DOES THE PROHIBITION ON SEX DISCRIMINATION IN THE HUMAN

RIGHTS ACT 1993 INCLUDE DISCRIMINATION BASED ON GENDER

DYSPHORIA OR TRANSSEXUALISM?

INTRODUCTION

1.1 The purpose of this paper is to review, in brief, the case law in
New Zealand, Canada, the UK, Australia, the USA, and from the
trans-national European Courts on the legal effect of gender
transformation in order to answer the question set out in the title of
this paper. In addition there are references to statue law in
various jurisdictions.

1.2 The case law on transsexualism generally falls into three

categories:

a) Cases dealing with the amendment of identification records,

usually birth certificate name and/or sex changes.

b) Cases dealing with discrimination, mostly in the workplace.

c) Cases dealing with marriage between a transsexual and a

non-transsexual.

1.3 In this paper MTF stands for a male-to-female transsexual person

and FTM stands for a female-to-male transsexual person.

NEW ZEALAND

2.1 There have been two Court decision of relevance: a 1991 decision
of the Family Court and a 1994 decision of the High Court.

2.2 The Family Court decision of M v. M concerned whether the

marriage of a post-operative MTF transsexual to a male was valid.
Judge Aubin found the judgement of Justice Matthews in R v.
Harris and McGuiness [see para 7.1 below] to be cogent and
compelling. Judge Aubin said:

a) “In a given case, matrimonial as well as criminal, it is

possible to conclude as a matter of evidence that the genetic
starting point, the immutable biological factors, will not be
determinative. Why should they be? Accepting that it
cannot be a question to be decided merely upon sympathetic
or compassionate grounds, nevertheless a consideration of
the evidence may lead to the finding that the cumulative
effect of the changes that have occurred is to have brought
about a change of sex in a real sense, albeit that the
chromosomal structure is perforce unchanged and the
sexual organs are the work of man and not of any deity.”

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b) “Doubtless the reality is that there is no simple medical test

for the determining of which side of the sexual line a
particular person falls, at least if it be allowed that the
chromosome structure will not always be conclusive; to make
it so has the virtue of certainty, but surely at the risk of over
simplification … [t]here is no medical evidence in the case
which is persuasive against the view that genetic
considerations can be displaced by events occurring in the
course of the person’s life that cumulatively take that person
out of the sexual category in which she was born through a
state of limbo and into the haven of the opposite sex.”

2.21 The marriage was declared valid.

2.3 In 1994 the High Court in Attorney-General v. Otahuhu Family

Court considered whether two persons of the same genetic sex
may enter into a valid marriage where one of the parties to the
proposed marriage had adopted the sex opposite to that of the
proposed marriage partner through sexual reassignment by
means of surgery or hormone administration.

2.31 Justice Ellis decided that where a person had undergone surgical
and medical procedures that had effectively given that person the
physical conformation of a person of a specified sex, there was no
lawful impediment to that person marrying as a person of that sex.

2.32 Justice Ellis noted that:

a) “Some persons have a compelling desire to be recognised

and be able to behave as person of the opposite sex. If
society allows such persons to undergo therapy and surgery
in order to fulfil that desire, then it ought to allow such
persons to function as fully as possible in their reassigned
sex, and this must include the capacity to marry.”

b) “There is no social advantage in the law not recognising the

validity of the marriage of a transsexual in the sex of
reassignment. It would merely confirm the factual reality.”

2.33 In an unusual move Justice Ellis incorporated, without any

substantial change, the submissions made by Vivienne Ullrich,
Amicus Curiae, as part of his judgement. As a result there are
some aspects which are open ended and left unanswered.
However the following noteworthy points emerge from the
submissions.

a) “Sex has both a biological and social meaning. When used

in its social sense, it encompasses the idea of gender, which
takes in psychological and social factors. Self-identification
and the perception of others in society are relevant to the
concept of gender.”

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b) “There are characteristics of sexual identity that are

physically able to be observed and classified and measured.
This does not mean that they alone should necessarily be
determinative of sexual identity as the psychological and
social factors may be far more important to a person’s
intrinsic sense of self. The importance of the psychological
and social factors is accepted by the medical and scientific
community when dealing with persons who have
chromosomal, gonadal, genital or hormonal abnormalities
which make categorical determination of their sexual identity
ambiguous, as the usual treatment in such cases is to assist
the person surgically or hormonally to consolidate the sex in
which they are most psychologically and socially adjusted.”

c) “The psychological and social factors which go to make up a

person’s gender identity are very powerful, so powerful that
where there is physical ambiguity they may override the
chromosomal fact.”

d) “There is clearly a continuum which begins with the person

who suffers from gender dysphoria but who has not chosen
to cross-dress on a regular basis and has embarked on no
programme of hormonal modification or surgery, through to
the person who has embarked on hormone therapy and
perhaps has some minor surgical intervention such as
removal of gonads, [RH: I’m not sure many people would
describe such removal as ‘minor intervention’] through to the
person who undergoes complete reconstructive surgery.”

2.34 It was submitted that in order for a transsexual to be eligible to

marry in the sex of assignment, the end of the continuum must
have been reached and reconstructive surgery done.

a) “In the case of a person who identifies with the sex that he or
she was not born into, there must be as complete a
transformation as is possible before that person can qualify
as a person of his or her chosen sex for the purpose of
marriage.”

b) “In the case of a MTF transsexual that will require the

adoption of psychological and social identification with the
female sex plus a modification of the genitals to a female
appearance. It will also include the removal of the male
gonads.”

c) “It may not be possible to draw the line so rigidly with a FTM
transsexual. If the social and psychological factors are met
and the person has undergone hormone therapy to produce
the secondary male sexual characteristics of body hair and
deeper voice, and the person has had a mastectomy and a
radical hysterectomy that may be sufficient to establish his

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identity as a male for most purposes but not necessarily

marriage.”

d) “A marriage requires persons of the opposite sex and this

may require a genital appearance which is consistent with a
person of the opposite sex to the marriage partner. In the
case of a MTF transsexual, this requires a constructed
vagina; and in the case of a FTM transsexual, this requires a
penis. It is submitted that neither constructed organ needs to
be fully sexually functional for the purposes of a valid
marriage.”

2.35 “It maybe that for other legal purposes, a transsexual who has not
had reconstructive surgery or only minimal surgical intervention
(such as removal of the testes) could be classified in his or her
chosen sex for certain purposes such as the employment law,
criminal law and the law of inheritance.”

a) “It is appropriate for this Court and the legislature to

acknowledge that there may need to be different criteria in
respect of different circumstances, involving the sex
reassignment of any one individual. It may be appropriate to
acknowledge legally the sex reassignment of the one
individual for some purposes but not others. A pre-operative
transsexual who nevertheless dresses and behaves in the
assigned sex may be accepted in that sex for employment
and social purposes, and for documents such as driving
licences.”

b) “There may be other situations where reconstructive surgery

has been completed but where nevertheless recognition of
the change of sex may not be appropriate for all purposes.
An example might be the possibility of a male-to-female
transsexual who wished to enter competitive sports as a
female.”

CANADA

Canada – Federal jurisdiction

3.1 In 2001 the Canadian Human Rights Tribunal dealt with a

complaint by a pre-operative MTF transsexual prisoner, Synthia
Kavanagh, of sex and disability discrimination. The Tribunal
noted that there was no dispute that discrimination on the basis of
transsexualism constitutes sex discrimination as well as
discrimination on the basis of disability. Authority for this
proposition was the decision of the Quebec HRT set out above
and three decisions of the British Columbia HRT which predated
the decision of the British Columbia Supreme Court, set out
below.

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British Columbia

3.2 In June 2000 Justice Davies of the Supreme Court of British

Columbia in Vancouver Rape Relief Society v. The British
Columbia Human Rights Commission and the British Columbia
Human Rights Tribunal ruled on whether a statutory prohibition
against discrimination on the basis of sex extended protection
from such discrimination to transgendered individuals. Justice
Davies decided that the prohibition extended to include a post-
operative MTF transsexual. The decision was based on a section
in the Vital Statistics Act of British Columbia which states:

a) “If a person in respect of whom trans-sexual surgery has

been performed is unmarried on the date the person applies
under this section, the Director must, on application made to
the Director in accordance with subsection (2), change the
sex designation on the registration of birth of the person in
such a manner that the sex designation is consistent with the
intended results of the trans-sexual surgery.”

