Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 (ACT)

In an Australian first [1] the Australian Capital Territory has passed the Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 [2] (Act) which came into effect on 23 June 2023. The Act is the first piece of legislation in Australia to regulate medical interventions for people with variations in sex characteristics (also known as intersex people).

The Act aims to uphold the human rights of intersex people lacking capacity to consent [3] in medical settings. The Act establishes a process to be applied when considering medical treatment for people with variations in sex characteristics and bans deferable and irreversible medical procedures for prescribed persons. A “prescribed person” is defined as a person who:

• has a variation in sex characteristics [4], and
• either, is an adult subject to a guardianship order that applies to the medical treatment or is a child who does not have decision-making capacity in relation to the medical treatment. [5]

The process aims to ensure that advice is provided to patients and their caregivers along with psychological support to prevent irreversible modifications to sex characteristics before consent may be provided which can have implications for a patient’s mental health in later life. The new requirements contained in the Act will not apply to emergency treatment, treatment that can be easily reversed, treatment not effecting sex characteristics or where the person is seeking the treatment for themselves (and the person has the capacity to consent). Further provisions (contained in s 10 and Pt 4 of the Act) will come into effect in December this year which will make it an offence to fail to obtain the approval of an assessment committee for restricted medical treatment. [6]

Restricted medical treatment is defined to mean a surgical or medical procedure or treatment (including prescription or administration of a drug) that permanently or temporarily changes the person’s sex characteristics, or which makes changes to the person’s sex characteristics that are only reversible with a further medical procedure or treatment. [7] Sex characteristics includes hormones that relate to sex, the sexual and reproductive parts of the person’s anatomy and the person’s secondary physical features emerging as a result of puberty. [8]

Under s 10 of the Act, a person may only undertake restricted medical treatment on a prescribed person in accordance with an approved treatment plan and any condition applying to the plan. This will require an application to an assessment committee comprised of a president and at least two members each meeting the following criteria: [9]

• human rights
• medicine
• ethics
• variation in sex characteristics
• provision of psychosocial support

Consultants may also be engaged to assist the committee.[10]

Assessment Criteria Guidelines 2023 (No 1) [11] have been published to assist the assessment committee in evaluating applications for approved treatment plans. The Guidelines require the committee to consider whether alternative treatment options have been considered, [12] if the committee has sufficient information to make an assessment and what (if any) further information ought to be sought. [13] In undertaking any analysis of the risk of significant harm of any proposed treatment plan, the assessment committee are directed by s 14 of the Act to “disregard any evidence that the treatment needs to be undertaken to reduce discrimination or stigmatisation or a perceived risk of discrimination or stigmatisation”.

The Act provides for internal review of decisions made by the assessment committee as well as avenues for review by the ACT Civil and Administrative Tribunal for review of a reviewable decision. [14]

Similar legislation around the world

Whilst the Act is an Australian first, it follows similar legislation implemented around the world in the last decade to protect the interests and autonomy of intersex minors.

Malta appears to have been the first to pass legislation, implementing the Gender Identity, Gender Expression and Sex Characteristics Act [15] (GIGESC), which passed in 2015. The GIGESC prevents sex assignment and surgical intervention on a minor when the treatment can be deferred until the person can provide informed consent. In exceptional circumstances, procedures can be permitted by guardians with a committee’s approval.

Portugal’s Law 38/2018 [16] was passed in 2018 and prohibits modifications, treatments and surgeries on intersex children, except in situations proven to risk their health.

In 2019, an Indian Court in the State of Tamil Nadu banned sex characteristic amending surgeries of intersex infants and children, also with an exception for life threatening situations.

In 2020, Iceland passed the Act on Gender Autonomy 2020 [17] which provides that intersex medical intervention to a child under 16 shall only be undertaken with the child’s consent and its level of gender identity.

In 2021, Germany banned unnecessary (non-vital, non-emergency) surgeries on babies diagnosed as intersex. A family court may authorise such surgeries.

In 2022, Law No 4958/2022 passed in Greece and prohibits medical interventions intended to alter sex characteristics of intersex minors under 15 without their voluntary informed consent. In circumstances of endangerment of life/health, the Courts consider a committee’s expert opinion and the minor’s opinion (if possible).

Chile’s Circular No 15 [18] passed in 2023 and prohibits surgery, procedures and medical treatment on intersex newborns, children and adolescents, undertaken for the sole purpose of responding to societal expectations/aesthetics, without the consent of the child/adolescent.

Spain’s Law 4/2023 [19] prohibits all genital modification practices on minors under 12 unless the intervention is required to protect their health. If they are between 12 and 16 the practice can only be permitted with the minor’s request providing that they are able to give informed consent.

Key takeaways

The assessment committee process may provide additional protection to practitioners recommending interventions to prescribed patients, in that any procedure will have been considered by a panel of experts before being approved (thereby providing a further layer of consideration and support which may potentially limit claims involving allegations about failure to obtain informed consent).

Medical practitioners in the ACT will need to:

• familiarise themselves with the assessment committee process before prescribing medication or undertaking procedures that might affect a prescribed person’s sex characteristics
• familiarise themselves with the penalties applicable to a failure to obtain an approved treatment plan before undertaking treatment (which penalties come into effect in December 2024), and
• be aware of the overarching principle that irreversible medical procedures that can be deferred until the patient can consent ought to be deferred.

[1] The Australian legislation follows a number of similar laws passed around the world to protect the rights and bodily autonomy of minors with variations in sex characteristics.

[2] Variation in Sex Characteristics (Restricted medical treatment) Act 2023 (ACT).

[3] Whether due to age or other reason such as being subject to a guardianship order.

[4] As defined by above n 2, s 7 to mean: (a) a congenital condition that involves atypical sex characteristics; and (b) includes a condition prescribed by regulation; but (c) does not include a condition prescribed by regulation not to be a variation in sex characteristics. Sex characteristics is defined to mean a person’s chromosomal, gonadal or anatomical sex; and includes: (i) the person’s hormones that are related to sex; and (ii) the sexual and reproductive parts of the person’s anatomy; and (iii) the person’s secondary physical features emerging as a result of puberty.

[5] Above n 2, s 9.

[6] See above n 2, s 2(2), which provides that s 10 and Pt 4 commence 18 months after the notification date.

[7] See above n 2, s 8.

[8] See above n 2, s 7.

[9] See above n 2, s 31 — membership of the assessment committee.

[10] See above n 2, s 34.

[11] See www.legislation.act.gov.au/di/2023-331/.

[12] Assessment Criteria Guidelines 2023 (No 1), Sch 1, Pt 2.

[13] Above, Sch 1, Pt 3.

[14] See above n 2, s 36–37 re internal review and s 41–12 re ACT Civil and Administrative Tribunal review.

[15] Gender Identity, Gender Expression and Sex Characteristics Act. See https://rm.coe.int/168045b1e6.

[16] Law 38/2018. See https://diariodarepublica.pt/dr/en/detail/act/ 38-2018-115933863.

[17] Act on Gender Autonomy 2020. See www.government.is/library/ 04-Legislation/Act%20on%20Gender%20Autonomy%20No% 2080_2019.pdf.

[18] See https://diprece.minsal.cl/wp-content/uploads/2023/11/Circular15-Instruye-a-equipos-de-salud-a-adoptar-todas-las-medidasnecesarias-para-asegurar-el-interes-superior-de-ninos-ninas-yadolescentes-con-variaciones-de-las-caracteristicas-sexuales. pdf.

[19] See www.boe.es/eli/es/l/2023/02/28/4.

Note: this article was first published in Lexis Nexis Australian Health Law Bulletin, October 2024 edition