Legal Issues

People with intersex conditions had a major victory in the ACT recently when the definition of Transgender was changed to remove people with intersex conditions, and, for what we believe is a world first, include a definition of intersex in legislation. The ACT (ALP) Government, with the support from the Democrats and Greens, passed the following definition of intersex in the Legislation Act 2001 (ACT):

‘An intersex person is a person who, because of a genetic condition, was born with reproductive organs or sex chromosomes that are not exclusively male or female.’

ACT Law Reform

The AISSGA has submitted a detailed paper about law reform for people with intersex conditions in the ACT.

NSW Anti-Discrimination Board Forum

The President of the AISSGA (Tony Briffa) has been invited to speak on behalf of the intersex community at the NSW Anti-Discrimination Board forum on "The Neglected Communities" at Parliament House on 25th February 2003. Tony will detail the AISSGA's submission to the NSW Law Reform Commission which is available here.

VICTORIANS will have unprecedented access to their medical records under new regulations effective today.

Health service providers will be legally required to give patients access to information held about under the new Health Records Act.

Insurers, government agencies, schools and fitness clubs will also be bound by the new law.

Health Services Commissioner Beth Wilson, who will oversee the Act, and handle complaints, said patients would only be denied access to information about them if it constituted a serious threat to their life or health.

Ms Wilson said the Act would give patients a greater say in their treatment and improve confidence in the health system.

"It will give all Victorians the right to access health information held about them, whether that is held by health service providers or others," she said.

"I think it's got the potential to improve the therapeutic relationship, because openness is really conducive to trust."

Note: Similar laws exist in other states of Australia as well as overseas. The AISSGA recommends applying to get your medical records at any rate, and to seek legal advice if the hospital refuses access to your request.

Introduction

The birth of a baby brings joy, hope and expectation for new parents. Immediately following delivery, parents wait in eager anticipation for the doctor or midwife to announce the gender of their new child. For approximately one set of parents in every 2000, the question of gender is not simple[1]; on these rare occasions the baby is born with ambiguous genitalia or is actually intersexed. These are babies born with genitalia that are not easily categorised as male or female. In their disappointment and panic, new parents often rush into consenting to surgical procedures in an effort to “normalise” the child. These procedures aim to assign the child with one particular gender through surgical means.

The question of whether this current method of dealing with intersexed infants is appropriate is worth re-examination. This paper will consider issues of consent surrounding this controversial surgery and will question whether or not it is actually done in the best interests of the child. It will assert that there should be a shift in the approach of parents, doctors and the courts in the treatment of intersexed infants and that surgery should be delayed until such a time that the child attains a level of competency known as “Gillick competency”[2] and consents to the treatment personally. This view is supported by a growing number of intersexed people[3] and activists[4] working in this area.

Initially this may seem problematic; the inevitable question arises as to which gender the child will be raised until that time. It is not suggested that babies be raised genderless. Rather, doctors can make a gender evaluation based on the evidence,[5] and the baby can be raised as determined by such an evaluation. This may include any reversible medical treatment that may be required, but does not include unnecessary irreversible treatment, namely non-therapeutic surgery which attempts to permanently assign the child to a particular gender.[6] Upon reaching sufficient maturity, the child may decide whether or not to have surgery and continue treatment.

Current Paradigm of Treatment

Before understanding how the law can effect change in this area, it is important to have a basic overview of the present approach to intersexed infants, in relation to both their treatment by the medical profession and their legal standing as minors.

The surgery-centred model is the predominant model in dealing with intersexed infants in Australia. It is supported primarily by pediatric urologists and pediatric endocrinologists who are concerned with “normalising” the infant to fit into a western model of gender identity.[7] There is a belief that the use of cosmetic surgery and hormone treatments will eliminate future psychological distress, and that therefore the intersexed child should be treated as soon as possible. There is further concern that delaying surgery will subject intersexed children to ridicule and rejection by their peers.[8]

Thus, the current approach includes the gathering of a team of specialists to decide upon a gender for the child and the commencement of treatment which includes surgery on the genitals, hormone treatments and the psychosocial rearing of the child according to the stereotypes of the chosen gender.[9]

Consent

“(T)he law cannot draw the line between different degrees of violence and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred and no other having a right to meddle with it, in any the slightest manner”.[10]

As a result of their counselling by the above mentioned medical professionals, and their desire to have a “normal” child, parents will usually consent to the surgical treatment of their intersexed child.