3.21 Justice Davies describes the effect of this section as being that
the legislature intended that post-operative transsexuals would be
entitled to the same legal status as other members of their post-
operative sex.

3.22 Although the provisions of the Vital Statistics Act resolved the
case Justice Davies went on to consider the question in the
absence of that Act.

3.23 Justice Davies concluded that unless compelled to do so by

specific legislative direction or clear evidence to the contrary it
would be wrong to interpret the statutory prohibition against
discrimination on the basis of sex as also not prohibiting
discrimination against an individual merely because that person or
group is not readily identifiable as being either male or female. In
the absence of compelling direction by the Legislature to reach
such a conclusion he reached the opposite conclusion for the
following reasons:

a) The Vital Statistics Act showed that the Legislature was alive
to the issue of transsexualism.

b) There was no pattern in the statutes or regulations of the

Province which leads to an inevitable conclusion that the
words “sex” and “gender” are used with any specific intent.
They appear to be used either randomly or interchangeably.

c) There are no sufficiently common definitions of “sex” in either

common usage dictionaries or legal dictionaries which lead
to the inevitable conclusion that “sex” is limited to

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male/female issues or does not include gender related

questions.

d) There is compelling medical evidence that determinations of

sex and gender characteristics and issues often involve
multifactoral considerations which go well beyond simply
maleness or femaleness.

e) Since sex or gender issues may factually include more than

purely male or female possibilities and characteristics it
would be wrong to approach the question of discrimination
based upon sex from a solely male or female perspective.

Quebec

3.3 In a decision of 2 July 1998 the Quebec Human Rights Tribunal in

Quebec (CDPDJ) C. Maison des jeunes A-Ma-Baie Inc (No 2)
found that to end an employee’s contract because she was
undergoing a sex change was discrimination on the basis of sex.

3.31 The Tribunal noted that there is no general agreement on a

definition of transsexualism. However transsexualism is clearly a
matter of sexual identity. Based on the principles regarding the
construction of human rights legislation, especially the inherent
dignity of the human being, the Tribunal found that a transsexual
person who is the victim of discrimination based on his being a
transsexual may benefit from the provisions which forbid
discrimination based on sex, once the transformation has been
completed or once identification is entirely unified. Discrimination
even based on the process of the unification of disparate and
contradictory sexual criteria may also constitute sex-based
discrimination while sex is at its most vaguely defined. It is not
clear how discrimination based on transsexualism or on the
process of transsexualism could ultimately be anything other than
sex-based.

3.32 The Tribunal noted that the ground of “sex” is not defined in the
Quebec Charter of Human Rights and Freedom, the Canadian
Charter of Rights and Freedoms or in any of the other Canadian
statutes on human rights.

Alberta

3.4 In Alberta once the birth certificate has been changed a

transsexual is legally deemed to be of the reassigned sex and
marriage is permissible.

Ontario

3.5 In Ontario a transsexual person cannot marry in the reassigned

sex.

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UNITED KINGDOM

4.1 In 1970 Justice Ormrod in Corbett v. Corbett considered what did

“sex” mean for marital purposes and concluded a post-operative
MTF transsexual was a man. The question in issue was whether
a marriage was a nullity because the transsexual was a male and
not a female.

4.11 Justice Ormrod (who was also a medical doctor) noted that nine
medical experts gave evidence and accepted that there are at
least four criteria for assessing the medical condition of an
individual [determining the sex in which it is best for the individual
to live]:

a) Chromosomal factors.

b) Gonadal factors (i.e. presence or absence of testes or

ovaries).

c) Genital factors (including internal sex organs).

d) Psychological factors.

Some of the witnesses added:

e) Hormonal factors or secondary sexual characteristics (such

as distribution of hair, breast development, physique etc,
which are thought to reflect the balance between the male
and female sex hormones in the body).

4.12 Justice Ormrod considered that since marriage is essentially a

relationship between a man and a woman:

a) “The validity of the marriage in this case depends, in my

judgement, upon whether the respondent is or is not a
woman. The question then becomes, what is meant by the
word ‘woman’ in the context of a marriage. Having regard to
the essentially heterosexual character of the relationship
which is called marriage, the criteria, must in my judgement,
be biological … In other words, the law should adopt in the
first place, the first three of the doctors’ criteria, i.e., the
chromosomal, gonadal and genital tests, and if all three are
congruent, determine the sex for the purpose of marriage
accordingly, and ignore any operative intervention.”

4.13 Justice Ormrod noted that it was:

a) “Common ground between all the medical witnesses that the

biological sexual constitution of an individual is fixed at birth
(at the latest), and cannot be changed, either by the natural
development of organs of the opposite sex, or by medical or
surgical means. The respondent’s operation, therefore,

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cannot affect her true sex. The only cases where the term
‘change of sex’ is appropriate are those in which a mistake
as to sex is made at birth and subsequently revealed by
further medical investigation.”

4.2 In 2001 the Court of Appeal for England and Wales in the case of
Bellinger v. Bellinger considered whether a marriage between a
man and a post-operative MTF transsexual was valid.

4.21 A majority of the Court of Appeal decided that the gender

assignment at birth of a transsexual in accordance with the criteria
set out in Corbett cannot be challenged, i.e.:

• chromosomal factors

• gonadal factors

• genital factors (including internal sex organs).

4.22 The majority then considered whether the assignment made at

birth is immutable, other than for those with uncertain sexual
characteristics, or whether there is a point at which it can be said
that the gender which was correct at birth is no longer applicable.

4.23 “Transsexualism is, according to the presently accepted medical

knowledge recognised as a psychiatric condition, coming within
gender dysphoria or gender identity disorder. There is the
possibility that it is a medical condition with a biological basis by
reason of sexual differentiation of the brain after birth. The
transsexual would be born with congruent biological criteria and
would be appropriately assigned to one sex, but would become
seriously discontented with that ‘label’ as he/she grew up. At
some stage a transsexual would be likely to seek medical advice.”

4.24 “The medical evidence shows the enormously increased

recognition of, and reliance upon, the psychological factor in the
assessment of a person diagnosed as having gender disorder.
There is, in informed medical circles, a growing momentum for
recognition of transsexuals for every purpose and in a manner
similar to those who are inter-sexed.”

4.25 “The point at which a change of gender should be recognised is

not easily to be ascertained. The line could be drawn at a number
of different points from the initial diagnosis of gender disorder to
the completion of reconstructive surgery. The point at which
transsexuals feel they have achieved their change of gender
varies enormously.”

4.26 “The propriety of requiring pre-conditions such as those specified

in German law (see para 18.2 below) are matters for public policy
and not for imposition by the courts on the public.”

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4.27 “At what point would it be consistent with public policy to

recognise that a person should be treated for all purposes,
including marriage, as a person of the opposite sex to that to
which he/she was correctly assigned at birth? The question
cannot be properly decided by the court.”

4.28 In his dissenting judgment Lord Justice Thorpe made the following
points:

a) “The test that is confined to physiological factors, whilst

attractive for its simplicity and apparent certainty of outcome,
is manifestly incomplete. There is no logic or principle in
excluding one vital component of personality, the psyche.
That its admission imports the difficulties of application that
may lead to less certainty of outcome is an inevitable
consequence. But we should prefer complexity to
superficiality in that the psychological self is the product of an
extremely complex process, although not fully understood.
The foundations of the Corbett decision are no longer
secure.”

b) Subsequent developments both medical and social render

the decision in Corbett wrong.

c) The medical developments are:

(i) The recognition of transsexualism in DSM-III and the

recognition in DSM–IV that gender identity disorder
should replace transsexualism; and

(ii) Research suggesting gender dysphoria is not a purely

psychological condition.

d) The social developments are:

(i) Changes to the institution of marriage;

(ii) Legislative recognition in Continental Europe of

transsexuals being able to change sex; and

(iii) The introduction of the European Convention on Human

Rights (ECHR) into UK law.

e) The inconsistency between the state through its health

service providing full treatment for gender identity disorder
but by its legal system denying the desired recognition.

4.3 The decision of the Court of Appeal was appealed to the House of
Lords. The House of Lords gave its decision on 10 April 2003.
The issue decided by the Court of Appeal remained the same: i.e.
was Mrs Bellinger entitled to marry? In addition she asked for a
declaration under s. 4 of the UK Human Rights Act that a sub-

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section in the Matrimonial Causes Act which states that a

marriage is void unless the parties are male and female is
incompatible with Articles 8 and 12 of the ECHR. Article 8
provides the right to respect for private and family life and Article
12 provides the right to marry: “Men and women of marriageable
age have the right to marry and to found a family, according to the
national laws governing the exercise of this right.”

