AB v State of Western Australia & Anor; AH v State of Western Australia

[2011] HCATrans 178

[2011] HCATrans 178

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P15 of 2011

B e t w e e n -

AB

Appellant

and

STATE OF WESTERN AUSTRALIA

First Respondent

GENDER REASSIGNMENT BOARD OF WESTERN AUSTRALIA

Second Respondent

Office of the Registry
  Perth  No P16 of 2011

B e t w e e n -

AH

Appellant

and

STATE OF WESTERN AUSTRALIA

First Respondent

GENDER REASSIGNMENT BOARD OF WESTERN AUSTRALIA

Second Respondent

FRENCH CJ
GUMMOW J
HAYNE J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON WEDNESDAY, 22 JUNE 2011, AT 2.15 PM

Copyright in the High Court of Australia

__________________

MR S. PENGLIS:   May it please the Court, in both matters I appear as pro bono counsel for the appellant.  (instructed by Freehills)

MR G.T.W. TANNIN, SC:   May it please the Court, with MR C.S. BYDDER, I appear for the first respondent in each matter.  (instructed by State Solicitor (WA))

FRENCH CJ:   Ms Mortimer, you seek leave to intervene?

MS D.S. MORTIMER, SC:   If your Honour pleases, I appear with MS E.A. BENNETT on behalf of the Australian Human Rights Commission, and we seek that leave.  (instructed by Australian Human Rights Commission)

FRENCH CJ:   The Court is disposed to grant you leave to intervene on the basis that the Court will receive your written submissions.  The question whether we need to hear from you by way of oral submission we will reserve until the end of argument.

MS MORTIMER:   If your Honour pleases.

FRENCH CJ:   Thank you.  Yes, Mr Penglis.

MR PENGLIS: May it please the Court, this matter obviously involves the interpretation of a specific section, section 15(1)(b)(ii) of the Gender Reassignment Act.  The issue involved is essentially whether or not the Act, so far as it applies to female to male reassignees, has misfired.  It is common cause that the appellants have undertaken all medical procedures, including surgery available to them in Australia, to alter their external physical appearance. 

The surgical procedure that is required to construct artificial male external genitals is called a phalloplasty; it is not available in Australia because it is associated with high risks and low success.   The evidence established that and it is common cause.  It is open to the appellants to undergo a hysterectomy and an oophorectomy - the former to remove their uterus, the latter to remove their ovaries - and they have chosen not to do so for reasons set out in the appellants’ submissions. 

The effect of the Court of Appeal decision by majority is to require, in order for compliance, the appellants to at least undergo a phalloplasty.  They cannot do that and hence it is not available for them to do that in Australia and hence it is not available for them in Australia to comply with the Act so construed by the majority of the Court of Appeal.  The effect of this appeal is as to whether or not a person in the shoes of the appellants is required, in order to satisfy the Act, to undergo either or both of those operations.

It turns on the peculiar wording or the particular wording of section 15(1)(b)(ii) of the Act as informed by two provisions in section 3: first, the definition of “gender characteristics” and, secondly, the definition of “reassignment procedure”. The scheme of the Act is that no one can apply to the Board, which is the Gender Reassignment Board established under the legislation to receive applications, consider applications and if appropriate issue recognition certificates - is that an applicant must have had performed upon them a reassignment procedure.

I take the Court to section 14(1) of the Act.  Only a person who has undergone a reassignment procedure may apply to the Board for a recognition certificate.  A reassignment procedure is defined in section 3 to mean:

a medical or surgical procedure (or a combination of such procedures) -

and it would be apparent to the Court that we place considerable emphasis on the fact that the Act contemplates that a reassignment procedure may be a procedure other than a surgical procedure.  What that procedure must do is to alter, not obliterate, the genitals and that is the only place where the word “genitals” appears in the Act and other gender characteristics of a person for the purpose so that the person will be identified as a person of the opposite sex.  Now, the Court will note ‑ ‑ ‑

FRENCH CJ:   Is that statement of the purpose or the result?

MR PENGLIS:   We say it is a statement of purpose.  I understand it is common cause on that and can I take you to the Chief Justice’s reasons for decision on that point, which we respectfully adopt, and that is page 423 of the appeal book second volume, at paragraphs 88 and 89.  His Honour gives two reasons.  We respectfully adopt them.  I understand there is no contention to the contrary advanced on the part of the respondents.  In particular, if it is to achieve the result, your Honour, then as his Honour the Chief Justice said, it would to an extent render section 15 otiose.  Whether or not the procedure ‑ ‑ ‑

HAYNE J:   Sorry, why would it render 15 otiose?

MR PENGLIS:   Because one of the things that the Court must consider is whether or not the person has, in fact, the gender characteristics.  So, in other words, the Act contemplates that someone may have performed upon them a reassignment procedure, hence able to make the application, but the Board might not be satisfied that that procedure, in fact, has resulted in the gender characteristics being adequately changed so as to satisfy section 15. 

Put another way, if, in order to satisfy the definition of “reassignment procedure”, you needed to have, in fact, acquired the gender characteristics of the other section then we would say that section 15(1)(b)(ii) would have no work other than insofar as it refers to lifestyle but insofar as it refers to “has the gender characteristics”, it would have no work. That has also been the approach of the second respondent, although not here, which is evident from its decision in these matters. So when one goes to section 15 one sets out ‑ ‑ ‑

GUMMOW J:   Section 14(1) is a jurisdictional fact, I suppose.

MR PENGLIS:   Yes. 

GUMMOW J:   You do not get in the door until you have been through 14(1).

MR PENGLIS:   Quite.

GUMMOW J:   Did the majority decide that your clients had not got through the door of 14(1)?

MR PENGLIS:   No, everyone held – well, the Chief Justice and Justice Buss held that we had got through the door.  Justice Pullin proceeded on the basis that we got through the door without deciding.  I cannot take that any further.  That is the way that the Court of Appeal proceeded.  We would submit that “reassignment procedure” focuses on the purpose of the procedure by the words “so that the person will”.  In other words, the purpose indicated is that that is what ought be achieved as opposed to the language in section 15 which uses the word “has the gender characteristics”.

