Sexual and reproductive health care for trans and gender diverse people: Imagining a human rights-based approach

Abstract

In Australia today, trans and gender diverse people face daily indignities in a myriad of contexts, including when accessing sexual and reproductive health care. This article illuminates some of the barriers that trans and gender diverse people experience when seeking sexual and reproductive health care and illustrates how these obstacles violate human rights. It concludes with recommendations regarding reforms to better protect the rights and dignity of trans and gender diverse people in Australia.

Trans and gender diverse people (‘TGD people’) experience many barriers when seeking to access sexual and reproductive health care. This article analyses some of these barriers from a human rights law perspective. At the outset, it is worth noting that it is difficult to analyse the lived experience of TGD people in Australia when it comes to accessing health care because of the lack of available data. For example, there is no reliable data on the number of people in Australia who identify as trans or gender diverse. While the most recent Australian census, conducted in 2021, allowed individuals to identify as non-binary for the first time when recording their sex, it did not ask any questions relating to gender. ¹ Although the Australian Bureau of Statistics had standards for the collection and dissemination of data relating to sex, gender, variations of sex characteristics and sexual orientation prior to the 2021 census, the census was neither intended nor designed to collect data on gender differences within the Australian population. ² Without such data, it is difficult to formulate laws, policies and practices that respond adequately to the health care needs of TGD people.

A related issue is the lack of inclusivity in sexual health research, which may not adequately account for the experiences of TGD people. ³ As Shoshana Rosenberg and colleagues note,

[d]espite clear and consistent evidence that trans people have unique and often unmet needs in the context of sexual health, little research has investigated barriers to this kind of care. ⁴

While the existing research is limited, studies that have been undertaken in Australia show that TGD people face many significant barriers to accessing health care, including the cost of treatment, shortage of doctors with relevant expertise, and pervasive discrimination and stigmatisation. ⁵ Troublingly, one of the largest Australian studies of TGD people’s experiences with health care, which collected 928 surveyed responses, found that ‘[b]asic requirements, including feeling safe and validated, are not being met’. ⁶ Another study concluded ‘that safe access to health care … is not a reality for trans Australians’. ⁷ Without safe access to health care, the ability to receive appropriate sexual and reproductive health care is severely limited. This issue is compounded by the traditional delivery of sexual and reproductive health through a binary gender lens.

This article begins by illuminating some of the challenges faced by TGD people seeking sexual and reproductive health care in Australia. The focus of this article is on adults, as the question of access to health care by minors raises a range of additional issues especially in the context of gender affirming care. This is followed by an analysis of the extent to which Australia’s health care system complies with international human rights law, including, in particular, the right to the highest attainable standard of health, and with Commonwealth anti-discrimination laws. The conclusion reached is that reforms to health care laws, policies and practices are required in order to ensure that TGD people are able to realise their right to the highest attainable standard of sexual and reproductive health care.

Access to sexual and reproductive health care

A key barrier to TGD people accessing adequate health care is the lack of appropriate training for health care professionals. For example, research in both Tasmania and the Australian Capital Territory (ACT) reveals an absence of relevant training within health-related education, leading to a lack of confidence on the part of health professionals to respond adequately to the unique needs of TGD people. ⁸ Improved training is also a prerequisite for addressing the discrimination, stigmatisation and feelings of distress that TGD people may experience when seeking to access health care services. One way this can manifest is in misgendering or deadnaming, including deliberately refusing to acknowledge and use preferred gender and names, insisting instead on adhering to the name listed in medical records and sex assigned at birth. ⁹

Such problems are exacerbated by medical record systems, which often only record the patient’s sex and not gender, and whose automated communications may address the patient with the wrong title and pronoun. ¹⁰ Such experiences can have significant consequences, including TGD people delaying or avoiding seeking necessary medical care. ¹¹ For example, Rosenberg and colleagues found that