4.31 The House of Lords unanimously rejected Mrs Bellinger’s claim

for a declaration of the validity of her marriage. It did however
grant the declaration of incompatibility. The principal judgements
were delivered by Lord Nicholls and Lord Hope.

4.32 Lord Nicholls listed the indicia of human sex or gender (which he
said for the purposes of the case were interchangeable) in no
particular order as:

(i) Chromosomes: XY pattern in males, XX in females.

(ii) Gonads: testes in males, ovaries in females.

(iii) Internal sex organs other than the gonads: for instance,
sperm ducts in males, uterus in females.

(iv) External genitalia.

(v) Hormonal patterns and secondary sexual characteristics,

such as facial hair and body shape. No one suggests these
criteria should be a primary factor in assigning sex.

(vi) Style of upbringing and living.

(vii) Self perception. Some medical research has suggested that

this factor is not exclusively psychological. Rather, it is
associated with biological differentiation within the brain.
The research has been very limited, and in the present state
of neuroscience the existence of such an association
remains speculative.

4.33 Lord Nicholls commented:

a) “In this country, as elsewhere, classification of a person as

male or female has long conferred a legal status. It confers
a legal status, in that legal as well as practical consequences
follow from the recognition of a person as male or female.
The legal consequences affect many areas of life, from
marriage and family law to gender–specific crime and
competitive sport. It is not surprising, therefore, that society
through its laws decides what biological criteria should be
applied when categorising a person as male or female.
Individuals cannot choose for themselves whether they wish
to be known or treated as male or female. Self-definition is

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not acceptable. That would make a nonsense of the

underlying biological basis of the distinction.”

b) “Recognition of gender reassignment will involve some

blurring of the normally accepted biological distinction
between male and female. Some blurring already exists,
unavoidably, in the case of inter-sexual persons. When
assessing the gender of inter-sexual persons, matters taken
into account include self-perception and style of upbringing
and living. Recognition of gender reassignment will involve
further blurring. It will mean that in law a person who, unlike
an inter-sexual person, had all the biological characteristics
of one sex at birth may subsequently be treated as a
member of the opposite sex.”

c) “I am profoundly conscious of the humanitarian

considerations underlying Mrs Bellinger’s claim. Much
suffering is involved for those afflicted with gender identity
disorder. Mrs Bellinger and others similarly placed do not
undergo prolonged and painful surgery unless their turmoil is
such that they cannot otherwise live with themselves.”

d) “Recognition of Mrs Bellinger as a female for the purposes ...

of the Matrimonial Causes Act would necessitate giving the
expressions ‘male’ and ‘female’ in that Act, a novel, extended
meaning: that a person may be born with one sex but later
become, or become regarded as, a person of the opposite
sex. This would represent a major change in the law, having
far reaching ramifications. It raises issues whose solution
calls for extensive enquiry and the widest public consultation
and discussion. Questions of social policy and
administrative feasibility arise at several points, and their
interaction has to be evaluated and balanced. The issues
are altogether ill-suited for determination by courts and court
procedures. They are pre-eminently a matter for Parliament,
the more especially when the government, in unequivocal
terms, has already announced its intention to introduce
comprehensive primary legislation on this difficult and
sensitive subject.”

4.34 Lord Nicholls noted that one of the issues raised by the change
being sought was the circumstances in which gender
reassignment should be recognised for the purposes of marriage.
Another issue was that surgical intervention takes many forms
and, for a variety of reasons, is undertaken by different people to
different extents. He commented that, “there seems to be no
‘standard’ operation or recognised definition of the outcome of
completed surgery.”

4.35 Lord Nicholls made a very interesting observation:

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a) “It is questionable whether the successful completion of

some sort of surgical intervention should be an essential
prerequisite to the recognition of gender reassignment. If it
were, individuals may find themselves coerced into major
surgical operations they otherwise would not have. But the
aim of the surgery is to make the individual feel more
comfortable with his or her body, not to 'turn a man into a
woman' or vice versa. As one medical report has expressed
it, a MTF transsexual person is no less a woman for not
having had surgery, or any more a woman for having had it:
see Secretary, Department of Social Security v SRA [see
paras 6.2 to 6.296 below].

4.36 He continued:

a) “These are deep waters. Plainly, there must be some

objective, publicly available criteria by which gender
reassignment is to be assessed. If possible the criteria
should be capable of being applied readily so as to produce
a reasonably clear answer. Parties proposing to enter into a
marriage relationship need to know whether their marriage
will be valid. Other people need to know whether a marriage
was valid. Marriage has legal consequences in many
directions … There must be an adequate degree of certainty.
Otherwise … the applicability of the law to an individual
suffering from gender identity disorder would be in a state of
complete confusion.”

b) “Your Lordships' House is not in a position to decide where

the demarcation line could sensibly or reasonably be drawn.
Where this line should be drawn is far from self-evident. The
antipodean decisions of Attorney-General v. Otahuhu Family
Court and Re Kevin (validity of marriage of transsexual) have
not identified any clear, persuasive principle in this regard.
Nor has the dissenting judgment of Thorpe LJ in the present
case. Nor has the decision of the European Court of Human
Rights in Goodwin v. United Kingdom.”

4.37 “Questions arise about the practical mechanisms and procedures

for obtaining recognition of acquired gender, and about the
problem of people who 'revert' to their original gender after a
period in their new gender role.”

4.38 “The decision regarding recognition of gender reassignment for

the purpose of marriage cannot sensibly be made in isolation from
a decision on the like problem in other areas where a distinction is
drawn between people on the basis of gender. These areas
include education, child care, occupational qualifications, criminal
law (gender-specific offences), prison regulations, sport, the
needs of decency, and birth certificates.”

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4.39 “A change in the law as sought by Mrs Bellinger must be a matter

for deliberation and decision by Parliament when the forthcoming
Bill is introduced.”

4.40 In his reasons for decision Lord Hope made the following points:

a) “The expressions ‘male’ and ‘female’ in section 11(c) of the

Matrimonial Causes Act 1973 are not capable of being given
the extended meaning that would be needed to
accommodate her case, and that we have no option but to
dismiss this appeal.”

b) “The essence of the problem, as I see it, lies in the

impossibility of changing completely the sex which
individuals acquire when they are born.”

c) “I need hardly say that I entirely agree with the Australian

judges that the words ‘male’ and ‘female’ … are not technical
terms and that they must be given their ordinary, everyday
meaning in the English language. But no evidence was
placed before us to suggest that in contemporary usage in
this country, on whichever date one might wish to select - 23
May 1973 when the 1973 Act was enacted, 2 May 1981
when Mr and Mrs Bellinger entered into their marriage
ceremony or the date of this judgment, these words can be
taken to include post-operative transsexual persons. The
definition of ‘male’ in the New Shorter Oxford English
Dictionary (1993) tells us that its primary meaning when used
as an adjective is ‘of, pertaining to, or designating the sex
which can beget offspring’. No mention is made anywhere in
the extended definition of the word of transsexual persons.
The word ‘transsexual’ is defined as ‘having the physical
characteristics of one sex but a strong and persistent desire
to belong to the other.’ I see no escape from the conclusion
that these definitions, with which the decision in Corbett v.
Corbett and the views of the majority in the Court of Appeal
in this case are consistent, are both complete and accurate.
The fact is that the ordinary meaning of the word ‘male’ is
incapable, without more, of accommodating the transsexual
person within its scope. The Australian cases show that a
distinction has to be drawn, even according to the
contemporary usage of the word in Australia, between pre-
operative and post-operative transsexuals. Distinctions of
that kind raise questions of fact and degree which are absent
from the ordinary meaning of the word ‘male’ in this country.
Any attempt to enlarge its meaning would be bound to lead
to difficulty, as there is no single agreed criterion by which it
could be determined whether or not a transsexual was
sufficiently ‘male’ for the purpose of entering into a valid
marriage ceremony.”