So we say that the threshold jurisdictional issue so far as the Board is concerned is to first satisfy themselves that the applicant has undertaken a reassignment procedure because that is what section 14 mandates.  You will see, for instance, that in section 15 the Board is not necessarily required to satisfy itself that a reassignment procedure has been carried out under that section because the first limb could be satisfied by the fact that the birth of the person to whom the application relates is registered in the State, and then that would satisfy (a), and (b) you will see that there is no reference to the expression “reassignment procedure”.

So we say all of that adds up to a fairly compelling argument that the reassignment procedure, which sets out the threshold requirement in section 14, is a medical or surgical procedure which alters the genitals and other gender characteristics for the purpose of so that the person will be identified as a person of the opposite sex. 

Unless there are any further questions in regard to reassignment procedure, I was going to take the Court now to section 15 and make the observation that the scheme of the Act is such that a person who satisfies section 14 and thus there is a valid application before the Board, the Board must consider the matters therein specified.

Now, for an adult it is subsection (1), for a child it is subsection (2) and the relevance of that I will develop in a moment, but so far as an adult is concerned, and both these appellants are in that category, subsection (1)(a) I need not occupy the Court’s time with.  Subsection (1)(b) effectively requires the Board to be satisfied that the applicant believes that they are of the gender to which they have been reassigned. 

It is interesting, I do not think anything turns on it, but the legislation speaks of having been reassigned rather than seeks to be reassigned, but putting that aside, so they need to believe they are of that gender, they have adopted the lifestyle of a person of that gender, they have the gender characteristics of a person of the gender and they have received proper counselling.

Now, in the matter today, these matters, there was no dispute that the appellants satisfied all the requirements other than the second limb of (b)(ii) and that is the gender characteristics, and that is clearly the focus of attention for these appeals.  What do the words “the gender characteristics” mean where they appeared in this subsection?  The construction of those words are directly informed by the definition.  I can take the Court back to section 3.  The Court will note that “gender characteristics” is defined to mean:

the physical characteristics by virtue of which a person is identified as male or female –

So if you like, incorporating for the term “gender characteristics” where it appears in section 15 its definition in section 3, it reads:

the Board is satisfied that the person . . . 

has the [physical characteristics by virtue of which a person is identified as male or female] of a person of the gender to which the person has been reassigned –

The problem that has vexed the Board, the Tribunal and the Court of Appeal, and now is for determination by this Court, is that the Act is not clear and does not expressly state by whom the identification is to occur and against what criteria is the determination to be undertaken.  Clearly the identification is to be in fact undertaken by the Board - there is no quarrel about that, but where one speaks in the objective sense, as the definition does, against what criteria and against what standard is the identification test to be carried out?  It is, in our submission, significant to make the observation that this is not a case about what is a male and what is a female.  This is a question about what is the proper construction of section 15(1)(b) of the Act insofar as it directs attention to an identification test by virtue of the definition of “gender characteristics”.

KIEFEL J:   Your submission is that it involves social recognition.

MR PENGLIS:   Yes.

KIEFEL J:   You might be supported by that by the words which commence subsection (1)(b)(ii), which is, “has adopted the lifestyle”.  That might be thought to convey the social appearances tested by members of society and then consistently with that, the gender characteristics would be as observed by persons in society.

MR PENGLIS:   That was the argument, with respect - the submissions we made before SAT which were accepted by SAT.  They found no favour with the majority of the Court of Appeal who directed their reasons for decision to both of those limbs and said that the proper construction of the term “the gender characteristics” is not to be informed by the fact that it appears in the same subsection as the words “has adopted the lifestyle.”  We, with respect, submit that the court erred in that regard, and that the section needs to be read as a whole and that the exercise of identifying the gender characteristics can be informed precisely in the way that your Honour has identified having regard to the preceding words.

BELL J:   Added to that is Justice Buss’ consideration that it would be odd if a person possessed all the gender characteristics of the gender to which they were reassigned to have as a requirement adoption of lifestyle.

MR PENGLIS:   Quite.

KIEFEL J:   The distinction drawn by the Chief Justice could perhaps be summarised – the Chief Justice in the Court of Appeal – as preferring actuality as distinct from appearance.

MR PENGLIS:   Entirely.  We place great emphasis on the fact that it is an identification exercise, not a possession exercise.  The word “of” is not used.  The Board needs not be satisfied that the person has the physical appearance of, or has the gender characteristics – sorry, I will withdraw that.  The issue is not that the Act requires the person to possess the genitals and all the gender characteristics of a person of the opposite sex.  It is a matter of identification. 

Even if they do not therefore have all of the criteria, so long as they would be identified – and the issue is by whom – so long as they would be identified then that is sufficient.  Even the Court of Appeal – and this is to an extent why there is an inherent tension in the court’s reasons – accepted that the Act clearly did not require that persons who possess all of the gender characteristics – if I need to take the Court to where that appears I will – but even the Chief Justice accepted that, yet the effect ‑ ‑ ‑

FRENCH CJ: The problem for you is that there is a certain level of generality, is there not, in the definition of the words “gender characteristics”? That is defined before you find it in section 15(1)(b)(ii), and it seems to be a kind of definition of universal application; that is:

the physical characteristics by virtue of which a person is identified as male or female –

Expressed in that way it would seem to suggest that for each gender there is an agreed set of physical characteristics.  In other words, it is not a sort of sliding scale or variable constellation of characteristics which might answer that description.

MR PENGLIS:   Well, with respect, that is so if one applies a strictly literal definition, a literal interpretation.

FRENCH CJ:   Well, you have to do a bit of work, have you not, to ‑ ‑ ‑

MR PENGLIS:   Well, no, we say we do not have a lot of work because it is informed by the context in which it appears and the definition of “gender characteristics” as well as the fact that the Act contemplates that a reassignment procedure – because the definition of “gender characteristics” appears in that definition as well, your Honour – contemplates that surgery is not mandated.  Now, whatever “gender characteristics” means must be informed as it appears there by the context in which it appears in the legislation. 

