Transsexualism - Australian Legal Cases
A number of significant legal cases have been heard and decided in Australia in recent years relating to gender identity disorder/transsexualism.
This page has details - including links to the Family Court decisions - for the cases Re Jamie (2011), Re Brodie (May 2008), Re Bernadette (2007) Re Alex (2004), Re Rosie (2011), Re O (2010), AB & AH (WA) and Re Kevin (2001).
Four cases (Re Jamie, Re Bernadette, Re Alex and Re Brodie) apply to children aged 10 to 13.
Two others (Re Rosie and Re O) apply to 16 year olds.
Other cases are people applying to have birth certificates changed without having surgery or whilst still being married or about a change of gender....
The latest cases are at the top of the page.
April 2011 - The latest case involves the Australian Family Court allowing a 10-year old boy, known as 'Jamie' to begin hormonal treatment to stop puberty - as the first stage of sex change to being a woman.
The Court noted that the reason for making this decision when Jamie is only 10, is that the puberty level was advanced and that treatment needed to be started before the voice broke and hair growth began etc.
Stage 2 of the treatment is for female hormones which lead to breast development etc - the Judge did not approve Stage 2 saying that things might change -"I simply cannot determine in 2011, when Jamie is still only 10, what is likely to be in her best interests in 2016 or 2017 when she is aged sixteen."
Justice Linda Dessau noted that she had recently approved both stages in two recent decisions - but the people involved were both aged 16 and the second stage was expected to begin shortly after Stage 1 (decision, Para 120).
The Family Court decision is online - click here.
Media Report: Judge agrees with boy who identifies as a girl, The Australian, April 16, 2011.
February 2011 - Family Court decision by Justice Linda Dessau to allow a 16 year old girl to have the first two stages of hormone therapy in the process of changing to a male.
Decision - click here.
Media Report: Girl's gender fight to become a man, Daily Telegraph, Feb 26, 2011.
December 2010- A 16 year old boy, with mild Asperger's syndrome, has been granted permission to begin hormone therapy as the first stage of becoming a woman. Justice Dessau gave permission for the first two stages of treatment. One proviso was that his sperm be frozen in case he decides he wants children.
Decision - click here.
Media Report: Autistic boy ruled OK for sex change by family court, Daily Telegraph, Dec 29, 2010.
Initial orders - November 2007.
Family Court decision - 19 January, 2010.
This case involves a boy commencing hormone treatment in order to help him present as a girl named 'Bernadette'.
On 7 November 2007, the Family Court gave approval for the child to commence hormone treatment for both Phase 1 and Phase 2 and that this apply until adulthood.
Apparently there were remaining legal questions which the judge was still assessing - the final decision by the Family Court was handed down on published in February 2010.
The Court ruled that the orders from November 2007 (Sections 1-4) still applied to the individual.
The applicants had asked the question as to whether a PARENT (rather than the Court) could authorise treatment for transsexualism or alternatively, that the parents could authorise hormone treatment to "block the onset of a child's puberty". These were the additional matters that the decision rules on.
The judge answered - rightly, we believe- that he could not give such a general ruling for parents to make those decisions - they must come to the Court and each case must be individually assessed and determined.
Family Court decision: Re: Bernadette  FamCA 94 (19 January 2010)
WA - AB and AH - Registration of gender change - August 2009
This case involved two women who applied to have their gender recognised as 'male' although they had not undergone surgery.
The WA Gender Reassignment Board had refused to to issue them with certificates recognising "the reassignment of their gender''. The two women then appealed to the Tribunal.
The Tribunal noted that the women had received testosterone and had their breasts removed - but had not had any surgery to remove female reproductive organs. Nor had they had an artificial penis added.
However, the Tribunal referred to the WA Gender Reassignment Act - which says that a "reassignment procedure means a medical or surgical procedure (or a combination of such procedures) to alter the genitals and other gender characteristics of a person, identified by a birth certificate as male or female, so that the person will be identified as a person of the opposite sex".
Thus, the Tribunal said it was enough for them to have 'medical treatment' that altered 'characteristics' - and not genital surgery - in order to change their gender!
The WA government then appealed against the decision - the Court of Appeal upheld the appeal in September 2010 - overturning the Tribunal decision. AB & AH then said they would appeal to the High Court.
