Two WA transgender men are preparing to appeal to the High Court of Australia in order to gain legal gender recognition.
Both men were denied gender recognition certificates after the Court of Appeals ruled they ‘would not be identified as males … to community standards.’
Attorney-General Christian Porter lodged the appeal last year after the two men, whose identities have been suppressed, were granted legal recognition as males.
Supreme Court Chief Justice Wayne Martin and Justice Christopher Pullin upheld the appeal; the ruling decided by a majority two Judges to one.
The ruling delivered at the State Supreme Court on September 2 has excluded both men from gaining certification from the Gender Reassignment Board; a requirement necessary to change legal identity documents.
Justice Michael Buss, the third judge dissented from the judgement that the two men be refused legal gender recognition.
In the 63-page concluding statement, Justice Pullin agreed with the Chief Justice that the two men would not be classified as men by community standards.
‘In my opinion … each respondent possesses none of the genital and reproductive physical characteristics of a male and retain nearly all of the normal external genital characteristics and internal reproductive organs of a female,’ Justice Pullin said.
Both men had undergone bilateral mastectomies as well as testosterone treatments since 2004 and 2006 respectively.
They had previously resisted internal surgery as they each saw this measure as unnecessary and both confirmed they had no intention of pregnancy in the future.
During the appeal, numerous medical practitioners gave evidence predicting the men’s fertility rates would drop significantly, even if they ceased the testosterone treatments and in the experience of the practitioners, it was extremely rare for female-to-male gender reassignment patients to cease hormone therapy.
In 2008, the Gender Reassignment Board (GRB) refused both men recognition because it wasn’t satisfied they were physically male.
They appealed the decision to the State Administrative Tribunal (SAT), who overturned the ruling and granted each man the sought after recognition.
The current appeal was subsequently lodged; as it now stands, the SAT’s ruling has been set aside and the men’s gender recognition certificates cancelled.
One of the transgender men said he had mixed feelings about the ruling and questioned how much genital reconstructive surgery was necessary.
‘If you strip away all the legal jargon, this appears to be a decision that is based on very essentialist, binary ideas about sex,’ he said.
‘More incredibly, it seems to me that this is a question of penis size – the judges accepted that there had been some changes from hormone treatment, but ruled that they weren’t enough.’
WA Attorney-General Christian Porter said the court’s ruling affirmed the GRB position that if an individual retained any reproductive organs, they will not legally be considered male.
‘This case deals with fundamental questions about gender, the way it is determined, and when the State will recognise changes to a person’s gender identity,’ he said.
‘Even in a difficult and sensitive matter for the individuals involved, the Government has a responsibility in the wider community’s interests to ensure there is clarity and certainty regarding critical social issues, which is why an authoritative ruling from the Court of Appeal was sought.’
WA Equal Opportunity Commissioner Yvonne Henderson said the decision highlighted that a person transitioning isn’t currently protected from discrimination in WA.
She said gender identity wasn’t covered under the Equal Opportunity Act 1984 and people who were transitioning couldn’t make a complaint on the grounds of gender without a Gender Reassignment Certificate.
Ms Henderson said Western Australia was the only state or territory in Australia to not recognise gender identity or transsexuality discrimination, making it more difficult for the transgender community to claim discrimination than in any other state.
Benn Dorrington
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