The Gender Reassignment Act 2000 (WA) provides for the issue of a recognition certificate that is conclusive evidence of the fact that a person has undergone a gender reassignment procedure and "is of the sex stated in the certificate". The Act establishes a Gender Reassignment Board with power to issue recognition certificates. The Act's objects include promotion of equality of opportunity and provision of remedies regarding discrimination.
The Board determines applications for recognition certificates and issues recognition certificates. The WA Registrar of Births, Deaths and Marriages must alter any register or index in response to the recognition certificate following reassignment[, with the individual's birth certificate thence showing the person's sex in accordance with the register. In order to successfully apply to the Board for a certificate it is necessary for the person to have undergone a 'reassignment procedure', defined 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 characteristicsThe Board must be satisfied that the person applying for a recognition certificate -
(i) believes that his or her true gender is the gender to which the person has been reassigned;The High Court decision is founded on dispute about those 'gender characteristics', defined as "the physical characteristics by virtue of which a person is identified as male or female".
(ii) has adopted the lifestyle and has the gender characteristics of a person of the gender to which the person has been reassigned; and
(iii) has received proper counselling in relation to his or her gender identity.
Appellants AB and AH identify as male and have undergone gender reassignment procedures (bilateral mastectomy and testosterone therapy) but retain some gender characteristics of a female. The Board was satisfied that the appearance of each appellant is that of a male person and "that all the indications were that they had adopted the lifestyle of such a person". It determined not to issue a certificate to them on the basis that that they retained a female reproductive system, reasoning that "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 Board indicated that there would be adverse social and legal consequences from issuing a recognition certificate to individuals who have the capacity to bear children.
The WA State Administrative Tribunal in reviewing the Board's decision in AB & AH v Gender Reassignment Board (WA) (2009) 65 SR(WA) 1 granted each application for a recognition certificate and directed the Board to issue such a certificate. In turn, the Court of Appeal of the Supreme Court of Western Australia in The State of Western Australia v AH (2010) AMLC 30-02 allowed appeals and set aside the Tribunal's decisions. The High Court has now reinstated the Tribunal's decision, setting aside the Supreme Court's judgment.
Both appellants identified as a male from an early age and were diagnosed as suffering from gender dysphoria, characterised in the Diagnostic & Statistical Manual of Mental Disorders as "strong and persistent feelings of discomfort with one's assigned sex, the desire to possess the body of the other sex, and the desire to be regarded by others as a member of the other sex." AB was 31 at the time of the Tribunal hearing; AH was 26.
Neither appellant contemplate surgical procedures such as phalloplasty (unavailable in Australia because of "high risks and its low rate of success") and a hysterectomy, as "neither considered it necessary to their sense of male identity". The Court noted that each of the appellants has maintained testosterone therapy. Whilst they continue that treatment they will remain infertile; the Tribunal accepted "without reservation" that the appellants plan to continue with the treatment and will therefore remain infertile.
The Tribunal stated that -
The applicants have not merely altered their external appearance by superficial means. The medical and surgical procedures they have undergone have altered their genitals and other gender characteristics in profound ways. They have undergone clitoral growth and have the voices, body shapes, musculature, hair distribution, general appearance and demeanour by virtue of which a person is identified as male. They have acquired characteristics that are consistent with being male, and inconsistent with being female, to the extent that only an internal medical examination would disclose what remains of their female gender characteristics. Insofar as what remains of their female gender characteristics has been altered to such an extent that it no longer functions, it is no longer a female gender characteristic.It held that the appellants had done "everything medically available, short of hysterectomy, to alter their genitals and other gender characteristics so as to be identified as male", with a "requirement that each go even further and undergo a hysterectomy in these circumstances would seem to serve the purpose only of requiring further proof of their conviction."