Can I put it differently; can I put it this way?  There is another tension, with respect, in the Court of Appeal’s majority decision – and I am directing this to your Honour the Chief Justice’s comments – the majority – when I say the majority, the Chief Justice and Justice Buss, expressly accepted that these appellants had undergone a reassignment procedure.

As I have pointed out, if you accept that it is the purpose, or whatever it is, the definition of “gender characteristics” appears in the definition of reassignment procedure, so if what someone sets out to do – if gender characteristics is of the nature that your Honour the Chief Justice has suggested, and is of the nature that the majority of the Court of Appeal has held, such as, for instance, to require the external genitals of the opposite sex, then a procedure that sets out to do something short of that will not be a reassignment procedure.

It is set out to do something less than a procedure that seeks to acquire so that you will be identified as a person of the opposite sex by altering your gender characteristics then you will not have carried out – and if the definition of “gender characteristics” is as held by the Court of Appeal and suggested by the Chief Justice, then you will not satisfy the threshold test and that is because the term “gender characteristics” is employed in the definition as well as section 15.

In that very definition of “reassignment procedure” which expressly refers to altering the genitals and other gender characteristics, there is express contemplation by the Parliament that it may be by other than surgery.  So all of that informs the proper construction of what are the gender characteristics and identified by whom.  Identified by a casual meeting in the street, identified by an intimate encounter with a person or identified by a medical examination - all those questions are not answered by simply looking at the words “gender characteristics” in isolation.  We submit that the nature of ‑ ‑ ‑

HAYNE J:   Why is it not answered by the definition of “gender characteristics” and answered in your favour?  We find in “gender characteristics” words cast in very general form.  A person “is identified”.  It is not may be identified upon intimate examination, not may be identified upon medical examination, it is simply, in general terms, is identified.  The most general and common form with which a form of identification to which it might be thought the definition is referring is general social identification.

MR PENGLIS:   With respect, we adopt that.  That is the submission we put to the Court of Appeal.  It is the submission that was accepted by SAT and it finds further favour by where it appears in subsection (ii) after the reference to “lifestyle”.

HAYNE J:   It is also to be noted about 15(1)(b) that you have three matters in play:  belief of the person concerned; (ii), adoption of lifestyle and has the characteristics, the subsection with which we are primarily concerned; but has also (iii):

proper counselling in relation to his or her gender identity -

Now, read in context, it is not immediately apparent to me where you find a footing for limiting the definition of “gender characteristics” in a way that focuses attention upon identification by intimate examination?

MR PENGLIS:   Your Honour, we would obviously adopt your Honour’s observations.  Can we add to that in this way?  That is particularly so where one has regard to the fact that this is beneficial legislation.  Its remedial legislation should be given the fullest meaning that the words are fairly capable of providing.  So in particular in this sort of legislation one ought exercise great caution in effectively narrowing the express terms of this legislation so as to narrow the group of persons to whom it can assist.  Can I, in that regard turn ‑ ‑ ‑

GUMMOW J:   One also perhaps has to have regard to Part IIAA.  One of the mischiefs it addressed is discrimination, and that is liable to be in a social context rather than in a clinical context.

MR PENGLIS:   Quite.  I was not going to go there today, your Honour Justice Gummow, but we made the observations in our written submissions, making it clear that of course when one looks at the purpose of this legislation, it is not only to afford a reconciliation between a person’s legal gender and their actual gender so far as they are concerned, but it is also to protect them against discrimination in the ways that your Honour has referred to.  That, of course, is only available to a person who has the benefit of a recognition certificate.

HAYNE J:   But, further, if you are to go down the path of saying, “This requires consideration of what is revealed on intimate examination”, why not have regard also to what is revealed by chromosomal analysis?  That is precisely the path that this Act is designed to deviate from, move from.

MR PENGLIS:   I suspect one answer to that, Justice Hayne, is that that might be a biological characteristic rather than a physical characteristic, but the point, with respect, is there.  As Justice Buss pointed out, does this mean that in regard to a female to male reassignee that the – which of course is the case here – that one needs to not only rid themselves of the ovary and the uterus but also have a prostate gland inserted?  That is the level of, we would say, absurdity that the majority decision lends itself to. 

Can I take you to paragraph 105 of the Chief Justice’s decision at page 427 of the appeal book in the second volume?  This is where the Chief Justice, in our respectful opinion, erred by noting the decision in IW v City of Perth, but saying very clearly:

characterisation of the legislation as being ‘beneficial’, or requiring a construction that would promote the purpose or object underlying the Act . . . or asserting that the Act should be given ‘a fair . . . is of no assistance –

It is a very clear statement that his Honour has simply said it “is of no assistance” whatsoever, and the reason that his Honour has done that is to say because at the end of the day section 15 employs a value judgment.  We say, with respect, no, and that the starting point is the construction exercise and only once the construction exercise has been undertaken does one embark upon the implementation of the section which involves a value judgment.  There is absolutely no reason why the cases such as IW v City of Perth ought not apply to the proper construction of section 15, in our submission.

GUMMOW J:   There may be a problem with paragraph 110 in the Chief Justice’s reasons, the last sentence.

MR PENGLIS:   Well, that is the Chief Justice ‑ ‑ ‑

GUMMOW J:   In a way it is putting it back to front.

MR PENGLIS: That is the Chief Justice’s answer, if you like, to the submission that we put before him and succeeded on for SAT which has been mentioned and, again, we take issue with that, again, dealt with in the written submissions. Can I say that in addition to the observations I have made, the proper construction of section 15(1)(b)(ii) is importantly informed by the fact the Act contemplates that someone may obtain a certificate without surgery. The effect of the Court of Appeal majority decision is to require surgery.

We say, moreover, that when one looks at the beneficial purpose of this legislation, why would Parliament have concerned itself not only with external characteristics, but also internal characteristics, characteristics known by no one other than the applicant themselves or apparent from medical intervention?  We say that is just an unnecessarily restrictive application of the Act. 

