What is the issue
Intersex people, like other people, may be convicted of offences, or may be detained awaiting trial. People with observable variations in sex characteristics may face harassment and stigma in places of detention, and may be vulnerable to harm. Internationally, few published cases exist of intersex people in places of detention, but those that do exist are alarming in their depictions of harm and vulnerability.
- Body shaming is an intersex issue, August 2016
In the case of Richard Muasya v. the Hon. Attorney General, High Court of Kenya (2 December 2010), an intersex man who had suffered lifelong exclusion and stigma due to a lack of a birth certificate was convicted of armed robbery with violence. He was subjected to invasive body searches, abuse and stigmatisation (ICJ undated). The Kenyan High Court found that unnecessary searches were cruel and “brought ridicule and contempt”, they were “motivated by an element of sadism and mischievous curiosity” (ICJ undated).
Prison systems are disproportionally populated by stigmatised minorities, including racialised and disabled minorities. Historically, places of detention have also provided convenience samples for clinical research, with consequential ascertainment bias leading to an association between sex chromosome variations and criminality (see, for example, Bartholomew 1972). Nevertheless, experiences of stigma, developmental delays, undiagnosed cognitive issues and related poverty may adversely impact the life experience of some 47,XXY people (Stochholm and others 2012). Poorly-informed or poorly-supported treatment with sex hormones may also have an adverse impact (Palma and others 2018). These issues are indicative of a lack of appropriate support to enable people with XXY to flourish.
Many press reports involving intersex people brought before the courts also appear salacious and likely to provoke ridicule and contempt, including reporting in Australia (Fewster 2014; Fewster 2016).
Many jurisdictions have introduced policies in relation to intersex people in detention within the context of policies in relation to transgender people. However, these have significant limitations. Policy frameworks predicated on matters of identity and self-identification are not likely to be sufficiently aware of the needs of people with intersex variations who use different language to terms associated with matters of identity, or the needs of people who have different self-conceptions, or no knowledge of their trait. Irrespective of an individual’s terminological preferences and awareness of their characteristics, individuals may still be vulnerable to harm due to their physical characteristics.
What do we know about the situation in Australia?
Unfortunately, in Australia as in many other jurisdictions, the prison system is disproportionately populated by people with significant disadvantage, including racialised populations, and people with mental health issues and other disabilities (Whitbourn 2018; Human Rights Watch 2018; Sharma and Human Rights Watch 2018).
Individuals in detention
We have observed criminal cases where the medicalisation of an intersex variation – and the reporting of this – means that a trait is not necessarily recognisable as an intersex variation, except to people with lived experience. It is understandable that individuals may use their experience of their intersex variation and medical treatment in their defence, but this can have an adverse impact on individuals with that variation and their families.
Kathleen Worrall was convicted of murdering her 18-year-old sister when she was aged 20. She died at age 22 in prison in NSW. Congenital adrenal hyperplasia was blamed in part for her actions. Worrall underwent multiple genital surgeries as a child, and also required lifelong medical treatment. Salacious press reporting included described a “hormonal rage”, “cocktail of drugs”, and detailed descriptions of personal physical characteristics and behaviours, some of them linked directly to non-compliance with medication (LIAC Library 2017; The Independent 2011).
Mark Errin Rust has been convicted as a serial sex murderer, and is currently in prison in South Australia. His sex chromosome variation, XXY or Klinefelter syndrome, was blamed. The standard treatment for men with XXY is provision of testosterone. Media reporting included unnecessary detail about his physical sex characteristics (Fewster 2014) and a statement that he is “incapable of controlling his sexual instincts” (Fewster 2016).
Policies on detention
Currently Australian jurisdictions have inadequate policies in relation to intersex people in detention.
Multiple jurisdictions have created policy on intersex people in detention, by adding the word intersex or ‘people born with variations in sex characteristics’ to policies on transgender people in detention. This is an inadequate response to the needs of intersex persons in detention settings and reflects a lack of understanding of the population they are attempting to cover. Policy responses to detainees with disabilities should have more utility, but the current situation does not appear to serve this population well (Human Rights Watch 2018).
The situation in New South Wales is complicated by the application in a policy on transgender and intersex detainees of different standards for “recognised transgender persons” who have had a change in sex marker recognised by the State government and who “must be treated as a member of the sex recorded on their identification documents” (Justice and Corrective Services NSW 2017). This status cannot apply to intersex persons who have no desire to change sex marker assigned at birth.
In ACT, a new corrections policy refers to “people who identify as transgender and/or born with variations in sex characteristics” (ACT 2018), positing identification – likely self-identification – as the determinant for risk of vulnerability.
The prison system should not be seen as a legitimate response to psychological and minority distress, and cognitive and psychosocial disabilities. Our position is set out in the 2017 Darlington Statement, an Australian – Aotearoa/New Zealand intersex community declaration, where:
33. We call for respect for the privacy, integrity, and security of our medical records.
38. We call for equitable access to social and welfare services for people with intersex variations. The needs of people with intersex variations in aged care, home care, state care, and disability services require further investigation, with full and meaningful participation by intersex-led organisations.
