The State of Western Australia v. AH, Supreme Court of Western Australia (2 September 2010)
The Supreme Court of the State of Western Australia conducted a judicial review of a decision made under the State’s Gender Reassignment Act 2000.
The Gender Reassignment Act 2000 provided a means by which individuals who had undergone a sexual reassignment procedure could obtain official recognition of the change of gender. The term “reassignment procedure” was defined as:
a medical or surgical procedure (or a combination of such procedures) to alter the genitals and other gender characteristics of a person … so that the person will be identified as a person of the opposite sex …
The term “gender characteristics” was defined as “the physical characteristics by virtue of which a person is identified as male or female”.
The State Administrative Tribunal had conducted a merits review of a decision by the Gender Reassignment Board of Western Australia. The Board had refused to issue Gender Reassignment Certificates to two applicants, AB and AH, on the grounds that they did not possess the required male gender characteristics. AB and AH were each born as females and self-identified as male. Each had undertaken testosterone hormone therapy and had undergone double mastectomies. Each lived his life in a male gender role and testified that they had no intention of ceasing therapy or ever again living as a female. However, neither AH nor AB had undergone a hysterectomy to remove internal female sexual organs, or a phalloplasty to construct a penis, and both had retained their external female genitalia. Both AB and AH submitted that such procedures were not necessary for their own sense of male gender identity; and that these operations were too complex and dangerous to undertake. The Board decided that the applicants’ retention of their internal female reproductive organs, and consequently their potential ability to bear a child, was inconsistent with being male.
The Tribunal overturned the Board’s decision on the grounds that both AB and AH had successfully completed a sexual reassignment. The Tribunal focused on the mastectomy procedure combined with the effects of hormone replacement therapy. The hormone therapy had resulted in diminished fertility, changes to internal organs, clitoral growth and masculinisation. The Tribunal did not require the removal of the internal reproductive organs as evidence of sexual reassignment.
The State of Western Australia appealed to the Supreme Court.
Whether AH and AB had reached the required threshold of male gender characteristics required by the Gender Reassignment Act 2000.
Gender Reassignment Act 2000 (Western Australia), Sections 3 (definition of Gender Characteristics and Reassignment Procedure), 14 (applications for recognition certificates), and 15 (conditions required for the issue of a recognition certificate).
Attorney General v. Kevin and Jennifer, Full Court of the Family Court of Australia at Sydney, 2003.
R v. Harris and McGuinness , New South Wales Criminal Court of Appeal, Australia, 1988.
Secretary of Department of Social Security v. SRA, Federal Court of Australia, 1993.
Gender Recognition Act 2004, United Kingdom.
Law on the Gender Confirmation of Transsexual Individuals, Finland.
Transsexual Law 1980, Germany.
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 person of a specified sex, no lawful impediment prevents that person marrying as a person of that sex).
Bellinger v. Bellinger, House of Lords, United Kingdom, 2003 (criticising Corbett v. Corbett but holding that the question of gender recognition should be left to the legislature).
Corbett v. Corbett (Otherwise Ashley), Probate, Divorce and Admiralty Division, United Kingdom, 1970 (holding that sex was biologically fixed at birth and could not be changed by medical or surgical means).
Reasoning of the Court
The State of Western Australia raised two grounds for appeal. The first was that the applicants retained the capacity to reproduce as females and this was inconsistent with the gender characteristics of a male. Secondly, the State argued that the applicants could not be considered to have the gender characteristics of a male because they had retained their female genitals. By 2-1 the Supreme Court found for the State.
Majority Opinion (per Chief Justice Martin)
Chief Justice Martin, based on a review of comparative law, noted the determinative factors for the recognition of a gender reassignment. Most laws, particularly those of other Australian jurisdictions, New Zealand and England, required that the applicant for reassignment undergo surgery to alter reproductive capacity or genitalia. By contrast, in Western Australia, either a “medical” or a “surgical” procedure could potentially suffice. Chief Justice Martin opined that the legislative rationale behind this difference might have been to give scope for a wider variety of situations in which gender reassignment may be required. For example, in the case of individuals born with ambiguous genitalia, the procedure required to acquire one gender or the other might be less demanding than the procedure required to effect a full transition from male to female. In addition, Chief Justice Martin considered it possible that the legislation included non-surgical procedures in order to allow for future advances in medical technology.