[t]he vast majority of transgender and gender diverse people in our sample reported experiencing cisgenderism and transphobia while accessing sexual health care, and these experiences were associated with a lower likelihood of and less frequent HIV/STI testing. ¹²

Alongside barriers to general health care, TGD people face distinct challenges in accessing gender-affirming health care. In a recent study of 537 TGD people, 43.2 per cent of respondents reported being unable to access desired gender-affirming care in the preceding year. ¹³ A primary reason for this is the shortage of surgeons willing and able to provide gender-affirming surgery, and the costs associated with such surgery given that it is not generally covered by Medicare and therefore can be prohibitively expensive. ¹⁴ It should be noted that the question of minors accessing gender-affirming care is one that has been the subject of a series of court cases, discussion of which is beyond the scope of this article. ¹⁵

Another issue is the difficulty in obtaining access to hormones. In a recent survey of 147 endocrinologists and trainee members of the Endocrine Society of Australia, Ingrid Bretherton and colleagues identified a ‘widespread lack of training and a lack of confidence amongst Australian endocrinologists and trainees in the provision of gender-affirming hormone therapy’, ¹⁶ once again highlighting the lack of appropriate medical training around the needs of TGD people. This barrier to access creates significant risks, with one study showing that almost 10 per cent of trans women were obtaining hormones from a source other than their health care provider. ¹⁷

Impediments to accessing gender-affirming care may also have implications for reproductive health. A key barrier to adequate reproductive health care is that, in some Australian jurisdictions, changing gender markers requires undergoing surgery that results in sterilisation, and yet fertility preservation in these situations is not covered by Medicare. As Clare Bartholomaeus and Damien W Riggs note,

fertility preservation is costly and usually not covered by the Australian public healthcare system (Medicare) if it is not classified as being medically necessary. While for oncology patients fertility preservation is seen as medically necessary in Australia, for transgender and non-binary people it is not. ¹⁸

An additional barrier to adequate reproductive care lies in the quality of information provided by health care practitioners. Riggs and Bartholomaeus note that, at least compared to international studies, Australian health care practitioners appear relatively well informed about fertility preservation processes for those undergoing gender-affirming care; however, they remain insensitive to such processes’ potential for psychological distress, especially in the context of gender dysphoria. ¹⁹ Moreover, some patients (especially those assigned female at birth) report being pressured to undergo fertility treatment, or feeling that being provided with gender-affirming care was conditional on receiving such treatment. ²⁰ These kinds of interactions undermine the principle of autonomy, one of the key legal and ethical principles underpinning the provision of health care in Australia. ²¹

In light of these documented deficiencies in the provision of adequate health care to TGD persons in Australia, it is timely to consider how adopting a human rights approach to health care would increase respect for the dignity and autonomy of TGD persons.

A human rights-based approach to health care

Human rights constitute a comprehensive normative framework for achieving the dignity, autonomy and equality of TGD people. It is a normative framework which, if implemented into law, policy, and practise through co-design with those with lived experience, has the potential to ensure that individuals within these population groups flourish in all aspects of their lives. ²² However, the framework of human rights has traditionally faced implementation challenges in Australia, ²³ notwithstanding explicit human rights legislation in two states and one territory. ²⁴

A human rights-based approach to health care is premised on respect for the fundamental dignity, autonomy and equality of all people which is given expression in, and achieved through, the realisation of their human rights. While there is no universal definition of a human rights-based approach, ²⁵ Sofia Gruskin and colleagues identify the following common elements of a rights-based approach to health: availability, accessibility, acceptability, participation, non-discrimination, transparency, and accountability. ²⁶ The element of accountability is often accorded primacy as without accountability violations of rights continue to be perpetrated. ²⁷

According to the World Health Organization and the United Nations Office of the High Commissioner for Human Rights:

A human rights-based approach to health specifically aims at realizing the right to health and other health-related human rights. Health policy making and programming are to be guided by human rights standards and principles and aim at developing capacity of duty bearers to meet their obligations and empowering rights-holders to effectively claim their health rights. Elimination of all forms of discrimination is at the core. ²⁸

Understood in this context, a key aspect of a human rights-based approach to health care requires that TGD people be reframed as rights-holders. This facilitates a move away from seeing TGD people solely through a lens of cisgender oppression, and ensures that they are seen as autonomous human rights-bearers, empowered to see and claim their right to the highest standard of health on an equal basis to others. Further, a human rights-based approach prioritises consideration of, and meaningful engagement with, disadvantaged and vulnerable groups and is therefore interwoven with an intersectional approach. For example, the United Nations Committee on the Elimination of Discrimination against Women has noted that intersectionality is a ‘basic concept for understanding the scope of the general obligations of States parties’. ²⁹ As such, specific attention should be paid to the rights of those experiencing compounded vulnerability.

The international human right to health

In the context of challenges faced by TGD people when accessing health care, the key human right at issue is the right to the highest attainable standard of health. However, other human rights are also relevant, including, for example, the rights to autonomy and equality. Autonomy is ‘at the heart of human rights approaches to health care (including reproductive health care)’; ³⁰ every person has an equal right to the highest attainable standard of health, and the right to autonomy and to bodily integrity in the exercise of health-related decisions are integral to the right to health. The principle of non-discrimination and equality, in the context of the right to sexual and reproductive health, requires that TGD people ‘be fully respected for their sexual orientation, gender identity and intersex status’ which includes an obligation to combat transphobia, homophobia and other forms of stigma and discrimination that result in the violation of the right to sexual and reproductive health. ³¹ Finally, the first sentence of the Universal Declaration of Human Rights recognises the ‘inherent dignity’ and ‘equal and inalienable rights of all members of the human family’; thus, recognising the dignity of TGD people is key to the provision of human rights-compliant health care.

Pursuant to article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), everyone has the right to the enjoyment of the highest attainable standard of physical and mental health. ³² Australia ratified this treaty in 1975, thereby binding itself to the terms of the treaty under international law. ³³

Importantly, the right to health ‘is not to be understood as a right to be healthy’; rather, the right to health is a complex right which ‘contains both freedoms and entitlements’. ³⁴ As the Committee on Economic, Social and Cultural Rights (ICESCR Committee), the body responsible for monitoring implementation of the covenant, explained:

The freedoms include the right to control one’s health and body, including sexual and reproductive freedom, and the right to be free from interference, such as the right to be free from torture, nonconsensual medical treatment and experimentation. By contrast, the entitlements include the right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health. ³⁵

The barriers to health care outlined above demonstrate that TGD people do not yet have equality of opportunity to enjoy the highest attainable level of health.

Further, in addition to recognising the importance of equality of opportunity, international human rights law has long advocated for an approach to equality which embraces both formal and substantive equality. Substantive equality is ‘premised on the basis that rights, entitlements, opportunities and access are not equally distributed throughout society and that a one size fits all approach will not achieve equality’. ³⁶ For example, in its General Comment on article 18 of the International Covenant on Civil and Political Rights, which enshrines the principle of non-discrimination in relation to that treaty, the Human Rights Committee stated that ‘[t]he enjoyment of rights and freedoms on an equal footing, however, does not mean identical treatment in every instance.’ ³⁷ In the context of access to health care for TGD people, a substantive equality approach would recognise, for example, that whereas most of the population do not require access to gender-affirming care, access to such care may be essential for TGD people to achieve the highest attainable standard of physical and mental health.