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d) “But the ability to reproduce one's own kind lies at the heart
of all creation, and the single characteristic which invariably
distinguishes the adult male from the adult female throughout
the animal kingdom is the part which each sex plays in the
act of reproduction. When Parliament used the words ‘male’
and ‘female’ in section 11(c) of the 1973 Act it must be taken
to have used those words in the sense which they normally
have when they are used to describe a person's sex, even
though they are plainly capable of including men and women
who happen to be infertile or are past the age of child
bearing.”

e) “I do not see how, on the ordinary methods of interpretation,

the words ‘male’ and ‘female’ in section 11(c) of the 1973 Act
can be interpreted as including female to male and male to
female transsexuals.”

4.5 A decision in 2000 of Justice Charles of the English Family Court

in W v. W is relevant to how the courts have dealt with recognition
of transsexual persons. This was a case involving an intersex
person who was born with both male and female physical
characteristics, but who had had gender reassignment surgery.
W was born with ambiguous external genitalia and registered as a
boy. Although her chromosomal sex appeared to be male she
developed the appearance of a girl, with breasts and a female
body shape. From age 17 she used she used a girl’s name and
lived as a woman. In her 30s she began taking oestrogen and
later underwent gender reassignment surgery. The issue before
Charles J was an application for a decree of nullity of marriage on
the ground that a marriage by a male to such a person was void.

4.51 Justice Charles dismissed the petition for the following reasons:

a) Where the biological sexual characteristics of an individual at

birth were ambiguous and not congruent, other factors,
including psychological and hormonal factors and secondary
sexual characteristics should be taken into account in
determining the individual's sex for the purposes of marriage.

b) While the wife's genetic and gonadal sex was male, her
genitalia were ambiguous and her body habitus and gender
orientation appeared to be female, resulting in a physical
intersex state.

c) The wife had chosen to live as a woman before having

hormone treatment and gender reassignment surgery and,
although before such surgery she would have been unable to
have sexual intercourse either as a man or as a woman,
after surgery she was capable of consummating the
marriage.

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d) Accordingly, taking into account all the relevant factors, the

wife was female for the purposes of her marriage to the
husband

4.52 Justice Charles distinguished the case before him from the
principles espoused in Corbett:

a) "In my judgment, in the respondent's case, and in other

cases which can conveniently be described as cases of
physical intersex for equivalent reasons, the decision as to
whether the individuals involved are female (or male) for the
purposes of marriage should be made having regard to their
development and all of the factors listed in Corbett's case
namely (in a slightly different form extending them to six
factors):

(i) chromosomal factors;

(ii) gonadal factors (i.e. presence or absence of testes or

ovaries);

(iii) genital factors (including internal sex organs);

(iv) psychological factors;

(v) hormonal factors, and

(vi) secondary sexual characteristics (such as the

distribution of hair, breast development, physique etc).

b) “Another way of putting this is that the decision as to whether

the person is male or female for the purposes of marriage
can be made with the benefit of hindsight looking back from
the date of the marriage or if earlier the date when the
decision is made."

4.53 Justice Charles continued:

"On the above approach, and thus having regard to:

(i) the six factors I have listed,

(ii) all my findings under the heading ‘Findings having

regard to the respondent's history and the medical
evidence,’ and

(iii) my conclusion that the respondent had the capacity to

consummate her marriage to the applicant, but having
regard in particular to:

(a) my acceptance of the diagnosis of partial

androgen insensitivity, its cause and effect,

12 January 2005
 16

(b) the respondent's ambiguous external genitalia, and

(c) the respondent's development which led to her

making a final choice to live as a woman well
before she started taking estrogen and before she
had surgery, in my judgment the respondent was a
female for the purposes of her marriage to the
applicant." [Emphasis in the original].

4.54 The important thing about this judgment is that it clearly

recognizes that intersex persons can, in effect, choose their sex
and marry accordingly.

4.6 The Court of Appeal in 2002 in its decision in A v. Chief Constable

of West Yorkshire Police decided that the Chief Constable was
bound to treat a post-operative MTF transsexual person as female
for the purposes of employment law. Following her operation, A
sought to become a constable in the West Yorkshire Police Force.
The application was refused on the basis that A would not be able
meet a requirement in section 54(9) of the Police and Criminal
Evidence Act that searches of persons be carried out by someone
of the same sex as the person being searched. The Chief
Constable argued conformity of legal and apparent gender was a
genuine occupational qualification.

4.61 Lord Justice Kennedy said:

a) “In the light of Goodwin it is no longer possible, in the context

of employment, to regard the appellant as being other than
female, except perhaps in circumstances where, as was said
in Goodwin, there are –

‘ … significant factors of public interest to weigh against

the interests of the individual applicant in obtaining legal
recognition of her gender re-assignment’.”

b) “If when dealing with the appellant’s application for

employment the Chief Constable was bound to treat her as
female, then it was not open to him to discriminate against
her on the basis that she was transsexual, and no possibility
of invoking [the GOQ section] could arise.”

c) “[W]ere the appellant to be employed as a police constable

no particular problem should arise in relation to section 54(9)
of the Police and Criminal Evidence Act not only because of
the implementation of the Human Rights Act, but also
because if the appellant is not required to search females on
the basis that for the purposes of the criminal law she
remains a male, and if that leads to the disclosure of her
transsexuality, that is something which she is prepared to
accept.”

12 January 2005
 17

d) “All that needs to be said is that in the light of Goodwin it is

now clear that the respondent’s attempt to invoke [the GOQ
section] cannot succeed.”

4.62 Lord Justice Buxton noted that:

“[It] is a fallacy to contend, as did the Chief Constable, that a

person must in law be a man or a woman for all purposes.
The question, rather, is whether the individual meets the
criteria of the particular rule of law in issue. That approach,
and in particular the recognition that it is not for the court to
determine criteria upon which a person should be treated as
being of one sex or the other for all purposes, is with respect
to be found clearly stated in the judgment of this court in
Bellinger ... In that context, it is important to be clear that
Goodwin decides that it will be a breach of Article 8, in cases
‘where there are no significant factors of public interest to
weigh against the interest of this individual applicant in
obtaining legal recognition of her gender re-assignment’, to
refuse to recognise that re-assigned gender … Accordingly,
in any case to which the Human Rights Act 1998 applies, it
will in future be necessary to consider whether a failure or
refusal to treat a post-operative transsexual as being of the
reassigned gender involves a breach of Article 8. Since the
application of Article 8 is case-specific, and does not confer
absolute rights, the court will have to consider in every case
whether the subject’s interest in achieving respect and
recognition for her gender re-assignment is outweighed by
countervailing considerations of the public interest.”

4.7 In May 2004 the House of Lords dismissed an appeal by the Chief
Constable of West Yorkshire Police. The House of Lords held
that a transsexual person who had undergone gender
reassignment surgery and lived as a member of the reassigned
gender was, for the purposes of employment, entitled to be
treated equally with non-transsexual members of that gender.
The principal judgements were those of Lord Bingham and
Baroness Hale.

4.71 Lord Bingham said that the Chief Constable rejected A's
application to become a police constable on grounds which were
in substance that in English domestic law A remained a man
despite the gender reassignment surgery she had undergone,
because her biological sex at birth was male and nothing that
happened thereafter could change it: see Corbett. The Chief
Constable concluded that as legally a man, A could not lawfully
search women pursuant to s. 54 of the Police and Criminal
Evidence Act and that as an apparent woman A could not in
practice search men pursuant to that Act. The Chief Constable
regarded it as necessary that a constable should be capable of
searching either men or women pursuant to s 54. In terms of

12 January 2005
 18

English domestic law the Chief Constable accepted that on the

grounds of her transsexuality he had treated A less favourably
than he would have treated a woman who was not transsexual.
But the Chief Constable claimed that it was a genuine
occupational qualification of a constable under the Sex
Discrimination Act 1975 to be capable of searching either men or
women under s 54 of the 1984 Act, and A could search neither.

4.72 Ms A relied on the law of the European Community and on a

European Community Directive prohibiting any "discrimination
whatsoever on grounds of sex either directly or indirectly". In P v.
S and Cornwall County Council – see para 5.2 below - the
European Court of Justice held in very clear and simple terms that
the Directive prohibited unfavourable treatment on grounds of
gender reassignment. The court adopted a similar approach in
KB v. National Health Service Pensions Agency – see para 5.7
below.

4.73 In Lord Bingham’s opinion, effect could be given to the clear thrust
of Community law only by reading ‘the same sex’ in s 54(9) of the
1984 Act, and ‘woman’, ‘man’ and ‘men’ in the relevant sections of
the Sex Discrimination Act, as referring to the acquired gender of
a post-operative transsexual who was visually and for all practical
purposes indistinguishable from non-transsexual members of that
gender. No one of that gender searched by such a person could
reasonably object to the search.

