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October 08, 2009

Scrutinizing trans bodies in Western Australia

by guest blogger Harper Jean Tobin

The Attorney General of the state of Western Australia is currently asking the supreme court of that state to revoke gender recognition certificates issued to two transgender men there. The two men both prevailed before a state administrative tribunal, which ruled last month that they had met all the criteria required by state law to obtain legal recognition of their gender transition. The Attorney General, however, argues that the state law cannot be interpreted to allow any person to legally change their gender if there remains any possibility of future fertility.

The two men brought unrelated petitions under the state’s Gender Reassignment Act, which allows transgender people to obtain a “gender recognition certificate,” and in turn (if they were born in that jurisdiction) an amended birth certificate. The petitioners, like others bringing petitions under the GRA and related legislation in other jurisdictions, need legal and administrative recognition of their transition order to work, travel, find housing, conduct financial transactions,  obtain public services, and otherwise carry on their day-to-day lives. In this case, both petitioners had received treatment under medical supervision over a number of years, including hormone therapy and surgical procedures. Both testified that they might ideally have wished to have additional surgical procedures, they did not plan to do so because of concerns including costs, medical risks, and limitations of current surgical techniques. Nevertheless, the conservative Attorney General intervened in the case, arguing that the men could not be legally recognized as men because it was not clear they were permanently sterile.

In the resulting hearing, both men were subjected to extensive medical testimony, in which several experts were pressed as to whether there existed some remote possibility that either of these men could become pregnant. When the experts testified that this was all but impossible given the men’s ongoing hormone treatment, they were asked repeatedly to speculate on whether a future cessation of hormone use – however unlikely that might be – could eventually result in regained fertility. Ultimately, however, the tribunal concluded that an individual’s right to social recognition of their gender should not depend upon such considerations, and granted the men’s applications.

The state attorney general immediately appealed. Explaining the decision to appeal, the AG said: “What this decision has said is that a person can be legally male and yet potentially bear children. This is a major decision which, if allowed to stand, could have significant and unforeseen effects on the laws of this State.” Tellingly, AG did not state what those “significant and unforeseen effects” might be, nor did he cite examples from other jurisdictions where present law is clearly consistent with the tribunals decision, such as Spain and the United Kingdom. Given the almost totally gender-neutral laws surrounding parentage and inheritance today, it is difficult to imagine what “significant and unforeseen effects on the laws” of Western Australia might be. Indeed, one strongly suspects that the AG is more concerned with perceived social effects of permitting individuals such control over their bodies and social identities than with any tangible legal effect.

                Aside from failing to articulate any actual reason for his legal position, the Western Australia attorney general’s position betrays an unseemly governmental interest in the private lives and reproductive choices of individuals. Assuming for the sake of discussion that society has some interest in ensuring that a gender transition is reasonably permanent before bestowing official recognition, it certainly has no such interest in preventing transgender individuals, or any individuals, from reproducing. While Australia has often been criticized for the absence of a right to privacy in its federal constitution, a legal requirement that a certain group of individuals be sterilized in order to obtain critical social benefits would seemingly violate that country’s international obligations under human rights treaties. While the two men in this case may not desire to make use of their own reproductive capacity, they clearly should not be required to undergo major surgery for the sole purpose of obliterating any such capacity.

                These bodily integrity and reproductive autonomy dimensions of gender recognition have seldom been recognized by courts. But the attorney general’s appeal in this case seems to present those questions squarely to the Western Australia Supreme Court. Hopefully the state’s high court will rise to the task.

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