Children under the age of 18 are considered minors.[11] Doctors are not required to receive patient consent when dealing with a minor but must obtain consent from a parent or guardian. This consent is fairly broad; it is limited only by the requirement that the surgery must be done in the child’s best interests. The “best interests” principle is based not on parental rights but on parental responsibility;[12] fundamental to this principle is that parents have obligations which exist to benefit their children, not to control them. This is reflected on and supported by Blackstone, who notes that “the power of parents over their children is derived from …their duty”.[13] Parental responsibility applies until the child reaches 18 years of age. Several powers are attached to it including the ability of parents to make various medical decisions on behalf of their children.[14]

Early case law shows that parental rights applied fully until the time at which the child reached the age of majority.[15] In 1883, Lord Denning rejected this interpretation and introduced the idea that parental rights were “dwindling” rights and that the courts should be very hesitant to enforce parental rights over the wishes of their children.[16] He further noted that the rights “start(s) with a right of control and ends with little more than advice”.[17] This concept of a dwindling right has been extended in more recent cases, first in Gillick’s case,[18] then in Secretary, Department of Health and Community Services v JWB and SMB[19] where it was approved.

The principle first held out in Hewer v Bryant[21] was applied to parental powers generally. In Gillick’s case[22], Mrs Gillick sought assurance from the Health Authority that her daughters, who were minors, would not receive any contraceptive advice without her consent. Not having received that assurance, Mrs Gillick took the matter to the House of Lords, which in turn considered whether contraceptive advice and treatment could lawfully be given to a female minor without parental consent. Mrs Gillick’s argument that minors do not have the legal capacity to give consent to medical treatment was rejected by the House of Lords, which held that the rights of parents declined as children became increasingly competent with age and maturity. The majority[23] agreed that competency is assessed through consideration of the child’s ability to understand the proposed treatment, based on the notion of sufficient intelligence and understanding:[24] “Parental rights yield to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision”.[25]

Marion's Case[26]

In this case, the High Court of Australia was faced with the issue of decision-making on behalf of people with disabilities. Marion was a severely disabled 14-year-old girl whose parents wanted her to be sterilized. Generally, parents can authorise medical treatment for a child; however this case limited the extent of such a power by forbidding parental authorisation for the sterilization of a child for non-therapeutic purposes. The High Court decided that it alone had the power to determine whether sterilization was in the best interests of the child and that it would do so by considering the circumstances of each individual case. In making such determinations, the High Court decided it would adopt the principle of diminishing parental powers outlined in Gillick’s case[27].

The principle of diminishing parental powers applies equally to a child with or without disabilities depending on the child’s understanding and intelligence.[28] The rights of parents to determine whether a minor will have medical treatment terminate if and when the child achieves a sufficient understanding and intelligence to be deemed to make such a decision independently. There are various circumstances in which parents have the authority to consent to treatment for their incompetent minor; however in certain situations such as non-therapeutic sterilization, court authority is still required:

“…the overriding criterion to be applied in the exercise of parental authority on behalf of the child is the welfare of the child, objectively assessed”.[29]

Should parents be able to consent to cosmetic surgery on infants with intersex conditions?

In Marion’s case[30] the Court considered limits on parental ability to make decisions regarding their children. However, this case gave no clear indication as to whether the Family Court’s authorisation in such cases is required for other non-therapeutic procedures as well as sterilization. It may be assumed that court authorisation is required, but five members of the High Court noted that parents have the power to authorise non-therapeutic medical procedures such as cosmetic surgery.[31] Certainly, wise parents and doctors would seek authorisation by the Family Court where there is doubt.[32]

The Family Court has recently published guidelines outlining the circumstances in which court authorisation is required and defined such situations as occurring when “a major medical procedure that may permanently affect (a child’s) quality of life” is being contemplated.[33] Such treatments include sterilization, as was the issue in Marion’s case, as well as other procedures which are considered to be ethically sensitive or disputed. Included in these categories are those types of surgeries which are invasive, irreversible, major or those which may impose a significant risk to the future capacity of the child. Gender assignment surgery could certainly fall within this scope and should therefore be beyond parental authority.[34]

