How Gender Affirmation Intersects with the Law for Transgender and Intersex People

Gender affirming surgery is the process of undertaking surgery as part of a gender transition. With the news that the Australian Society of Plastic Surgeons has applied for the federal government to include 21 gender affirming surgeries under the Medicare Benefits Scheme (MBS), we sat down to discuss the intersection between law and gender affirming healthcare with the University of Technology Sydney’s Dr Aileen Kennedy.

Approximately 1.7% of the world’s population is believed to have some form of intersex trait. These traits can be external, visible differences, or internal ones that we don’t know about.

“Most people don’t really understand what it means to be intersex,” Aileen explains. They think it’s something to do with gender. Actually, intersex is purely a biological thing. […] Most intersex people identify as male or female, but the problem for people who are intersex is that their bodies aren’t sort of stereotypically male or female, and therefore the medical community or some sections of the medical community jump in early as when they’re still children or infants even, and change their bodies to make them look more stereotypically male or female.”

Aileen explains that you could be intersex without ever knowing it, because of your chromosomes.

“You might have a chromosomal anomaly where some people are XXY. So they have actually got 47 chromosomes.Some people might have just an X. So there’ll be 45 chromosomes.”

It’s when these differences are visible that medical intervention happens, often without the knowledge or consent of the patient.

“So [intersex] people will also access [gender affirming] procedures, but it will usually be done on the basis of parental consent. In other words, before they’re old enough to make a decision for themselves.”

The most important thing when it comes to medical procedures, Aileen says, is autonomy.

“It’s a strange situation. On the one hand, people who are transgender who may be finding it difficult to access gender affirming treatment. On the other hand, intersex people may find it hard to avoid having these same procedures performed on them without their consent. So I guess the thread that runs under all this should be autonomy. People should decide for themselves how they feel and how they want their bodies to express that inner sense of themselves.”

For Aileen, a good first step is the removal of gender markers on identity documents.

“I think maybe rethinking the need for sex markers on many of our identity documents is one step in that direction. I’ve lobbied for a long time for legislation to prohibit interventions on intersex children before they’re old enough to consent for themselves and that legislation is actually passed now in the ACT.”

“Earlier this year they passed legislation which will come into effect next year that says that [for] children with intersex variations, they shouldn’t do any medically unnecessary surgeries or hormonal interventions until they’re old enough to decide for themselves. So that might be before the age of 18, but it won’t be as they do it now at the age of 18 months or five years.”