Dr. Jillian T. Weiss

More on the Australian High Court Ruling on Trans Identity

Filed By Dr. Jillian T. Weiss | October 10, 2011 4:30 PM | comments

Filed in: Politics, Transgender & Intersex
Tags: Australia, Gender Reassigment Act, Western Australia

This past Friday, guest blogger Zoe Brain discussed the recent High Court of Australia ruling, AB v. Western Australia, in which the highest court in the country ruled that a man, for the purposes of the Gender Reassignment Act, is someone who appears to be a man, regardless of genitalia. It's a little more complicated than that, so read her post for more details.

I would like to address some interesting facets of the ruling that show how differently the Australian legal system has addressed trans issues. In Australia, all of the states, of which there are six, have enacted statutes legislating the issue of who is entitled to have their sex reassigned on legal documents, which is then effective for most private and public purposes.

Imagine if each state in the United States passed a law called the Gender Reassignment Act, creating a state Gender Reassignment Board, which could change your sex on all legal documents and mandate that everyone honor that change. Just daydreaming, I realize that is impossible in the U.S. political climate and I have doubts about the constitutionality of such statutes in the U.S. But I wish I could live in a country like that.

Here then are some selected points from the ruling in A.B. v. Western Australia. Advance Australia Fair!

The Australian Gender Recognition Certificate

From the opinion:

Legislation which provides for the registration of a change to the official records of a person's gender has been passed in each of the States and Territories of Australia[8]. In Western Australia the Gender Reassignment Act 2000 (WA) ("the Act") provides for the issue of a recognition certificate which is conclusive evidence of the fact that a person has undergone a reassignment procedure and "is of the sex stated in the certificate".

This means the state issues a "recognition certificate" that changes one's sex. No having to go to a dozen different public and private organizations, each with different rules.

I note that the Australian law uses the term "gender reassignment," and so I will also use it here. However, from a strictly technical point of view, gender is the social and psychological part of sex, of which the law does not treat, and I do not believe that is reassigned. Rather, sex is reassigned. This difference has a profound effect upon the understanding of U.S. law, particularly with regard to whether the federal sex discrimination statute prohibits discrimination based on gender identity, as I have argued in my previous work. Therefore, I am rather adamant about using the term "sex reassignment" rather than "gender reassignment." However, like all things in this area, it is subject to considerable flux, and so, in reference to Australian law, I use the term "gender reassignment."

In order to obtain a certificate, there are three requirements. The person applying for a certificate must believe that their true gender is the gender to which the person has been reassigned, have "adopted the lifestyle and has the gender characteristics" of the new gender, and have received proper counselling in relation to their gender identity. This is quite different from rules in the United States, which generally require the affidavit of a surgeon that "sex reassignment surgery" was performed. Some agencies require an affidavit specifying the exact procedures performed in great detail.

The Issue in A.B.: What Kind of Medical Treatment Is Required?

The question addressed in the opinion is the meaning of the term "gender characteristics," and whether that requires genital surgery. While genital surgery is often thought of as the vaginoplasty performed for male-to-female transsexual, for which there is a generally good outcome in terms of functionality, the corresponding genital surgery for female-to-male transsexuals, phalloplasty, results in a penis which may or may not have sensation, can produce erection only with compressed gas implants, and requires extensive and often disfiguring skin grafts from the forearm or thigh.

The litigants in A.B. v. Western Australia are female-to-male transsexuals.

In the United States, rules permitting change of sex on legal documents often make reference to unspecified surgical procedures. As a result, male-to-female transsexuals are often required to have vaginoplasty under these rules in order change their legal documentation, but female-to-male transsexuals find themselves in a quite different legal position, in which hormone therapy and mastectomy is sufficient.

In A.B. v. Western Australia, the Gender Recognition Board was satisfied that the appearance of each of the appellants is that of a male person and that all the indications were that they had adopted the lifestyle of such a person. The sole reason why it determined not to issue a certificate to them was that they retained a female reproductive system, on the grounds that it is inconsistent with being identified as male, and there were concerns of adverse social and legal consequences should they be issued a recognition certificate while they have the capacity to bear children.

From the opinion:

It was explained, by medical evidence to the Tribunal, that a penis construction (phalloplasty) is not performed in Australia, because of the high risks associated with it and its low rate of success. Neither of the appellants wished to have a hysterectomy. Neither considered it necessary to their sense of male identity. Each had suffered the effects of surgery in the past and wished to retain their internal organs because they believed that they might be beneficial for future phalloplasty, if advances in that procedure made it feasible.