In Re A (A Child)[35], court approval was considered necessary. In this case, A’s mother applied on A’s behalf for authorisation for gender reassignment as a result of A’s Adrenal Hyperplasia condition. As an infant A’s penis had been removed and A was raised as a girl. As the result of a lapse in hormone treatment, A became quite masculinized at the onset of puberty. In addition, A expressed a desire to be male. Although a minor can have the legal capacity to decide on a medical procedure if found to have “sufficient maturity and intelligence to understand the nature and implications of the proposed treatment”,[36] it was decided that in Re A,[37] the minor’s understanding was not sufficient. As a result of A’s inability to fulfil the Gillick test, a court order was required.

The factual situation in Re A[38]can be contrasted drastically with that which arises upon the birth on an intersexed infant. When an intersexed child is born, doctors and parents make all medical decisions, very rarely (if ever) consulting the courts for authorisation or approval.[39] The minor in Re A[40] was a teenager who wanted surgery but was not found to be Gillick competent so the question was put to the court.

In the case of intersexed infants, the question of surgery does not make it to the courts. Decisions are in the hands of parents who are in a state of distress: they have a desperate desire to have a “normal” baby, and find the site of the ambiguous genitalia bothersome. In such a state they are often all too willing to comply with whatever suggestions doctors put to them, and will therefore readily agree to surgery. It is questionable whether parents in this state are capable of responsible decision-making and often too willingly comply with whatever suggestions doctors put to them.[41]

Should the Courts Decide?

Surgery on intersexed infants could certainly fit within the Family Court’s definition of surgery which is ‘ethically sensitive’, ‘irreversible, ‘major’ and ‘invasive’[42]. Transferring authority to the courts is equally problematic. Even if it could be successfully argued that parents and doctors should not have the authority to consent to surgery, it is questionable whether the courts are any more capable of deciding the medical fate of these children. The courts are as easily swayed as distressed parents by the opinions of medical professionals. Prior to Marion’s case, the question of court involvement was raised in other similar cases: Re a Teenager,[43] Re Jane,[44] Re Elizabeth[45] and Attorney General (Qld) v Parents (In re S).[46] The result in each decision was to permit the sterilization of disabled young women. Although the question of mandatory court involvement is divided in these cases, they are examples of how readily the court will approve major surgery on the suggestion of medical professionals. However, the reason that mandatory court involvement was decided in Marion’s case is because the majority[47] disagreed with the view of Cook J in Re a Teenager[48]. Cook J believed that the courts can have absolute faith in the medical profession and their integrity. The majority[49] agreed with Nicholson CJ in Re Jane[50] that there are some medical practitioners who also act with impropriety.

While the majority sees the value in putting the question to the courts, in practice the courts are heavily swayed by the recommendations of medical professionals, and judges have been criticised for placing too much value on the advice of medical practitioners.[51] Medical opinion combined with parental support renders it unlikely that a court would refuse authorisation for surgery on an intersexed infant; based on medical opinion alone, the court is likely to hold that surgery is in the best interests of the child. Thus, while there is the appearance that decision-making is in the hands of the courts, in practice they act as a rubber stamp; doctors are the true decision-makers.

Conversely, even if the courts were the genuine decision-makers, judges have no real knowledge or expertise in this area. It is questionable whether judges are capable of understanding the physical and psychological issues surrounding medical alteration of intersexed infants.

Clearly a simple solution is to postpone surgery until such a time that the intersexed child who has passed the Gillick competency test requests the medical procedure.

Best Interests Principle

The “best interests” principle was given consideration in Marion’s case.[52] The judges strongly considered the extent to which parental authority applies to medical procedures. They concluded that the overriding consideration in the exercise of parental authority is whether when, “objectively assessed”, such authority is in the best interests of the child. When the court finds that the exercise of parental authority would serve in the child’s best interests, it can then authorise the parents to consent to surgery.[53] The standard in deciding “best interests” is that the decisions “should be reached in a state of firm satisfaction upon convincing evidence”.[54]

