ACT Has Become the First Place to Ban Non-Consensual Intersex Medical Interventions

Intersex flag representing intersex people as the ACT passes laws to protect intersex people.

It is now illegal to perform ‘gender corrective’ surgery on intersex people — the I in LGBTQIA+ — in the ACT.

The capital territory has become the first in Australia, and one of the few places in the world, to enshrine the rights of bodily autonomy of people born intersex.

The Variation in Sex Characteristics (Restricted Medical Treatment) Bill 2023 will ban medically unnecessary surgery on intersex people’s sexual characteristics until they are old enough to consent to such a procedure themselves if they so wish.

“I am immensely proud that the ACT is leading the nation to a better standard of care for people with variations in sex characteristics,” ACT’s Chief Minister, Andrew Barr, said when introducing the bill in April.

“Alongside celebrating how far we’ve come, I think it’s incumbent [to recognise] all members in this parliament who care about the autonomy, consent and safety of people with variations in sex characteristics, and I thank them for their support of this bill today”.

The Bill, which passed on Thursday in Canberra, is designed to stop parents and carers from deciding to permanently alter sexual organs or traits in children who have been born intersex.

Such procedures are all too common, intersex advocates say, and encourage a culture of stigma and shame around the biological trait. They can also lead to medical complications later in life.

Intersex People

Intersex people are those whose existence proves that gender is a spectrum. According to Intersex Human Rights Australia, intersex people are defined as having:

“Innate sex characteristics that don’t fit medical and social norms for female or male bodies, and that create risks or experiences of stigma, discrimination and harm”.

These are people who have a wide variety of biological traits that do not easily fit into social definitions of binary gender. Some of these traits may be more noticeable than others, while some are not identified until later in life.

As the AIHRA writes, intersex people do not share a homogenous identity and the term is more of an umbrella one than a neat category. Some intersex people may identify as male, female, non-binary, or something else. It also doesn’t have a bearing on sexuality.

According to some estimates, between 0.4 and 2% of babies are born with biological traits that make them unable to be defined as a boy or a girl — the upper end of that spectrum is about as many as are born twins or with red hair.

However, there has been a long and disturbing history of medical intervention for these people, starting in the 1960s, when doctors would advise parents to surgically or hormonally alter their child’s sexual organs to better resemble the gender the rest of their appearance gave.

As Human Rights Watch has said in a detailed report on the experiences of intersex people, the procedures can inflict “irreversible physical and psychological harm on them starting in infancy, harms that can last throughout their lives”.

“The results are often catastrophic, the supposed benefits are largely unproven, and there are generally no urgent health considerations at stake.

“Procedures that could be delayed until intersex children are old enough to decide whether they want them are instead performed on infants who then have to live with the consequences for a lifetime”.

While there are no good records on the number of intersex medical interventions that take place in Australia, one estimate puts the figure in the “potentially hundreds” range. Most of them are performed on children under the age of two.

Thankfully, it’s a trend that appears to be slowing down. In 2020, Guardian Australia wrote a story on the growing acceptance of parents and the medical community that intersex is normal and doesn’t need to be corrected.

Earlier this year, Peter Borzi from the Australia and New Zealand Association of Paediatric Surgeons issued an apology “on behalf of all surgeons” for previous surgeries performed in the country on intersex people that have now been acknowledged as “inappropriate.”

Where Does the Rest of Australia Stand?

Australia is actually quite progressive on this issue, which is really a way of saying that the global bar is low.

Intersex became a separate and legally protected category under Australian Federal law in 1984, making discrimination against intersex people illegal. However, there are provisions that allow for discrimination in sport and religious contexts.

In 2003, Alex MacFarlane became the first person in the world to receive a passport with intersex defined as their gender at birth. Since 2013, all Australian Federal documents allow people to define themselves as intersex. MacFarlane also got the world’s first birth certificate recording their sex as indeterminate, also in 2003.

Australia also officiated the first known intersex public office-holder in the Western world when Tony Biffa served as Deputy Mayor of Hobsons Bay in Victoria from 2009.

In 2013, a Senate Inquiry into the practice of medical intervention on intersex people in Australia found that there was an effective practice of enforced or coerced sterilisation going on as a result of these well-meaning but horrifying procedures.

It made a number of key recommendations at the time, which the Federal Government said it would pass on to the states and territories, which, ten years later, have done very little about it.

Tasmania, the ACT, and SA all have explicit anti-discrimination protections on their books for intersex people. Victoria committed to introducing stronger intersex protections in 2021 but has yet to provide further details. The ACT is the only jurisdiction that has taken the step of banning unnecessary medical intervention.

Advocates are hoping that changes in the ACT will spark national calls for reform and that other jurisdictions will soon follow suit.

Related: Where We Need to Go: The Future of LGBTQIA+ Rights in Australia

Related: You Can Now Get a Genderless Birth Certificate in NSW and, Predictably, Some People Are Upset

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