4.74 The conclusion was not intended to, and did not, derogate from
the decision of the House of Lords in Bellinger affirming the
decision in Corbett. The House did so in Bellinger because it
regarded the field of marriage as one calling for comprehensive
legislative reform and not piecemeal judicial development.

4.75 Baroness Hale focused on whether the Directive was to be

interpreted as requiring that trans people be recognized in their
reassigned genders. She said:

a) “In sex discrimination cases it is necessary to compare the

applicant's treatment with that afforded to a member of the
opposite sex. In gender reassignment cases it must be
necessary to compare the applicant's treatment with that
afforded to a member of the sex to which he or she used to
belong. Hence the Court of Justice observed that the
transsexual 'is treated unfavourably by comparison with
persons of the sex to which he or she was deemed to belong
before undergoing gender reassignment.' Thus, for the
purposes of discrimination between men and women in the
fields covered by the directive, a trans person is to be
regarded as having the sexual identity of the gender to which
he or she has been reassigned.”

12 January 2005
 19

4.76 The January 2004 decision of the European Court of Justice in KB

v. National Health Services Pension Agency – see para 5.7 below
– is of great significance to the interpretation of the Directive.
Baroness Hale commented:

“This decision confirms the right of the trans person to be

recognised in the reassigned gender, not only for the
purpose of the direct enjoyment of community rights, but also
for the purpose of the pre-conditions of such a right.”

“If in principle the trans partner of an employee must be

recognised in the reassigned gender for the purpose of death
benefits, the employee herself must in principle be
recognised in the reassigned gender for the purpose of
carrying out the duties of the post. This means that section
54(9) of PACE must be interpreted as applying to her in her
reassigned gender, unless, as was acknowledged in P v. S,
there are strong public policy reasons to the contrary. It is
difficult to argue that such public policy reasons existed in
this case even in 1998.”

4.77 Baroness Hale concluded her reasons for decision with the
following observations:

a) “In this case, however, Ms A has done everything that she

possibly could do to align her physical identity with her
psychological identity. She has lived successfully as a
woman for many years. She has taken the appropriate
hormone treatment and concluded a programme of surgery.
She believes that she presents as a woman in every
respect.”

b) “She meets entirely the plea of Advocate General Ruiz-

Jarabo Colomer in KB, at para 79:

‘Transsexuals suffer the anguish of being convinced

that they are victims of an error on the part of nature.
Many have chosen suicide. At the end of a long and
painful process, in which hormone treatment is followed
by delicate surgery, medical science can offer them
partial relief by making their external physical features
correspond so far as possible to those of the sex to
which they feel they belong. To my mind it is wrong that
the law should take refuge in purely technical
expedients in order to deny full recognition of an
assimilation which has been so painfully won’.”

c) “In my view community law required in 1998 that such a

person be recognised in her reassigned gender for the
purposes covered by the Equal Treatment Directive.”

12 January 2005
 20

EUROPEAN COURT OF HUMAN RIGHTS AND EUROPEAN COURT OF JUSTICE

5.1 In 1986 in Rees v. UK, a FTM post-operative transsexual, and in

1990 Cossey v. UK (1990), a post-operative MTF transsexual, the
European Court of Human Rights considered cases involving the
refusal of the Registrar-General to change the sex recorded on a
birth certificate. In both cases the Court recognised that the
requirement of respect for private and family life [Article 8 of the
ECHR] may also impose positive obligations on the state. The
lack of uniformity in relation to the rights of transsexuals gave
member states a wide margin of appreciation. The positive
obligations did not extend so far as the transsexual applicants
contended.

5.11 The Court allowed that great importance could be placed by the
Government on the historical nature of the birth record system.
The argument that allowing exceptions to this system would
undermine its function weighed heavily in the assessment.

5.12 In Cossey Judge Martens, in dissent, wrote:

a) “The principle which is basic in human rights and which

underlies the various specific rights spelled out in the
Convention is respect for human dignity and human freedom.
Human dignity and human freedom imply that a man should
be free to shape himself and his fate in the way that he
deems best fits his personality. A transsexual does use
those very fundamental rights. He is prepared to shape
himself and his fate. In doing so he goes through long,
dangerous and painful medical treatment to have his sexual
organs, as far as is humanly feasible, adapted to the sex he
is convinced he belongs to. After these ordeals, as a post-
operative transsexual, he turns to the law and asks it to
recognise the fait accompli he has created. He demands to
be recognised and to be treated by the law as a member of
the sex he has won; he demands to be treated, without
discrimination on the same footing as all other females, or as
the case may be, males. This is a request which the law
should refuse to grant only if it truly has compelling reasons.”

5.2 In 1996 the European Court of Justice in its decision in P v. S and

Cornwall County Council considered whether an Equal Treatment
Directive’s prohibition of sex discrimination extended to a post-
operative MTF transsexual. The Court answered that question in
the affirmative, “to tolerate such discrimination would be
tantamount, as regards such a person, to failure to respect the
dignity and freedom to which he or she is entitled, and which the
Court has a duty to safeguard.”

5.3 In a 1997 decision X, Y & Z the applicant, X, was a UK FTM

transsexual person. After treatment Y gave birth to Z. X was not

12 January 2005
 21

permitted to register as Z’s father and alleged a violation of Article

8. The European Court, taking into account the margin of
appreciation, found no breach of Article 8.

5.4 In 1998 the European Court of Human Rights considered

applications by Sheffield and Horsham against the UK. Both were
MTF, post-operative transsexual persons. In both cases the Court
held there had been no violation of Article 8 of the ECHR. Both
applications centred on the inability to obtain legal recognition of
the change of sex. The Court noted that while there had been no
significant scientific developments since Cossey – see above –
which made it possible to reach a firm conclusion on the etiology
of transsexualism there was increased social acceptance of
transsexualism and an increased recognition of the problems
which post-operative transsexuals encounter.

5.5 In July 2002 the European Court of Human Rights, decided in I v.

UK that a post-operative MTF transsexual had her right to respect
for private life breached by the failure to give legal recognition to
her post-operative sex.

5.51 The Court noted that it must have regard to the changing
conditions within the respondent State and within Contracting
States generally and respond, for example, to any evolving
convergence as to the standards to be achieved.

5.52 “As the applicant remains for legal purposes a male this has had
and continues to have effects on the applicant’s life where sex is
of legal relevance and distinctions are made between men and
women as in the area of pensions and retirement age.”

a) “It must also be recognised that serious interference with

private life can arise where the state of domestic law conflicts
with an important aspect of personal identity. The stress and
alienation arising from a discordance between the position in
society assumed by a post-operative transsexual and the
status imposed by law which refuses to recognise the
change of gender cannot, in the Court’s view, be regarded as
a minor inconvenience arising from a formality. A conflict
between social reality and the law arises which places the
transsexual in an anomalous position, in which he or she
may experience feelings of vulnerability, humiliation and
anxiety.”

b) “The Court is struck by the fact that gender reassignment

which is lawfully provided is not met with full recognition in
law, which might be regarded as the final and culminating
step in the long and difficult process of transformation which
the transsexual has undergone. Where a State has
authorised the treatment and surgery alleviating the condition
of a transsexual financed or assisted in financing the

12 January 2005
 22

operations and indeed permits the artificial insemination of a

woman living with a female-to-male transsexual it appears
illogical to refuse to recognise the legal implications of the
result to which the treatment leads.”

5.53 “There are no conclusive findings as to the cause of

transsexualism and, in particular, whether it is wholly
psychological or associated with physical differentiation in the
brain.”

a) “While it remains the case that a transsexual cannot acquire

all the biological characteristics of the assigned sex the Court
noted that with increasingly sophisticated surgery and types
of hormonal treatments, the principal unchanging biological
aspect of gender identity is the chromosomal element. It is
not apparent to the Court that the chromosomal element,
amongst all the others, must inevitably take on decisive
significance for the purposes of legal attribution of gender
identity for transsexuals.”

b) “The Court is not persuaded therefore that the state of

medical science or scientific knowledge provides any
determining argument as regards the legal recognition of
transsexuals.”

