This is a case study about –

AB v Western Australia
AH v Western Australia
[2011] HCA 42
6 October 2011
P15/2011 & P16/2011

Background Facts

AB and AH are two females who desire to appear as male. After going through certain surgeries such as bilateral mastectomies, they applied to the West Australian Gender Reassignment Board for the re-born certificate to identify them as males. Both Board and the State Administrative Tribunal refused to recognize them as males based on the grounds that AB and AH didn’t have the ‘gender characteristics’ required to be identified as male.

Court Decisions

High Court unanimously granted Gender Recognition Certificates to AB and AH to confirm they are 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 – According to s 33(2A) of AIA, the word ‘may’ means ‘the act or thing may be done at the discretion of the person, court or body’. The provisions under ss 14(1) and 15(1) of Gender Reassignment Act 2000 (WA) create a discretionary power for the Judges to use their judicial creativity.

(b) Strict Compliance v Substantial Compliance – Apart from the discretionary power granted by the legislation, High Court’s final decision is also based on what s 25C of AIA provides, that ‘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’.

In s 3 of Gender Reassignment Act, the definition of ‘reassignment procedure’ didn’t list the detailed surgery related to ‘gender characteristic’. In AB’s case, the Tribunal reasoned that AB didn’t go through the complete reassignment procedure which would have removed both external and internal sexual organs and systems. This is procedure requirement in the provision to be met to enable Board to issue certificate.

But High Court’s final decision indicates that High Court followed s25C of AIA to insist that the substantial compliance is sufficient due to AB and AH already underwent testosterone therapy and bilateral mastectomies. Here, High Court exercised its discretionary power reasonably, and departed from narrow textualism to the broad purpose of the legislation.

(2) Purposive Interpretation –

(a) Long Title – In the long title of Gender Reassignment Act, legislators made a statement that this Act ‘…to provide remedies in respect of discrimination, on gender history grounds in certain cases; and for connected purposes’. The principle of purposive interpretation told us 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]

For such purpose, it would make no sense to insist the surgical procedure requirement, as the plaintiffs are already under the suffering of ‘gender dysphoria’….

2. Beneficial Approach – Beneficial provisions
  • Human Rights concern – It is evident from the long title of this Gender Act that the discrimination as sort of unfairness or injustice shall be remedied.
  • ‘Fair, large and liberal interpretation’ – certain fundamental human rights are implied and protected in this Act by legislator, and interpreted by the High Court accordingly.

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.

For the legislation, s 15(1)(b) of 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’ has implied the possibility to acknowledge the right of self-determination…

So 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 word ‘self-perception’ also indicates that High Court respects the right of self-determination and interprets this provision in a fair and liberal way.

3. Dynamic Approach –
  • Pragmatic Interpretation – As transgender issue is a controversial issue which even pushes people to question the origin of human beings, the interpretation would be easily ‘trapped’ in a complicated labyrinth.

But as Chisholm J pointed out that ‘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’.  High Court’s decision did just follow such Pragmatic principle, as His Honour emphasized that ‘gender should not be regarded merely as a matter of chromosomes’. Hence, High Court departed from the interpretation based on biological or medical meaning, or even mysterious theological question, and sticking to a legal solution which focuses on protecting individual’s human rights. 

Significance

High Court’s decision set a precedent for such controversial issue, so this is a landmark decision. It also maximizes Judiciary Creativity by manifesting how to utilize purposive interpretation for a statute with beneficial nature to find out a practical legal solution.

But we may also look at this case in a critical way.

First, for the interpretation, judicial authority heavily relied on plaintiff’s subjective claim, instead of objective standard, this may also lead to sort of arbitrary judgement. In reality, sometimes it may bring confusion into our life. For example, if a man didn’t go through complete gender reassignment procedure but claims he genuinely believes he is a woman, then after obtaining legal documents, he may legally access public female toilet or bathroom, etc., this would certainly cause trouble. 

Second, human rights are not absolute, there will always be the conflict between certain rights groups, and sometimes it is a question about proportionality. Legislators may try to offer a legal solution to balance different interest groups, at times for political reasons. But for gender identity and reassignment such fundamental cultural issues rooted in philosophy or theology, the statute might offer an oversimple solution.

My view is sometimes both legislators and courts might push the boundaries to promote certain novel ideas, the purpose is to keep a society in a balanced way and push it forward, because it is always the novel idea that stimulates public intelligence. However, it could be hard to ‘’legalize’’ such a fundamental cultural issue through simple provisions.

[1] McHugh JA in Kingston v Keprose Pty Ltd (1997) 1 NSWLR 404.