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Justice Miscellaneous (Removal of Outdated Sex Terminology) Bill 2023

Cassy O'Connor MP  -  Thursday, 11 May 2023

Tags: LGBTI, Legislation

Ms O'CONNOR (Clark - Leader of the Greens) - Mr Deputy Speaker, the Greens will be supporting the Justice Miscellaneous (Removal of Outdated Sex Terminology) Bill 2023. We thank the Attorney-General for bringing this legislation forward. It has actually been part of an ongoing conversation that we have been having with the Attorney-General where we encouraged the development and bringing on of a bill to contemporise the language used in law when referring to people who live with variations of sex characteristics.

We recognise that this bill is intended to contemporise terminology in four pieces of legislation: the Anti-Discrimination Act 1998, the Court Security Act 2017, the Public Trustee Act 1930 and the Youth Justices Act 1997. This bill is one step towards improving the language that protects people with a variation of sex characteristics.

We know there will be members in this place who have spoken to people born with a variation of sex characteristics, some of whom, without their consent, were subject to surgery when they were babies. There is a feeling of trauma and a perception of stigma attached to these of our fellow Australians. We have a responsibility in here to make sure that the law properly protects people with innate variations of sex characteristics or who live with a variation of sex characteristics. I will be interested in the Attorney-General's response to Ms Haddad's questions in relation to people who are not born with a variation of sex characteristics, therefore it is not innate, and how the law might respond to those people.

Going to the broader issue of how we protect children with innate variations of sex characteristics, there is an important body of work done by the Tasmanian Law Reform Institute (TLRI) and handed down in June 2020. The report, Legal Recognition of Sex and Gender: Final Report No 31, explores the issue of consent, or lack thereof, to medical treatment for children with innate variations of sex characteristics. The terminology used in this report is 'intersex' because that has been a commonly used term. I will quote from the report:

In circumstances where children are born with intersex variations of sex characteristics, that is, ambiguous genitalia, medical practitioners will sometimes perform a 'genital normalisation procedure'. This is a surgical intervention intended to make the external genital appearance and internal gonads more closely match the typical characteristics of an assigned gender.

As outlined earlier in this report, the Birth, Deaths and Marriages Act now allows a longer time for parents of children for whom variations of sex characteristics do not allow for an easy assignment of sex to register the birth and, therefore, the sex, if they choose to, of a child. This will relieve some initial pressure on parents to make medical decisions. However, for many intersex people, their sex characteristics become more or less pronounced throughout their childhood, even after 120 days. Assigning a sex for the purposes of registering the birth of an intersex child can be difficult.

In general, medical practitioners and parents considered 'normalisation' interventions to be in the best interests of the child, believing the variations to be abnormal and seeking to 'correct' a perceived disorder. However, a number of submissions to the TLRI emphasise that there are generations of adults who have lived and must live with the consequences of government policies and medical practices that authorised interventions to 'normalise' a child's physiology.

Submissions to the TLRI from community organisations and members of the community highlight the pain and the suffering caused by past practices, some of which continue to be used today. These submissions are consistent with the experiences of the many intersex adults who underwent these procedures as infants and children, and have subsequently shared that they consider these interventions to have been extremely harmful.

A 2013 Senate inquiry examining involuntary or coerced sterilisation of intersex people received evidence regarding the social and psychological ramifications of such surgeries. It told of the social stigma, the legacy of shame, erosion of trust within a child's family unit, personal and psychological distress, adult sexual anxieties and uncertainty about personal and gender identity experienced by those on whom surgery was performed.

Anyone who has not read the masterpiece book, Middlesex, by Jeffrey Eugenides, I highly recommend it. It tells the story, albeit fictional, of a child, Callie, who was born with a variation of sex characteristics, underwent surgery and was assigned a sex or gender not long after birth. The story explores this child's suffering. It won the Pulitzer Prize and is one of the truly great pieces of literature.