5.54 The Court noted that in Australia and NZ that the courts are
moving away from the biological birth view of sex and taking the
view that sex, in the context of a transsexual wishing to marry,
should depend on a multitude of factors to be assessed at the
time of the marriage.

a) “The Court is not convinced that the need to uphold rigidly

the integrity of the historic basis of the birth registration
system takes on the same importance in the current climate
as it did in 1986” – [see para 5.1 above].

5.55 “The unsatisfactory situation in which post-operative transsexuals

live in an intermediate zone as not quite one gender or the other is
no longer sustainable.”

5.56 “The Court finds that the respondent Government can no longer
claim that the matter falls within their margin of appreciation, save
as regards the appropriate means of achieving recognition of the
right protected under the Convention. Since there are no
significant factors of public interest to weigh against the interest of
this individual applicant in obtaining legal recognition of her
gender re-assignment, it reaches the conclusion that the fair
balance that is inherent in the Convention now tilts decisively in
favour of the applicant. There has, accordingly, been a failure to
respect her right to private life in breach of Article 8 of the
Convention.”

12 January 2005
 23

5.57 While it is less germane to the question of whether sex

discrimination includes discrimination based on gender dysphoria
or transsexualism it is worth noting that the Court went on to find
that the applicant’s right to marry [provided for in Article 12 of the
ECHR] was also breached. The Court concluded that while it is
for the Contracting State to determine, inter alia, the conditions
under which a person claiming legal recognition as a transsexual
establishes that gender reassignment has been properly effected
or under which marriages cease to be valid and the formalities
applicable to future marriages (including, for example, the
information to be furnished to intended spouses), the Court found
no justification for barring the transsexual from enjoying the right
to marry under any circumstances.

5.6 At the same time it handed down its reasons for decision in I v.
UK the European Court of Human Rights published its reasons for
decision in Goodwin v. UK. The applicant was a post-operative
MTF transsexual born in 1937. The applicant complained of
having to contribute to National Insurance until she was 65 (the
age men cease having to continue paying contributions) and
being ineligible for a pension until she was 65. She also
complained of other disadvantages suffered where she had to
produce a birth certificate but chose not to do so for reasons of
privacy.

5.61 The Court noted that the UK government have instituted plans to
eradicate the difference between men and women concerning age
of entitlement to State pensions. Equalisation of the pension age
is to begin in 2010 and it is anticipated that by 2020 the transition
will be complete.

5.62 For the same reasons set out in I v. UK the Court found that the
right to respect for private life was breached by the failure to give
legal recognition to her post-operative sex.

5.7 In January 2004 the European Court of Justice in KB v. National

Health Services Pension Agency ruled on a question forwarded to
it by the Court of Appeal for England and Wales concerning the
pension entitlements of a FTM transsexual partner of a female.
KB contended that the term widower must be interpreted as also
encompassing the surviving member of a couple, who would have
acquired the status of widower had his sex not resulted from
surgical gender reassignment.

5.71 The Court concluded that Article 141 of the European Community
Treaty in principle precluded legislation which prevented a woman
and her transsexual partner from fulfilling the marriage
requirement which had to be met for one of them to be able to
benefit from part of the pay of the other. Article 141 provides:
"Each member state shall ensure that the principle of equal pay
for male and female workers for equal work … is applied. For the

12 January 2005
 24

purpose of this article, ‘pay' means … any … consideration …

which the worker receives … in respect of his employment …"

5.72 KB had a long-standing relationship with a person born, and

registered as a woman, who after surgery had become a man but
had not been able to amend his birth certificate, since alteration of
the register was only possible for clerical or factual error, with the
consequence that, contrary to their wishes, the couple were not
able to contract a marriage that was valid. The applicant, who
works as a nurse was informed by her pension scheme that in the
event of her pre-deceasing her partner, the latter would not be
entitled to a survivor's pension, as such a pension was only
available to a surviving "spouse", i.e. a partner to a lawful
marriage. The applicant claimed that the relevant provisions
constituted sex discrimination contrary to, inter alia, Article 141.

5.73 The Court said that a survivor's pension under an occupational

pension scheme such as the pension scheme constituted "pay"
within Article 141. The facts of the case disclosed inequality of
treatment which, while not directly undermining enjoyment of a
right protected by Community law, involved a condition for the
grant of that right, namely the capacity to marry. The European
Court of Human Rights had held that the refusal of marriage
status to a transsexual who wished to marry a person of the sex to
which he or she had belonged prior to gender reassignment
surgery constituted a breach of the right to marry under Article 12
of the EHRC: see Goodwin v. United Kingdom above. Legislation
such as that in issue, which was in breach of the EHRC, was in
principle incompatible with Article 141. It was for the national
court to determine whether a person such as the applicant could
rely on Article 141 in order to gain recognition of her right to
nominate her partner as the beneficiary of a survivor's pension.

AUSTRALIA

Federal jurisdiction

6.1 In a 1991 decision the Administrative Appeals Tribunal in

Secretary, Department of Social Security v. HH upheld a decision
that a post-operative MTF transsexual person was a “woman” for
the purposes of obtaining a pension at age 60 rather than 65
years.

6.11 The majority of the Tribunal did not regard evidence of

chromosome constitution as decisive in determining the sex of the
respondent. It was merely one of the factors to be taken into
account.

12 January 2005
 25

6.12 The majority commented:

a) “Because society considers them crucial, factors other than a

person's psychological sex cannot be ignored. In fact, they
must be held to be controlling if overwhelmingly contrary to
the assumed sex role. Thus, a pre-operative MTF
transsexual would have to be classified according to his
anatomical sex. Society would consider a fully anatomical
male to be male regardless of a convincing feminine
appearance or the individual's inner beliefs. Society has a
rightful, dominant interest in seeing that the female
impersonator is legally considered just that - regardless of
motive. The dangers inherent in having a procreatively
functional male classified as a female are apparent. This is
not the case after sex reassignment surgery has been
performed. The individual procreatively is no longer of that
person's original sex; the person is sterile. Functionally the
person is a member of the ‘new’ sex. Likewise, the
secondary sex characteristics are those of the ‘new’ sex.
The anatomy now conforms to the psychological self-image.
The psychological test is appealing because it is at once
practical, realistic, and humane.”

b) “Australian society has permitted sex reassignment surgery

to take place. The law, in its turn, must acknowledge this
fact and accept the medical decisions which have been
made. It should also be borne in mind that such surgery is
irreversible. A requirement that reassignment surgery be
completed before the law recognises the reassigned sex of
an individual protects the public against possible fraud and
acknowledges that an irreversible medical decision has been
made affirming the patient's psychological sex choice.”

6.2 In 1993 the Federal Court of Australia in Secretary, Department of

Social Security v. SRA had to decide whether a pre-operative
MTF transsexual was qualified to receive a wife’s pension. The
applicant, SRA, satisfied the criteria for approval for reassignment
surgery but could not to pay for the surgery. The relevant
legislation defined wife as a female married person and married
person to include a de facto spouse and de facto spouse to mean
a person who is living with a person of the opposite sex, to whom
he or she is not legally married … in a marriage like relationship.

6.21 Chief Justice Black decided that there was no occasion to depart
from the ordinary meaning of the words. It would be going well
beyond the words used in the Act and it would be going well
beyond the ordinary meaning of the words in question to conclude
that a pre-operative MTF transsexual, having male external
genitalia, is a “woman” for the purposes of the Act and may be a
“wife” as that expression is defined in the Act. The language used

12 January 2005
 26

in the Act does not allow primacy to be given to psychological

factors and certainly not to the virtual exclusion of anatomical
factors.

a) “The conclusion is consistent with Harris (see para 7.1

below) where the Court expressly rejected the view that the
law should treat biological factors as entirely secondary to
psychological.”

b) “The judgements in Harris and Cogley (see para 7.3 below)

provide convincing reasons for rejecting the concept that
when the law speaks of male or female persons it
necessarily speaks on the footing that sex is unchangeable.
In considering the possible application of words such as
‘woman’ and ‘female’ to a post-operative MTF transsexual it
is appropriate to consider how the language has developed
in its application to transsexual persons.”

c) “Where through medical intervention a person born with the

external genital features of a male has lost those features
and has assumed, speaking generally, the external genital
features of a woman and has the psychological sex of a
woman, so that the genital features and the psychological
sex are in harmony, that person may be said, according to
ordinary English usage today, to have undergone a sex
change.”

d) “Whilst a pre-operative MTF transsexual cannot come within

the category of eligibility for a wife’s pension under the Act,
the respondent would have come within that category had
she successfully undergone the surgery.”

e) “The Tribunal considered a requirement that a person

undergo surgery before being eligible to receive benefits is
unduly onerous. Nevertheless a line is to be drawn
somewhere. Drawing the line by reference to what in
popular usage is called a ‘sex change operation’ or a ‘sex
change’ in circumstance that bring external genital features
into general conformity with a person’s psychological sex is
appropriate as a matter of statutory interpretation, and it is in
desirable conformity with the decision reached in Harris. A
line drawn where the usage of English of today would place it
also has the merit, in situations of this nature, of providing a
measure of certainty in an area where certainty is obviously
desirable.”

