AB v Western Australia [2011] HCA 42

AB v Western Australia [2011] HCA 42

The requirement under s 15(1)(b)(ii) of the Gender Reassignment Act 2000 (WA) that an applicant have the physical characteristics 'by virtue of which a person is identified as male or female' is satisfied by having the external physical characteristics and lifestyle by which a person is identified in society as male or female. It does not require removal of all internal organs or biological completeness, nor does it permit the consideration of potential adverse social consequences or community standards beyond the perception of the individual's gender in everyday social interactions. The benefit and remedial purpose of the Act favours an interpretation focused on social recognition and...

Parties
Appellant: AB; Appellant: AH; First Respondent: State of Western Australia; Second Respondent: Gender Reassignment Board (WA); Intervener: Australian Human Rights Commission
Jurisdiction
Australia
Judgment Date
06 October 2011
Procedural Posture
Appeal / High Court Appeal From Court of Appeal of the Supreme Court of Western Australia
Outcome
Appeals allowed; orders of the Court of Appeal set aside; Tribunal orders reinstated; costs to the appellants
Legal Topics
Gender Reassignment, Legal Recognition of Gender, Interpretation of Remedial Legislation
Administrative Law Statutory Interpretation Human Rights Gender Reassignment Legal Recognition of Gender Interpretation of Remedial Legislation

Case Brief

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Parties

AB

Appellant

AH

Appellant

State of Western Australia

First Respondent

Gender Reassignment Board (WA)

Second Respondent

Australian Human Rights Commission

Intervener

Procedural Posture

Appeal / High Court Appeal From Court of Appeal of the Supreme Court of Western Australia

Legal Issues

  1. 1 Whether the requirement that an applicant have 'the physical characteristics by virtue of which a person is identified as male or female' under s 15(1)(b)(ii) Gender Reassignment Act 2000 (WA) was satisfied where applicants retained some female sexual organs;
  2. 2 Whether community standards, expectations, or potential social consequences are relevant to the statutory test;
  3. 3 Proper approach to the statutory construction of 'gender characteristics' and the concept of social recognition under the Act.

Ratio Decidendi

The requirement under s 15(1)(b)(ii) of the Gender Reassignment Act 2000 (WA) that an applicant have the physical characteristics 'by virtue of which a person is identified as male or female' is satisfied by having the external physical characteristics and lifestyle by which a person is identified in society as male or female. It does not require removal of all internal organs or biological completeness, nor does it permit the consideration of potential adverse social consequences or community standards beyond the perception of the individual's gender in everyday social interactions. The benefit and remedial purpose of the Act favours an interpretation focused on social recognition and...

Court Disposition

Appeals allowed; orders of the Court of Appeal set aside; Tribunal orders reinstated; costs to the appellants

Orders

  • Appeal allowed.
  • 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.