Australian High Court: Another Breakthrough for Transsexual Rights

The High Court of Australia, in a virtuosic display of statutory interpretation, has ruled that The Gender Reassignment Act 2000 of Western Australia should be construed to authorize a legal recognition of change of gender identity from female to male without any need for internal surgery to terminate the individual's reproductive capacity.  The October 6 ruling in AB v. Western Australia, [2011] HCA 42, reversed a decision of the Court of Appeals of the Supreme Court of Western Australia, thus reinstating the ruling of Western Australia's State Administrative Tribunal that the two applicants should henceforth be identified as male.

Obviously, gender reassignment is a physically different process for male-to-female as compared to female-to-male.  The court pins its ruling on these differences within the broad purposes of the statute, in a sensitively written per curiam opinion that focuses like a laser beam on the goal of the legislation, which the court identifies as "to facilitate the acceptance of a person, as being of the gender to which they are reassigned, within society so that they may fully participate within it."

The statute provides that individuals who have undertaken gender reassignment may apply to the Gender Reassignment Board for a gender recognition certificate.  "On its production," says the court, "the certificate is required to be registered by the Registrar of Births, Deaths and Marriages, who must alter any register or index kept by the Registrar as may be necessary in view of the reassignment.  A birth certificate for the person is to issue from the Registrar showing the person's sex in accordance with the register."

The prerequisite for this official recognition is that the person has undergone a reassignment procedure, which is defined in the statute as "a medical or surgical procedure (or a combination of such procedures) to alter the genitals and other gender characteristics of a person, identified by a birth certificate as male or female, so that the person will be identified as a person of the opposite sex and includes, in relation to a child, any such procedure (or combination of procedures) to correct or eliminate ambiguities in the child's gender characteristics."  (The last phrase undoubtedly refers to surgical intervention shortly after birth in "intersex" cases – a matter that is hotly disputed by spokespersons for the community of people affected by such "ambiguities.")

The key issue in dispute in this case was how much surgical intervention is necessary for a female-to-male gender reassignment to be certified by the Board.  The two applicants in this case undertook hormone therapy and had mastectomies in order to conform their outer appearance as much as possible to a male appearance without attempting the expensive (and generally unsatisfactory at this point) attempt at phalloplasty (construction of artificial male genitals), a procedure which is generally not done in Australia.  The Board satisfied itself that they had engaged in both medical and surgical procedures sufficient to appear male, but refused to issue the certificates, reasoning: "The fact of having a female reproductive system is inconsistent with being male.  Because it is inconsistent with being male, it is inconsistent with being identified as male."

The applicants appealed to the State Administrative Tribunal, which set aside the Board's rulings and granted the applications, directing the Board to issue the certificates.  The state appealed to the Court of Appeal of the Supreme Court of Western Australia, which in turn set aside the Tribunal's decision, and the applicants appealed to the High Court.

There have been press accounts of at least two female-to-male transsexuals who have conceived and born children by dint of temporarily stopping their hormone therapy, and although the High Court does not mention this specifically in its opinion, one suspects that the possibility of somebody proclaimed by the government as being male then becoming pregnant and giving birth was alarming to the powers that be in the Western Australian government, thus the appeal from the Administrative Tribunal's decisions. 

The Supreme Court of Western Australia agreed with the government, stating that the applicants "possess none of the genital and reproductive characteristics of a male, and retain virtually all of the external genital characteristics and internal reproductive organs of a female," and that "they would not be identified, according to accepted community standards and expectations, as members of the male gender."  There was a dissent, which was picked up and amplified by the High Court, which described the approach of the dissenter as "to be preferred."

The dissenting Justice Buss gave a close reading to the language of the statute in its definitions of "gender characteristics" and "reassignment procedure," and concluded that the legislature was concerned with external appearances, not internal characteristics, as it did not require that a woman become physically a man in all respects — an impossibility in the current state of medical science – but that a woman who psychologically identifies as a man take the steps so as to be "recognized" as a man based on external signifiers, which can be achieved through hormone therapy, plastic surgery and grooming.

The High Court emphasized that the statute focused not only on medical treatment and surgery but also on the adoption of the lifestyle of the preferred gender, accompanied by the necessary gender identity diagnosis and counseling.  The court's opinion is detailed and complex, showing great concern for the social meanings of gender and gender identity, and emphasizing that the purpose of the statute was to be broadly remedial so as to facilitate the ability of transgender individuals to achieve their goal in being able to live successfully in their desired gender. 

"No issue was taken on these appeals with the conclusion reached by the Board and the Tribunal as to the observable physical characteristics of each of the appellants," concluded the court.  "Counsel for the State of Western Australia accepted those findings to be correct.  It follows that each of the appellants would be identified as having the gender characteristics of a male," and that, together with the lifestyle issues and the doctors' testimony as to gender identity, would justify reviving the Tribunal's order by dismissing the state's appeal from that body's ruling.  Furthermore, the court said that the appellant "should have orders against the State for their costs in this Court."

In an interesting bit of timing, just shortly after this opinion was issued, California Governor Jerry Brown signed into law a measure that will dispense with the requirement for gender reassignment surgery for California transsexuals seeking official recognition of gender reassignment.  This is an important further step, for some transsexuals seek to limit the medical part of their gender reassignment procedure to hormone treatment and either don't desire surgery or can't afford it even if they desire it. (Most health insurance policies exclude coverage for gender reassignment surgery for this purpose.)  They wish to live in their preferred gender and need the legal documentation to facilitate achieving that goal.  The new California legislation allows them to do that, upon proper certification by a competent doctor as to their gender identity and the therapy that has been undertaken in aid of physical gender reassignment. 

At the same time, Governor Brown signed another bill to make more explicit the protection against discrimination based on "gender identity or expression" by inserting that phrase into the operative portion of the various anti-discrimination provisions strewn through the state's statute books, rather than trusting to an expansive definition of "gender," in order to more clearly signal to those covered by the law that discrimination on this basis is unlawful.

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