The issue before the Court of Appeal was whether the appellants satisfied the requirement of s 15(1)(b)(ii) of the Act, with the majority in considering "gender characteristics" (in particular, whether each of the appellants has the "physical characteristics by virtue of which a person is identified" as male) holding that because in the absence of a hysterectomy the appellants retain some characteristics of a female they could not be identified as male. Martin CJ for example held that each of the appellants "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 "[t]hey would not be identified, according to accepted community standards and expectations, as members of the male gender." Buss JA in dissent considered that the physical characteristics by which a person is identified as male or female are confined to external physical characteristics, for the purposes of the Act, going on to note that there are limitations to the extent to which a person's physical characteristics could be altered and observing observed that the purpose of the Act is to alleviate the condition of persons suffering from gender dysphoria, by providing a legislative mechanism which will enable their reassigned gender to be legally recognised.
Buss commented that the legislation is directed to the disconformity inherent in gender dysphoria between the person's rejection of their assigned gender and their external physical characteristics. The language chosen by the WA Parliament in the definitions of the terms "gender characteristics" and "reassignment procedure" in the Act was relevant: if the physical characteristics by virtue of which a person is identified as male or female were intended to include internal physical characteristics, such as organs associated with the person's gender at birth, the definitions would respectively have referred to the physical characteristics by virtue of which a person "is" a male or female or "will be" a person of the opposite sex. Instead the definitions refer to the physical characteristics by which a person is, or will be "identified" as a person of the opposite sex. His Honour read the words "identified as" as connoting "recognised as".
The High Court in hearing the appeal commented that -
The Act acknowledges the difficulty under which certain members of society labour by reason of the disconformity between their belief about who they are, by reference to their gender, and the social-historical record of their gender at birth. It seeks to alleviate that suffering and the discrimination which such persons may face by providing legal recognition of the person's perception of their gender.The Court went on to state that -
However, a person's belief about their gender is but one requirement for the issue of a recognition certificate. Section 14 of the Act contains the minimum condition for a recognition certificate, namely that an applicant for a certificate has undergone a medical or surgical procedure to alter their genitals or other gender characteristics. The undertaking of that procedure may be seen to evidence the commitment by the person to the gender to which the person seeks reassignment. ...
Section 15(1)(b)(i) also requires the Board to be satisfied about the person's belief in his or her true gender and sub-par (iii) requires the person to have received proper counselling concerning his or her gender identity. These are matters which are directed to how the person perceives himself or herself and the certainty of that perception.
Section 15(1)(b)(ii) involves an enquiry, on the part of the Board, of a different kind. It requires, in the first place, that the Board be satisfied that the person has adopted the lifestyle of a person of the gender to which the person seeks reassignment. The adoption of a lifestyle will reflect something about a person's self-perception and, in some respects, about their maleness or femaleness. The word "lifestyle" refers to the characteristic manner in which a person lives and reflects a collection of choices which that person makes. It has both a private and a public dimension. Many lifestyle choices made by a person are observable by other members of society, by reference to how that person lives and conducts himself or herself. The first enquiry of s 15(1)(b)(ii) may therefore also direct the attention of the Board to a social perspective.
Section 15(1)(b)(ii), read with the s 3 definition of "gender characteristics", further requires the Board to be satisfied that the person has the physical characteristics "by virtue of which a person is identified as male or female". In resolving what is intended by this provision, much turns upon the use of the word "identified". The majority in the Court of Appeal appear to have considered that it required the Board to determine the extent to which a person had assumed the characteristics of the opposite sex. In the way in which that enquiry was approached, it appears to have been assumed that there is some point which is reached, in the transition, when a person might be regarded as male not female or female not male. That is not an approach that is reflected in the provisions of the Act.
Martin CJ observed that the word "identified" is used in s 3 in the definition of "reassignment procedure" ("identified by a birth certificate") and in the definition of "recognition certificate" ("that identifies a person who has undergone a reassignment procedure as being of the sex to which the person has been reassigned"). The inference his Honour drew from the usage of the word "identified" was that it carried the connotation of "established" or "accepted as". This suggests that an applicant for a recognition certificate must have achieved the gender characteristics of the opposite sex to a high standard.
