Scafe and Anor; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and
[2008] AATA 104
•8 February 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 104
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2000
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Applicant
And
SAMANTHA SCAFE
Respondent
And
COLLEEN SMITH
Other party
CORRIGENDUM
Tribunal Deputy President P E Hack SC Date19 February 2008
PlaceBrisbane
The Tribunal, acting pursuant to section 43AA of the Administrative Appeals Tribunal Act 1975, amends the front page of the decision dated 8 February 2008 so that the name of the applicant, Secretary, Department of Employment and Workplace Relations, is replaced by Secretary, Department of Families, Housing, Community Services and Indigenous Affairs.
......…………………………..
Deputy President
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 104
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2000
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Applicant
And
SAMANTHA SCAFE
Respondent
And
COLLEEN SMITH
Other party
DECISION
Tribunal Justice Tamberlin, Presidential Member; Deputy President P E Hack SC and Senior Member M J Carstairs Date 8 February 2008
Place Brisbane
Decision The Tribunal affirms the decision under review. .......................[Sgd].................
Deputy President
CATCHWORDS
SOCIAL SECURITY – marriage-like relationship – conditions to be met to be considered a member of a couple – relationship with a person of the opposite sex – meaning of person of the opposite sex – respondent a pre-operative male to female transsexual – whether the respondent was in a same sex relationship – held that the relationship was one not resembling marriage – decision under review is affirmed
WORDS & PHRASES – “marriage-like relationship”
Social Security Act 1991 (Cth.) – s 4(2),(3)
Attorney General for the Commonwealth v Kevin (2003) 165 FLR 404; 30 Fam LR 1
CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384
Corbett v Corbett [1971] P 83
Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 271
Pelka v Department of Family and Community Services (2006) 151 FCR 546
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re Kevin: Validity of Marriage of Transsexual (2001) 165 FLR 404; 28 Fam LR 158
R v Tan [1983] QB 1053
Re VCG and Secretary, Department of Employment and Workplace Relations (2006) 93 ALD 215
Secretary, Department of Social Security v SRA (1993) 43 FCR 299
REASONS FOR DECISION
8 February 2008 Justice Tamberlin Presidential Member, Deputy President P E Hack SC and Senior Member M J Carstairs 1.Ms Samantha Scafe is a pre-operative male to female transsexual. She lives in a lesbian relationship with Ms Colleen Smith. Ms Scafe receives a disability support pension.
2.In August 2006 Centrelink, on behalf of the Secretary of the Department of Employment and Workplace Relations, determined that Ms Scafe ought to be paid a disability support pension at the “partnered” rate because she was a “member of a couple” with Ms Smith. The relationship between Ms Scafe and Ms Smith was, on Centrelink’s case, a “marriage-like relationship” as that expression is used in s 4(2) of the Social Security Act 1991 (Cth) (the Act). That decision was affirmed on internal review.
3.On 26 April 2007 the Social Security Appeals Tribunal, by a statutory majority, set aside the decision, and substituted a new decision that from 30 August 2006 Ms Scafe’s disability support pension be assessed at the single rate.
4.The Secretary now seeks a review of that decision in this Tribunal.
The Issues
5.Three issues fall to be decided:
(1)is Ms Scafe a person of the opposite sex to Ms Smith?
(2)can a relationship between same sex couples be described as a marriage-like relationship?
(3)is the relationship between Ms Scafe and Ms Smith in fact a marriage-like relationship?
The Legislation
6.In the context of the Act the issue of whether a payment recipient is single or a member of a couple is significant. A recipient who is a member of a couple receives payments at a lower rate and the assets and income of the other member of the couple are taken into account when determining the rate of benefits.
7.The expression “member of a couple” is defined by s 4(2) of the Act. In the present context it is sufficient to note that a person is a member of a couple for the purposes of the Act if:
“(b) all of the following conditions are met:
(i) the person has a relationship with a person of the opposite sex (in this paragraph called the partner);
(ii) the person is not legally married to the partner;
(iii) the relationship between the person and the partner is, in the Secretary’s opinion (formed as mentioned in subsections (3) and (3A)), a marriage-like relationship;
(iv) both the person and the partner are over the age of consent applicable in the State or Territory in which they live;
(v) the person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961.”
8.The formation of the opinion about the relationship is dealt with by s 4(3) of the Act in these terms:
“4(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets and any joint liabilities; and
(ii) any significant pooling of financial resources especially in relation to major financial commitments; and
(iii)any legal obligations owed by one person in respect of the other person; and
(iv)the basis of any sharing of day‑to‑day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i) whether the people hold themselves out as married to each other; and
(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people's commitment to each other, including:
(i) the length of the relationship; and
(ii) the nature of any companionship and emotional support that the people provide to each other; and
(iii) whether the people consider that the relationship is likely to continue indefinitely; and
(iv) whether the people see their relationship as a marriage‑like relationship.”
