Background:

Each of AB and AH were registered in Western Australia as female at the time of their birth. Each applied under the Gender Reassignment Act 2000 (WA) (the Act) to the Gender Reassignment Board of Western Australia (the Board) for the issue of a recognition certificate recognizing the reassignment of their gender from female to male. Both applications were refused by the Board. Each of AB and AH appealed to the State Administrative Tribunal (the Tribunal). The Attorney General on behalf of the State of Western Australia intervened in the proceedings before the Tribunal. The appeals were heard together. The Tribunal upheld each appeal and set aside the decision of the Board refusing to grant a recognition certificate and instead directed that recognition certificates be granted to each of AB and AH. The State appeals from the decision of the Tribunal.

Explanation:

As a case moves through the hierarchy of courts the parties change their positions. Thus both AB and AH would be appellants at the board and tribunal level but become respondents on appeal. In this matter the appeal was brought by the Attorney General of Western Australia. The state becomes the Appellant.

The Facts:

AB

AB manifested a desire to appear as a male during childhood, and in 1997 decided to undergo female to male gender reassignment. However, it was not until 2004 that AB felt comfortable approaching a doctor about it. In March 2004, AB was diagnosed by Dr Russell Date as suffering gender dysphoria. AB commenced testosterone therapy in May 2004, and maintains testosterone levels within a normal male range by the self-administration of regular injections. AB underwent a bilateral mastectomy in July 2005. AB has decided against undergoing a hysterectomy at this time. His reasons for that decision, which were accepted by the Tribunal, were that: he was not conscious of his internal organs and that his internal organs had no bearing on his identity as a male and caused him no distress; he has suffered adverse effects of surgery in the past and wishes to avoid further surgery if possible; he does not wish to undergo surgery that is not medically necessary; and, he cannot afford the time off work that would be necessary for the surgery and recovery.

AB has decided against undergoing a hysterectomy at this time. His reasons for that decision, which were accepted by the Tribunal, were that: he was not conscious of his internal organs and that his internal organs had no bearing on his identity as a male and caused him no distress; he has suffered adverse effects of surgery in the past and wishes to avoid further surgery if possible; he does not wish to undergo surgery that is not medically necessary; and, he cannot afford the time off work that would be necessary for the surgery and recovery.

AB does not presently intend to undergo phalloplasty in order to construct a penis, because he has been advised that the procedure carries substantial risks and has limited prospects of success.

AH

AH was aged 26 at the time of the proceedings before the Tribunal. Like AB, he manifested a male orientation during his childhood. In 2006, he was diagnosed by Dr Date as suffering gender dysphoria. He commenced testosterone therapy in September 2006 and, like AB, maintains his testosterone level within the normal male range by the self-administration of injections. In June 2007, AH underwent a bilateral mastectomy.

AH has also decided against undergoing a hysterectomy at present. Like AB, he does not wish to undergo surgery which he considers to be unnecessary. AH also has a similar attitude to AB towards undergoing phalloplasty.

The Issue:

The issue on which the appeal was fought was whether the facts established that the first respondents had the ‘gender characteristics’ of a male. The expression ‘gender characteristics’ is defined in the Act to mean ‘the physical characteristics by virtue of which a person is identified as male or female’.

The Reasoning:

para. 104:

The critical question is whether, by the reassignment procedure, an applicant has acquired sufficient of the characteristics of the gender to which they wish to be assigned to be identified as a member of that gender.

para. 114:

…save for their clitoral growth, and the impact which testosterone treatment has had upon ovulation and the functioning of their uterus, each otherwise has the external genital appearance and internal reproductive organs which would, according to accepted community standards, be associated with membership of the female sex… the express requirement for at least some genital modification as part of the ‘reassignment procedure’ which is a prerequisite to an application for a recognition certificate reinforces that conclusion.

para. 115:

Each of AB and AH, 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.

Ratio Decidendi:

The respondents retain a preponderance of female internal and external attributes. Such male attributes as they do possess are not sufficient to make them male according to accepted community standards.

Decision:

The respondents cannot obtain recognition as males so long as the preponderance of female attributes they possess significantly outweigh the attributes of the sex they wish to become.

Comment:

The Gender Reassignment Act 2000 (WA) is intended to allow any person who undergoes a process which alters their anatomical features so they can be readily identified as a member of their target sex according to commonly accepted community standards, to have the attained sex legally recognized and to possess thereafter all the rights, privileges and responsibilities associated with individuals belonging to that sex.

In this case the Appeal Justices have stopped short of demanding the removal of female reproductive organs, nor have they demanded full phalloplasty. Instead they have opted for a re-balancing process, whereby the attributes of the target sex must significantly outweigh the attributes of the birth sex.

If the applicant is a citizen of the state the Act requires that any medical or surgical procedures carried out on an applicant for gender reassignment must be performed in Western Australia. Phalloplasty (as it is commonly understood) is not available in the Western Australia and the Appeal Court would have been defeating the purposes of the act and the intention of Parliament by demanding it.

Both respondents claim to have experienced adverse effects following previous surgery.

The case may be appealed to the Supreme Court of Australia. If an appeal is taken on the basis of the ‘phalloplasty’ argument it seems doomed to fail for the reasons discussed above.

Categories: Legal cases and policing, Sex and gender recognition.