Each of the appellants has maintained testosterone therapy. Whilst they continue that treatment they will remain infertile. Evidence of an endocrinologist was tendered at the Tribunal hearing concerning the possibility, expressed as a percentage, that each of AB and AH might conceive children were they to discontinue that treatment. The endocrinologist gave evidence that he had not encountered one female to male transsexual who had ceased the therapy. Each of AB and AH told the Tribunal that they would not do so and explained that it was essential to their way of life that they maintain it. The Tribunal accepted this evidence "without reservation".

The Tribunal detailed the changes which had been brought about to the appellants both internally, with respect to their sexual organs, and externally. The Tribunal stated:

"The applicants have not merely altered their external appearance by superficial means. The medical and surgical procedures they have undergone have altered their genitals and other gender characteristics in profound ways. They have undergone clitoral growth and have the voices, body shapes, musculature, hair distribution, general appearance and demeanour by virtue of which a person is identified as male. They have acquired characteristics that are consistent with being male, and inconsistent with being female, to the extent that only an internal medical examination would disclose what remains of their female gender characteristics. Insofar as what remains of their female gender characteristics has been altered to such an extent that it no longer functions, it is no longer a female gender characteristic."

The Tribunal was mindful of the possibility that the appellants could not be said, with absolute certainty, to be permanently infertile. However, it accepted that the reversion rate of female to male transsexuals was rare. In the view of the Tribunal the appellants had done "everything medically available, short of hysterectomy, to alter their genitals and other gender characteristics so as to be identified as male." It said "[a] requirement that each [appellant] go even further and undergo a hysterectomy in these circumstances would seem to serve the purpose only of requiring further proof of their conviction."

Thus, the Court recognized that, as a factual matter, testosterone treatment renders female-to-male transsexuals infertile during the course of treatment, that there are no surgeons in Australia to perform phalloplasty, and that the appellants had done everything practicable to alter their gender characteristics so as to be identified as male.

The Court of Appeals: We Want The Whole Package

The court below, the Court of Appeals, wanted to see a functioning penis, which they characterized in this felicitous phrase: having the "genital and reproductive characteristics of a male," which they felt that "community standards and expectations" would require. The High Court dinged the Court of Appeals on this point, saying that "community standards" were not properly part of the consideration of the Act, as this phrase is nowhere mentioned in it.

The High Court adopted the interpretation of one of the dissenting Court of Appeals Justices, Justice Buss. Justice Buss picked up on the language of the Act, noting that it uses the term "identified as," rather than the verb "is," in reference to being male or female by virtue of gender reassignment. Justice Buss reasoned that the "identification as" language would not have been used if Parliament wanted to require surgical change of internal physical characteristics, He read the words "identified as" as connoting "recognized as".

The Australian High Court held that the general approach of Justice Buss is to be preferred. It thus recognized that gender is not an unambiguous proposition of being "all male" or "all female," but that there are degrees that may be recognized as male or female.

The Court said that the issue here is the "social perspective," rather than the "abstract evaluation" or "community standards" perspectives.

The Act does not...contemplate some abstract evaluation of maleness or femaleness. Its objects suggest that the question for the Board is to be approached from a social perspective, which is to say, by reference to what other members of society would perceive the person's gender to be. Such a perspective is consistent with the objects of the Act, which are to remove impediments to the way in which a person lives within society. So long as the other requirements...are met it is intended that legal recognition be given of the gender with which the person is identified within society. Section 15(1)(b)(ii) is addressed to that perspective. The question it raises is what gender the person exhibits to other members of society, by reference to the gender characteristics they now have and to their lifestyle. That conclusion would be reached by reference to the person's appearance and behaviour, amongst other things. It does not require detailed knowledge of their bodily state.

The question whether a person is identified as male or female, by reference to the person's physical characteristics, is intended by the Act to be largely one of social recognition. It is not intended to require an evaluation by the Board of how much of a person's body remains male or female. Rather, the Board is directed by s 15(1)(b)(ii) to the question of how other members of society would perceive the person, in their day-to-day lives. Such a recognition does not require knowledge of a person's remnant sexual organs.

The concern of s 15(1)(b)(ii) may be taken to be whether a transsexual person's appearance and behaviour in the conduct of their life would be accepted by other members of society as conforming to the gender to which the person seeks reassignment....Such an understanding of the operation of s 15(1)(b)(ii) is consistent with the objects of the Act, which are to facilitate the acceptance of a person, as being of the gender to which they are reassigned, within society so that they may fully participate within it.