Two other points I would like to mention and then a few observations to make and that will, unless there are any other questions, conclude my oral submissions.  In paragraph 5 of the propositions, that is where I make the observation that I sought to make earlier but failed to properly clearly make and that is that the construction is informed by the fact that the definition of “gender characteristics” refers to the characteristics by virtue of which a person is identified as male and female, not the characteristics of a male or female.  That is where we say it does not require a person to possess all the gender characteristics of the gender to which they seek to be reassigned or to possess none of the gender characteristics of the gender from which they seek to be reassigned.  What the Act requires is that the applicant possess sufficient of the gender characteristics to satisfy the identification test.

FRENCH CJ:   So this is the notion that gender is a social construct within which your clients are capable of fitting?

MR PENGLIS:   Yes.  We say that the proper construction ought also be informed by the fact that when you look at section 15(2), it deals with children.  You will see that in section 15(2)(b) all the Board needs to be satisfied with is:

that it is in the best interests of the child that the certificate be issued.

Now, it might be said – it has never been said by the respondent, but it might be said, well, there you go, that shows you that “gender characteristics” means what it says and that is everything, the whole kit and caboodle because a child does not need it, but, to the contrary, section 15(2) actually assists us for this reason.  I have already taken the Court to the fact the definition of “reassignment procedure” requires:

a medical or surgical procedure . . . to alter the genitals and other gender characteristics –

for the purpose of adopting, being identified as a member of the opposite sex.  So a child, in order for the Board to have jurisdiction, a child and an adult both must go through a reassignment procedure.  The reassignment procedure incorporates gender characteristics.  It incorporates the purpose.  So even a child would have to go through - on the majority Court of Appeal’s analysis - an operation, on their analysis – surgical - to effectively have all the hallmarks, external and arguably internal, of a member of the opposite sex.  This is on a child.  That is absurd, we would submit. 

Can we make the observation that given that the Act expressly eschews the undertaking of surgery as a prerequisite to the grant of a certificate, it is apparent that Parliament has chosen to modify, not codify, as the first respondent submits, the common law with respect to transgendered persons so as to do away with the common law distinction between post‑operative and pre‑operative transsexual persons.  This is expressly referred to in the second reading speech.  The then Attorney‑General and if the Court wants to find it, it is at – sorry if I can just have a moment.

FRENCH CJ:   We have a copy, Mr Penglis.

MR PENGLIS:   Thank you.  I had better turn it up myself.  Your Honours will see it is at page 337 as well as attached to our authorities: 

The purpose of this Bill is to enable persons who have undergone reassignment procedures to obtain a recognition certificate indicating that they have undergone a reassignment procedure and are of the gender stated in the certificate.  People suffering from gender dysphoria and who have completed medical procedures –

not surgical –

to alleviate their condition will gain legal recognition of their reassigned gender under this proposed legislation.

The Attorney‑General noted in the second paragraph that under present law the gender of a person is biological gender.  He then goes on over at page 338:

Gender reassignment legislation was enacted in South Australia in 1988, and recently in the Australian Capital Territory, New South Wales and the Northern Territory.  Similar legislation also exists in other countries -

All the other Acts other than South Australia mandate surgery.  South Australia did not.  It is to be inferred that there was a conscious decision made by the Court – by the Parliament that was the model that was preferred.  In the absence of an express requirement for surgery, we say the Court ought not imply one, but here we go even further, the Act expressly eschews the requirement for there to be surgery in order to have undertaken a reassignment procedure. 

GUMMOW J:   As a matter of interest, was this Bill opposed in the Legislative Council?

MR PENGLIS:   Not that I am aware of.  No, my learned friend is shaking his head indicating his agreement with me that no, it was not.  It was a Bill, somewhat ironically passed by a Liberal Attorney‑General and now challenged in part by a Liberal Attorney‑General, but in any event.

We would make the observations, your Honours, that – and this is simply to reinforce matters of construction, they are not being up to persuade your Honours of the construction - but the appellants’ construction that we put up insofar as it does not require a successful applicant to possess the external genitals of the gender to which they seek to be assigned, is consistent with previous decisions of the Board itself and we have referred to them in our outline of submissions.  Even the original Board decision in these matters made it very clear that so far as the Board was concerned, the fact that these applicants did not possess the external genitals of a male was not determinative.  In fact, they went so far as to say they did not consider it to be relevant.

But there are other decisions which are in the appeal papers which indicate where applicants have had hysterectomies, although have not had a phalloplasty, they have been successful.  We say that the appellants’ construction is consistent with recent judicial pronouncement in the area of recognising and dealing with gender dysphoria and recognitions of the Human Rights Commission and we also make the observation that to, in effect, adopt the construction of the Act, which causes it to misfire so far as female to male assignees are concerned, would be contrary to the obligations of the States and Commonwealth, but in this regard the States, to comply and ensure the compliance with Australia’s international obligations prior to enactment of the legislation in question.  That is in regard to indirect discrimination.

You will hear no doubt more about that from those who have the benefit of appearing live, so to speak, so I will not go further into that.  Unless there are any further questions I wish to conclude by taking the Court to four passages in some authorities, and they are very brief.  Can I start first of all with the decision of IW v City of Perth, and can I take the Court to the joint decision of Chief Justice Brennan and Justice McHugh at page 12 and the well‑known and oft‑cited passage starting “The injunction contained in s 18 of the Interpretation Act”, if I can direct the Court’s attention to that.

But can I also direct the Court’s attention to a passage in the case that – sorry, that is all I wish to do there.  Can I direct the Court’s attention directly to the decision of Barns v Barns which is referred to?  It is a joint decision of your Honours Justices Hayne and Gummow, and in particular to page 107, paragraph 44 ‑ ‑ ‑

FRENCH CJ:   Reference being?