In Marion’s case, The High Court has provided some guidance regarding where the best interests of the child may lie in relation medical treatment.[55] It gave some indication of the importance of determining the child’s future capacity to consent before the court authorises irreversible treatment.[56] Here, Brennan J held that non-therapeutic sterilization of a child cannot be authorised, either by guardians or by the Family Court under any circumstances.[57] He stated that the most effective way to deal with controversial non-therapeutic surgery was to postpone it until such a time that the individual might personally decide. This concern was also reflected in the earlier decision reached in Re D.[58] In this case, surgery to sterilize an 11-year-old was not permitted because it was held that in later years she would be capable of making her own choice regarding surgery. McHugh noted that if there was any real possibility that children would acquire the capacity to choose whether or not to be sterilized, then sterilization would not be in their best interests unless required on urgent health grounds: “Accordingly, it would be unreal to suggest that a (decision-maker) should make the decisions which the child would make. What the child would have decided, if confronted with the problem, can only be a matter of speculation”.[59]

There is one fundamental difference between the disabled minor and intersexed infant. It is unlikely that the intellectually disabled minor will ever obtain the capacity to consent to treatment. On the other hand, the intersexed infant will almost certainly obtain that future capacity. We can conclude from this that, if the “best interests” test is correctly applied to intersexed infants, the court would not authorise non-reversible surgery.

Problems with the “Best Interests” Test:

As the majority noted in Marion’s case,[60] it is impossible to formulate a precise test which is capable of answering the question of best interests. In their chief judgement Mason CJ, Dawson, Toohey and Gaudron JJ took note of the principles to be applied in making a decision in the best interests of the child. They stated that it was impossible to formulate a rule which would satisfactorily determine what was in a child’s best interests.[61]

Brennan J also noted the limited usefulness of “best interests” saying that it “does no more than identify the person whose interests are in question, it does not assist in identifying the factors which are relevant to the best interest of the child”.[62] This ambiguity leaves decisions of best interests to individual judges most of whom have no understanding of what is in the best interests, medically or psychologically, of an intersexual infant.

The courts themselves have recognised the ambiguity of this test and raised concerns regarding its arbitrary exercise. Judges feel that they can never truly be sure that they have made the correct decision because they are forced to decide by balancing all the considerations.[63] It is therefore impossible to make a uniquely correct answer.[64]

The modernist approach to sexuality is to presume that there are two distinct genders at either end of the spectrum, with the fully masculized man at one end of the spectrum, and the fully feminized woman at the other. However, there are very few people who actually conform to such extremes, and indeed it is hard to know where the boundaries between acceptable and non-acceptable levels of gender variation actually lie.[65] Doctors tend to interpret the norm very strictly, leading to an outrageous number of genital assignment surgeries being performed.

Despite the complexity of the issue, the court will generally reflect the majority view that a good quality of life requires that the individual have normalised genitalia; in addition, following the example set by doctors, they are likely to apply a strict definition of what constitutes normal. In determining the best interests of the child, judges will therefore tend to view surgery as being in the child’s best interests.[66]

Fogarty J in Horman[67] maintained that the “best of the welfare of the child has to be determined having regard to contemporary social standards”.[68] It must be questioned whether we need to cure the intersexed child, or the society: “it’s difficult to be Black in this culture but we don’t bleach the skin of Black babies”.[69]

During later discussion on the actual medical treatment performed on intersexed infants, it will become clear that through adhering to societal norms, the best interests of the intersexed child are not necessarily determined correctly.

In Marion’s case[70] the Court stated that while the child’s interests prevail, consideration would be given to the needs of carers.[71] Deane J agreed with the majority in stating that sterilization could not be justified under the best interest principle “merely because it will make easier the task of those responsible for the child’s protection and care”.[72] However, he went on to note that the happiness of carers could be taken into account as an indirect factor in the child’s welfare.[73] This begs the question: is it in an intersexed child’s best interests to have surgery so that it will be more likely to be accepted or loved, thus receiving better care?

Taken to its logical extreme, this argument assumes that if a carer’s happiness is an indirect factor in the child’s welfare, then surgery on the intersexed child is performed for the benefit and best interests of the parents. It is the parents who are uncomfortable with the child’s physical appearance and it is they who fear that they will not be able to accept or love the child fully as long as the child remains “different”. It would then be in the best interests of the child to have surgery since the result would be more loving parents. Clearly this is an extreme view, and one which would be cause for grave concern. A milder example but one that follows similar reasoning, can be found in Re GWW (husband) and SMW (wife).[74] In this case it was decided that it was in the child’s best interests to donate bone marrow to an aunt, since he would benefit from continuing a loving relationship with her if she survived her leukaemia. It is disturbing to consider how far the best interests principle will stretch to accommodate the requests of the caregivers while it masquerades as applying to the child.