The ICESCR Committee has recognised that certain individuals and population groups – including transgender and intersex persons – face exacerbated exclusion in both law and practice from sexual and reproductive health care. ³⁸ The ICESCR Committee has recognised that, like the broader right to health, the right to sexual and reproductive health ‘entails a set of freedoms and entitlements’:

The freedoms include the right to make free and responsible decisions and choices, free of violence, coercion and discrimination, regarding matters concerning one’s body and sexual and reproductive health. The entitlements include unhindered access to a whole range of health facilities, goods, services and information, which ensure all people full enjoyment of the right to sexual and reproductive health under article 12 of the Covenant. ³⁹

Further, the ICESCR Committee has emphasised the responsibility of States to combat transphobia and discrimination which may lead to violations of the right to sexual and reproductive health. ⁴⁰

In light of the significant barriers to accessing appropriate care that TGD people in Australia face, it seems that their rights pertaining to sexual and reproductive health are being violated.

Australian domestic law

While Australia has ratified the ICESCR, it has not incorporated it into domestic law. As a dualist country, this means that Australia is bound by the covenant under international law but not under its own national legal system. Australia will only be bound domestically when it passes legislation specifically including the ICESCR provisions into our domestic law. ⁴¹ Further, Australia has no Human Rights Act at a federal level, nor are there any specific constitutional provisions relating to the right to health. This absence of federal human rights protections places Australia out of step with many similar liberal democracies. ⁴²

Of Australia’s eight states and territories, only three have enacted human rights legislation – Victoria, Queensland and the ACT – and none of these include the full right to health as set out in the ICESCR. Queensland comes the closest by including a ‘right to access health services without discrimination’; this may be helpful to TGD people seeking access to health services, especially in the public system, but it is much narrower than the right to health enshrined under international law. ⁴³ That said, these Acts can be helpful as there is a precedent for using other rights as a ‘back door’ approach to enforcing a right to health. For example, in Castles v Secretary to the Department of Justice ⁴⁴ the Supreme Court of Victoria held that s 22(1) of the Victorian Charter of Rights (relating to the right to humane treatment when deprived of liberty) meant that Ms Castles had a right to undergo IVF treatment for infertility while in prison. ⁴⁵ Thus, the three state and territory pieces of human rights legislation may assist TGD people in those jurisdictions to support claims involving access to sexual and reproductive health care where public institutions are involved.

However, it should be noted that the Victorian and Queensland Acts do not provide for a stand-alone cause of action. ⁴⁶ This means that a person whose rights have been violated must be able to base their claim on a breach of the law which is separate to the human rights provisions. Further, none of the jurisdictions with human rights legislation allow for an award of damages for a breach of human rights, thereby limiting the remedies available to those whose rights have been breached. ⁴⁷ Accordingly, even in jurisdictions with human rights legislation, there is a dearth of effective mechanisms through which TGD people may enforce their right to health.

Anti-discrimination legislation provides another vehicle through which TGD people may enforce their right to access appropriate health care. The Commonwealth Sex Discrimination Act 1984 makes it unlawful for a service provider (including health service providers) to discriminate against a person on the ground of their sex, sexual orientation, gender identity or intersex status (among other grounds) by refusing to provide a service; or in the terms and conditions on which a service is offered; or in the manner in which a service is provided. ⁴⁸ The federal nature of this legislation is significant because it protects all Australians, regardless of where in Australia a person lives. Also, pursuant to section 109 of the federal Constitution, ⁴⁹ if a state passes inconsistent legislation, the Commonwealth Act will prevail to the extent of any inconsistency. ⁵⁰

That said, while direct discrimination by a health service provider against an individual on the basis of their sex, sexual orientation, gender identity or intersex status is unlawful, the Sex Discrimination Act does not provide any positive obligation on health services to provide gender-sensitive sexual and reproductive health services for TGD people. Further, the legislation allows for a number of exceptions which apply to render as lawful otherwise unlawful discrimination. ⁵¹ Some of these exceptions are particularly relevant to TGD people seeking access to sexual or reproductive health care; for example, the exemption for ‘services the nature of which is such that they can only be provided to members of one sex’. ⁵²

