Procedural Posture
The Registrar-General of Births applied to the Family Court for guidance with respect to all future sex and name change applications.
Facts
The plaintiff, Michael, was born with a female body but identified as male from an early age. In 2003 the plaintiff changed his female birth name to his current male name; and in 2004 he had a bilateral mastectomy and started taking testosterone hormone treatment, which he expected to continue for the rest of his life. The plaintiff regularly consulted doctors, psychotherapists, and psychologists throughout the process, including Doctor R., a psychiatrist in gender identity issues, and Dr. F., a sexual health physician. The plaintiff’s primary physicians testified that the plaintiff was a man, in terms of identity, appearance, manner, and outlook, and that, while surgery was part of gender reassignment therapy, it was not essential to the plaintiff’s treatment. Furthermore, the plaintiff had lived as a man for a number of years, and had completed all the internationally-prescribed medical steps for gender transition. The plaintiff did not intend to undergo genital reconstruction, because he did not feel it affected his ability to be a man, and he felt that the risk and cost were greater than the possible benefit.
Issue
Whether the legislature intended to require individuals to undergo complete gender reassignment surgery before they could apply to change their name and sex on official documents; or, if not, to what degree applicants were required to have undergone physical changes consistent with their acquired sex.
Domestic Law
Births, Deaths, and Marriages Registration Act 1995, Sections 33 and 77(6)(c).
Attorney-General v. Otahuhu Family Court, High Court of New Zealand, 1995 (holding that, where a person has undergone surgical and medical procedures that have effectively given that person the physical conformation of a specified sex, no lawful impediment prevents that person marrying as a person of that sex).
Quilter v. Attorney-General, New Zealand Court of Appeal, 1998 (finding that the relevant Act defined marriage as a union between a man and a woman, without discussing the thresholds for legal recognition of male and female).
Comparative Law
Re Alex (Hormonal Treatment for Gender Identity Dysphoria), Family Court of Australia, 2004 (granting the request for a name change and hormone treatments for a minor; noting that “the requirement of surgery seems to be a cruel and unnecessary restriction upon a person’s right to be legally recognised in a sex which reflects the chosen gender identity and would appear to have little justification on grounds of principle”).
Attorney General v. Kevin and Jennifer, Full Court of the Family Court of Australia at Sydney, 2003 (declining to follow Corbett v. Corbett, taking the view that psychological factors take precedence over biological factors, and stating that: “where a person’s gender identification differs from his or her biological sex, the [psychological] should in all cases prevail. It would follow that all transsexuals would be treated in law according to the sex identification, regardless of whether they had undertaken any medical treatment to make their bodies conform with that identification”).
Bellinger v. Bellinger, House of Lords, United Kingdom, 2003 (establishing a set of indicia for determining sex).
Re Kevin (Validity of marriage of a transsexual), Family Court of Australia, 2001 (holding that: “it would be wrong to identify and define a person’s gender simply on the basis of the chromosomes, genitals, and gonads with which they are born. It is the mind as well as the body that determines the sex of an individual”).
International Law
Goodwin v. United Kingdom, ECtHR, 2002 (holding that classifying post-operative transgender persons according to their pre-operative sex violated Articles 8 and 12 of the European Convention; discussing the variety of ways transgender people expressed their sex, and the need for law or regulation to take into account the needs of people at different stages of gender transition).
Reasoning of the Court
The Court reviewed transsexualism and gender dysphoria. It examined the United Kingdom case of Bellinger, where seven key indices of gender were set forth: chromosomes, gonads, internal sex organs, external genitalia, hormones and secondary sex characteristics, style of life, and self-perception. Using these indicia, the Court explained the difference between intersex individuals and transgendered persons, defining transsexual people as “born with the anatomy of a person of one sex, but with an unshakeable belief or feeling that they are persons of the opposite sex.” The Court then addressed the four steps to “treatment”: psychiatric assessment, hormonal treatment, a period living as the opposite sex while under supervision, and (in suitable cases) gender reassignment surgery. In this context, the Court questioned whether surgery was a prerequisite of gender-reassignment.
The Court next considered the Australian cases of Re Alex and Re Kevin. Re Alex had observed in passing that making surgery a pre-requirement for changing identity documents seemed to run counter to respect for human rights. Re Kevin found that gender identity should not be based solely on the birth sex, and that the gender identity of transgender individuals was unlikely to conform with that of their physical body in the absence of changes that would allow them to feel that their bodies reflected their psychological sex.
Reviewing the legislative history of the Births, Deaths, and Marriages Registration Act, the Court concluded that it revealed that the legislature did not intend that applicants would necessarily be required to have undergone all available surgeries, but that they should have undergone “some degree of permanent physical change”. The Births, Deaths, and Marriages Registration Act itself did not require an applicant to have had surgery, so long as he or she had undergone medical treatment, including counselling and hormone therapy. The Court therefore determined: “[I]t is not necessary in all cases for an applicant to have undergone full gender reassignment surgery in order to obtain a declaration under the section. Just how much surgery he/she needs to have had is determined on a case by case basis by reference to the evidence in the particular case, including that of the medical experts.” The Court also found that the requirement of permanency could be satisfied either by irreversible medical treatment or on the basis of expert medical evidence that the applicant would maintain the preferred gender identity.
The Court emphasised that under Section 33 of the Births, Deaths, and Marriages Registration Act, “the sex of every person shall continue to be determined by reference to the general law of New Zealand”. Where Section 77(6)(c) authorised marriage registrars to search and review the records documenting a change of sex, the Court found that it was possible that the legislature did not intend for a change of sex to have any legal effect with regard to a person’s capacity to marry.
The Court found that the medical evidence, with the plaintiff’s testimony that he intended to maintain his male gender identity, were sufficient to meet the legislative requirements. This evidence included the young age at which the plaintiff started living as a boy, the careful and medically-assisted process of transition he had adopted, his male lifestyle in public, and his adherence to the recommendations of his doctors. The Court also found that the permanent nature of the hormone treatments and the reasons given by the plaintiff for not wanting genital reconstructive surgery were convincing. The Court highlighted the fact that the construction of a penis was extremely difficult, dangerous, and expensive; total loss of sensation was frequent and there was a high risk that the reconstructed phallus would not function.
The plaintiff was therefore given a new birth certificate, on the understanding that under certain circumstances notification of the sex change would be required and that he would not necessarily always be legally considered male.
“Michael” v. Registrar-General of Births, Family Court of Auckland, New Zealand (full text of judgment, PDF)
