Is gender reassignment surgery defined as 'mutilation' in the NSW Crimes Act?

Katherine Deves, the Liberal candidate for the Sydney seat of Warringah, is embroiled in another controversy after claiming gender reassignment surgery for teenagers was referred to as 'mutilation' in the NSW Crimes Act.

Her comments lit up Twitter. A video posted on Sky News Twitter attracted more than 132,000 views and 4,100 views on the Sky News YouTube channel.

The most recent intervention came in her roadside interview with Sky News presenter Chris Kenny, who asked Ms Deves: "So when you said that gender reassignment surgery for teenagers was mutilation, that was inappropriate?" 

Deves: "Look, that is the correct medico-legal term.." 

Kenny: "So you were wrong to use that language .."

Deves: "Look, it's very emotive, and it's very confronting, and it's very ugly, so of course, people are going to be offended, but when you look at medical negligence cases, that is the terminology that they use, and it is also contained in the Crimes Act of New South Wales."

Kenny: "So you are not really apologising or stepping back from that language?"

Deves: "Well, I'm apologising for how people might have perceived it and the fact that it is confronting and it is ugly, and I certainly don't want to hurt anyone's feelings, but that is the correct terminology.

RMIT FactLab asks: What does the NSW Crimes Act say about gender reassignment, and does the legislation refer to mutilation?

Furthermore, as Ms Deves says, is mutilation the "correct medico-legal term" for gender reassignment?

RMIT FactLab asked three experts for their views. This is what they said:  

Professor Cameron Stewart, a specialist in health, law and ethics at Sydney University, said: "Gender reassignment is not directly discussed in the NSW Crimes Act. That Act criminalises female genital mutilation, but appropriately authorised treatments involving gender reassignment are expressly excluded from that definition."

Professor Jenni Millbank from the University of Technology Sydney's law faculty said the NSW Crimes Act expressly and very clearly exempts corrective or affirmative surgery for gender identity. 

She said it was "completely false" to assert otherwise. 

A senior lecturer in criminology at the University of Sydney, Andrew Dyer, said: "The only references to 'mutilation' in the Crimes Act are to female genital mutilation." 

Referring to sections 45 and 45a of the Act, he said: "The section that criminalises female genital mutilation, section 45, explicitly states that that section does not prohibit sexual reassignment procedures performed by medical practitioners."

To clarify the distinction between the crime of genital mutilation and gender reassignment surgery, the Act also includes a definition of "sexual reassignment procedure" as; "a surgical procedure to alter the genital appearance of a person to the appearance (as nearly as practicable) of the opposite sex to the sex of the person.

All three experts consulted said mutilation was not the “correct medico-legal term” for referring to gender reassignment surgery. 

The Verdict: The claim that gender reassignment surgery is defined as mutilation in the NSW Crimes Act is incorrect.  

Deves split the NSW branch of the Liberal Party with her forthright opposition to transgender women competing in sports. The Minister for Women Marise Payne and NSW Treasurer Matt Keane refused to endorse her comments even though she has the backing of Prime Minister Scott Morrison. 

Devas has drawn national attention via social media for her stand on transgender issues, a stand also endorsed by former Liberal Prime Minister Tony Abbott and conservative groups.

Her comments were broadcast on Sky News YouTube channel and on Twitter. - At the time of writing, this video has been seen more than 132,000 times. In addition, the comments and video were included in an article published at 10:39pm on May 9.

What does the NSW Crimes Act say about sexual reassignment exemption?

The NSW Crimes Act, division 6, section 45 - refers to 'female genitalmutilation', as a crime committed by someone who excises, infibulates or otherwise mutilates the whole or any part of the labia majora or labia minora or clitoris of another person. 

It explicitly exempts cases where the procedure "is a sexual reassignment procedure performed by a medical practitioner."