AB v Western Australia
AH v Western Australia
 HCA 42
6 October 2011
P15/2011 & P16/2011
In each matter:
1. Appeal allowed.
2. Set aside paragraphs 1 to 4 of the order of the Court of Appeal of the Supreme Court of Western Australia made 2 September 2010 and in their place order that the appeal to that Court be dismissed.
3. The first respondent pay the appellant’s costs in this Court. …
The issue as a transsexual matter
Both AH & AB retained, post-“transition”, certain internal reproductive organs. In a decision by the WA Supreme Court those physical parts were thought to be exclusively female and inappropriate for a male assignment. AH & AB were seeking acknowledgement of a male assignment in order to have their cardinal documents indicate male.
In the Western Australian Supreme Court’s judgment that was appealed by AH & AB for the right to change their cardinal identity documents, the issue of the potential to reproduce in a way posited to be exclusively female was at the very core of their Honours’ reasoning. That AH & AB had both taken significant steps to physically depart from the apparent sex of their birth was considered insufficient especially if they retained the potential, however slight, to reproduce in ways that were thought to be consistent with their original assigned sex, that is they might at some point fall pregnant.
The measures taken by AH and AB included bilateral mastectomies, long term hormone replacement therapy (HRT), adopting a masculine appearance and habits, then finally living as male in the community where they were unequivocally thought of as male.
The consequences for intersex people
The Western Australian Supreme Court ruling had significant implications for intersex Australians. Under Western Australian law, intersex people who reject their birth assignments have no choice but to comply with the rules contained in the Gender Reassignment Act 2000 (GRA).
The situation for intersex people was in essence that “the doctors guessed and got it wrong” as they do in the lives of a significant number of intersex. Western Australian intersex individuals were then required to “transition” in accordance with the GRA. That entails, as it does for transsexual and transgender individuals, that sufficient parts of an intersex person’s anatomy should be removed or modified so that they might be seen to be appropriately bodied for the sex they wish to live as. Those anatomical modifications, according to the Supreme Court ruling, would mean an intersex person would have to sacrifice whatever potential for fertility they might have if that potential was seen to conflict with the sex of their choosing.
It is important to note here that intersex people are people who have uncertain sex anatomies. That is they have bodies that might contain both male and female features at the same time, not entirely male or female features or indeed, for some, no well-defined anatomical sex features at all.
Thus when a sex assignment is made on an intersex child there can be no certain way to predict how that child might express their sex role as an adult and for those who discover their intersex as adults no certain way to say how their differences should inform their choice of sex roles. For both children and adults, from the perspective of fundamental human rights, they must be able to retain both their right to choose and their right to bodily autonomy.
The Gender Reassignment Act 2000 and then the Supreme Court both removed that right. Intersex was given a Faustian bargain: they must eliminate whatever potential for reproduction they might have and they must submit to normalizing surgery.
For some intersex people in this country the situation is far worse. So far as both the WA Supreme Court and the Federal Court are concerned the only possible options are male or female. The issue of intersex and the possibility that a person might to choose to live as neither because they are in fact anatomically neither has not been ventilated.
The High Court offers some relief
In its findings the High Court did offer some relief to intersex. In dismissing the WA ruling – that a person must themselves dispose of as much of their former sex as is possible and especially the potential to reproduce in a way consistent with their former sex – the High Court has allowed the potential for intersex people to retain their birth anatomy and have cardinal documents changed to reflect the sex role of their choice.
This is a significant gain for us. Intersex children are not currently allowed to retain any physical features that are seen to contravene what is considered to be “normal” for a boy or girl child. Parents and doctors seek to find an infant’s “true” sex by looking at chromosomes and a constellation of other possible indicators and then, on the basis of the “balance of probabilities”, make an assignment. Many times those assignments are reinforced with genital surgery and hormone medications.
Doctors and parents claim that they almost always get it right. They can’t know that because no long-term studies have been conducted on intersex adults around sex role satisfaction and gender identity. In a society that regards indeterminate sex and non-compliant gender behaviour with disgust and is inclined to punish individuals who exhibit either, intersex people find themselves in an invidious position. How can we choose freely when there is no freedom to choose?