Section 14(1) cannot be taken to require a particular level of success in achieving the gender characteristics of the opposite sex. Such an approach was considered in R v Harris, in relation to a male to female transsexual. However, as Lockhart J observed in SRA, a male to female transsexual after surgery is no longer a functional male, but a female to male transsexual is in a different situation. Even successful surgery cannot cause him to be a fully functional male. An approach to the requirements of s 15(1)(b)(ii) which has regard to the extent to which a person obtains gender characteristics of the gender to which they identify would therefore operate differentially and unfairly. Such an affect cannot be taken to have been intended in legislation such as this, which is of a remedial and beneficial kind.
It is also relevant that a surgical procedure to alter the genitals or other gender characteristics is not required of an applicant for a recognition certificate. The definition of "reassignment procedure" refers to a "medical or surgical procedure". A medical procedure would include hormone therapy, such as that undertaken by the appellants. As the Tribunal observed, although surgery is a requirement of legislation providing for recognition of gender reassignment in other States, and it is evident that Parliament was familiar with that legislation, Parliament did not consider surgery to be a necessary step in order to acquire the gender characteristics by which a person is identified as male or female. The options thus provided by the Act do not lend support for a view that a person must take all possible steps, including with respect to their sexual organs, to become as male or female as possible.
On one view the definition of "reassignment procedure" might suggest a concern with the result achieved by the surgical procedure. The words "so that the person will be identified as a person of the opposite sex" may be thought to connote a level of certainty of identification as male or female. However, s 14(1) and s 15(1)(b)(ii) may be read together in a more harmonious way, by attributing the purposive aspect of s 14(1) to the person. Section 14(1) may be understood to require that the person undertakes a reassignment procedure with the intention that he or she may be identified by others as being of the gender to which he or she seeks reassignment. Furthermore, s 14(1) requires only that the medical or surgical procedure alter the genitals and other gender characteristics of a person. It does not require that the person undertake every procedure to remove every vestige of the gender which the person denies, including all sexual organs.
Martin CJ accepted that it could not have been intended that a person have all of the physical characteristics of a person of the opposite gender and held that the test must be one of sufficiency. However, that leaves unanswered the question – sufficient for what purpose? The answer would appear to be social recognition. The Act does not, by s 15(1)(b)(ii), 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. So long as the other requirements of ss 14(1) and 15(1)(a) and (b) are met it is intended that legal recognition be given of the gender with which the person is identified within society. Section 15(1)(b)(ii) is addressed to that perspective. The question it raises is what gender the person exhibits to other members of society, by reference to the gender characteristics they now have and to their lifestyle. That conclusion would be reached by reference to the person's appearance and behaviour, amongst other things. It does not require detailed knowledge of their bodily state.
The question whether a person is identified as male or female, by reference to the person's physical characteristics, is intended by the Act to be largely one of social recognition. It is not intended to require an evaluation by the Board of how much of a person's body remains male or female. Rather, the Board is directed by s 15(1)(b)(ii) to the question of how other members of society would perceive the person, in their day-to-day lives. Such a recognition does not require knowledge of a person's remnant sexual organs.
The concern of s 15(1)(b)(ii) may be taken to be whether a transsexual person's appearance and behaviour in the conduct of their life would be accepted by other members of society as conforming to the gender to which the person seeks reassignment. That is what is intended by the phrase "is identified as male or female" in the s 3 definition of "gender characteristics". Such an understanding of the operation of s 15(1)(b)(ii) is consistent with the objects of the Act, which are 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. No point would be served, and the objects of the Act would not be met, by denying the recognition provided by the Act to a person who is identified within society as being of the gender to which they believe they belong and otherwise fulfils the requirements of the Act.