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 Brodie (May 2008), Re Alex (2004) and Re Kevin (2001).

Re Bernadette
Initial orders - November 2007.  
Family Court decision - February 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 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.

Decision: Re Bernadette (Special Medical Procedure) - 2010

WA - AB and AH - Registration of gender change - August 2009
The Western Australian State Administrative Tribunal has ruled that two female-to male transsexuals can legally have their gender identity changed to 'man' - including birth certificates - WITHOUT having had any surgical 're-assignment' of their genitals.

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!

Decisions:
AB and GENDER REASSIGNMENT BOARD OF WESTERN AUSTRALIA [2009] WASAT 152 (14 August 2009)

AH and GENDER REASSIGNMENT BOARD OF WESTERN AUSTRALIA [2009] WASAT 153 (14 August 2009)

The law:
WA Gender Reassignment Act 2000

Media Report:
Transsexuals declared male without op - AAP, Herald Sun, August 18, 2009 

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.
Court Decisions:
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
Re Alex : Hormonal Treatment for Gender Identity Dysphoria [2004] 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
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 (decision not available online yet).
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.

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", ... "

Boy, what a tragic farce
Andrew Bolt - Melbourne Herald Sun- May 5, 2009.
"THE tragedy is complete. The Family Court has treated the troubled mind of a 17-year-old girl by letting her cut off her breasts. Chief Justice Diana Bryant ..."

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 ..."

Grace Abrams - Passport gender - 2007
Grace Abrams is a male to female transsexual who married Fiona Power a month before her transsexual 'transition' was complete. Grace then applied for a passport in the 'female' gender. The Passport Office required a birth certificate stating 'female' which Abrams could not obtain 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).
Abrams 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.
Decision:
Abrams and Minister for Foreign Affairs and Trade [2007] AATA 1816 (28 September 2007)

Homosexual media article:
Trans woman wins landmark passport case
Out in Perth , 5 Nov 2007.

Kevin and Jennifer - 2001/2003
In Re Kevin (Validity of Marriage of Transsexual) [2001] 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) [1971] 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'!

Appeal:
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 [2003] 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