Issue one – Person Of The Opposite Sex
9.It is not in issue that Ms Scafe is in a relationship with Ms Smith, nor is it in issue that Ms Smith lives and presents as a female. The issue that divided the parties was whether Ms Scafe was of the opposite sex given that she was born a male.
10.The argument for Ms Scafe, presented most ably by Ms Kidson of counsel, was that Ms Scafe, as a pre-operative transsexual, no longer had her birth gender but was now to be regarded as a female. It is necessary, before considering the argument, to detail the evidence upon which it was based. There was no dispute about the facts and what follows was common ground.
11.Ms Scafe has been undertaking hormone replacement therapy since 1997. Dr Darren Russell, the Director of Sexual Health at the Cairns Base Hospital, has treated Ms Scafe since 2005. He said this of her:
“6. I consider Ms Scafe to be a true male-to-female transsexual, and in the time I have known her she has been living full-time in a female role and has been taking the female hormone, oestrogen.
7. Given that she has been taking oestrogen for many years, I believe that her penis would now be non-functioning with regards to sexual intercourse. This is, of course, one of the intended results of hormonal therapy.
8. The loss of sexual function in her genitalia may well be irreversible, as this may occur after many years of oestrogen therapy. The only way to determine this in a practical sense is to have a period of time off therapy, and to assess the return of function – if any – of her penis (and testicles). This would not be recommended, however, due to the detrimental effects this would have on Ms Scafe’s psychological health.
9. The other physiological effects of her hormonal therapy include breast growth, a reduction in hair growth on the face and body, reduction of hair loss on the scalp, and a change in body fat distribution to a more female form. Some of these effects are irreversible after some months or years on therapy.
10. Ms Scafe tells me that she had a skin infection with the bacterium Staphylococcus aureus (‘Golden Staph’) in 2001 and that she was advised that subsequent genital surgery (sex reassignment, or ‘realignment’, surgery) would be dangerous in the future because of the risk of incurring infection with this organism. Should this bacterium remain present in Ms Scafe, such surgery would, in my opinion, pose a significant risk to Ms Scafe. Her other medical conditions of obesity, asthma, diabetes mellitus, and hypertension would also pose significant and potentially life-threatening risks should major surgery be undertaken. In addition, she also advises me she has chronic hepatitis C infection which would pose a small risk of transmission to a surgeon. Given these factors, I would seriously doubt that any surgeon would be willing to undertake such major surgery on Ms Scafe currently, or in the foreseeable future.”
12.Ms Scafe is unable, for sound medical reasons, to have the genital surgery for gender realignment. Ms Scafe is, we accept, psychologically, socially and culturally a woman and has taken all the physiological steps that she can take to become a woman.
13.In Secretary, Department of Social Security v SRA[1] (SRA), the Full Court of the Federal Court considered the gender which should be attributed to a male-to-female transsexual. She had not undergone sex reassignment surgery but would have done so had she been able to afford it. She lived as the female partner of a male invalid pensioner. The Administrative Appeals Tribunal had affirmed the decision of the Social Security Appeals Tribunal that she was qualified under s 37(1)(a) of the Social Security Act 1947 (Cth.) to receive a wife’s pension. That subsection provided that:
“… a woman … who is the wife of –
(a) … an invalid pensioner;
… is qualified to receive a wife’s pension.”
[1] (1993) 43 FCR 299.
14.The Full Court of the Federal Court allowed the Secretary’s appeal. Black CJ concluded[2]:
“There is no occasion to depart in this case from the ordinary meaning of the words used in the Act and it would be going well beyond the ordinary meaning of the words in question to conclude that a pre-operative male to female transsexual, having male external genitalia, is a ‘woman’ for the purposes of the Social Security Act and may be a ‘wife’ as that expression is defined in the Act. I do not consider that the language used in the relevant parts of the Act allows primacy to be given to psychological factors and certainly not to the virtual exclusion of anatomical factors. Accordingly, I consider that it was not open to the Tribunal to reach the conclusions that it did about the respondent’s eligibility for a wife’s pension under s 37(1) of the Act and that it erred in law in doing so.”