Is Medical Intervention Necessary?

“Genital ambiguity is ‘corrected’ not because it is threatening to the infant’s life but because it is threatening to the infant’s culture”.[75]

Genital surgery on intersexed infants is generally described as necessary; however there is a great variation in degree of necessity ranging from that which is lifesaving to that which is purely aesthetic.

True hermaphroditism, where the infant is born with one or more ovotestes, is very rare. More common are either female or male pseudohermaphrodites. In the case of those classified as female, the infant will often have ovaries and have an XX chromosomal basis. External genitalia often looks masculinized, with the clitoris resembling a small penis. Those who are classified as male pseudohermaphrodites generally have testicles and an XY chromosomal make-up. This category consists of two groups: those who are affected by Androgen Insensitivity Syndrome and those who have been affected by 5-alpha-reductase deficiency.[76]

Whatever the condition or its causes, “ambiguous genitalia” or intersexuality does not constitute a medical emergency and only very rare cases will it signal the existence of a metabolic disease. Such is the case when a child has congenital adrenal hyperplasia (CAH), which is the only life-threatening condition connected to ambiguous genitalia. It is worth noting, however, that it is the CAH which is life-threatening and not the ambiguous genitalia. Thus, it is unnecessary to perform genital surgery on infants who have CAH.[77]

There is growing evidence that there are numerous problems associated with performing genital surgery on a child before the onset of puberty.[78] This is primarily because the growth and changes that take place during puberty can alter the “normalised” genitalia. In addition, it is worth noting the somewhat aggressive treatment applied to some intersexuals following surgery.

Genital surgery can cause physical harm such as scarring, chronic pain and irritation, reduction of sexual sensation, as well as psychological harm. Females who have undergone genital surgery are often plagued with urinary and vaginal infections. The gender assignment surgery can be performed on children at any period from when they are a week old to when they become toddlers. The surgeries are painful and consist of cutting and carving the genitals, often repeatedly throughout childhood and beyond puberty.[79] Sometimes a laprotomy is performed to remove internal organs and the results can be devastating, as one recipient testifies:

The irony … that the surgery and ‘therapy’ which was imposed upon me for the purpose of correcting my abnormal sexual and genital condition was meant to enable me to live a ‘normal’ life. But it was exactly my ‘treatment and how it was inflicted upon my being which really damaged me more than anything else.[80]

Perhaps most disturbing is that the vagina often needs to be artificially dilated and reconstructed in order to be kept open. Without the artificial dilation it is not unusual for the vagina to have closed in by the time puberty is reached which usually leads to more surgery. At least if surgery were delayed until the girl was capable of consenting, less surgical interventions would be necessary and the girl would be able to perform the dilations herself, thus saving her from the embarassment of having to endure dilations at a young age.[81] One mother relayed the story of her 18-month-old child who had had a vaginoplasty as an infant. The toddler was pulling out her eyelashes and biting her nails in response to the dilation treatment. When the mother stopped the treatment, the obsessive behaviour discontinued.

Comparisons can be drawn between the effects of genital surgery and treatment with that of sexual abuse,[82] and there is evidence that these children experience their surgery and treatment in this way.[83] Like victims of sexual assault, they are subject to repeated genital trauma. In addition, just as is the case with sexual abuse, there is shame and stigma attached to intersexuality and surgery which means that it must remain a secret, known only to the family. Symptoms arising from the treatment are similar to those which accompany sexual abuse and include depression, self-destructive behaviour, low self-esteem, guilt, anxiety and stress regarding the need to maintain secrecy.[84] If treatment of intersexual children were viewed as sexual abuse, then it would cease due to illegality.

