HIGH COURT WIN!

First, some links: background and update on AH and AB vs Western Australia.

THEY WON!

Here is the text of the ruling, so you can read exactly what went down. It's interesting, though might not be the most succinct read! Here is a news article, instead. The decision seems to turn on a number of key points. One, the act refers to medical or surgical reassignment procedures to alter the appearance of sexual characteristics, counselling and lifestyle as being indicators of a person's commitment to their gender - "medical" might include hormone therapy, and "alter" does not mean "that the person undertake every procedure to remove every vestige of the gender which the person denies, including all sexual organs". Two, the recognition of a person's gender is intended to be primarily social - "That conclusion would be reached by reference to the person's appearance and behaviour, amongst other things. It does not require detailed knowledge of their bodily state". Three, the purpose of the act is to help trans people transition and to help us be accepted socially as fe/male - "No point would be served, and the objects of the Act would not be met, by denying the recognition provided by the Act to a person who is identified within society as being of the gender to which they believe they belong and otherwise fulfils the requirements of the Act". This is how the court summarised the findings and directed the WA board to act in the future:

The construction placed upon s 15(1)(b)(ii) and the identification which is its concern, does not mean that a recognition certificate is to be provided based only upon a person's external appearance, and that person's belief about his or her gender. Section 14 must be satisfied before a person can apply for a certificate. But that is the only provision in the Act which requires a surgical or other reassignment procedure. Once that condition and those of s 15(1)(a) are met, the Board is directed by s 15(1)(b) to other enquiries relating to the person's perception of themselves and to social perceptions about them. No further consideration of the extent of the person's bodily state is required.

It should be fairly clear, and most Australians with passing familiarity with the court system will understand, that the High Court is the final court of appeal in Australia. The task of the court is to interpret the law and one of the aims of this is that it makes consistent decisions across all the states and territories. This decision directly affects only Western Australia, and the win (upholding of the appeal) is based only on interpretation of Western Australian acts. However, the court's interpretation of these acts has ramifications for other states and other acts – particularly the statement that “No point would be served, and the objects of the Act would not be met, by denying the recognition provided by the Act to a person who is identified within society as being of the gender to which they believe they belong and otherwise fulfils the requirements of the Act”. This tells other courts and boards that the purpose of such acts is to help, not hinder, trans people (“The objectives of the Act, and their social and legal consequences, are to be met by reference to its stated requirements. Those requirements, including those of s 15(1)(b)(ii), are to be given a fair and liberal interpretation in order that they achieve the Act's beneficial purposes”).

Anyway, there are numerous statements here that might or might not be helpful for other trans people in WA or other states and territories. One of the reasons AB and AH won this case is that they both continue to undergo hormone therapy and basically promised that they wouldn’t stop (i.e. they would remain infertile). On the other hand, the judges have made room in other statements for this to not be considered a requirement (“The Act contains no warrant for implying further requirements, such as potential adverse social consequences”).

Anyway, this is good. It’s interesting. And it’s pretty great when combined with the change of passport policy at the federal level only a few weeks ago!

Let's hope that the WA govt doesn't see this as an invitation to make a new act/amend the act to make it harder for trans people.

Congratulations to AH and AB, and thanks to everyone who’s been working to help this case and others like it.

NB: I'm not a lawyer or legally trained, so this is just my interpretation of the ruling!