Gender Reassignment: Western Australia

Case Study

Citation:
The State Of Western Australia‭ ‬-v-‭ ‬AH‭ [‬2010‭]‬ WASCA 172‭

Case History:
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 recognising 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

At the time of the proceedings before the Tribunal,‭ ‬AB was aged‭ ‬31.‭  ‬He 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 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
...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:
Per Martin CJ.

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:
...Rather, 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 commonly understood community standards.

Decision
The respondents cannot obtain recognition as males so long as the preponderance of female characteristics 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 to the extent that they can be readily identified as a member of their target sex, to have the attained sex legally recognised and to possess thereafter all the rights, privileges and responsibilities commonly associated with other members of that sex.

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

The Act requires that any medical or surgical procedures carried out on an applicant for gender reassignment must be performed in the state of 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.  There is nothing preventing the respondents from having their female sex organs surgically closed and a scrotum fashioned from the existing labia.  The procedure would leave their internal female organs in situ and almost certainly permit a legal change of 'gender' status.

‭Both respondents claimed to have experienced adverse effects following previous surgery.  Neither appears to have produced any evidence to support that claim.

‭The case will almost certainly be appealed to the Supreme Court of Australia.  If the appeal is taken on the 'phalloplasty'  argument it seems doomed to fail for the reasons discussed above.

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