Another example is the exemption for religious bodies; ⁵³ this exemption has been particularly contentious in the Australian context, especially as the Morrison government attempted (unsuccessfully) to pass legislation to expand the right to freedom of religion in its 2021 Religious Discrimination Bills. The exemption for religious bodies applies even in the context of religious organisations that offer services traditionally provided by government, such as health services. As one of the authors of this article has noted, the

effect of religious exemptions in anti-discrimination laws is that religious organisations can refuse to employ and provide services to LGBTIQ people on the grounds that it is contrary to their religious beliefs. … A faith-based hospital can decline to employ medical consultants or healthcare workers

based on their gender identity (for example). ⁵⁴

It should be noted that all states and territories have anti-discrimination legislation. Space precludes an in-depth discussion of anti-discrimination laws across all states and territories; however, it is relevant to note that, of all the states and territories, Tasmania and Victoria are the only two that do not allow religious bodies to discriminate based on gender identity. ⁵⁵ Further, it should be noted that Victoria’s Equal Opportunity Act 2010 is unique in imposing a positive duty to eliminate discrimination, sexual harassment and victimisation. ⁵⁶ This means that positive action should be taken to prevent discrimination from occurring in the first place, rather than waiting for a complaint and then addressing the discrimination that is the subject of the complaint.

The Victorian Equal Opportunity & Human Rights Commission provides the following example of how this positive duty may be fulfilled in the context of health services provided to TGD people:

A large community health service employs a number of GPs, allied health professionals and support staff. To meet the positive duty, the health service surveys all staff about their knowledge of equal opportunity laws and any challenges they face in meeting their obligations. The survey identifies that some staff feel uncertain about their obligations working with same-sex attracted and sex and gender diverse patients. In response, the service schedules training aimed at addressing key knowledge gaps. The service reviews available health resources for staff and patients and looks at ways to develop a better relationship with a local advocacy group. ⁵⁷

Victoria is to be commended for recognising the importance of adopting a proactive approach to matters of discrimination and taking steps to create a culture that is respectful of the human rights and dignity of all Victorians.

The way forward

As the above discussion illustrates, more can be done to ensure that TGD people are able to fully realise their right to the highest attainable standard of sexual and reproductive health. The Australian government should start by collecting comprehensive data from TGD people on their sexual and reproductive health needs. The intersectional needs of specific groups within these communities, including adolescents, First Nations people and older people must also be better understood. This will generate an evidence basis to guide the adaptation of sexual and reproductive health services that respect the human rights of TGD people and are centred to their needs and circumstances.

A key barrier to TGD people accessing adequate health care is the lack of appropriate training for health care professionals. This should be front of mind when universities are developing their curricula; it is an issue that affects both the ability of health care professionals to provide appropriate care as well as their attitudes towards TGD people. Concerns relating to the misgendering of people by medical record systems are easily resolved through the implementation of practices which are mindful of gender identity, there is therefore little excuse for the continued use of systems that cause unnecessary distress. Further, extending Medicare coverage to matters which uniquely affect TGD people, like fertility preservation in advance of gender affirming surgery, would also assist in the dismantling of existing barriers to sexual and reproductive health care.

At the legal level, anti-discrimination laws should be amended to better protect TGD people from discrimination. For example, other states and territories should follow Victoria’s lead and include in their legislation a positive duty to eliminate discrimination. Jurisdictions which have yet to enact general human rights legislation should do so, and those that have enacted such legislation should pass amendments so as to include a right to the highest attainable standard of health.

On 15 March 2023, the federal government announced an inquiry into Australia’s Human Rights Framework, and invited submissions on matters including whether the Australian Parliament should enact a federal Human Rights Act. ⁵⁸ In its position paper on this issue, the Australian Human Rights Commission recommends that a right to health be included in a federal Human Rights Act. ⁵⁹ Accordingly, it seems that the wheels of progress are in motion – the remaining question is how quickly they will turn.