Restricted medical treatments for people with variations in sex characteristics

This page has information for medical professionals about applying for restricted treatments of people with variations in sex characteristics.

Intersex is also a word used for people with variations in sex characteristics.

Restricted treatments permanently, or in some instances temporarily, change a person’s sex characteristics.

This information is only relevant when the person with variations in sex characteristics does not have capacity to make decisions about their own medical treatment.

Law protecting the rights of people with variation in sex characteristics

The ACT has introduced the Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 to protect children born with variations to their sex characteristics. This law also applies to people under guardianship who may not be able to make decisions for themselves.

Under the law, a parent, guardian or health practitioner may apply for an individual treatment plan for a restricted treatment on an intersex child or person under a guardianship order with variations in sex characteristics.

Some medical practitioners can also apply for a general treatment plan. Email the Variations in Sex Characteristics Treatment Regulation Unit at vsctru@act.gov.au for further information about general treatment plans.

Your application must meet the eligibility requirements set out in the Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023.

The law is voluntary until 23 December 2024.

Eligibility to apply for an individual treatment plan for people with variations in sex characteristics

A person’s GP or specialist can apply for an individual treatment plan. The person’s parents or guardian may also apply. In certain cases, somebody else may be the applicant.

You only need to apply for an individual treatment plan if you are seeking to perform a restricted medical treatment on someone who cannot consent themselves to the treatment.

A restricted medical procedure is a surgical or medical procedure that permanently or temporarily changes a person’s sex characteristics.

Any procedure that makes changes which are only reversible with more medical treatments is a restricted medical procedure. This can include the prescription of medications.

The law also restricts vaginal dilation, even if this procedure only has temporary effects. The law does not cover circumcision of the penis.

Consideration of other options

Before you apply, you should consider what alternatives there are to the restricted medical treatment.

Alternative treatment options may include putting off treatment until the person has the capacity to make their own decisions about their medical treatment.

Alternatives may also be treatments that are less invasive or less permanent. It is important to actively consider these options at an early stage.

If you do apply to perform restricted medical treatment, you must show that alternative treatments have been fully considered.

Variations in Sex Characteristics Restricted Medical Treatment Assessment Board

The Variations in Sex Characteristics Restricted Medical Treatment Assessment Board receives all applications for restricted medical treatments for people with variations in sex characteristics.

The board president will appoint a committee to assess each application.

Applying for an individual treatment plan

Use this form to apply for an individual treatment plan for a child. Use this form to apply for an individual treatment plan for an adult under a guardianship order. There are several sections in the application form. Some sections need supporting documents.

1. Email your application request to the Restricted Medical Treatment Assessment Board: vscboard@act.gov.au. Do not place any personal information about the person in this initial email.
2. Within 2 working days, we will email you a secure link over which you can submit your online application. Do not submit your plan directly via email. The secure link ensures the privacy of the person is protected.

The Assessment Board will approve your plan if it meets the requirements of the law.

Information needed for an individual treatment plan application

You will be asked to give evidence that:

• the person’s decision-making capacity has been assessed
• you have considered alternatives
• you have given the person information, where appropriate
• you have considered, where possible, the wishes of the person.

Background information including past medical history and the proposed treatment plan will also be collected so that the Assessment Board is able to consider all information.

How the board makes its decision

When you apply for an individual treatment plan to the assessment board, the president will form an assessment committee to assess the application.

The committee can either approve the treatment plan, reject the plan, or approve it with additional conditions.

The committee will only approve an application if it meets the requirements of the law.

If the treatment plan nearly meets the requirements, the committee may approve it with conditions so that it meets the requirements of the law or ask for further information.

The committee does not make its decision based on the personal opinion of any of the members. Approval is only based on whether the application meets the requirements of the law.

How your application will be reviewed by the committee

The committee must make its decisions based on whether the evidence shows your application meets the requirements of the law.

The committee will rely on your application as the primary source of information. But committee members can use any relevant evidence to inform themselves. If they use evidence other than in your application, they must inform you and give you with an opportunity to change your application if you need to respond.

Evidence could include any relevant information that is available to help determine the facts on which the committee needs to make its decision. Evidence can be scientific or medical, including your own expertise if you are a medical professional.

Evidence may come from a range of sources and based on diverse types of expertise and from various fields. It can include relevant lived experience.

Evidence may include the wishes of the person, and the committee must consider these wishes for certain issues.

If the assessment committee needs further evidence from you, they may contact you to ask for it. You must give this information within the time they ask.

How the committee asks for further information

The committee assesses the information you include in your application.

The committee may also use other information. This can include consulting with other health professionals and specialists who are not involved in your application. Or speaking with support groups for people with variations in sex characteristics, or the Child and Young People Commissioner.