AB & AH and GENDER REASSIGNMENT BOARD OF WESTERN AUSTRALIA  WASAT 152 (14 August 2009)
AH and GENDER REASSIGNMENT BOARD OF WESTERN AUSTRALIA  WASAT 153 (14 August 2009)
The WA law: WA Gender Reassignment Act 2000
Transsexuals declared male without op - AAP, Herald Sun, August 18, 2009
Court of Appeal (decision Sept 2010)
The WA government (through Attorney-General Christian Porter) appealed against the decision. The majority of the Court of Appeal overturned the Tribunal decision in September 2010.
The two people are now planning to take the case to the High Court - and also hoping to persuade the WA government to change the law.
Read Media report in the West Australian: Sex-swap battle for High Court
Court of Appeal decision:
THE STATE OF WESTERN AUSTRALIA -v- AH  WASCA 172 (2 September 2010)
May 2011 -Appeal to the Australian High Court
The High Court has granted 'leave to appeal' to the two transsexuals - they are appealing against the 2010 WA Court of Appeal decision.
Media Report: Women win right to fight sex status, The Australian, April 9, 2011.
High Court decision - October 2011
The Australian High Court has upheld the appeals by AB and AH to be recognised as 'male'.
The decision means that AB and AH will be granted certificates recognising their gender as ‘male’.
When the WA Gender Re-assignment Board issues a recognition certificate, that certificate can then be presented to the Registrar of Births, Deaths and Marriages who will register the certificate and a new Birth Certificate can be issued in the new gender.
Costs were awarded against the state of Western Australia.
The decision was handed down on October 6, 2011.
Read the decision - click here.
Sex-swap pair win court case, The Australian, 7/10/2011.
Transsexuals win WA high court battle, The West Australian, 5/10/2011.
Transsexuals win green light on birth certificates, The Age, 7/10/2011.
Brodie - May 2008
Re Brodie (Special Medical Procedure)
Justice Carter in the Family Court has allowed a 12 year old girl to begin hormone treatment to 'stop puberty' with the eventual aim of being a 'boy' - going on to take male sex hormones (with another court ruling) and later have surgery (at 18). The decision was made 'urgently' in December 2007, to allow Brodie to begin secondary school as a 'boy'. The decision was not published until May 2008.
One of the saddest elements of the case is the brokenness of the family (unmarried parents, now separated). The father objected to the decision but had no legal representation in court whilst the mother had Legal Aid. Sadly, the girl, now called 'Brodie', says she wants to be 'married' with a wife and children - what a hard road lies ahead if she pursues this 'wish' to be a boy.
Main Family Court decision - click here.
Full orders plus reasons - outline of family situation, feelings of 'Brodie'.
Family Court decision July 2007- click here.
Regarding jurisdiction of the court. This decision highlights the background of the case and the family situation.
Media reports - Herald Sun - Daily Telegraph - ABC - Herald Sun (family concern at decision) - ABC (AMA comment).
Alex - 2004
Family Court Decision: Re Alex : Hormonal Treatment for Gender Identity Dysphoria  FamCA 297 (13 April 2004)
The Family Court allowed a 13 year old girl, called 'Alex', to begin hormonal treatment to start the process to becoming a boy. The father, whom the girl was close to, had died when she was five or six. The mother and Alex migrated to Australia after marrying a man who sponsored her. The child became angry at the mother and felt the step-father had rejected her. Within nine months of arriving, Alex was made the subject of a care order by a Children's Court under a child welfare law and a government department was appointed guardian. The child then lived with a paternal aunt - and was still living there at the time of the court hearing. Again, a disturbed family background. Evidence was given that contended the child said they would rather be dead than go on as they were (as a girl).
Comment: [Supporting the decision]
RE ALEX: ADOLESCENT GENDER IDENTITY DISORDER AND THE FAMILY COURT OF AUSTRALIA
Author - EITHNE MILLS - Senior Lecturer and Chair of Family Law Studies, School of Law, Deakin University. Did her PhD in "in the jurisprudence of transsexualism and other intersex conditions".
UPDATE: Alex - 2009
In 2009, when 'Alex' was 17, the Family Court allowed her to have her breasts removed to continue the process of gender change.
As Andrew Bolt points out - this is a tragedy. Looking at the girl's family background one can see the situation that has led to this outcome.
Decision - Family Court - click here.
Court lets girl, 17, remove breasts
The Age- May 3, 2009.
"THE Family Court has allowed a 17-year-old girl to have her breasts removed so she can be more like a boy. The teenager, code-named "Alex", ... "
Family Court gives 17-year-old permission for breast removal
ABC Online- May 4, 2009
"MARK COLVIN: The Family Court of Australia has given permission to a 17-year-old girl to have both her breasts surgically removed so she can become more ..."