His Honour accepted that birth gender was not immutable and did not follow English authority[3] to the contrary. His Honour continued[4]
“Nevertheless a line has to be drawn somewhere. Drawing the line by reference to what in popular usage is called a “sex change operation” or a “sex change” in circumstances that bring external genital features into general conformity with a person’s psychological sex is appropriate as a matter of statutory interpretation, and it is in desirable conformity with the decision reached by a majority of the New South Wales Court of Criminal Appeal after a comprehensive review of cases in many jurisdictions in R v Harris. A line drawn where the usage of the English of today would place it also has the merit, in situations of this nature, of providing a measure of certainty in an area where certainty is obviously desirable: see R Mackenzie, “Transsexuals’ Legal Sexual Status and Same Sex Marriage in New Zealand: M v M” (1992) 7 Otago Law Review 556 esp at 576-577; The Hon Gordon Samuels JA, “Transsexualism” (1983) 16 Australian Journal of Forensic Sciences 57 at 63.”
[2] (1993) 43 FCR 299 at 303.
[3] Corbett v Corbett [1971] P 83 and R v Tan [1983] QB 1053.
[4] (1993) 43 FCR 299 at 306.
15.Lockhart J was of the same view. His Honour said[5]:
“The principal difficulty which I have in this case is to pass beyond this point to the recognition of a pre-operative transsexual as being a member of the adopted sex for the purposes of the law. I recognise the force of the argument in the case of a male-to-female transsexual, that she has doubtless lived most of her life in a position of ambiguity, wanting to be a female but entrapped in the body of a male, who later adopts the appearance of a woman, has hormonal treatment which may result in the enlargement of breasts, and adopts certain secondary sex characteristics. But such a person has not harmonised her anatomical sex and her social sex; they are not in conformity. She still has the genitals of a man. I realise that there are cases (this is such a case) where a person has not undergone such surgery for legitimate reasons, including its cost or medical or psychological reasons which render them unfit for the operation. Nevertheless the interests of society and the individual must be balanced in the determination of the ordinary meaning of the words with which this case is concerned and the application of the facts to those meanings. The requirement of reassignment surgery also has the benefit of society acknowledging that an irreversible medical decision has been made, confirming the person’s psychological attitude.
Negative attitudes towards transsexuals are based fundamentally on religious and moral views and assumptions which are slowly changing in modern society. There is an increasing awareness today of the importance of the right to privacy, and growing tolerance of a person’s identity. But where the psychological sex and the anatomical sex of a person do not conform to each other it seems to me that the sex of a person must be determined by the anatomical sex. The day may come when the same result may be achieved by chemical treatment as is now achieved by surgery, but this has not arrived yet. I do not rule out the case where a person may achieve the anatomy of the other sex through chemical treatment if that ever becomes possible; but the evidence in this case and the material which is before the Court do not support the conclusion that this stage has been reached. When it does, the result may be different.”
[5] (1993) 43 FCR 299 at 326.
16.Ms Kidson submitted, relying upon the remarks of Lockhart J, that this case was the appropriate vehicle to determine that chemical treatment had achieved the same result. Although we do not agree, we make the following observations about SRA.
17.The present case can be distinguished from SRA, having regard to the evidence of Dr Russell as to the effects of Ms Scafe’s extensive oestrogen treatment over 20 years, the non-functioning of her male genitalia as sexual and reproductive organs, and Ms Scafe’s psychological and physiological characteristics.
18.The Full Court in SRA, despite accepting that the appellant’s psychological sex was female and that she had been approved for gender reassignment surgery, stated that it was mainly for financial reasons that she had not undergone the surgery. In contrast, Ms Scafe in the present case has done everything that she can reasonably be expected to do in order to effect a transition from the male to the female gender, taking into account medical and psychological considerations.
19.Furthermore, the Full Court in SRA selected sexual anatomy as the controlling consideration when determining gender[6]. Although Lockhart J envisaged the future possibility of a gender reassignment being effected by new chemical treatments, his Honour observed that the evidence before the Court did not indicate that such a chemical reassignment had taken place in that case. In Ms Scafe’s situation, on the other hand, there have been manifest physical changes in her appearance and physiology as a result of extensive oestrogen hormone treatment.
[6]See Black CJ at [15] above and Lockhart J at [16] above.
20.The present case, therefore, is not one in which it is appropriate to frame the question of gender as turning on whether primacy should be given to anatomical as opposed to psychological characteristics, which was the approach taken in SRA. We are of the view that such a dichotomy oversimplifies the issue.
21.There is much to be said for the view that, in reaching a conclusion as to the gender of an individual, consideration should be given to and a determination made in light of all the characteristics of that person, including behavioural and psychological matters and social circumstances. The individual should be evaluated as a complete human being, taking into account their full range of behaviour, physiology, psychology and any other relevant features and characteristics.