Although I understand that the Attorney-General is not the Minister for Health, but we have some questions about practices that we understand are taking place in the Tasmanian health system today.

In correspondence to Sam Klintworth, the international director of Amnesty International Australia dated 1 December 2021, the then deputy premier and health minister, Jeremy Rockliff stated:

I am advised that no surgeries to modify the sex characteristics of children are performed in Tasmania.

However, Commonwealth health data from Medicare codes and sourced from the Human Services and Health website on procedures conducted in Tasmania indicates that at least 19 surgeries were conducted in Tasmania from July 2018 to July last year on children aged 14 years and younger, which would be characterised as surgeries to modify innate sex characteristics of children. I have no doubt that the then deputy premier and health minister was advised that by his department and that enabled him to make that declaration in correspondence to Amnesty International. The data available through the Commonwealth points to a different story.

We would like to understand whether the Government can confirm whether surgeries to modify innate sex characteristics are in fact performed in Tasmania on some children who have variations of innate sex characteristics. We would like an explanation for why data relating to relating to surgeries conducted on children to modify innate sex characteristics is not collected by the state. We would like confirmation of whether the Government supports the banning of non-consensual surgeries on children with variations of innate sex characteristics in line with the UN Joint Statement on the Human Rights of Intersex Persons, the AMA LGBTIQA+ Health Position Statement of 2021, and the Australian Human Rights Commission report Ensuring Health And Bodily Integrity: towards a human rights approach for people born with variations in sex characteristics.

We ask the Attorney General if she could seek some advice on whether the Government intends to develop Tasmanian legislation to ban non-consensual surgeries on children with variations of innate sex characteristics and, if so, when development of legislation will commence. It would be good for the House to see any current policies, procedures, guidelines or frameworks in use within the state's public hospital system which relate to surgeries conducted on children to modify innate sex characteristics.

We would also like the House to be provided with any details on any training or education undertaken by health professionals in public hospitals in Tasmania from July of 2018 to July last year, including the type of training or education provided, the number and location of any training or education sessions, and the number of attendees.

Back to the TLRI report. It made a series of very strong recommendations about how we better protect babies born with a variation of sex characteristics from entirely non-consensual surgical interventions, which, we understand from a medical professional's point of view, might be viewed as something that will improve the child's quality of life, but, overwhelmingly the evidence is that it does not.

The TLRI report was published three years ago so it is important that in the legislation we are debating today, it is necessary that we modernise terminology in key acts that relate to people with a variation of sex characteristics, but, stronger legislative protection is required for babies born with a variation of sex characteristics. The TLRI report states:

Recommendation 7

The Criminal Code should be reformed to criminalise non-consensual medical interventions in the following terms:

178F Unnecessary medical intervention to change the sex characteristics of children.

(1) Any person who performs a surgical, hormonal or other medical intervention to alter or modify the sex characteristics of a child is guilty of a crime, unless:

(a) it is performed to address a clear danger to the life or health of the child and it cannot be deferred until the child is able to give informed consent; or

(b) it takes place with the informed consent of the child.

(2) Nothing in this Section is intended to apply to interventions involving a consenting transgender child seeking treatment to delay puberty or secondary sexual differentiation.

Charge: Performing unnecessary medical intervention to change the sex characteristics of a non-consenting child.

Recommendation 8 is that intersex children should be able to pursue claims for compensation for personal trespass and breach of professional duty against doctors where medical interventions to alter intersex variations of sex characteristics have resulted in physical and mental harm, irrespective of any parental consent to the intervention at the time it was performed. Provision to this effect should be made in the Civil Liberties Act 2002.

The informed consent of the child, the TLRI says in its recommendations on whom the intervention is performed, should provide a defence in such cases; however, consent itself should not be a defence if the intervention is performed negligently and a child did not voluntarily assume the risk of such negligence.

Recommendation 9

The TLRI recommends that the Tasmanian Government enact a Consent to Medical Treatment Act that covers the field with respect to children’s consent to medical care. The TLRI recommends that this Act should enable a child of 16 years or older to obtain medical treatment and undergo surgical procedures when they consent to treatment and surgical procedures.