The committee is also able to rely on the expertise of the members themselves, any other information available to them and speaking directly to the person to whom the application applies, with the decision-maker’s consent.

In any of these situations, the committee must not, without the written consent of a decision-maker, identify the person involved or disclose any information that would allow their identity to be discovered.

If you are a parent or guardian, the committee must not reveal the identity of your child or the person under your guardianship, without your consent.

The board must inform you if they use any information outside what you include in your application even if it is their own expertise. The board must give you with the information they receive from external sources. Based on that information, you will also have time to change your application, if needed.

The assessment committee can ask for further information from you to help it make a decision. You will be given time to do this. However, if this is not given in time, the board may refuse your application.

Assessing discrimination, stigmatisation or bullying

People living with a variation in their sex characteristics experience higher levels of discrimination and stigmatisation. This can impact their overall wellbeing and psychological state.

If a person is at risk of stigmatisation or discrimination, performing invasive and irreversible procedures should not be a response. Rather, the approach should be addressing stereotypes and the direct sources of stigmatisation and discrimination. The source of the harm is the existence of, and lack of protection from, discrimination. The person’s body is not the source of the harm.

Assessment committees will consider all other reasons for a permanent medical treatment. This may include evidence of psychological harm more generally or to the person's mental health if these do not arise only from risks of stigmatisation or discrimination.

The assessment committee

The committee will have five members with individual experience in:

• human rights
• ethics
• medicine
• psychosocial support (psychology and social work primarily)
• lived experience of having a variation in sex characteristics or caring for someone with a variation.

However, in assessing your application the members of the committee must put aside any of their individual views to apply the requirements of the law.

They can use their expertise to help consider your application, but if they do, they must tell you and give you an opportunity to change your application if you need to. To approve your plan, all five members must agree.

If one or more members does not agree to approve your plan, it cannot be approved.

Results of your application

Following the review of your plan, the board will give you one of these assessments:

• approved unconditionally
• approved with conditions
• not approved.

Whether your plan is approved, rejected, or approved with conditions, the committee must give reasons for its decision.

The reasons must describe why the committee made its decision, what relevant facts it decided were true, and what evidence the committee relied on to decide those facts were true.

Approved unconditionally

If your application is approved unconditionally, the restricted medical treatment can be undertaken in accordance with the individual treatment plan, and only in accordance with it.

A copy of the decision will be given to you by the board, as well as to each decision maker involved. The board will also give you a date after which the decision will expire, no later than three years after the day it is given.

Following the approval of your individual treatment plan, it is vital that the treating team still obtain informed consent from the decision makers for the person.

In the cases of adults under guardianship, consent must also be obtained from the ACT Civil and Administrative Tribunal (ACAT).

Approved with conditions

If your plan is approved with conditions, the treatment must be conducted within these conditions in addition to the original plan.

Where there is a difference between your application and the conditions, you must follow the conditions.

It is vital that the treating team still undertake their clinical duty in obtaining informed consent, as they would with any procedure.

In the cases of adults under guardianship, consent must also be obtained from the ACT Civil and Administrative Tribunal (ACAT).

In the cases of adults under guardianship, consent may also be needed from the ACAT under the Guardianship and Management of Property Act 1991 (s70).

You may apply in writing for a review of your case within 28 days.

Not approved

If your application is rejected or approved with conditions, the Board will give an internal review notice to you and each decision maker involved. If your plan is rejected, no restricted medical treatment can occur unless an approval is later given.

Appealing the board’s decision

If your application is rejected, or approved with conditions, you may apply for internal review.

When you receive the decision of the assessment committee, the committee should inform you that the decision can be reviewed, unless the application is approved without conditions.

If you decide you would like to apply for a review of the decision, please contact the Variations in Sex Characteristics Treatment Regulation Unit at vscboard@act.gov.au in order to complete an internal review application form.

The review application allows you to give further evidence and asks you to give your reasons for making the application. You have 28 days after being notified of the original committee’s decision to apply for an internal review.

An internal review committee will conduct the review. None of the members who decided your original application will sit on the internal review committee. The review committee may only change the decision of the original committee if all the members agree.

If one or more members do not agree to change the decision, it cannot be approved.

You should be aware that the decision of the review committee may be less favourable to you than that of the original decision. The review committee has the same obligation to procedural fairness as the original committee. While your review application is considered, the original decision remains in effect.

You may appeal a decision of the review committee to the ACT Civil and Administrative Tribunal (ACAT).

ACAT may either confirm the decision or direct the review committee to reconsider the application, potentially with directions or recommendations from ACAT.