MR PENGLIS: The reference being 214 CLR 169. It was on my list, I hope ‑ ‑ ‑

FRENCH CJ:   It is just that it normally helps us to cite the reference for the transcript.

MR PENGLIS:   I am sorry, your Honour.  I will do that.  This is at page 187 at paragraph 44.  This was obviously in regard to different legislation, testator’s family maintenance legislation in the Northern Territory, which was referred to by Justice Rich in Holmes v Permanent Trustee Case with the concurrence of Justices Evatt and McTiernan, that where legislation, as it was there:

was remedial in character [it ought] be construed so as to give the most complete remedy which is phraseology permitted –

Can I then specifically in regard to transgender take you to the decision of the Attorney‑General (Cth) v “Kevin and Jennifer” (2003) 172 FLR 300, and can I take you to page 365, paragraphs 382 and 383, where the court posed the question, why is it that the common law has drawn a distinction between pre‑operative and post‑operative transsexuals, and making the observation that for whatever reason ‑ ‑ ‑

FRENCH CJ:   Was that on your list of authorities, Mr Penglis?

MR PENGLIS:   Yes, your Honour, I thought so.  Sorry, it is not.

FRENCH CJ:   Well, perhaps you had better read us the passage that you want to rely upon.

MR PENGLIS:   Well, if I do not, I will simply ask if the Court can note it.  It is referred to in the reasons.  I will not read it in that case, but it is paragraphs 382 and 383 where the court effectively said that it is really for Parliament to change the law in this area, not for the courts.  We say, of course, it is exactly what this legislation does.  My learned friend, however, would have you construe the legislation against and inconsistently with the common law. 

Finally, I am happy to say, a case that is in my list of authorities to be cited and that is Re Alex (Hormonal Treatment for Gender Identity Dysphoria) (2004) 180 FLR 89. Now, your Honours, I read this simply by reference for the purpose of, with the utmost respect, adopting what the Chief Justice said by way of a submission. Can I take you firstly to page 130 in paragraph 234. This is after referring to a discussion paper that was prepared by the Victorian Attorney‑General and after referring to the South Australian and WA legislation, at 234 his Honour said:

I consider it is a matter of regret that a number of Australian jurisdictions require surgery as a pre‑requisite to the alteration of a transsexual person’s birth certificate in order for the record to align a person’s sex with his/her chosen gender identity.  This is of little help to someone who is unable to undertake such surgery.  The reasons may differ but for example in the present case, a young person such as Alex, on the evidence, would not be eligible for surgical intervention until at least the age of 18 years.  Thus, for the many purposes for which a birth certificate is required (such as an application for a passport), a person such as Alex in those jurisdictions is required to produce a birth certificate that describes him as a female in circumstances where in all other respects he is living his life as a male.

If you then go over the page to paragraph 237:

A requirement of surgery seems to me to be a cruel and unnecessary restriction upon a person’s right to be legally recognised in a sex which reflects the chosen gender identity and would appear to have little justification on grounds of principle.

Then there was a reference at paragraph 238 to observations made by Mr Basten, SC, as his Honour then was, appearing for the Human Rights Commission as an intervener, making the observation that:

the efficacy of surgical intervention is more problematic where the transition is from female to male.

At 239 his Honour said:

If one accepts such a submission, a requirement of surgery is not only generally inconsistent with human rights.  The requirement is more disadvantageous and burdensome for people seeking legal recognition of their transition from female to male than male to female.  Expressed in this way, there is an additional objection to surgery as a pre‑requisite; the requirement of surgery is a form of indirect discrimination.

I would urge the various State and Territory Legislatures that make surgery a pre‑requisite for a change in birth certificates to reconsider their position.

We conclude by submitting that given the purpose of this legislation, given where the definition appears, how the definition appears, the context in which the definition appears, the fact that surgery is not mandated, to the contrary, it is the requirement to mandate surgery is expressly eschewed, the court ought not construe or ought do everything possible to avoid construing section 15(1)(b) as requiring surgery particularly where the evidence establishes and it is common cause that if that were to be so, then it would effectively misfire so far as female to male reassignments are concerned.

GUMMOW J:   So the citations in IW v City of Perth 191 CLR 1, you might add page 39 and also – I cannot find it at the moment. There is a passage in the judgment of Justice Dawson and Justice Gaudron which maybe useful to you as well.

MR PENGLIS:   Unless I can be of any further assistance to the Court at this stage, they conclude the submissions in‑chief.

FRENCH CJ:   Yes, thank you, Mr Penglis.  Yes, Mr Tannin.

MR TANNIN:   May it please the Court. 

FRENCH CJ:   The State got involved as an intervener, I think, for the SAT.  Is that right?

MR TANNIN:   That is correct.  We had a right to do that under the Act.  There was not a contradictor.  The Board had properly entered a submitting appearance before the SAT.

GUMMOW J:   The Tribunal having settled the point, what is the public purpose of the Attorney then appealing it?

MR TANNIN:   The Tribunal, in our respectful submission, had not construed the legislation correctly.  The Attorney was not merely an intervener by leave but was concerned that the legislation be construed correctly.  Our respectful submission is that it has been construed correctly by the majority.  The Australian courts over the past 25 years have increasingly shown a compassionate approach towards transgender persons.  That approach has been informed by the desirability of clarity and certainty in the application of the law.

In Bellinger v Bellinger, which is No 2 in our list, [2003] 2 AC 467 at 478 to 479, paragraphs 36 to 42, Lord Nicholls identified the need for there to:

be some objective, publicly available criteria by which gender reassignment is to be assessed.  If possible the criteria should be capable of being applied readily so as to produce a reasonably clear answer . . . There must be an adequate ‑ ‑ ‑

GUMMOW J:   Just a minute.  Is that addressed to legislatures?