We should also consider whether surgery on intersexual infants is tantamount to genital mutilation. Female genital mutilation is condemned within our society by a range of organisations including governments, law reform agencies and religious and political groups. Among those who deplore the practice is the United Nations; in a recent declaration, its definition of violence against women included “any act of gender based violence that results in, or is likely to result in, physical, sexual or psychological harm”,[85] and continued to include genital mutilation within the scope of this definition.[86] A Family Law Council Report tabled in the Commonwealth Parliament in 1994 recommended legislation directly outlawing female genital mutilation.[87] The Commonwealth Attorney General[88] accepted the recommendations of the report and ordered that the states and territories enact legislation outlawing female genital mutilation. He threatened that if the states and territories were not willing to make such mutilation a criminal offence, then the Commonwealth would use its external affairs power to do so.[89] Victoria has since legislated specifically criminalizing the practice.[90]

Many activists have likened female genital mutilation to the procedures performed on intersexed infants. The Intersex Society of North America (INSA) is an organisation dedicated to asserting intersexual identities and lobbies to put a halt to surgery on intersexed infants. ISNA has lobbied medical associations and health administrators to stop the medical practices on intersexed infants which they compare to mutilation.[91] ISNA links genital mutilation and surgery on intersexed infants, noting that both are “culturally determined practices of harmful genital surgery”.[92] In fact, these American activists claim that such surgery constitutes genital mutilation and is therefore against the law. By claiming this, they aim to force doctors to refuse to perform surgery. One means of outlawing surgery in Australia is to draw similar comparisons and in doing so, to try to convince the courts that this surgery should be illegal under the Crimes (FGM) Act.[93]

Alternative Approaches

Other cultures have traditionally held more progressive approaches intersexed infants. Firstly, some cultures more readily accept the existence of intersexed infants and therefore do not view them as requiring surgery. Secondly, some courts in other jurisdictions are taking what can be considered a “preferred approach” in cases where surgery is an issue.

The Sambia of Papua New Guinea have long recognised what they term a person of transformation or Kwolu-aatmwaal - that is, a female who turns into a male. Likewise, the Hiras of India are understood as an alternative sex within their culture. These classifications challenge the strict boundaries placed on gender in the west.[94]

The Constitutional Court of Colombia recently issued two decisions restricting the ability of parents and doctors to consent to and perform surgery on intersexed infants.[95] The surgery is known in Columbia as Intersexed Genital Mutilation has been practised there and in most industrialised countries for the past few decades.[96] In the relevant cases, the judges stated that it was possible for the courts to consent to surgery but only in instances where they had access to full and accurate information about the risks involved and about alternative treatment models.

New Paradigm of Treatment

Intersexed infants and adults are not abnormal and in need of “normalising” surgery. Rather, their genitals are merely an anatomical variation of the “standard” genders. While some intersexed genitals may signal a metabolic disease, these incidents are rare; indeed even in such cases the genitals themselves are not diseased and do not pose a medical problem, therefore surgery is not therapeutically required.[97] Cosmetic surgery on the genitalia of intersexed infants should not be routine but should be performed only if and when the child is capable of consenting to such surgery. Any irreversible treatment is unacceptable and all secrecy surrounding treatment should be avoided. This new paradigm is not antisurgery. Many intersexed people request surgery and, at such a time, surgery should be performed. It should also be performed on infants who medically require it.

It is important to note that this new paradigm of treatment does not advocate that children be raised genderless.[98] Doctors and families can assign a gender to the child based on genetic tests and information and histories of intersexed people with their particular child’s condition. Gender is determined by various factors, not merely by the appearance of genitals, or by fertility, hormones, or social conditioning.

The 1989 United Nations Convention on the Rights of the Child clearly demonstrated a new recognition of children’s rights; and children in all countries should be permitted to exercise their rights, powers and freedoms. Through ratification, the Australian Government has acknowledged that the child is a competent decision-maker on matters which concern the child’s future.[99] In addition, there is a growing belief that involving children in decisions regarding their medical treatment will benefit their psychological health and ultimately increase the efficacy of the treatment.[100]

Common Law

Through their judgements, judges have the opportunity to help shape ideas of societal norms. When cases dealing with gender assignment reach the courts, judges should consider the social and psychological impact which such surgery is likely to have on infants. They should use these situations as an opportunity to be catalysts for change through pointing out that there is nothing wrong with intersexed children, even though their appearance does not conform to that of the “standard” of male or female. In addition, the courts must reconsider the “best interests” test in order to determine whether it adequately serves intersexed children by truly considering their best interests.

