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Intersex Child Surgery

By October 16, 2017No Comments

Alliance Legal Services follows debates on a range of topics relevant to families and which can lead to legal situations and questions. One such debate is the issue of intersex child surgery. The following article from “The Conversation” canvases this issue within the context of our Australian values.

Surgery to make intersex children ‘normal’ should be banned

The Conversation (online) July 5, 2017 6.09am AEST

By Cornelia Koch, Senior Lecturer in Law, University of Adelaide

Travis Wisdom, PhD Candidate, International Human Rights Law, University of Adelaide

Questions in the proposed new citizenship test that address family violence, child marriage and female genital mutilation imply opposition to these is an Australian value.

Indeed most Australians would agree female genital mutilation is an appalling breach of a girl’s right to bodily integrity, and that safeguarding children from violence is a vital goal in modern society. But protection from genital cutting should not only be granted to girls, but to all children.

While condemning female genital mutilation, Australian society appears to broadly accept routine circumcision of young boys, and genital modification surgeries on intersex children where the child’s genitals are reconstructed to resemble those typical of either a male or female. These procedures are legal and supported by Medicare.

In most cases, circumcisions and intersex surgeries occur without medical necessity or urgency: the children are healthy and no adverse medical consequences will arise if the surgery is not carried out immediately. Importantly, children undergoing such surgeries are often too young to understand what is happening to them and are legally too young to provide their consent.

Human rights concerns about underage male circumcision have been discussed in the past, yet infringements suffered by intersex children are an emerging area of controversy. Medically unnecessary, non-consensual intersex genital modification should be made illegal in Australia in the same way as female genital mutilation.

Children with intersex variations

Intersex children are born with sex characteristics, including genitals, gonads (testes and ovaries) and chromosome patterns, that do not fit typical binary notions of male or female bodies.

Nearly 2% of Australia’s population have intersex variations, which may not always be apparent at birth and may reveal themselves at puberty or later in life. While some intersex people may have atypical external genitalia, others may not.

Intersex variations describe physical or bodily traits – they do not describe gender or sexuality. Like non-intersex folks, intersex people may identify with any number of gender or sexual identities.

Genital “normalising” surgery

Many intersex children undergo what proponents call genital “normalising” procedures, which implies these children’s bodies are abnormal. The procedures, intended to make the children conform to social norms of male or female bodies, often include irreversible surgical modification of sexual organs. These may result in sterilisation by removal of their gonads (testes or ovaries), and life-long hormone treatments.

Those who advocate for these procedures to be carried out when children are still young often argue the chances of medical success are higher and the children will be able to grow up with a consistent gender identity. However, this ignores the human rights of these children to independently develop a gender identity and decide for themselves whether they want their bodies to be altered irreversibly.

There are many examples of intersex people who, as children, were subjected to “normalising” procedures without their consent. In the 1970s, intersex advocate Georgie Yovanovic went through forced medical examinations, hormone treatments, surgery to descend her testicles, and ultimately a unilateral mastectomy without her consent or any explanation from doctors when she was a child and teenager.

Alice Springs-based musician Shon Klose was born without internal female organs. As a teenager in the 1980s, she was pressured into having medical treatment to create a vagina to have a more typical female body capable of heterosexual penetration. She did not receive any medical counselling, support or information.

Genital “normalising” procedures on young children still occur in Australia today. The recent Family Court of Australia case of five-year-old Carla is an example. Carla was born genetically male but with the external appearance of a female child and had undergone early childhood surgery to enhance the appearance of her genitalia.

In 1992, the High Court of Australia had established a precedent in Marion’s Case, that parents cannot consent on behalf of their children to have certain types of medical procedures, which therefore require court authorisation. Consequently, in 2015 Carla’s parents, who were raising her as a girl, sought permission to have her gonads surgically removed, which the Family Court granted.

Human rights violation

Greater visibility of intersex people is driving increasing resistance to these procedures. There is now growing global criticism of genital modification procedures on intersex children as a violation of human rights.

In 2013, Europe’s leading human rights organisation, the Council of Europe, identified intersex genital modification as a non-medically justified violation of children’s right to physical integrity. The Council encouraged states to “guarantee bodily integrity, autonomy and self-determination” to intersex people.

In 2015, Malta became the first country to explicitly outlaw the practice. No other country has done so at the time of writing. In the same year, the United Nations Office of the High Commissioner for Human Rights (OHCHR) held a conference to address what it called the human rights violations faced by intersex people. As the first of its kind, the meeting broadened global awareness of intersex issues and genital modification specifically.

Shortly after this, twelve UN entities including the OHCHR, UNICEF and the World Health Organisation, released a joint statement condemning anti-LGBTI discrimination and violence. They specifically pointed out that LGBTI persons may face abuse in medical settings, including unethical and harmful so-called “therapies” to change sexual orientation, forced or coercive sterilization, forced genital and anal examinations, and unnecessary surgery and treatment on intersex children without their consent.

So, what about Australia?

There is growing awareness in Australia of the potential human rights abuses on intersex children.

A 2013 federal senate inquiry into the involuntary or coerced sterilisation of intersex people found there is no medical consensus regarding how and when genital “normalising” surgery should be conducted.

Among the committee’s recommendations was that all intersex medical procedures be managed by multidisciplinary teams in a human rights framework, and require authorisation by a court or tribunal. These recommendations did not lead to policy changes or legislative reform.

In 2016, Australian Human Rights Commissioner Ed Santow endorsed international calls to end medically unnecessary procedures to safeguard the human rights of intersex children.

In February 2017, the Rationalist Society of Australia – a secular free thought organisation – published its white paper on genital autonomy. This condemns all forms of medically unnecessary, non-consensual genital modification as violations of human rights. The white paper calls for the criminalisation of these procedures on equal footing with the prohibition of female genital mutilation.

Despite increasing international and national awareness of the human rights violations caused by genital modification procedures, Australia has not reformed its laws. Yet rights to bodily integrity and autonomy should be protected for all children. Until we safeguard every child from all forms of violence, opposition to genital cutting will not be an Australian value.

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Please note our blogs are not legal advice.  For information about how to obtain the correct legal advice, please contact Alliance.


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