MR TANNIN:   Yes, it was, and there was a legislative response in England.  Our point is that, as his Lordship was saying:

the applicability of the law to an individual suffering from gender identity disorder would be in a state of complete confusion –

otherwise, and in England the legislative response was to allow for recognition subject to there being medical recognition.  In Western Australia the Gender Reassignment Act 2000 removes any confusion about the applicability of law, at least the State law, to recipients of a recognition certificate. The effect of a certificate is set out in our submissions at paragraphs 7 and 8. The recognition certificate is conclusive that the recipient is of the sex as stated. That is section 16(1) of the Act. The circumstances in which a recognition certificate should be granted are less clear.

The requirements which must be satisfied before an adult applicant can be granted a recognition certificate are set out in sections 14 and 15 of the Act and in our written submissions at paragraphs 9 to 11.  The only requirement which is in contention in this case is what we have referred to as the identification requirement in 15(1)(b)(ii) and the requirement is, relevantly, that the second respondent be satisfied that the applicant:

has the gender characteristics of a person of the gender to which the person has been reassigned –

The parties all agree that the statute is remedial but we differ upon the status of that principle on the Act’s construction.

BELL J:   Am I right in understanding, if one turns to the judgment of the Chief Justice at appeal book 430, paragraph 115, that the submission advanced by your opponent is correct and that for practical purposes a female to male reassignee must undergo surgery of the nature of phalloplasty?

MR TANNIN:   Your Honour is correct in that.

BELL J:   So can you explain how that fits with the statutory scheme having regard to the definition of “reassignment procedure”?

MR TANNIN:   The statutory scheme requires that a reassignment procedure be undertaken for the purposes of the jurisdictional threshold set in section 14.  Then the Board must be satisfied of the factors set out in section 15.

BELL J:   So the construction for which you contend is that a person is eligible to make application under 14(1) having undergone a medical procedure that has had the effect of altering the person’s genitals and other gender characteristics but must inevitably fail in the case of a female to male reassignee in the absence of undergoing an operation which cannot be performed in Australia having regard to the risk associated with the conduct of the procedure.  That is the submission that the State puts, is it?

MR TANNIN:   That is the effect of the majority judgment, and the reason why ‑ ‑ ‑

GUMMOW J:   Do you support it?  You are being asked if you support it?

MR TANNIN:   Yes.

GUMMOW J:   All right.

MR TANNIN:   The submission is ‑ ‑ ‑

GUMMOW J:   The passage in IW v City of Perth, which might have to be more closely read below, that I was looking for in Justices Dawson and Gaudron is at pages 22 to 23. Why would one read the Act so that it misfires in that way if there is another way to read it?

MR TANNIN:   Your Honour, the Act is to be read ‑ ‑ ‑

GUMMOW J:   Unless you are beginning with some inarticulate and undisclosed major premises.

MR TANNIN:   No.  The fact that the Act is to attract a liberal and beneficial construction does not permit the Court, in effect, to ignore the language of the Act.  The difficulty for the appellants is that the identification requirement in section 15(1)(b) is not merely, as your Honour Justice Hayne put it to my friend, a general social identification.  The words of the Act in that definition which applies precisely to section 15(2)(b) are preceded by a requirement of meaning physical characteristics by virtue of which a person is identified.  That is not a mere social identification otherwise ‑ ‑ ‑

HAYNE J:   Why not?  What is in that definition that takes you beyond the generality of identification?

MR TANNIN:   Being in that definition that takes you beyond mere lifestyle is the reference to ‑ ‑ ‑

HAYNE J:   I am not talking about lifestyle.  I am talking identification.  Identification in an ordinary social setting which does not engage in intimate examination.

MR TANNIN:   The definition talks about physical characteristics.  It is not correct to talk about intimate examination for the determination of that test.  It is simply a reference to objective physical criteria by which an identification is made.  It cannot be that mere social identification is sufficient to meet the statutory test.  If that was so, simply dressing as one gender or the other would be sufficient.  This Act is not providing a mechanism for that form of transformation.

BELL J:   The person could not apply unless under 14(1) they had undergone a reassignment procedure.  Necessarily they must have undergone a procedure involving medical or surgical alteration to their genitals and other gender characteristics.  Gender characteristics embraces a wide range of matters, including the physical effects that the ingestion of testosterone can produce on a woman.  Somewhere in volume 1 one can turn up the photographs, I think it is of AB.  It would be open to consider that AB has the gender characteristics of a male by reference to features such as hair line, muscular appearance and so forth.  It is at 133 and 134 of volume 1 of the appeal book.  What is it about the language of the section that does not admit of consideration that AB has the gender characteristics of a male by reference to, amongst other things, a consideration of that material?

MR TANNIN:   Your Honour, we do not in any way dispute that looking at the photographs the applicants appear as the gender to which they seek reassignment.

BELL J:   AB appears to have the gender characteristics of a male because AB has been ingesting testosterone, producing physical alterations to characteristics which people in common parlance identify as either being male or female.

MR TANNIN:   If I can answer the point made by your Honour Justice Bell, the reassignment procedure is a procedure to alter.  It is the purposive procedure undertaken under section 14.  It may not have been entirely successful.  So whilst the testosterone procedure undertaken by each applicant would qualify as a reassignment procedure, it may not have succeeded in giving the applicant sufficient of the gender characteristics required for transition.  In addition to the facts to which your Honour Justice Bell has pointed, the uncontroverted facts which are noted at page 412 of the appeal book in the decision of his Honour the Chief Justice at paragraph 56 is the observation, when dealing with what the Tribunal dealt with, that:

No significance appears to have been attached to the retention of the genitals of each appellant, including the vulva and vagina.

Each appellant has the physical gender characteristics of a woman.

BELL J:   Indeed, and short of undergoing a dangerous procedure not available in Australia, that is inevitably the fate of those individuals.  What is it about the definition and the language of 15(1)(b)(ii) that precludes the conclusion that each has the gender characteristics of a male having regard to the physical alteration of their genitals and other characteristics that testosterone has produced?  That is what seems to me unclear.

MR TANNIN:   The sole concern is that they do not have sufficient of the physical characteristics by virtue of which a person is identified as a male or female. 

BELL J:   Where do you get the sufficient of the characteristics from the language and scheme of the Act?

