least 6 years. In many ways, this rhetorical shift to LGBTI seems to me to simply mark out Australasian discourse on LGBT people from similar discourse in the US or UK. It’s often no more than a marker of our locality. Discourse on intersex inclusion remains in its infancy.
This means that a rhetoric of intersex inclusion doesn’t match the reality, and I would argue that current legislation and policy in Australia is deeply conflicted, causing immense harm.
I aim here to briefly illustrate some of these contradictions, in the hope that this might help tackle them more effectively.
In legal discourse, intersex can be framed – at the same time – as a gender identity, a gender, a sex, and as deriving legitimacy in international law from where UN conventions mention “other status”.
Federal anti-discrimination law protects us on the grounds of “intersex status”. This is usually reduced to gender, and so an Australian legal journal article described our key issues as honorifics, pronouns and toilets.
But laws and policies to include and protect intersex people should reflect how we understand ourselves, acknowledging what may be, for us, a not-so-neat relationship between biological characteristics and legal sex assignment.
We’re fortunate to have Australian research on people born with atypical sex characteristics. This shows that 52% of respondents were assigned female, and 41% assigned male.
At the time of survey, 52% of respondents were female, 23% male, and 19% chose X or another option.
So, if you want to create a legal policy environment include intersex people, you need to make space for intersex women, intersex men, non-binary folk, and intersex people with other ways of understanding themselves.
Similarly, around half of survey respondents were heterosexual and respondents have very diverse ways of understanding our bodies.
— Lee Carnie (@LeeJCarnie) February 22, 2017
It’s not clear that people who talk about intersex as sex or gender are even aware that intersex is simultaneously medicalised as disorders.
I’m aware that IVF is not a human rights issue per se, but it’s a stark example, as genetic selection on the basis of sex is generally prohibited. But this prohibition doesn’t protect embryos with intersex traits because medicine regards these traits as “disorders of sex development” or “DSDs”; as abnormalities or serious genetic conditions.
I say this to illustrate a point: if we ask most people how they feel about genetic selection on the basis of sex, they likely feel very differently, and answer differently, to a question about selection against “serious genetic conditions”.
Medical and legal constructions have consequences for how families and individuals understand intersex.
The legal system is well aware of this medicalisation of intersex.
Legislative and medical conceptions of intersex are simultaneously pushing in radically different directions. On one hand, intersex bodies are “normalised”, our bodies made to fit stereotypical norms for females or males. On the other, we’re “othered” as a third sex.
The state is complicit. At times it feels like the left hand doesn’t know what the right hand is doing, this is often not the case.
— AusHumanRights (@AusHumanRights) February 22, 2017
A 1979 Family Court case annulled the heterosexual marriage of a man who was, the judge said, born and raised male, but clinically a “hermaphrodite”. He’d undergone medical interventions to reinforce his assigned sex. There’s no evidence that he identified as anything other than male; a political identity as intersex or hermaphrodite was not available in the 70s.
His marriage was annulled on the basis he was a combination of man and woman, and so “a marriage in the true sense could not have taken place”.
His identity, his lifelong legal status and surgical “normalisation” were disregarded.
Justice Graham Bell, the judge, retired only two years ago.
Currently, the Victorian government states online it “values and celebrates diversity… including… sexualities, gender identities and intersex variations” at the same time it states:
“Ambiguous genitalia… can be a source of great distress for parents, delivery room and nursery staff… Corrective surgery is usually undertaken within the first year of life“
A minster in ACT has told me a third sex marker will reduce the likelihood that parents will subject intersex children to such “gender assignment surgery” – at the same time she told me that children with DSDs are treated in line with a national approach, and maybe “normally referred to either Melbourne or Sydney” for surgery.
It’s rare for actual cases to become public. I know a lot in private, from talking with parents, clinicians and adults. But conflicting messages create epistemic issues: it’s been difficult for the views of intersex advocates to be taken seriously, and trusted.
Re Carla (Medical procedure)
One year ago, the Family Court case of Re Carla saw a 5-year old with an intersex trait described as having a “sexual development disorder”. The judge permitted parents to authorise a sterilisation, on the basis of an often-claimed potential risk of cancer in her testes. Clinical evidence does not support that decision. But the judge’s decision relied heavily on gender stereotyping, describing her hair braids, pink curtains and Minnie Mouse underwear, even how she urinates.
The judge also noted, incidentally, that two years before, the 5-year old had a clitorectomy and labiaplasty that, in the words of the judge had “enhanced the appearance of her female genitalia”. Without needing Court oversight. And future surgery might be required to prepare the child’s body for heterosexual intercourse.
These cosmetic surgeries are facilitated by constructing intersex bodies as disordered, and enhancements as therapeutic. The UN terms these as “harmful practices”, and on intersex girls they’re facilitated by an explicit exemption in prohibitions of FGM.
What can the law do?
It can end these policy disjunctions.
The law can prohibit what the UN calls “harmful practices”, medical interventions designed to “enhance” children’s bodies, and make them more typically male or female. The law can require personal, informed consent, something only genuinely available with access to peers.
The law can require effective, rights-based oversight mechanisms to define policies on modifications to the sex characteristics of children, and authorise necessary medical treatment, properly considering the lifetime implications.
The law can provide redress, ensure people have access to paediatric medical records. It can end genetic discrimination, ensure respect for our rights to bodily integrity, physical autonomy and self-determination.
There’s much to do, and there’s more I can say, I hope you will join us, and I hope you’ll ask questions. Thank you.