The High Court of Australia has granted two WA transgender men the opportunity to argue why the federal court should take their case.
AB & AH – two WA transgender men who cannot be named for legal reasons – were granted special leave by the federal court on Friday April 8 to argue for a hearing.
The case may be the first transgender-related case in history to be heard by the High Court of Australia if their case is accepted.
AH said he was relieved and pleased with the decision and it would be the first time anyone in Australia had tested the laws around actually being recognised.
‘I’m encouraged that the judge seemed to really understand what’s at the heart of the argument, what the issues are,’ he said.
‘It is the first time that a case like this has gone to the High Court.
‘We’re looking forward to having the argument.’
As AH explained, a federal court like the High Court of Australia cannot automatically appeal a state-court decision. The pair must ask for special leave to appeal to the court since gender recognition certification is a state-by-state issue.
‘By granting a move to appeal, the Federal Court is recognising that, even though it is a state issue and state legislation, it has significant implications more than just at a state level.’
‘Normally a state matter wouldn’t be dealt with at a federal court.’
‘It’s a really important step because if we hadn’t been granted leave that would have been it, all over.’
The saga began in 2008 when the pair was denied gender recognition from the WA Gender Reassignment Board. Following an appeal, the State Administrative Tribunal (SAT) overturned the decision and granted both men their certificates. In September last year, the Supreme Court of Western Australia denied the two men their gender recognition certificates after the state Attorney-General appealed a decision by the SAT.
AH said the decision didn’t really guarantee that the pair would or would not win, it meant that the Court believed it was something worth having a look at.
While no dates have been set, AH did not expect a hearing before the second half of this year.
Benn Dorrington
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