6.22 Justice Lockhart made the following statements in ruling against

SRA.

6.23 “Medical advances and other technical developments in the fields

of physiology and psychology have seriously challenged the

12 January 2005
 27

traditional assumptions that men and women are two rigidly

distinct sexes. In particular, the development of sexual
reassignment surgery and hormonal treatment has made it
possible to change essential physical and psychological
characteristics of persons to reassign them to the opposite sex.”

6.24 “A number of factors are generally considered relevant to the

determination of sex:

a) Chromosomal factors;

b) Gonadal factors (presence or absence of testes or ovaries);

c) Genital factors, including internal sex organs other than the

gonads (i.e. a uterus or sperm ducts);

d) Secondary sex characteristics (e.g. facial hair);

e) The sex of rearing (usually the sex assigned at birth) or the

sex on assignment;

f) Psychological factors, including the subjective condition of

sexual identity or sense of gender.

Any or all of these criteria may be used to test the sex of the
average person. In most cases all factors are in accord.”

6.25 “Countries that have recognised by legislation a transsexual’s

post-operative sex, though subject to compliance with varying
statutory requirements which in some cases include the necessity
of a court order are: Czechoslovakia [NB: Now 2 countries – the
Czech Republic and Slovakia], Finland, Greece, Holland, Italy,
Sweden, Switzerland and West Germany [NB – Now united with
East Germany]. In Norway, Poland and Portugal the post-
operative sex of transsexuals may be recognised upon
compliance with certain administrative procedures. In South
Australia the Sexual Reassignment Act provides for the
recognition by law of the reassigned sex of a person who has
undergone a reassignment procedure.”

6.26 “The growth of increasingly sophisticated surgical procedures and

medical techniques in the field of sexual reassignment and the
clear, though slowly developing, indications of changing social
attitudes towards transsexuals, necessarily lead to a rejection of
the legal status of transsexuals for which Corbett is the leading
authority. Harris and Cogley enabled those questions to be
considered for the purposes of the criminal law and they reflect a
compassionate and humane approach to the sensitivities of
human sexuality balanced against the need for reasonable
certainty in the criminal law.”

12 January 2005
 28

6.27 “Sex is not merely a matter of chromosomes, although

chromosomes are a very relevant consideration. Sex is also
partly a psychological question (a question of self perception) and
partly a social question (how society perceives the individual).”

6.28 “A woman or a female, as those terms are generally understood in

Australia today, includes a person who, following surgery, has
harmonised psychological and anatomical sex. A MTF
transsexual, following reassignment surgery, is a woman and a
female. Functionally she is a member of her new sex. She is
psychologically a woman, a person who is convinced that she is a
woman. A transsexual who has undergone successful sex
reassignment has an apparently normal female anatomy and she
will feel convinced that she belongs to her new sex and that she
has achieved an integrated identity by adopting the physical
characteristics of the female to her psychological nature.”

6.29 “Post-operative transsexuals should not be denied by society the

inner peace of life which is their right. R Green said in
‘Transsexualism and marriage‘: ‘What does it comfort any of us to
insist that an individual shall be a man, when for all the purposes
of ordinary life that individual can only be, and be recognised, as a
woman? What pride can there by for a law which vetoes the
attitudes dictated by ordinary humanity?’ ”

6.291 “The principal difficulty which I have in this case is to pass beyond
this point to the recognition of a pre-operative transsexual as
being a member of the adopted sex for the purposes of the law.
Such a person has not harmonised her anatomical sex and her
social sex; they are not in conformity. She still has the genitals of
a man. I realise that there are cases where a person has not
undergone such surgery for legitimate reasons, including its cost
or medical or psychological reasons which render them unfit for
the operation. Nevertheless the interests of society and the
individual must be balanced in the determination of the ordinary
meaning of the words with which this case is concerned and the
application of the facts to those meanings. The requirement of
reassignment surgery also has the benefit of society
acknowledging that an irreversible medical decision has been
made, confirming the person’s psychological attitude.”

6.292 “Where the psychological sex and the anatomical sex of a person
do not conform to each other it seems to me that the sex of a
person must be determined by the anatomical sex.”

6.293 “At the present time a change to the law of so fundamental nature
as this can only be achieved by Parliament. In my opinion, in
Australia today, the ordinary understanding of a woman or a
female does not include a transsexual who has not adopted the
anatomical features of the sex which he or she seeks to achieve
and thinks has been achieved.”

12 January 2005
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6.294 “I agree with the Tribunal that psychological sex is a critical

consideration, but it is not the only consideration. The other
criteria to which I referred earlier are also relevant and it is a
balancing exercise to determine the sex of the individual
concerned. Where the anatomical sex and the psychological sex
have not harmonised I cannot accept that such a person falls
within the ordinary meaning of the words ‘woman’ or ‘female’.”

6.295 “I reach this conclusion with regret. A transsexual who genuinely

regards himself or herself as having achieved the new sex must
find life extremely difficult. Judicial opinions in this area of the law
must be liberal and understanding, guided by the signposts of
what is in the best interests of society and the transsexual. They
do not conflict in the case of the post-operative transsexual, but in
my opinion the conflict still exists in the case of the pre-operational
transsexual.”

6.296 “If a post-operative transsexual is to be regarded for the purposes

of the criminal law and social welfare legislation as a person with
the new sex then the same conclusion should follow wherever
possible in other areas of the law to achieve consistency and
certainty.”

6.3 In 1999 the Federal Administrative Appeals Tribunal in SRDD v.

Secretary, Department of Family and Community Services had to
decide whether a MTF transsexual person, SRDD, who had been
living as a woman for more than 20 years, receiving female
hormone treatment during that time and had her testicles removed
was a woman for the purposes of social security law.

6.31 The Tribunal noted that the Federal Court in SRA adopted an
objective test which required three-step harmonising surgery to
complete the reassignment of male-to-female gender. The
Federal Court came to its conclusion principally on the basis of full
assignment surgery.

6.32 Given the decision in SRA the Tribunal considered that essentially
SRDD was a pre-operative transsexual. The Tribunal decided
that a eunuch is not a woman for the purpose of the Social
Security Act whatever status that person may have under other
legislation.

6.4 In E v. Minister for Health and Family Services a 1998 decision of

the Human Rights and Equal Opportunity Commission, E a pre-
operative MTF transsexual was regarded as a male for the
purposes of the complaint.

6.41 The Inquiry Commissioner had to consider whether E had been

discriminated against on the ground of sex by the failure of the
Minister for Health and the Government to make the drug
Androcur available to her under the Pharmaceutical Benefits

12 January 2005
 30

Scheme. Her complaint was that if she was regarded as a woman

the drug would be available to her under the scheme. She
complained of sex discrimination because as a male the drug was
not available to her. The Inquiry Commissioner decided that she
could not conclude that the Adrocur was equally safe and effective
for the treatment of men for the same disease as in the case of
women, that its denial to E for the treatment of adrogenisation,
was by reason of sex or that the circumstances of E are the same
as or not materially different from the case of a woman requiring
the drug.

6.5 In a 2001 decision of Re Kevin the Family Court of Australia had

to consider whether a post-operative FTM transsexual was a man
at the date of marriage. Prior to the marriage Kevin had
undergone hormone treatment and sexual reassignment surgery.
Prior to their marriage Kevin and his wife were accepted on an
IVF programme. Some 3 months after they were married they had
a baby boy.

6.51 At the date of marriage Kevin had a passport showing his sex as
male and he was treated as a man for a variety of legal and social
purposes.

6.52 Kevin argued that Corbett – paras 4.1 to 4.13 above – does not
represent Australian law. Regard could properly be had to other
matters than those indicated in Corbett, including psychological
aspects or “brain sex”, the person’s role in society, and the
consequences of medical reassignment. Having regard to those
matters, and to the ordinary contemporary meaning of “man”
Kevin should be held to have been a man at the date of the
marriage.

