High Court affirms right to gender identity and expression

AB v Western Australia [2011] HCA 42 (6 October 2011) Summary

The High Court delivered a unanimous judgment affirming the right of transgender people to have their gender officially recognised after undergoing medical or surgical procedures, even if not all of their reproductive organs have been altered. The Court emphasised the purpose of the Gender Reassignment Act 2000 (WA) to alleviate suffering and discrimination transgender people face in society by providing legal recognition of their self-identification and perception of gender.

Facts

AB and AH were born as female but identified as male from an early age, and were diagnosed with gender identity disorder. At the time of hearing, AB was aged 31 and AH was 26. AB and AH had altered their gender characteristics through undergoing bilateral mastectomies and ongoing testosterone therapy. Both have the physical appearance of males and live their lives as men. However, they retain some female sexual organs as neither has undergone a hysterectomy or phalloplasty. Neither AB nor AH wish to undertake any further surgical procedures because they do not consider them necessary to their sense of male identity, and because of the risks involved.

The West Australian Gender Reassignment Board is empowered to issue a recognition certificate as conclusive evidence that a person has undergone a reassignment procedure and “is of the sex stated in the certificate”. The Board refused to issue AB and AH a recognition certificate affirming them as men because of their remaining female reproductive organs and the “adverse social and legal consequences” of issuing a recognition certificate given their capacity to bear children.

AB and AH successful appealed the Board’s decision before the State Administrative Tribunal, before the Tribunal’s decision was overturned by the Court of Appeal.

Decision

The majority in the Court of Appeal assessed “gender characteristics” against “accepted community standards and expectations”, to find that AB and AH would not be “identified” as male while they retained female reproductive organs. The term “identified” was taken as the extent to which a person has assumed the physical characteristics of the opposite sex through surgery, under the assumption that there is a point at which surgery fully renders a person’s transition to male or female.

The High Court held that reliance on “potential adverse social consequences” or “community standard and expectations” were deliberately not included in the Act as a matter of policy and cannot be artificially inserted to deny a recognition certificate. The Court found that the language of the Act revealed the parliamentary intention to use “social recognition” (influenced by physical characteristics being altered) as the relevant test, not the extent to which a person’s body is changed. Broadly speaking, the test is not whether a person has undertaken every surgical procedure available, but whether they have altered their gender characteristics “sufficiently” to be “identified” as the opposite sex. This requires consideration of a person’s physical characteristics (including appearance, behaviour and lifestyle) both in private and public, but does not require knowledge of a person’s bodily state or “remnant sexual organs”. This broader interpretation gives appropriate weight to the Act’s guiding principle; that a person’s sex and gender characteristics are not always unequivocally male or female, but may be ambiguous.

The Court emphasised that the purpose of legislation which protects of enforces human rights must be given particular significance and a “fair, large and liberal” interpretation. In this case, the Act sought to facilitate acceptance and participation of transgender people to live as their reassigned gender within society. The definition of “reassignment procedure” as a “medical or surgical procedure” supports the Court’s interpretation, suggesting that a medical procedure such as hormone therapy may be sufficient to issue a recognition certificate without surgery.

Relevance to the Victorian Charter

The High Court’s decision in AB v Western Australia arguably lifts the bar for interpretation and application of similar laws around Australia and may also be relevant to future applications of the Victorian Charter. Importantly, the decision stands as firm precedent of the acknowledgement that sex and gender may be ambiguous. Thus, flexible understandings are required to grapple with the way that sex and gender are often assumed as unequivocal, in order to adequately respect the rights of transgender people. The decision also stands as authority for “beneficial” legislation which promotes or empowers human rights to be given a broad, fair and liberal interpretation to achieve its human rights objectives, of particular relevance to section 32 of the Victorian Charter.

The decision can be found online at: http://www.gaylawnet.com/laws/cases/ABvStateofWesternAustrlia.pdf

Note: The HRLC recognises that the term “transgender” is contested, and that appropriate language is important when discussing a person’s strongly felt sense of gender. “Transgender” is used in a broad sense inclusive of “transsexual” people, in recognition that a number of people undergoing medical procedures may be affected by the High Court decision but may not identify as “transsexual”, and vice versa.

Lee Carnie is a volunteer at the Human Rights Law Centre.