: Gender characteristics: a matter of appeal

Gender characteristics: a matter of appeal

Luke Illiers
Western Australia

In October, the High Court unanimously allowed the appeal brought by two female-to-male transsexuals in AB v State of Western Australia [2011] HCA 42. In so doing, the Court overturned a decision of the Court of Appeal of Western Australia to the effect that the Gender Reassignment Board was correct in finding that the applicants did not have sufficient male gender characteristics to meet the requirements of a recognition certificate under the Gender Reassignment Act 2000 (WA).

The issue before the Court was one of statutory construction, and particularly the meaning of the term ‘gender characteristics’ as used in section 15(1)(b)(ii) of the Act. In the Court of Appeal, Martin CJ concluded that the term ‘gender characteristics’ included the internal and external characteristics by which a person is identified as either female or male. As the applicants possessed none of the genital and reproductive characteristics of a male, they would not be identified according to accepted community standards and expectations, as members of the male gender. Pullin JA likewise agreed that it was necessary to apply community standards in order to answer the question posed by the Act.

The High Court rejected this approach, instead preferring that of Buss JA. For the Court, Buss JA’s conclusion that a person’s gender was to be identified according to their external physical characteristics gave effect to the purpose and terms of the legislation.

In support of this conclusion, the High Court turned to consider the terms of the Act and particularly section 15(1)(b)(ii). For the Court, the meaning of ‘gender characteristics’ and ‘physical characteristics’ as used in this section turned on the proper construction of the term ‘identified’. The term had been construed by Martin CJ to mean ‘established’ or ‘accepted’. This interpretation was considered to impose too high a standard. For the Court, there was no basis in the language or object and purpose of the Act for viewing section 14(1) as requiring a particular level of success in the gender transformation. The Act only required that the medical or surgical procedure alter the genitals or other general characteristics.

The proper inquiry was instead one of sufficiency. But sufficient for what purpose? In the High Court’s view, the answer was social recognition. That is, the objects of the Act required the issue of identification to be approached by reference to what other members of society would view the person’s gender to be. The views of society as to the person’s gender were to be determined by reference to the person’s appearance and behaviour or, in other words, their external physical characteristics. The Act did not require detailed knowledge of their bodily state. This construction was said to be consistent with the objects of the Act.

It must be remembered that cases of this nature turn heavily on their own facts. The decision does, however, undo the unfortunate consequence of the Court of Appeal’s construction of the Act that, in the case of female-to-male transsexuals, the applicant would need to undergo a phalloplasty in order to obtain a recognition certificate. While the applicant must still undergo a ‘reassignment procedure’ to obtain a recognition certificate, the assessment of whether they have the ‘gender characteristics’ of the gender to which they wish to be reassigned is now to be undertaken by having regard to their external physical characteristics.

LUKE ILLIERS is a Professional Assistant at the WA State Solicitor’s Office.

(2011) 36(4) AltLJ 287
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