For children under 16, the TLRI recommends that Gillick competence be enshrined in this Act. The South Australian Consent to Medical Treatment and Palliative Care Act 1995 may provide useful guidance in this regard.

The TLRI does not recommend that counselling be a mandatory precondition to children receiving medical treatment or undergoing surgical procedure.

Recommendation 10:

The TLRI recommends that the Government give consideration to including in the Consent to Medical Treatment Act proposed in Recommendation 9 all the reforms recommended in Part 3 of this Report. The legislation Act would be comprehensive in providing the entire legal framework for surgical intervention to alter the sex characteristics of children.

That is the body of unfinished work of this Government and this parliament.

The Greens have asked questions and strongly advocated for a ban on dangerous conversion practices and are pleased to hear the Premier confirm his intentions in that regard in question time this morning.

I agree with Ms Haddad that when legislative reform like this is delayed, it comes at a human cost. There is also this other necessary legislative reform work to protect children with innate variations of sex characteristics.

I remind the Attorney-General that the TLRI report is now three years old. It is based on submissions and testimony from community members, organisations like Intersex Human Rights Australia and Equality Tasmania and Working It Out, outstanding organisations that have contributed to this body of work, and it has led to a report which makes a compelling case for legislative reform, across those acts, as recommended in the TLRI report.

I realise that I have put some questions to the Attorney-General that she may not be able to answer in her second reading response, but we will be seeking answers to those questions. We would like to hear anything that the Attorney-General can provide to us about the current framework for babies with innate variations of sex characteristics.

It is possible that there is a disconnect between the executive - the Premier and Health minister - and what is happening clinically and operationally in our public hospital system, where it is possible there are times when surgeons are saying to frightened parents, 'The best, most life-saving thing we can do now is to surgically intervene so that your baby can live under a single gender', and by putting the argument that this is life-saving surgery they are putting parents in incredibly difficult positions.

To test a clinical belief that it is necessary to undertake surgery on these babies I think is something that the Health minister needs to take a direct, personal interest in, particularly given that in 2021 he wrote to Amnesty International Australia and made a very strong assertion that these surgeries are not taking place in Tasmania now, but it would seem to the Greens, at least, that they are. That is based on Medicare codes and data that is readily available through Commonwealth Health and Human Services databases.

Again, I know this falls somewhat outside the Attorney-General's frame of responsibility, but it is a very serious matter. I have been in government and I understand that sometimes what the minister understands to be the case, or has been advised is the case, is much more complex or nuanced at another operational level within the agency, so I think it is definitely worth the Health minister having a look at very closely and testing that data with his clinical advisors.

We are particularly interested to understand what is next on this reform journey for people with a variation of sex characteristics. I again acknowledge that the Attorney-General is progressing reform in some really important areas and across her portfolios, actually. This legislation we debate today, which will be supported and is important, is one step down that path, but there is a whole other reform imperative which is outlined in the TLRI report advocated for by those outstanding organisations Intersex Human Rights Australia, the wonderful Simone Lisa Anderson, Working It Out and Equality Tasmania. It is a body of work that I believe we are morally compelled to work together to deliver.

I strongly encourage the Attorney-General. I know you have the busiest legislative agenda of the Cabinet but this is work that must be undertaken, because until it is we cannot be certain that babies are not having non-consensual, totally life-altering, invariably unnecessary surgeries in order to make them conform or fit within a clinically assumed norm.

With those few words, we are glad to be supporting this legislation. We have advocated for it and we will keep advocating for a stronger legislative framework, criminal and civil, in order to protect those babies, estimated to be about 1.7 per cent of all births, according to international research. We need to protect those babies from having their rights taken away from them and having life-altering and sometimes very harmful surgery done on them without their consent. We will be supporting the bill and look forward to the Attorney General's responses.