While many issues of medical law are resolved within the common law, there is need for statutory reform.[101] Unfortunately, many common law principles do not adequately cover this area of law. Parliament must consider drafting workable laws in this area in order to relieve some of the ambiguities currently surrounding the area of consent and best interests of the child and to aid in defining and outlining the rights of intersexed children. In addition, there is a need to clarify the issue of when someone can be considered a competent minor who is able to make decisions on their own behalf.[102]

Currently, the authority to give painful and harmful surgery to intersexed infants is vested in parents, doctors and the courts. Legislation which rejects the surgery-centred model of treatment and favours the psychology-centred model is necessary in order to protect the best interests of intersexed children. The result of such legislation would be criminal penalties placed upon doctors who perform gender assignment surgery before the child reaches Gillick competency and consents to surgery.

[1] Rita Carter, ‘The Third Sex’, The Sunday Telegraph (Sydney), 10 September 2000, 16.

[2] Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (Gillick’s case).

[3] Interview with Anthony Briffa, AIS Support Group Australia member, AIS Victoria, Melbourne, 11 September 2000; John Colapinto, As Nature Made Him; The Boy Who was Raised a Girl (1999).

[4] Alice Dreger, Hermaphrodites and the Medical Invention of Sex (1998); Suzanne J Kessler, Lessons from the Intersexed (1998).

[5] Eg anatomical presentation, genetic composition, etc.

[6] Alice Dreger, above n 4.

[7] Alice Dreger, ‘Notes on the Treatment of Intersex: Comparison of Old and New Models of Treatment’, http://www.isna.org/compare.html.

[8] Ibid 3.

[9] Dreger, above n 4.

[10] Blackstone’s Commentaries (17^th ed 1830 Vol 3, 120).

[11] Age of Majority Act 1977 (Vic) s.3.

[12] Family Law Act 1975 (Cth) ss 61B, 61C(1).

[13] Blackstone’s Commentaries (1 B1 Com, 17^th ed, 1930, 452). As appears in Peter MacFarlane Health Law (3^rd ed, 2000).

[14] Loane Skene, Law and Medical Practice (1998), Ch 4.

[15] Re Ager v Ellis (1883) 24 Ch D 337.

[16] Hewer v Bryant (1970) 1 QB 357 at 369

[17] Ibid at 369.

[18] [1986] AC 112.

[19] (1992) 175 CLR 218 (Marion’s case).

[20] [1986]AC 112

[21] (1970) 1 QB 357.

[22] [1986] AC 112.

[23] Lords Fraser, Scarman, Bridge and Templeman

[24] [1986] AC 112 at 169-170.

[25] Ibid at 186 (Lord Scarman).

[26] (1992) 175 CLR 218

[27] [1986] AC 112.

[28] Anthony Dickey, Family Law (3^rd ed, 1997).

[29] Marion’s case (1992) 175 CLR 218 at 250.

[30] (1992) 175 CLR 218 at 301.

[31] Ibid at 79, 180, 79, 205.

[32] Anthony Dickey, ‘The High Court’s Decision in Re Marion’ (1992) 6 Australian Journal of Family Law, 97.

[33] Family Court of Australia, ‘A question of treatment, The Family Court and special procedures for children, an introductory guide’ 1996.

[34] Marion’s case (1992) 175 CLR 218 at 313, (Mason J).

[35] [1993] FLC 92-402.

[36] Gillick’s case [1986] AC 112 at 186.

[37] [1993] FLC 92-402.

[38] Ibid.

[39] Dr Neil Campbell, ‘Selection For Treatment; Critically Ill Newborns’ (University of Melbourne – Health and Medical Law lecture #7. 4 September 2000).

[40] [1993] FLC 92-402.

[41] Suzanne Kessler, Lessons From the Intersexed (1999) 75.

[42] Family Court, above n 33.

[43] (1988) 94 FLR 181.

[44] (1989) 13 Fam LR 47.

[45] (1989) FLC 92-006.

[46] (1989) 38 FLR 41.

[47] Mason CJ, Dawson, Toohey and Gaudron JJ.

[48] (1988) 94 FLR 181.

[49] Above n 47.

