This is a case study about the right of self-determination
AB v Western Australia
AH v Western Australia
[2011] HCA 42
6 October 2011
P15/2011 & P16/2011
Background Facts
Two females, AB and AH, desired to appear as males. After bilateral mastectomies, they applied for a new certificate from the West Australian Gender Reassignment Board identifying them as males. However, the Board and Tribunal refused to recognize them as males due to the lack of required ‘gender characteristics’.
Court Decisions
The High Court unanimously granted Gender Recognition Certificates to AB and AH, confirming their status as transgender men.
Legislations
- Gender Reassignment Act 2000 (WA), ss 14(1), 15(1).
- Acts Interpretation Act s 33(2A),
- International Covenant on Civil and Political Rights (ICCPR)
Analysis – Interpretative Approaches
1. Common Law Approaches –
(1) Acts Interpretation Acts –
(a) Discretionary Power – Section 33(2A) of the AIA defines the word ‘may’ as indicating that ‘the act or thing may be done at the discretion of the person, court or body’. Sections 14(1) and 15(1) of the Gender Reassignment Act 2000 (WA) grant Judges the discretionary power to use their judicial creativity.
(b) Strict Compliance v Substantial Compliance – In addition to the discretionary power granted by the legislation, the High Court’s final decision also relies on what Section 25C of the AIA provides: ‘Where an Act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient’.
Section 3 of the Gender Reassignment Act does not detail surgeries related to ‘gender characteristic’ in ‘reassignment procedure’ definition. Although in AB’s case, the Tribunal argued AB didn’t undergo complete reassignment, requiring removal of both external and internal sexual organs. This procedure requirement must be met according to the provision for the Board to issue a certificate.
The High Court’s decision followed Section 25C of the AIA, stating substantial compliance is sufficient. Obviously, AB and AH had undergone testosterone therapy and bilateral mastectomies. Here, the High Court reasonably exercised discretion, departing from narrow textualism to uphold the legislation’s broad purpose.
(2) Purposive Interpretation –
(a) Long Title – In the long title of Gender Reassignment Act, legislators stated that this Act aims ‘…to provide remedies in respect of discrimination, on gender history grounds in certain cases; and for connected purposes’. The principle of purposive interpretation dictates that ‘…if the grammatical meaning of a provision does not give effect to the purpose of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act’. [1]
Insisting on the surgical procedure requirement makes no sense, as the plaintiffs already suffer from ‘gender dysphoria’….
2. Beneficial Approach – Beneficial provisions
- Human Rights concern –
- The Gender Act’s long title indicates that discrimination, as a form of unfairness or injustice, shall be remedied.
- ‘Fair, large and liberal interpretation’ –
- The Act implies and protects fundamental human rights, as interpreted by the High Court.
s 1 (1) of ICCPR stipulates that ‘all peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’. AB’s transgender application demonstrates the will to defend the right of self-determination with respect to certain cultural issues.
Regarding the legislation, s 15(1)(b) of the Gender Act provides, ‘…if the Board is satisfied that the person believes that his or her true gender is the gender to which the person has been reassigned…’. The word ‘believe’ implies the possibility of acknowledging the right of self-determination…
Thus, the High Court clarified that ‘gender… is partly a psychological question, one of self-perception, and partly a social question, how society perceives the individual’. The phrase ‘self-perception’ suggests the High Court respects self-determination and interprets this provision fairly and liberally.
3. Dynamic Approach –
- Pragmatic Interpretation – The transgender issue is controversial, even prompting people to question the origin of human beings, making interpretation easily ‘trapped’ in a complicated labyrinth.
But as Chisholm J pointed out, ‘the task of the law is not to search for some mysterious entity, the person’s true sex, but to give an answer to a practical human problem’. The High Court’s decision followed this pragmatic principle, as His Honour emphasized that ‘gender should not be regarded merely as a matter of chromosomes’. Hence, the High Court departed from interpretations based on biological or medical meanings, or even mysterious theological questions, and instead focused on a legal solution that protects individual human rights.
Significance
High Court’s decision established a precedent for such a controversial issue, making it a landmark decision. It also maximized Judiciary Creativity by demonstrating how to utilize purposive interpretation for a statute with beneficial nature to find out a practical legal solution.
However, we may also look at this case critically.
First, concerning the interpretation, judicial authority heavily relied on the plaintiff’s subjective claim, rather than an objective standard, which may lead to arbitrary judgement. However, in reality, this approach could bring confusion into our lives. For example, if a man claims he genuinely believes he is a woman without undergoing complete gender reassignment procedures, obtaining legal documents could grant him access to public female facilities such as toilets or bathrooms, causing potential trouble.
Second, human rights are not absolute; conflicts between different rights groups are inevitable, often raising questions of proportionality. Legislators may attempt to offer legal solutions to balance these conflicting interests, sometimes for political reasons.
To sum up, for fundamental cultural issues such as gender identity and reassignment, deeply rooted in philosophy or theology, the statute might provide an oversimplified solution.
[END]
[1] McHugh JA in Kingston v Keprose Pty Ltd (1997) 1 NSWLR 404.