22.In this case, the evidence indicates that the sexual and reproductive functions of Ms Scafe’s genitalia have probably been lost as a consequence of the chemical changes effected by extensive and lengthy hormone treatment. This means that anatomical attributes which were treated as determinative in SRA have been rendered non-functional, and probably irreversibly so. The qualifier “probably” is used because the evidence indicates that to make a conclusive determination of whether sexual and reproductive functions have been irreversibly lost would require both a cessation of hormone treatment and consideration of whether such functions were restored; a process which the evidence shows could be psychologically damaging for Ms Scafe.
23.The consequences of the hormone treatment upon the sexual and reproductive functions of Ms Scafe in this case are similar to those which would arise if the male genitalia had been surgically removed, namely the destruction of Ms Scafe’s sexual and reproductive functions as a male. This consideration points to a conclusion that surgical intervention should not, of itself, be finally determinative of gender, and calls into question the cogency of treating the presence of male genitalia as the deciding factor of gender when those organs do not function sexually or reproductively. Finally, it was not disputed in this case that Ms Scafe lives psychologically as a woman. She socialises as a female; presents in identity and dress as a female; and is considered by the community to be part of a lesbian couple.
24.In light of the circumstances of this case, there is support for the view that it would be appropriate for a court to consider whether the decisive weight given to anatomy by the Full Court in SRA as the essential and determinative factor of a person’s gender should be revisited in the context of the hardship and psychological difficulties borne by Ms Scafe and persons like her, who have lived much of their lives regarding themselves as trapped in the body of a person of the opposite sex, to paraphrase the language of Lockhart J at [16] above.
25.The ordinary meaning of terms such as “man”, “woman” and other gendered assignations is evolving, as Chisholm J observed in Re Kevin: Validity of Marriage of Transsexual[7]. The breadth of concepts of gender may be influenced by many factors, including changes in social attitudes and advances in chemical treatment as foreshadowed by Lockhart J. Fifteen years have elapsed since SRA was decided, and there may now be further medical, psychological and other advances not before the Court in SRA, which may now be taken into account in an appropriate case.
[7] (2001) 165 FLR 404; 28 Fam LR 158.
26.The predicament of a pre-operative transsexual was noted by the Full Court of the Family Court in Attorney-General for the Commonwealth v Kevin[8]:
“[382] This leaves the more difficult question of the position of pre-operative transsexual persons. As we have said, this case does not require us to determine this question. In all of the decided cases to which we have referred their position has been distinguished from post-operative transsexual persons and comments have been made to the effect that this is a matter for parliament to determine. In this country at least, there have been no signs that the Federal parliament has any interest in these questions. The solution is not, of course, solely in the hands of the Federal Parliament. There has been greater interest within most of the States and Territories and for many purposes it is the law of the States and Territories that most affect transsexual persons.
[383] A question arises as to whether the courts can logically maintain that the position of post-operative transsexual persons is a matter for them but that of pre-operative transsexual persons is one for parliament. This has the effect of leaving such persons as the only persons in the community who are prevented from marrying a person who they legitimately regard as a person of the opposite sex, while remaining free to marry a person of their own sex.”
[8](2003) 172 FLR 300 at 365 [382]-[383]; 30 Fam LR 1 at 65-6.
27.In our view, these observations of the Full Court of the Family Court carry considerable cogency and are in substance apposite to the dilemma faced by Ms Scafe in the present case. In both cases, Ms Scafe and Kevin underwent treatment which removed the sexual and reproductive functioning of their birth genders, while all the time living, socialising and behaving as a member of the opposite sex for many years. Ms Scafe only refused further medical intervention due to the possibility of serious harm to her physical and mental health.
28.If we were unconstrained by the authority in SRA, we would accept the submission that, in the circumstances of this case, Ms Scafe’s gender is female.
29.However, although there are grounds for distinguishing the circumstances and reasoning in SRA from the present case, we consider that the unanimous and clear statements of the Full Court of the Federal Court that a completed surgical reassignment is necessary for an alteration of gender must be treated as determinative of the outcome in this case. Accordingly, we find that Ms Scafe is to be treated as a male for the purposes of the Act.
Issues 2 and 3 – Nature of the Relationship
30.At one level the answer to the question is supplied by the requirement that the relationship be with someone of the opposite sex. Thus the usual same sex relationship can never answer the statutory description. But the question arises here because while we accept that Ms Scafe is, as a matter of biology, a man, she is psychologically, socially and culturally a woman and can no longer function sexually or reproductively as a man. In view of Dr Russell’s opinion we are satisfied that Ms Scafe has irreversibly lost all male sexual function and has irreversibly gained the female physiological effects referred to by Dr Russell.