[50] (1989) 13 Fam LR 47 at 26.

[51] J Blackwood ‘Sterilisation of the Intellectually Disabled: The Need for Reform’ (1991) 5 Australian Journal of Family Law 138.

[52] (1992) 175 CLR 218.

[53] Loane Skene, ‘Consent To Procedures for Children - Lecture 4’ (University of Melbourne, Health and Medical Law, 18 August 2000).

[54] Sarah’s case, L and GM v MM, Director General, Department of Family Services and Aboriginal and Islander Affairs (1994) FLC 92-449 at 80, 680 (FCA, Brisbane, Warwick J). As appears in Loane Skene, above n 9, 117.

[55] Patrick Parkinson, ‘Children’s Rights and Doctors’ Immunities: The Implication of the High Court’s Decision in Re Marion’ (1993) 6 Australian Journal of Family Law 105.

[56] (1992) 175 CLR 218 at 250.

[57] Ibid at 194-195.

[58] Re D (A Minor) [1976] Fam 185.

[59] (1992) 175 CLR 218 at 316.

[60] (1992) 175 CLR 218 at 251.

[61] Marion’s case (1992) 175 CLR 218 at 251.

[62] Ibid at 270.

[63] Christian Witting, ‘Medical Decision-Making for the Incompetent’ (1996) 3 Journal of Law and Medicine at 397.

[64] S Parker, P Parkinson and J Behrens, Australian Family Law in Context (1999) 740.

[65] Rita Carter, above n 1,16.

[66] Christian Witting, above n 63 at 397.

[67] (1976) FLC 90-024.

[68] Ibid at 75.

[69] Suzanne Kessler, below n 75, 34.

[70] (1992) 175 CLR 218.

[71] Ibid at 251-252.

[72] Ibid at 300.

[73] Ibid at 301.

[74] (1997) 21 Fam LR 612.

[75] Suzanne Kessler, ‘The Medical Construction of Gender’ (1990) 16 Journal of Women in Culture and Society 3.

[76] Alice Dreger, above n 4.

[77] Ibid at 189.

[78] Ibid.

[79] H S Kupperman, Human Endocrinology (1963) 1008.

[80] Kiria Triea http://www.qis.net/triea/sallie.html.

[81] Alice Dreger, above n 4, 194.

[82] Suzanne Kessler, above n 75, 63.

[83] Kiria Triea, ‘The Medical Management of Intersex Children: An Analogue for Childhood Sexual Abuse’: http://www.qis.net/triea/medical_abuse.htr.

[84] R K Oates, ‘The Effects of Child Sexual Abuse’ (1992) 66 Australian Law Journal 186.

[85] Declaration on the Elimination of Violence Against Women: UN Doc A/48/49 (1993), Article 1.

[86] Ibid at Article 2(a)

[87] Nicholas Pengelly, ‘Female Genital Mutilation’ (1998) 24 Monash University Law Review.

[88] Mr. Lavarch.

[89] Commonwealth, Hansard, House of Representatives. 30 June 1994, 2441.

[90] Crimes (FGM) Act 1996 (Victoria).

[91] ‘Intersexual Rights’ Hermaphrodites with Attitude at http://www.altculture.com/aentries/i/intersexual.html.

[92] Suzanne Kessler, above n 79, 81.

[93] 1996 (Victoria).

[94] Gilbert Herdt, Third Sex, Third Gender: Beyond Sexual Dimorphism in Culture and History (1994) 51.

[95] SU-337/99, May 12 1999 and T-551/99, Aug 2 1999.

[96] ‘Columbia High Court Restricts Intersex Genital Mutilation’, at http://www.insa.org/colombia/index.html

[97] Alice Dreger, above n 7.

[98] ‘ISNA’s Patient-Centred Approach’, The Lawson Wilkins Pediatric Endocrinology Society Annual Meeting, at www.isna.org

[99] Kathleen Funder, Citizen Child: Australian Law and Children’s Rights (1996) 12.

[100] Leanne Bunney, ‘The Capacity of Competent Minors to Consent to and Refuse Medical Treatment’ (1997) 5 Journal of Law and Medicine, 52.

[101] Patrick Parkinson, above n 55, 125.

[102] Leanne Bunney, above n 103, 78.