Chief Justice Martin noted that, in the Australian line of cases, a successful change in gender usually required transformation of an individual’s genitalia and reproductive organs. For example, in Attorney-General v. Kevin and Jennifer, one of the only cases cited that dealt with female to male transitions, the applicant was recognised as male having undergone a hysterectomy operation but without having had surgery for the construction of a penis. His Honour held that it was likely that the Western Australian Legislature had intended that a similar line of demarcation to this and other Australian case law be required under the Gender Recognition Act.
Chief Justice Martin accepted that the applicants had undergone reassignment procedures consisting of a combination of hormone treatment and surgical mastectomies. However, it was unclear whether these procedures had caused them to attain the necessary physical gender characteristics “by virtue of which a person is identified as male or female” as required under the legislation
Chief Justice Martin took the term “identified” to mean “established or accepted according to community standards and expectations”. This interpretation did not imply a superficial view by a casual observer or a particular group, but was, rather, a general standard encompassing:
all aspects of an individual’s physical make-up, whether external or internal, which would be considered as bearing upon their identification as either male or female according to accepted community standards and expectations.
In this context the future intent of the applicant, including continuation of hormone therapy, was irrelevant. The sole consideration for a decision-maker was the physical characteristics possessed by the applicant at the date of hearing.
Chief Justice Martin held that, to meet the necessary standard, individuals must possess “sufficient of the characteristics of the gender to which they wish to be assigned”. This would depend on a balance of factors and on the facts and circumstances of each case. This was a question of degree that inevitably required value judgments to be made.
Chief Justice Martin held that, although retained fertility and ability to function sexually were not the sole physical determinants of gender, they were highly relevant factors. Although AB and AH would only be able to bear children “in very unlikely and remote circumstances”, the fact that each had retained internal female reproductive organs was a particularly critical consideration. Chief Justice Martin held that AB and AH both had “the external genital appearance and internal reproductive organs which would, according to accepted community standards, be associated with membership of the female sex”.
The fact that AB and AH possessed no male genital characteristics, coupled with the fact that each still possessed all of their internal reproductive organs and external genital characteristics, meant that they could not be regarded as possessing “sufficient” male gender characteristics. Chief Justice Martin placed the greatest weight on the plaintiff’s internal reproductive capacity and noted that gender recognition had occurred in other jurisdictions without the applicant having a phalloplasty procedure. These operations were not commonly undertaken, as they were expensive and prone to failure. Chief Justice Martin noted that the transition from female to male was medically more complex than that from male to female. He expressed sympathy for the difficult position in which this interpretation of the legislation placed the applicants and noted that the conclusion reached could leave them feeling “coerced” into having surgery that they would not otherwise choose.
I accept that this approach to the construction and application of the Act might, in the current state of medical science, make it more difficult for female to male gender reassignees to obtain a recognition certificate than male to female reassignees. However, if that is so, it is the consequence of the legislature’s use of norms expressed in general terms, and which may have different impacts in the extent of the procedures necessarily undertaken by each gender to meet the conditions required for the grant of a recognition certificate.
Dissent (per Justice Buss)
Justice Buss held that the purpose of the Gender Reassignment Act was to assist individuals suffering from gender dysphoria to address the incongruity between their psychological and biological genders. In this sense the Gender Reassignment Act was a “remedial or beneficial enactment” which was to be given a “liberal interpretation, so as to give the fullest relief which the fair meaning of its language will allow”. Justice Buss held that, when properly construed, the terms “reassignment procedure” and “gender characteristics” were to be interpreted pragmatically, taking into account the limitations of medical technology. On this basis, he considered that the legislature could not have intended to require a phalloplasty operation for female to male transsexuals. The clitoral growth experienced by AB and AH as a result of hormone replacement therapy should be considered a sufficient alteration of their external genitalia. In addition Justice Buss held that, if the legislature had intended to require permanent sterilisation as a precondition for recognition, this would have been stipulated in the Gender Reassignment Act. Justice Buss cited comparable legislation from other jurisdictions, including Germany and Finland, which explicitly required that an applicant for reassignment should be permanently sterile. The Western Australian legislature did not specify this condition and therefore the Act should not be interpreted to require sterilisation.
The Court overturned the tribunal decision and refused recognition of gender reassignment.
The State of Western Australia v. AH, Supreme Court of Western Australia (full text of judgment, PDF)
The State of Western Australia v. AH, High Court of Australia (full text of judgment at High Court of Australia, 2011, PDF)