31.It is plain (and some might think anomalous) that the Act does not recognize same sex relationships as being capable of being regarded as “marriage-like”. That that is the intention of the Parliament is evident, as well, by the passage of the Marriage Amendment Act 2004. That Act amended the Marriage Act 1961 to define marriage as meaning:
“the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”
It declared, as well that a union solemnised in a foreign country between same sex couples “must not be recognized as a marriage in Australia”.
32.The argument for the Secretary focussed upon the nature of the relationship – the fact that it was long term and committed and similar matters – as determinative of whether the relationship was “marriage-like”. The perception of the parties to it that it was a lesbian relationship was, on the Secretary’s case, irrelevant. We are not able to agree.
33.As it seems to us, the particular matters in s 4(3) of the Act help inform the decision of whether the relationship is marriage-like, but as French J pointed out in Pelka v Department of Family and Community Services[9], a decision-maker must have regard to the interpersonal relationship as a whole, not limited by the factors in s 4(3).
[9] (2006) 151 FCR 546 at 555, [46].
34.The Parliament has used the descriptor “marriage-like” and presumably intends the adjective to perform some work. In determining what work it performs, the starting point is the recognition that a statutory provision has to be construed in its context so that it is consistent with the language and purpose of all the provisions of the statute[10].
[10]CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [35]; Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 271 at [11].
35.The language of s 4(2)(b) excludes sibling relationships and parental relationships. It excludes same sex relationships. The exclusion of such relationships is reflected in the Secretary’s policy manual, the Guide to Social Security Law, which at Chapter 2.2.5.10 refers to a marriage-like relationship in terms of a couple “living together as husband and wife”.
36.The decision of Deputy President Forgie in Re VCG and Secretary, Department of Employment and Workplace Relations[11] discusses in some detail the concept of marriage. The Deputy President’s conclusion is, we think, apt. She said:
“[21] Section 4(3) of the SS Act itself recognises that there are a number of factors that may indicate whether two persons have a marriage-like relationship but no one factor that determines whether they do. Having regard to the meaning of “marriage” to which I have referred above, it seems to me that “marriage-like” must be understood as referring to that nebulous sense of joinder and common purpose of two persons that would be recognised by the Australian community as resembling marriage in one or other of the many forms in which it currently exists in Australia.”
[11] (2006) 93 ALD 215.
37.We do not consider that the Australian community would regard the present relationship as one “resembling marriage”. That view is fortified by the exclusion of same sex couples from the ambit of a marriage-like relationship.
38.We do not accept the Secretary’s view that the perception of Ms Scafe and Ms Smith is irrelevant. That perception, and the perception of their friends and associates, is made relevant by e.g. s 4(3)(c) and (e) of the Act. That perception of the relationship is that it is a lesbian relationship, not a marriage-like relationship.
39.It follows in our view, as a matter of statutory construction, that a same sex marriage cannot amount to a marriage-like relationship, a conclusion which is supported in this case by the community perception of the relationship between Ms Scafe and Ms Smith.
40.Whilst it is, strictly speaking, unnecessary to determine the question of whether in fact the relationship is “marriage-like”, we will deal with the arguments of the parties and indicate our conclusion.
41.There is no dispute about the factual components of the relationship which are set out at some length in the findings of the Social Security Appeals Tribunal. The financial aspects of the relationship and the nature of the household, viewed alone, might perhaps point towards the existence of a marriage-like relationship. And that is true of some aspects of the nature of the commitment that evidently exists between Ms Scafe and Ms Smith. But the other features enumerated in s 4(3) of the Act, particularly the nature of the household, the social aspects of the relationship and the sexual relationship between Ms Scafe and Ms Smith, do not do so. They point to a same sex relationship.
42.Viewing the relationship as a whole we could not conclude that it is a marriage-like relationship. Were it to be necessary to apply a description to the relationship, having rejected the description marriage-like relationship, we would describe it as a same sex relationship.
Conclusion
43.It follows that we would affirm the decision of the Social Security Appeals Tribunal.
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Justice Tamberlin Presidential Member, Deputy President P E Hack SC and Senior Member M J Carstairs
Signed: .....................................................................................
Jacqueline Woods AssociateDate of Hearing 3 December 2007
Date of Decision 8 February 2008
Solicitors for the Applicant Sparke Helmore
Counsel for the Respondent Ms N Kidson
Solicitors for the Respondent Welfare Rights Centre Inc
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