MR TANNIN:   The language I am quoting is from the decision of the Chief Justice at appeal book 426 and 427, particularly paragraphs 103 to 104, because it is not the case that the Court of Appeal’s judgment requires an absolute transformation.  That is physically impossible.  What the Court did, starting at 103, was this analysis and, in our respectful submission, it is an insightful one.  Starting from paragraph 103:

Turning then to the issue of the relevant physical characteristics, it is inevitable that each applicant for a recognition certificate will possess a range of physical characteristics, some of which will be identified with the gender of their birth (such as chromosomes) and others of which will be identified with the gender to which they seek reassignment (as a consequence of the reassignment procedure).  Whether, after taking account of all relevant characteristics, the person should be accepted, according to general community standards and expectations, as having the physical characteristics to be regarded as a member of the sex to which they seek to be reassigned, will depend critically upon the particular facts and circumstances of each case, and the balance of factors which would point to one gender rather than another.

Put another way, in the context of this legislation, it could not have been intended by the Parliament that in order to be identified as a member of one gender, the person have all the physical characteristics of that gender, and only those characteristics.  Rather, it is inherent in the nature of the processes contemplated by the Act that applicants will possess at least some physical characteristics normally associated with each gender.  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.

HAYNE J:   What is meant by “sufficient” is identified in paragraph 115 as necessarily, not to say exclusively, directed at the external genital characteristics and internal reproductive organs.  Where do you find that in the Act?

MR TANNIN:   The sole source for that submission, in our respectful submission, and the provision that cannot be overcome by the applicants is in section 3 in the definition of “gender characteristics”.  There is no sensible way to read:

the physical characteristics by virtue of which a person is identified as male or female –

without regard to those characteristics.  It cannot be simply social identification.

BELL J:   How can it be that a medical procedure can produce an alteration such as to achieve a grant of a gender recognition certificate under this Act in the case of a woman seeking to be reassigned to the gender of a male?  How can that be done?

MR TANNIN:   Your Honours, the way the Act is interpreted by the Court of Appeal means that the transition from male to female may well be easier than from female to male.  In terms of how it can be done, the answer literally would almost inevitably be phalloplasty.  That is the construction that the Court of Appeal’s judgment requires. 

GUMMOW J:   We know that.  The question is why is it correct?

MR TANNIN:   That is what the Act says, is our simple answer.

GUMMOW J:   Well, if that is not what the Act says.

MR TANNIN: To provide otherwise would have to read away the definition in section 3. It cannot be that the Act can allow the physical characteristics of gender to be entirely ignored. In terms of interpretation, I have in the submissions referred to, No 5 of our list of authorities, the decision in the Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642 at 652, particularly the judgment of your Honour the Chief Justice and Justice Bell, pointing to the circumstances in which a court can modify the meaning in words and structure of a provision to give effect to a statutory purpose:

Three matters of which the court must be sure before interpreting a statute in this way were the intended purpose of the statute, the failure of the draftsman and parliament by inadvertence to give effect to that purpose, and the substance of the provision parliament would have made.  The third of these conditions was described as being of “crucial importance”.  Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation.

It is very difficult, with respect, to do that without regard to the literal terms of section 3.

FRENCH CJ:   I am just wondering about what appears at paragraph 104 on page 426 where the Chief Justice says, in the first sentence:

it could not have been intended by the Parliament that in order to be identified as a member of one gender, the person have all the physical characteristics of that gender, and only those characteristics.  Rather, it is inherent in the nature of the processes contemplated by the Act that applicants will possess at least some physical characteristics normally associated with each gender.

Then the question becomes one of sufficiency.  So there is a kind of a constellation of factors approach there, is there not?

MR TANNIN:   Yes.

FRENCH CJ:   Is that an approach which, for example, would be consistent with your proposition that, in effect, what is required is phalloplasty?  I am just wondering whether the Chief Justice actually goes quite as far as you seem to suggest.

MR TANNIN:   I was answering a question as to the effect of what the judgment is and I made ‑ ‑ ‑

FRENCH CJ:   Because he really seems to have said that the problem is that the Tribunal had not given effective or sufficient weight to the retention of the reproductive organs.

MR TANNIN:   That and the fact that even on the test of external examination which was favoured by his Honour Justice Buss, the applicants here would not succeed because it was one thing to look at their face and say we can see a beard and the apparent physical characteristics of the male gender, but upon an external examination you would also notice that they each possess a vulva.

BELL J:   Well, you would only notice that in limited circumstances.  If one were to have regard to the physical appearance of AB at 133 and 134 of the appeal book, and bear in mind that one is not looking at someone who is simply choosing a lifestyle of dressing as a man but someone who has undergone procedures including the regular taking of testosterone to produce the physical changes that are there obvious, that is the consideration that one might think the scheme of the Act is directed to and that falls within 15(1)(b)(ii) surely.

MR TANNIN:   In part, but the Act cannot be construed as to ignore the genitalia.  The reference to the genitals is contained in the reassignment procedure.  Genitals are by any description part of the gender characteristics of a human being and they may be apparent by intimate examination, they may be apparent by simply objective knowledge.  There may be a situation, for example, where the genitals of a person necessarily play an important part in their identification depending on their stage of pregnancy.  So it is very, very hard to read down this Act by annihilating reference to genital characteristics, however uncomfortable the result.  Our central submission is that the construction ‑ ‑ ‑

HAYNE J:   Mr Tannin, that is to impose on this Act an either/or interpretation when the whole purpose of the Act is to deal with the fact that there are people who fall between the polar identities.

MR TANNIN:   The result, I would grant, your Honour Justice Hayne, is not the most comfortable one, but the divide is, I think, with respect, properly put by the question from your Honour Justice Kiefel earlier that the approach of his Honour Chief Justice Martin and Justice Pullin was an approach that dealt with actuality as opposed to appearance.  That dichotomy is in fact the one that the Act requires.  The result in each case may not be entirely satisfactory to the applicants, but that is where the community has set the standard.  The benefit to the party who is successful under this Act is to obtain the certainty that was so desired in Bellinger and which is provided. 

