Crimes (Intersex Genital Mutilation) Amendment Bill

1. Title

This Act may be cited as the Crimes (Intersex Genital Mutilation) Amendment Act 2020.

2. Commencement

This Act comes into force on the day after the date on which it receives the Royal assent.

3. Purpose

The purpose of this Act is to prohibit the practice of intersex genital mutilation.

4. Principal Act

This Act amends the Crimes Act 1961 (the principal Act).

5. Heading amended

The heading above Section 204A is amended to read—

Genital mutilation

6. New Section 204B (Intersex genital mutilation) inserted

(1) After Section 204A of the Principal Act, insert the following,—

204B Intersex genital mutilation
(1) For the purposes of this section,—
intersex means any person born with—
(a) atypical or ambiguous genitalia; or
(b) genitalia typically associated with the opposing sexes, but which cannot be considered to be solely representative of only one of the opposing sexes.
intersex genital mutilation means the excision, infibulation, or mutilation of the whole or part of the genitalia of any person who is intersex, aside from the circumcision of the penis, in the case where one is present
midwife means a health practitioner who is, or is deemed to be, registered with the Midwifery Council established by section 114(3) of the Health Practitioners Competence Assurance Act 2003 as a practitioner of the profession of midwifery
sexual reassignment procedure means any surgical procedure that is performed for the purposes of altering (whether wholly or partly) the genital appearance of a person to the genital appearance of a person of another sex
trainee health professional means any person who is receiving training or gaining experience under the supervision of—
(a) a medical practitioner for the purpose of gaining registration as a medical practitioner; or
(b) a midwife for the purpose of gaining registration as a midwife.
(2) Subject to subsection (3), every one is liable to imprisonment for a term not exceeding 7 years who performs, or causes to be performed, on any other person, any act involving intersex genital mutilation.
(3) Nothing in subsection (2) applies in respect of—
(a) any medical or surgical procedure (including a sexual reassignment procedure) that is performed on any person—
(i) for the benefit of that person’s physical or mental health; and
(ii) by a medical practitioner:
(b) any medical or surgical procedure that is performed on any person—
(i) while that person is in labour or immediately after that person gives birth; and
(ii) for the benefit of that person’s health or the health of the child; and
(iii) by a medical practitioner or a midwife or a trainee health professional, or by any other person in any case where the case is urgent and no medical practitioner or midwife or trainee health professional is available.
(4) In determining, for the purposes of subsection (3), whether or not any medical or surgical procedure is performed on any person for the benefit of that person’s physical or mental health, no account shall be taken of the effect on that person of any belief on the part of that person or any other person that the procedure is necessary or desirable as, or as part of, a cultural, religious, or other custom or practice.
(5) Nothing in subsection (3) limits or affects any enactment or rule of law relating to consent to any medical or surgical procedure or treatment.
(6) It is no defence to a charge under this section that the person on whom the act involving intersex genital mutilation was performed consented to that act, or that the person charged believed that such consent had been given.
(7) No person shall be charged as a party to an offence committed upon them against this section.

(2) The original Section 204B is renumbered accordingly.

7. Section 204C (Further offences relating to female genital mutilation) amended

Section 204C (original 204B) of the Principal Act, is amended to read the following,—

204C Further offences relating to female and intersex genital mutilation
(1) Every one is liable to imprisonment for a term not exceeding 7 years who, with intent that there be done, outside New Zealand, to or in relation to any child under the age of 17 years (being a child who is a New Zealand citizen or is ordinarily resident in New Zealand), any act which, if done in New Zealand, would be an offence against section 204A or 204B,—
(a) causes that child to be sent or taken out of New Zealand; or
(b) makes any arrangements for the purposes of causing that child to be sent or taken out of New Zealand.
(2) Every one is liable to imprisonment for a term not exceeding 7 years who, in New Zealand, aids, incites, counsels, or procures the doing, outside New Zealand, in relation to any person who is a New Zealand citizen or is ordinarily resident in New Zealand, of any act which, if done in New Zealand, would be an offence against section 204A or 204B, whether or not the act is in fact done.
(3) Every one is liable to imprisonment for a term not exceeding 7 years who, in New Zealand, incites, counsels, procures, or induces any person who is a New Zealand citizen or is ordinarily resident in New Zealand—
(a) to submit, outside New Zealand, to any act which, if done in New Zealand, would be an offence against section 204A or 204B; or
(b) to acquiesce in the doing, outside New Zealand, on that person, of any such act; or
(c) to permit any such act to be done, outside New Zealand, on that person,—
whether or not, in any case, the act is in fact done.
(4) It is no defence to a charge under subsection (2) or subsection (3) that the person on whom the act was done consented to that act, or that the person charged believed that such consent had been given.
(5) No person shall be charged as a party to an offence committed in relation to her against subsection (2) or subsection (3).

Explanatory Note

General policy statement

This bill aims to ban the practice of intersex genital mutilation. It is cruel, often medically unnecessary and effectively gives parents the ability to choose their child’s sex, without knowing anything about their newborn’s gender identity. These surgeries are experimental, and we should not be subjecting vulnerable newborns to them. Should an intersex person wish to receive surgery, they can do so when they are able to consent and more well informed. We have banned conversion therapy, surgeries on intersex newborns who cannot consent are effectively the same, as parents, surgeons, or anyone else cannot dictate someone else’s identity. These surgeries enforce the idea that intersex people are abnormal, when they are just as normal as anyone else. We should embrace diversity over a false idea of normality.

Section by section analysis

Section 1 is the Title section.

Section 2 is the Commencement section. As there are no negative side effects from implementing the bill as soon as possible, it will go in effect the day after the date it receives the Royal Assent.

Section 3 is the Purpose section.

Section 4 identifies the Crimes Act 1961 as the Act being amended (the principal Act).

Section 5 amends the heading above sections 204A and 204B from “Female genital mutilation” to just “Genital mutilation”, as it is no longer exclusive to female genital mutilation.

Section 6 inserts a new section to make intersex genital mutilation (removal or alteration of genitals to bring them closer to male/female ones) illegal. It includes exceptions for sexual reassignment, medical necessity and male circumcision (Not including the last exception would mean male circumcision is only legal for people born male and not intersex, and this bill does not aim to ban it).

Section 7 amends Section 204C (old 204B) to make it apply to both female genital mutilation as well as intersex genital mutilation, rather than just female genital mutilation.

B.314 - Crimes (Intersex Genital Mutilation) Amendment Bill was authored by /u/Sylviagony (Labour) and is sponsored by the Labour Party (Party Bill).

Debate will conclude at 6 PM, 22/08/2020.