AB - Birth certificate/married - 2007
AB is a male-to-female transsexual who had completed gender-reassignment surgery in 2002. At the time AB was married to a woman, though living separately and apart.
AB then applied to the Victorian Register of Births, Deaths and Marriages to have the gender altered on AB's birth certificate. The Registrar refused on the basis that Victorian law states that a birth certificate cannot be altered if the person is still married.
AB then took a claim to the Federal Court, alleging that she was discriminated against on the ground of 'marital status' and asserting there was "inconsistency between State and Commonwealth legislation"..
The original federal Court ruling, by Kenny, found in AB's favour.
The Victorian Registrar of Births, Deaths and Marriages appealed.
The Full Court of the Federal Court overturned the original decision - the Full Court decision was handed down on 29 August 2008.
Original decision: not online.
Full Court decision:
AB v Registrar of Births, Deaths and Marriages  FCAFC 140 (29 August 2007)
G Abrams - Passport gender - 2007
This case was brought by G Abrams, in an effort to obtain a passport in a new, changed gender. She is a male to female transsexual, who married a woman a month before her transsexual 'transition' was complete - who then applied for a passport in the 'female' gender. The Passport Office required a birth certificate stating 'female' which could not be obtained because she was married (whilst still a man). Australian law states that if a person is married, they cannot change their gender on their birth certificate (as that would effectively legalise marriage between two people of the same gender).
She then appealed against the decision to the Commonwealth Administrative Appeals Tribunal - in September 2007, the Tribunal set aside the decision and ALLOWED Abrams to have a passport listing her as a 'female' even though she did not have a matching birth certificate in the female gender.
Homosexual media article:
Trans woman wins landmark passport case
Out in Perth , 5 Nov 2007.
Abrams and Minister for Foreign Affairs and Trade  AATA 1816 (28 September 2007)
Kevin and Jennifer - 2001/2003
In Re Kevin (Validity of Marriage of Transsexual)  FamCA 1074 (12 October 2001)
A 2001 case testing the validity of marriage between Kevin and Jennifer. Kevin was a post-operative female-to-male transsexual. The original decision recognised the marriage. The federal Attorney-General appealed against the decision. The original decision was upheld in 2003.
From the decision:
"Application for declaration of validity of marriage between a woman and a female to male post operative transsexual - Whether the person's sex must be determined solely by reference to genitals, chromosomes, and gonads at time of birth - Whether other matters may be taken into account - Whether Corbett v Corbett (otherwise Ashley)  P. 83 represented Australian law.
"The applicants, who went through a ceremony of marriage on 21 August 1999 applied for a declaration of the validity of that marriage. The issue involved was whether the husband was a man at the date of the marriage. The question arose because he was a post-operative female to male transsexual.
"The applicants submitted that the husband was a man for the purpose of the marriage law, and that Court should declare that the marriage is valid. The Attorney-General intervened and submitted that the husband was not a man for the purpose of the law of marriage, and that the application should therefore be dismissed. ..."
The Family Court ruled that the marriage was valid [paragraph 330].
Ironically, the judge said that if he had ruled Kevin was still a woman, a situation where a female and a male-to-female transsexual wanted to marry would then be allowed as a 'woman and a man' marriage - but since they were living as two women it would in effect seem to allow a 'same-sex marriage'!
The federal Attorney General appealed against the decision. The Full Bench of the Family Court heard the appeal in February 2002. The decision to uphold the original decision was handed down on 21 February 2003.
The decision (appeal):
The Attorney-General for the Commonwealth & "Kevin and Jennifer" & Human Rights and Equal Opportunity Commission  FamCA 94 (21 February 2003)
From the lawyer representing Kevin & Jennifer:
Rachel Wallbanks, also a male-to-female transsexual, represented Kevin and Jennifer. She has written a comprehensive assessment (from her perspective) of the previous law, the case, the evidence and the decision:
Transsexual Marriage in Australia
Rachel Wallbanks (posted on the UNSW Council of Civil Liberties website)
Useful Overview by the Australian Parliamentary Library
Transsexuals - Re Kevin and the Validity of Marriage of a Transsexual
Australian Parliamentary Library, Ian Ireland
Law and Bills Digest Group - 12 February 2002
Research Note 16 2001-02
Overview of the case, including the appeal
Article in the Law Institute Journal, by Eithne Mills and James McConvill.
Law Institute Journal, Volume 77 No. 7, July 2003 page 58.