I have in the written submissions dealt with the intervention in advance; I will not go into those submissions.  We have had notice from my learned friends for the intervener that they were also seeking to rely on a case called Leeth v Commonwealth (1992) 174 CLR 455 at 484 to 486 as authority for the general principle of non‑discrimination. In those passages their Honours Justices Deane and Toohey suggested that there was a constitutional doctrine of legal equality between individuals We would simply point out to our friends that in Kruger v Commonwealth (1997) 190 CLR 1 at 44 to 45 per Chief Justice Brennan at 63 to 68, per Justice Gummow at 153 to 155 and at 141 to 142 per Justice McHugh, a majority of four of this Court rejected the existence of a constitutional doctrine of equality, legal equality, otherwise I adopt my written submissions.

HAYNE J:   Just before you sit down, Mr Penglis, can I raise with you a question about what orders would be made if the appeals, or either of them, were to succeed?  Mr Penglis ‑ ‑ ‑

MR PENGLIS:   Sorry, your Honour.

HAYNE J:   I want to ask Mr Tannin, if I may.

MR PENGLIS:   Yes.

HAYNE J:   Mr Tannin, the appellants seek orders allowing the appeal and setting aside the orders of the Court of Appeal and they seek in their written

submissions further orders, in effect, in the nature of a mandamus, but if we look at the Court of Appeal’s orders at page 457, for example, of the appeal book, if we were to allow the appeal to this Court, set aside the orders of the Court of Appeal and in place of those orders order dismissal of the appeal to the Court of Appeal, that would leave unaffected, I think, the orders of the State Administrative Tribunal which were made in the form at appeal book 382, setting aside the decision under review, granting the application for a certificate and directing the Board to issue a certificate, would orders in that form achieve the result with the appellants seek?

MR TANNIN:   In my submission, they would.  I think that the history is that upon their success in the SAT, the applicants did not file their applications for recognition certificates pending the outcome of an appeal.  That has been the case.  Upon the making of those orders, they would be entitled to then continue with their applications to have a recognition certificate.  If there are any timing issues, there certainly would not be any objection from us about that.  That would be a sufficient answer, with respect.

HAYNE J:   Yes, thank you.

FRENCH CJ:   Yes.  We do not need to trouble you, Ms Mortimer.  Yes, Mr Penglis?

MR PENGLIS:   Very briefly in reply three matters.  First, my learned friend quite properly conceded and used the words “absolute transformation is physically impossible”.  That by necessity means that a strictly literal interpretation of the Act, even on the respondent’s case, was not favoured.  So if that is the case, why, given the beneficial nature of this legislation, would a court adopt a construction other than the literal construction as it must, which effectively requires transformation which is physically impossible to achieve in Australia? 

Second, my learned friend says there is no reason why it should be a casual or a social identification.  He says it should extend to an intimate identification.  Well, why draw the line there on his case?  Why not go to a medical identification, and the answer is because, with respect, that must be absurd.  So the Parliament has drawn the lines somewhere and it is clearly not literally to require an applicant to, in all respects, be a person of the opposite sex.

The final point I wish to make, and I am confident that if the appellants were here, and they are not because of the rearrangement of these matters, if they were here they would be very keen for me to make this observation.  The very first question I think that was put by Justice Hayne to my learned friend queried why, SAT having resolved the matter, the first respondent chose to appeal.  It chose to appeal – and this is at paragraphs 20, 21 and 22 of our written submissions, the sole issue before SAT was the absence of a hysterectomy.

I want to make it very clear that the issue of a phalloplasty, the fact that there had not been a phalloplasty, the fact that these appellants did not have the external genitals of a male was not only an issue that did not trouble the Board, but it was an issue that did not trouble the first respondent before SAT.

That is why SAT does not deal with it.  The SAT is criticised, with respect, unfairly by the Court of Appeal for not focusing on this issue and the reason why is because it was not a live issue before it.  There was only one ground of appeal from SAT to the Court of Appeal and that is set out at paragraph 20 on page 4 of my written submissions.  That is because the sole issue that was agitated before SAT and sole issue that was appealed to the Court of Appeal by the first respondent was the fact that the appellants had a theoretical capacity to fall pregnant.  That ground was dismissed by the Court of Appeal.

But why we are here is because by majority the Court of Appeal invited my learned friend to add a second ground of appeal, and that is set out at paragraph 21.  The invitation by the Chief Justice is set out at paragraph 21.  Then, and only then, did this issue, the issue that is now taxing this Court, become an issue in any proceedings.  It is by invitation of the majority of the Court of Appeal.  So the point that the first respondent appealed from to the Court of Appeal was not that there was not phalloplasty undertaken, but simply because the theoretical capacity to bear children, which even the Court of Appeal dismissed. 

Other than that, unless there is anything further, nothing arises from my learned friend’s submissions that I have not covered elsewhere both today and in the written submissions.  Unless there is anything further, they conclude my submissions.

FRENCH CJ:   Yes, thank you, Mr Penglis. 

MR PENGLIS:   If it please the Court.

FRENCH CJ:   Mr Penglis, if you are successful, I am not sure that the ‑ ‑ ‑

GUMMOW J:   Looking at paragraph 98.

FRENCH CJ:   In relation to costs, are you ‑ ‑ ‑

MR PENGLIS:   We appear on a pro bono basis and although that on one view ought not disentitle us to costs, the first respondent has agreed that in the event that we are unsuccessful, a costs order would not be sought against us.  So we would not seek a costs order in the event that we are successful.

FRENCH CJ:   Very well.

HAYNE J:   Not even in this Court, because your written submissions suggest that you were seeking costs in this Court, as I had read them.

MR PENGLIS:   Thank you, Justice Hayne.  We would seek the costs in this Court, but not below.

FRENCH CJ:   Yes, all right.  Thank you.  The Court will reserve its decision.  The Court adjourns until 10.15 tomorrow morning.

AT 3.34 PM THE MATTER WAS ADJOURNED