A Few Concerns About This Ruling

While I am glad that the Court recognized the injustice of imposing unwanted and risky surgery in order to have one's gender recognized under the statute, I do find it odd that the Gender Recognition Board must make a determination of whether the applicant has "adopted the lifestyle" of the reassigned gender. It sounds to me a bit like a beauty contest, and similar to the attitudes of some psychiatrists, who want to be absolutely convinced by a person's appearance. I remember hearing stories about male-to-female transsexuals who were denied treatment by mental health professionals for gender dysphoria on the grounds that they wore pants, rather than a skirt, to the initial interview. The question, then, is "does this person pass as their reassigned gender"? While I recognize that, most likely, common-sense standards are used in making these determinations, and I have not heard any reports from Australia about denying gender recognition because a guy owns a collection of Marie Osmund dolls or has a poodle, or because a woman changes the oil on her car or sings contralto, I do worry about these things. I would want to make sure I got my hair done and take a little more time with my makeup before I appeared at the Gender Recognition Board.

I also find it a bit troubling that the Court distinguished, and implicitly approved, the holding in Secretary, Department of Social Security v "SRA" [1993] . That case involved a male-to-female transsexual woman who was denied the receipt of her husband's pension because, although she lived as a woman, she had not had vaginoplasty because the cost was beyond her reach. The High Court noted:

However, as Lockhart J observed in SRA, a male to female transsexual after surgery is no longer a functional male, but a female to male transsexual is in a different situation. Even successful surgery cannot cause him to be a fully functional male. An approach to the requirements of [the Act] which has regard to the extent to which a person obtains gender characteristics of the gender to which they identify would therefore operate differentially and unfairly. Such an affect cannot be taken to have been intended in legislation such as this, which is of a remedial and beneficial kind.

However, the Court hedged its bet in this regard, noting that:

It is also relevant that a surgical procedure to alter the genitals or other gender characteristics is not required of an applicant for a recognition certificate. The definition of "reassignment procedure" refers to a "medical or surgical procedure". A medical procedure would include hormone therapy, such as that undertaken by the appellants. As the Tribunal observed, although surgery is a requirement of legislation providing for recognition of gender reassignment in other States, and it is evident that Parliament was familiar with that legislation, Parliament did not consider surgery to be a necessary step in order to acquire the gender characteristics by which a person is identified as male or female. The options thus provided by the Act do not lend support for a view that a person must take all possible steps, including with respect to their sexual organs, to become as male or female as possible.

Thus, the question is still open whether a male-to-female transsexual would need to undergo phalloplasty, or perhaps some lesser surgical procedure, such as orchiectomy, or perhaps breast augmentation, or none at all.

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Angela Brightfeather | October 10, 2011 5:30 PM

All very interesting, but as pointed out by Zoe, once again, a change that further enforces and sets in conrete the concept of binary genders only being acceptable, while excluding any other forms of gender expression.

This seems to me to be allowing one type of Transgender person the freedoms that come along with acceptance, while relegating any other forms of gender expression to the confines of judgemental discretion, moral and geographic standards of right or wrong and the thorough denigration of a basic right for anyone to express their gender as they see fit. Which in the long run, could lead to the mistaken idea that now we have clarified in law what a man and woman really is, you had better live up to those standards on a regular basis and not try to expand beyond those boundaires, or expect suffer the consequenses which we are now justifying legally.

That would affectively leave about 90% of the Transgender Community in the tennuos situation of having to declare their gender to make it official and after giving evidence of passing the required litmus test, or confining their gender expression to their own havens of safety.

Same old, same old. You have to make a choice and stop sitting on the fence. Either your a man or a woman and don't cross the lines without government acceptance or you get no good vibes from the government and expect to be harrassed, discriminated against and confined to the moral garbage heap along with all those other "phobias".

This may be news for some, but certainly not the majority.

Thank you Dr. Weiss for your insights. My position on these matters is slowly evolving. I lean towards removing sex from birth certificates and drivers licenses as well as all other state and federally issued identification documents. I just don't see any purpose served through retaining it unless we buy into something obscure like the need for federal census data. I suppose incarceration segregation might be problematic in a very tiny percentage of arrests but it certainly should not matter to a traffic cop who is issuing a speeding ticket whether the driver is male, female or something in between.