Some historical precedents bite the dust
Their Honours French et al have made the situation a little clearer for intersex people. In their findings they dismissed not only the WA but ruling they also put to flight a number of other decisions such as Corbet vs. Corbet.
In the latter ruling, Justice Ormrod held that the sex assigned at birth was somehow immutable and must be retained irrespective of mistakes or a person’s lived role and the community’s perception of that person. Corbet vs. Corbet and subsequent rulings that followed Ormrod’ s ruling made it impossible for intersex people to have their cardinal documents changed on the basis of a mistaken assignment at the time of birth. Those rulings enshrined the notion that the doctor always gets it right and led to the notion that subsequent dissatisfaction by the assigned individual was a sign of mental impairment of the same kind that afflicts transsexuals. Both transsexual and intersex activists contest the notion that our differences are somehow disordered and especially mentally disordered in the way the current Diagnostic and Statistical Manual (DSM-IV) describes us.
The High Court ruling by French et al has placed a person’s self-knowledge and their lived experience as the preeminent indicator of whom they are and whom they should be recognized as. The essentialist view of human sex and sex role has been given third place in a two-horse race. Chromosomes, hormones, external appearances still count, but they are no longer the absolute indicators that the essentialists have claimed.
This case, argued by two transmen, advances intersex rights
For intersex, in what at first blush seems to be a case of transsexualism, the outcomes could not have been more pleasing. Our sex roles and assignments are constantly judged along essentialist lines.
When we have mixed chromosomes specialists look at our external parts or our hormones or our reproductive parts and decide that we really are in essence males or females. They assign us with the expectation that we will live the sex roles assigned to us as males or females and they insist that they rarely get it wrong.
They assert this despite never bothering to find out how we fare after their interventions,
It now seems that an intersex individual might apply to the Gender Recognition Board in Western Australia and in accordance with this judgment apply for their cardinal identity documents to be changed without having to modify their physical anatomy. That is, they can live the role as a male or female with an intact anatomy.
Where the judgment is silent is when an intersex person wishes to have no sex indicators at all. In declaring in favor of AH & AB their Honours French et al were only asked to consider the issue of changing cardinal documents in terms of strict sex binaries. In deciding how appropriate certain anatomical features may or may not belong to both sexes the West Australian Supreme Court and the Federal High Court confined themselves to standard interpretations of male and female that ignores sex variability.
Going where the IOC & IAAF dare not
If either of those concepts, male and female, had been explored in detail their honours would have discovered what the International Olympic Commission (IOC) and the International Athletics Associations Federation (IAAF) discovered, that there is no absolute physicality that can confine males and females to the limited possession of some physical features and the exclusion of others. They would have found that for every marker of sex considered to be either male or female there are exceptions to those markers. Those exceptions are not rare. Rather, they are more common than even the 4% of the population that have intersex differences.
The judgment for AH & AB is significant to intersex people, however it is only one small step to full intersex equality before the law. In making their finding, the judges considered only sex binary possibilities and only the right to male or female markers was available. The Western Australian Act does not allow for any other possibility and nor indeed does any Australian legislation or law.
The view for the future
In making their judgment, their Honors were not made cognizant of, and did not appear to be so irrespective of evidence, that individuals with apparently female reproductive organs such as ovaries and a uterus have lived as men and have male on their cardinal documents for as long as Western Australia has been a part of the Australian federation and far longer.
In arguing for their right to have male as a sex marker on their cardinal documents AH & AB were arguing for something that intersex people, with nearly identical anatomies, have had imposed on them irrespective of lived sex role or personal choice for hundreds of years.
For all of us who struggle to comply with the sex and gender norms expected by society, sex markers bedevil our lives. As soon as those markers are placed on our birth certificate and the pink or blue is applied to our lives then our lives become constrained by a society obsessed with sex conformity.
For a pink child, career choices, social roles and income are limited. For a blue child, privilege power and certain opprobrium for any pink behavior will be their lot.
It is time for sex markers to be removed from all documents so that assignments become irrelevant, so that AH & AB would never have to fight that fight so that all of those othered by a binary system that privileges males over females and both over those of us who are neither will have to be judged by other criteria.
We may have to be judged then, as Dr Martin Luther King said, “by the content of our character”.