51. We acknowledge that stigma is often the result of misconceptions about intersex which is compounded by a lack of education and awareness.
52. We recognise that the stigmatisation and pathologisation of people born with variations of sex characteristics hinders self-acceptance, access to community, help-seeking, and accessing of services including healthcare.
53. We acknowledge the impacts of stigma, trauma and unwanted medical interventions on access to education and on employment, and consequences that include high rates of early school leaving, poverty, self-harm and suicidality.
Principle 9 of the Yogyakarta Principles, “The Right to Treatment with Humanity while in Detention” states:
Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the human person. Sexual orientation and gender identity are integral to each person’s dignity.
The Yogyakarta Principles plus 10 interpolate the distinct ground of “sex characteristics” into the Yogyakarta Principles, and so Principle 9 should be interpreted to also include this ground.
Australia should abide by international treaty obligations in relation to all people with intersex variations in places of detention.
Article 5 of the Universal Declaration of Human Rights states that
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Article 11 of the Universal Declaration of Human Rights states that:
Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.
These articles have relevance to situations where people born with intersex variations are, or are at risk of being, singled out for humiliation, harassment and stigmatisation because of their bodily characteristics.
It is our view that policies focused on identity are likely to be of limited relevance to people with particular embodiments that do not share those identities. On the other hand, policies designed to safely accommodate people with many different kinds of body are likely to benefit detainees with non-normative identities as well as detainees with intersex variations.
We recommend implementation by Australian governments of the recommendations of the 2018 Human Rights Watch report (Sharma and Human Rights Watch 2018).
We have sought to provide constructive feedback on policies in ACT, New South Wales, and Victoria.
R v Worrall  NSWSC 593 (4 June 2010)
Richard Muasya v. the Hon. Attorney General, High Court of Kenya (2 December 2010)
Bartholomew, Allen A. 1972. ‘Psychopathy, Sex Chromosome Abnormalities, and the Criminal Law’. The Adelaide Law Review 4 (2): 273–93. https://www.austlii.edu.au/au/journals/AdelLawRw/1972/2.pdf
Corrective Services Victoria. 2017. ‘2.4.1 Management of Prisoners Who Are Trans, Gender Diverse or Intersex’. http://www.corrections.vic.gov.au/utility/publications+manuals+and+statistics/commissioners+requirements+part+2
Fewster, Sean. 2016. ‘Serial Sex Predator, Murderer Mark Errin Rust Is Struggling in Prison without a Non-Parole Period, Court Told’. News.Com.Au, 22 November 2016. http://www.adelaidenow.com.au/news/south-australia/serial-sex-predator-murderer-mark-errin-rust-is-struggling-in-prison-without-a-nonparole-period-court-told/news-story/a9406558d3f57041dce59e85c9fa3359
Human Rights Watch. 2018. ‘Australia: Prisoners with Disabilities Neglected, Abused’. Human Rights Watch. 6 February 2018. 
International Commission of Jurists. 2010. ‘Richard Muasya v. the Hon. Attorney General, High Court of Kenya (2 December 2010)’. International Commission of Jurists. http://www.icj.org/sogicasebook/richard-muasya-v-the-hon-attorney-general-high-court-of-kenya-2-december-2010/
Kerry, Stephen. 2011. ‘Representation of Intersex in News Media: The Case of Kathleen Worrall’. Journal of Gender Studies 20 (3): 263–77. https://doi.org/10.1080/09589236.2011.593325
Palma, J., P.-Y. Sarron, V. Camus, and W. El-Hage. 2018. ‘Klinefelter’syndrome: A predisposition to sexual crime?’ L’Encephale, September. https://doi.org/10.1016/j.encep.2018.06.007
Sharma, Kriti, and Human Rights Watch. 2018. ‘I Needed Help, Instead I Was Punished’: Abuse and Neglect of Prisoners with Disabilities in Australia. https://www.hrw.org/sites/default/files/report_pdf/australia0218_web.pdf
Stochholm, Kirstine, Anders Bojesen, Anne Skakkebæk Jensen, Svend Juul, and Claus Højbjerg Gravholt. 2012. ‘Criminality in Men with Klinefelter’s Syndrome and XYY Syndrome: A Cohort Study’. BMJ Open 2 (1): e000650. 
United Nations. ‘Universal Declaration of Human Rights’.
Whitbourn, Michaela. 2017. ‘Mental Illness and Cognitive Disability the “norm” among Prisoners: Report’. The Sydney Morning Herald, 10 August 2017. https://www.smh.com.au/national/nsw/mental-illness-and-cognitive-disability-the-norm-among-prisoners-report-20170810-gxtf9y.html
Yogyakarta Principles. 2007. The Yogyakarta Principles. Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity. 