AB v State of Western Australia & Anor; AH v State of Western Australia & Anor [2011] HCATrans 87

[2011] HCATrans 87

[2011] HCATrans 087

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P36 of 2010

B e t w e e n -

AB

Applicant

and

STATE OF WESTERN AUSTRALIA

First Respondent

GENDER REASSIGNMENT BOARD OF WESTERN AUSTRALIA

Second Respondent

Office of the Registry
  Perth  No P37 of 2010

B e t w e e n -

AH

Applicant

and

STATE OF WESTERN AUSTRALIA

First Respondent

GENDER REASSIGNMENT BOARD OF WESTERN AUSTRALIA

Second Respondent

Applications for special leave to appeal

HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 8 APRIL 2011, AT 11.28 AM

Copyright in the High Court of Australia

__________________

MR S. PENGLIS:   May it please the Court, with my learned friend, MS S. BELLINI, I appear for the applicant. (instructed by Freehills)

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

HAYNE J:   Yes.

MR PENGLIS:   Your Honours, this matter concerns legislation in the State of Western Australia, which is mirrored in South Australia and which can be availed of by persons throughout Australia in the manner indicated in the written submissions, which we obviously rely upon.  It is a legislation that in Re Alex, which is in tab 5 of the papers we have provided, the then Chief Judge of the Family Court applauded as being legislation - at paragraph 237 – that dispensed with the requirement for surgery in order for those who seek to avail themselves of this benefit to do so.  He said:

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.

At 240 his Honour concluded –

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.

Earlier in the decision he had recognised the South Australian and West Australian legislation as being legislation that did not require surgery.  Your Honours, when this matter first arose it arose in the Gender Reassignment Board and your Honours will find this at pages 9 and 10 of the application book. 

The issue before the Board at that stage was simply whether or not the applicants were entitled to certification provided by the Act by reason of the fact that they had not undergone hysterectomies.  Importantly, it had nothing to do with the state of their external genitalia.  Can I take you to, in particular, page 9 of the application book, down the bottom the paragraph commencing “As noted above”:

In the Board’s opinion, Mr H cannot be identified as male because he has a female reproductive system.

If your Honours the turn to page 10 you will see in the second full paragraph –

In reaching this conclusion, the Board places no weight on the fact that Mr H’s genitals remain unchanged.  The Board does not see it as determinative that Mr H has not had surgical procedures to construct a penis.

Your Honours, the matter ‑ ‑ ‑

HAYNE J:   The basic question that is tendered in the matter is one of construing the relevant provision of the Act, is it not?

MR PENGLIS:   Yes, your Honour.

HAYNE J:   We find that at page 59 of the application book and in particular, the requirement of (b)(ii) and the latter part of (b)(ii):

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

That is the critical expression?

MR PENGLIS:   Is the critical issue, yes.

HAYNE J:   Then the question becomes does that mean all of the gender characteristics, some of the gender characteristics, some which, and how is it to be assessed?  Those are the questions of construction and fact that are tendered by the section, are they not?

MR PENGLIS:   Yes, your Honour.

HAYNE J:   On the construction that presently prevails does it not follow that there can be no female to male gender reassignment under this Act, without resort to surgery, outside Australia?

MR PENGLIS:   It is the undisputed finding of fact, your Honours. 

HAYNE J:   There is then a question whether the Act is to be construed as having misfired in the case of female to male reassignment, at least for those who are unable to travel outside Australia to undertake surgery which, as I would understand the record, to be suggested to be at least difficult, if not dangerous?

MR PENGLIS:   Yes, your Honour, that is correct. 

HAYNE J:   Then there is a secondary issue of whether, in a female to male reassignment, hysterectomy is necessary?

MR PENGLIS:   Your Honour, that is correct. 

HAYNE J:   Perhaps we might be assisted by hearing from Mr Tannin.

MR PENGLIS:   May it please the Court.

MR TANNIN:   If your Honours please.  The first respondent submits clearly that the public interest in the questions that are raised in this matter is high.  It is self‑evident from merely listening to the enunciation of some of the questions that arise in this kind of case that they are matters of public importance.  Our sole submission is that the majority judgment here is not attended by sufficient doubt to generate the grant of leave.  What is important is that you have to ‑ ‑ ‑

HAYNE J:   In that respect, if it is that you say not attended by doubt does the characterisation I gave of the question and the consequence of the answer given – or is that characterisation one which you would challenge?

MR TANNIN:   No, but it is not apposite to the case in that what is put by the applicant is that the remedial purposes of the Act are not met by the result that was achieved.  Our submission is that the principles applicable to remedial statutes are directed to ensure that the remedial purpose is not frustrated by constructions that are either too literal or exceeded by those that are too liberal.  The Act’s remedial purpose here is to take the class of persons identified at common law and provide them with the relief, which only an Act of Parliament can provide.  The construction of the Act is that a person cannot apply, in Western Australia, for a recognition certificate unless he or she has had a reassignment procedure and that is defined.

The Court of Appeal unanimously held that a reassignment procedure must be undertaken for the purposes of altering the genitals, or other gender characteristics, so that the person will be identified as a member of the opposite sex, but need not ‑ ‑ ‑

HAYNE J:   That definition is a definition which is cast in terms of a medical or surgical procedure.  Is that right?

MR TANNIN:   That is correct, but can ‑ ‑ ‑

HAYNE J:   So that the definition encompasses the possibility that there can be a reassignment procedure, without any surgery?

MR TANNIN:   Yes.  Our submission is that in relation to the difficulty faced by female to male transgender persons that they experience in obtaining recognition, given the construction in the Court of Appeal’s judgment, that is simply a recognition that they are no worse off than they were under the common law.  The statutory language does not support the conclusion that Parliament intended to extend the class of persons benefiting from the Act beyond those who had been recognised at common law, but imperfectly recognised due to the limitations of the common law.

Our submission is that the construction advanced by the applicants runs into the difficulties that are articulated so sagaciously by Lord Nicholls in Bellinger v Bellinger and they simply do not provide clear guidance.  I can understand fully that the case raises issues of public importance.  Our submission is that it is not the vehicle to answer them. 

HAYNE J:   Yes, thank you, Mr Tannin.  We need not hear you in reply, Mr Penglis.  There will be a grant of special leave in this matter.  Does counsel have any estimate of how long this case would take?  Mine is that it would take less than a day, but does counsel differ from that?

MR TANNIN:   I can say, your Honour, that we have discussed it and we think that is an accurate assessment.  We cannot predict if any interveners might be interested, but it is a Western Australian statute and I do not know if they will come.

HAYNE J:   There would be no right of intervention.  There is no constitutional issue, is there?

MR TANNIN:   No.  We have had some informal indication that the Australian Human Rights Commission may be interested, but we are just really puzzled why they would come, but we will see.

HAYNE J:   Thank you, Mr Tannin.  There will be a grant of special leave to appeal in this matter.

MR TANNIN:   May it please the Court.

AT 11.38 AM THE MATTER WAS CONCLUDED