AB v Western Australia AH v Western Australia [2011] HCA 42 6 October 2011 P15/2011 & P16/2011
ORDER
In each matter:
1. Appeal allowed.
2.Set aside paragraphs 1 to 4 of the order of the Court of Appeal of the Supreme Court of Western Australia made 2 September 2010 and in their place order that the appeal to that Court be dismissed.
3. The first respondent pay the appellant's costs in this Court.
On appeal from the Supreme Court of Western Australia
Representation
S Penglis for the appellant in both matters (instructed by Freehills)
G T W Tannin SC with C S Bydder for the first respondent in both matters (instructed by State Solicitor (WA))
Submitting appearance for the second respondent in both matters
Intervener
D S Mortimer SC with E A Bennett intervening on behalf of the Australian Human Rights Commission (instructed by Australian Human Rights Commission)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
AB v Western Australia AH v Western Australia
Statutes – Construction – Gender reassignment – Applications for recognition certificates as males – Reassignment procedures undertaken to alter genitals and gender characteristics – Appellants adopted lifestyle and have physical appearance of males – Retain some female sexual organs – Whether requirement that person have "the physical characteristics by virtue of which a person is identified as male or female" met – Whether adverse social consequences or community standards and expectations permissible considerations.
Words and phrases – "gender", "gender characteristics", "physical characteristics by virtue of which a person is identified", "reassignment procedure", "recognition certificate", "transsexual".
FRENCH CJ, GUMMOW, HAYNE, KIEFEL AND BELL JJ. For many years the common law struggled with the question of the attribution of gender to persons who believe that they belong to the opposite sex. Many such persons undertake surgical and other procedures to alter their bodies and their physical appearance in order to acquire gender characteristics of the sex which conforms with their perception of their gender. Self-perception is not the only difficulty with which transsexual persons must contend. They encounter legal and social difficulties, due in part to the official record of their gender at birth being at variance with the gender identity which they have assumed.
Lockhart J in Secretary, Department of Social Security v "SRA"[1] and Mathews J in R v Harris[2] reviewed decisions in Australia and overseas which dealt with the question of the recognition to be afforded by courts to the gender of a transsexual person who had undertaken a surgical procedure. In each case it was[3] held that the decisions in Corbett v Corbett[4] and R v Tan[5], which applied…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
AB v Western Australia [2011] HCA 42
Case
[2011] HCA 42
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered appeals by AB and CD against decisions of the Supreme Court of Western Australia concerning applications for recognition certificates as males under the *Gender Reassignment Act 1988* (WA). The appellants, who identified as male and had undergone reassignment procedures to alter their genitals and gender characteristics, were seeking to be legally recognised as male. Despite adopting a male lifestyle and appearance, they retained some female sexual organs, which was the basis for the refusal of their applications.
The central legal issue before the High Court was the interpretation of the *Gender Reassignment Act 1988* (WA), specifically whether the appellants met the requirement that a person have "the physical characteristics by virtue of which a person is identified as male or female". The Court was also required to determine whether adverse social consequences or community standards and expectations were permissible considerations in assessing such applications.
The High Court allowed the appeals, setting aside the orders of the Western Australian Court of Appeal. The Court reasoned that the *Gender Reassignment Act 1988* (WA) did not require a complete surgical alteration of all physical characteristics to align with the identified gender. Instead, the focus was on whether the reassignment procedures undertaken had resulted in the person having the physical characteristics by virtue of which they were identified as male. The Court held that the retention of some female sexual organs did not preclude an applicant from meeting this criterion, particularly where the individual had otherwise undergone significant reassignment procedures and lived as their identified gender. Furthermore, the Court determined that considerations of social consequences or community expectations were not relevant to the statutory test.
Consequently, the High Court ordered that the appeals to the Court of Appeal be dismissed and that the first respondent pay the appellants' costs in the High Court.
Orders
Orders of the court
In each matter:
1. Appeal allowed.
2. Set aside paragraphs 1 to 4 of the order of the Court of Appeal of the Supreme Court of Western Australia made 2 September 2010 and in their place order that the appeal to that Court be dismissed.
3. The first respondent pay the appellant's costs in this Court.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ, GUMMOW, HAYNE, KIEFEL AND BELL JJ
(dissent)