Procedural Posture
On appeal from the Supreme Court of Western Australia, which had decided that AH and AB could not be issued gender reassignment certificates because they each retained female reproductive organs. The Supreme Court of Western Australia had overturned the State Administrative Tribunal decision granting them recognition certificates.
Facts
See State of Western Australia v. AH for a full description of facts.
Issue
Whether the applicants had the gender characteristics of a person of the gender to which they wished to be reassigned given that they had undergone some gender reassignment procedures (bilateral mastectomies and testosterone therapy) but had not had hysterectomies or phalloplasties.
Domestic Law
Gender Reassignment Act 2000 (Western Australia), Section 15.
Reasoning of the Court
Section 15 of the Gender Reassignment Act provides that recognition certificates should be granted if the Gender Reassignment Board is satisfied that the applicant believes “that his or her true gender is the gender to which the person has been reassigned,” that the person “has adopted the lifestyle and has the gender characteristics of a person of the gender to which the person has been reassigned,” and “has received proper counseling in relation to his or her gender identity.” “Gender characteristics” is defined by the Act to mean “the physical characteristics by virtue of which a person is identified as male or female.
The High Court agreed with the analysis in the dissent by Justice Buss. External physical characteristics by which one is identified as male or female is what is required for the purposes of the Act. The use of the term “identified” meant “recognised as” by society at large. The Court stated that the Gender Reassignment Act does not “contemplate some abstract evaluation of maleness or femaleness. Its objects suggest that the question for the Board is to be approached from a social perspective, which is to say, by reference to what other members of society would perceive the person’s gender to be. Such a perspective is consistent with the objects of the Act, which are to remove impediments to the way in which a person lives within society.” Social recognition “does not require knowledge of a person’s remnant sexual organs.”
The appeal is allowed and the orders of the lower court are set aside. The orders of the Tribunal granting the recognition certificates are reinstated.
AB v. Western Australia and AH v. Western Australia, High Court of Australia (6 October 2011), (Full text of judgment, PDF)