6.53 The Attorney-General contended that Corbett was correct. Since

Kevin at birth had female chromosomes, genitalia and gonads, for
the purposes of the law of marriage, he must be treated as a
woman, notwithstanding any facts relating to his psychology or
role in society, and notwithstanding that he had undergone sex
reassignment measures, including hormone treatment and
surgery.

6.54 Justice Chisholm held:

a) For the purpose of ascertaining the validity of the marriage

under Australian law, the question whether a person is a
man or a woman is to be determined as of the date of the
marriage.

b) There is no rule or presumption that the question whether a

person is a man or a woman for the purpose of marriage law
is to be determined by reference to circumstances at the time
of birth.

12 January 2005
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c) Unless the context requires a different interpretation, the

words “man” and “woman” when used in legislation have
their ordinary contemporary meaning according to Australian
usage. That meaning includes post-operative transsexuals
as men or women in accordance with their sexual
reassignment.

d) The rule that the parties to a valid marriage must be a man

and a woman, does not require any departure from ordinary
current meaning according to Australian usage of the word
“man”.

e) There may be circumstances in which a person who at birth

had female gonads, chromosomes and genitals, may
nevertheless be a man at the date of his marriage.

f) Kevin at birth had female chromosomes, gonads and

genitals, but was a man for the purpose of the law of
marriage at the time of his marriage, having regard to all the
circumstances and in particular the following:

(i) He had always perceived himself to be a male.

(ii) He was perceived by those who knew him to have had

male characteristics since he was a young child.

(iii) Prior to the marriage he went through a full process of

transsexual reassignment, involving hormone treatment
and irreversible surgery.

(iv) At the time of the marriage, in appearance,

characteristics, and behaviour he was perceived as a
man, and accepted as a man by his family, friends and
work colleagues.

(v) He was accepted as a man for a variety of social and

legal purposes, including name, and admission to an
IVF programme, and in relation to such events
occurring after the marriage, there was evidence that
his characteristics, at the relevant times, were no
different from his characteristics at the time of the
marriage.

(vi) His marriage as a man was accepted, in full knowledge

of his circumstances, by his family, fiends and work
colleagues.

6.6 The decision by Justice Chisholm was appealed by the

Commonwealth Attorney-General to the Full Family Court.

12 January 2005
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6.61 In 2003 the Full Family Court dismissed the Attorney-General's

appeal. In essence, the Court agreed with the reasoning and
findings of Justice Chisholm.

6.62 The Full Family Court found that Justice Chisholm was right to
find that the English case of Corbett is not the law in Australia and
that the meaning of 'man' in the Marriage Act 1961 includes a
post-operative transsexual person such as Kevin.

6.63 "[W]e think it plain that the social and legal institution of marriage
as it pertains to Australia has undergone transformations that are
referable to the environment and period in which the particular
changes occurred. The concept of marriage therefore cannot, in
our view, be correctly said to be one that is or ever was frozen in
time ... there is no historical justification to support … [counsel for
the Attorney-General's] contention that the meaning of marriage
should be understood by reference to a particular point in time in
the past, such as 1961 [when the Marriage Act was enacted by
the Commonwealth Parliament].”

6.64 The Full Family Court then dealt with an argument on behalf of the
Attorney-General that procreation is one of the essential purposes
of marriage, saying:

a) "It was argued that it follows from this that the biological
characteristics of a person are central to determining a
person's status as a man or a woman. It was put that the
historical importance of the sexual relationship in marriage
remains and that it is because of this significance that the
law continues to look to the physical attributes, and not the
psychological or social attributes, of a person. It is therefore
said that because of Kevin's biological inability to procreate,
the marriage to Jennifer could not be a valid marriage."

6.65 The Full Family Court rejected that argument, saying:

a) "Like the trial Judge, we reject the argument that one of the
principal purposes of marriage is procreation. Many people
procreate outside marriage and many people who are
married neither procreate, nor contemplate doing so. A
significant number of married persons cannot procreate
either at the time of the marriage or subsequently - an
obvious example being a post-menopausal woman.
Similarly, it is inappropriate and incorrect to suggest that
consummation is in any way a requirement to the creation of
a valid marriage. Subsequent to the passage of the
Marriage Act, inability to consummate a marriage ceased to
be a ground for making a declaration of nullity.” [The law in
NZ is the same as Australia on this point].

12 January 2005
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6.66 The Full Family Court next dealt with the argument on behalf of
the Attorney-General that the English decision in Corbett should
be followed in Australia and applied to the case of Kevin and
Jennifer. The Full Court concluded that:

a) " … The views of the majority of the [English] Court of

Appeal [in Bellinger] are of substantial persuasive
authority in this country, they do not bind us. Further,
there are significant issues in respect of which Bellinger
can be distinguished.

b) First, unlike England, Corbett has not been followed in

non-marriage cases and its reasoning has been
trenchantly criticised in Australian superior courts. In
Australia it can be said that it is somewhat incongruous
for post-operative transsexual people to be recognised
for the purposes of the criminal and social security laws
and not the marriage law. The argument for consistency
runs in the opposite direction in England.

c) Secondly … the evidence for the existence of 'brain sex'

was much stronger and was uncontroverted before
Chisholm J. We therefore think that on the evidence
before him, it was open for Chisholm J to accept, on the
balance of probabilities, that transsexualism is
biologically caused.

d) Once this is accepted, we think it difficult to distinguish

this case from the intersex cases such as W v. W.

e) Thirdly, it appears that the decision in Corbett received

some statutory recognition in England whereas it has
never received such recognition in Australia.

f) Fourthly, and most significantly in our view, procreative

sex is still relevant to marriage in England. In that
country an inability to consummate the marriage still
provides a ground for a decree of nullity. In Australia it
no longer does so. It is apparent that physical aspects
of sexuality played a considerable part in the reasoning
of Ormrod J in Corbett.

g) We have difficulty in understanding how the Corbett test

can continue to be applied in face of the evidence, not
only as to brain sex, but also as to the importance of
psyche in determining sex and gender. The fact that
these issues cannot be physically determined at birth
seems to us to present a strong argument: first, that a
child's sex cannot be finally determined at birth; and
secondly, that any determination at that stage is not and
should not be immutable."

12 January 2005
 34

6.67 In relation to W v. W the Full Family Court commented:

a) “The question immediately arises as to why this

principle does not extend to transsexual people;
particularly if, as Chisholm J found, brain sex is a
relevant factor in determining the issue. If it does not do
so, this leaves transsexual people as the only group
within the community that can never marry, except to a
person who is a member of what they regard as the
same sex as themselves. This is, of course, the reality
in the case of transsexual people who have had surgical
gender re-assignment, who can no longer function as a
member of the sex, the physical characteristics of which
they formerly had. However, beyond the facts of the
present case, it extends to all transsexual people for it
effectively limits their opportunities of marriage to a
person they regard as being of the same sex as
themselves.”

b) “It seems illogical that the courts can decide that

marriage can extend to intersex persons, who can
adopt the sex of their choice, but not to post-operative
transsexual people.”

c) “[I]f there is substance in the view that brain sex is one

of the most significant determinants of gender, then the
distinction between intersex and transsexual persons
becomes meaningless, and the view of Charles J
persuasive. This is because an intersex person
appears to be defined as someone with at least one
sexual incongruity. If brain sex can give rise to such an
incongruity then, legally, we think that there may be no
difference between an intersex person and a
transsexual person.”

6.68 As to the meaning of the term 'brain sex', the Full Family Court
had previously commented that it is:

a) " … a shorthand expression that refers to what is understood

as being the final stage of sexual differentiation in a
developing child's brain, following chromosomal
configuration, gonadal differentiation, and genital
differentiation. This theory was advanced in evidence by
Professor Gooren, Professor Diamond, Professor Walters
and Dr. Walker, and also discussed in detail in an article by
Zhou (and others) ["A Sex Difference in the Human Brain
and its relation to Transexuality" (1995) 378 Nature 68-70].
The relevance of this theory in relation to transsexual
persons is that the weight of medical opinion generally
agrees that in the instance of a transsexual person, that
individual is born with a brain that recognises him or herself

12 January 2005
 35

as a member of the sex opposite to that whose physiological

indicia he or she bears. The expert evidence before [Justice
Chisholm], which he accepted, was that this was probably of
biological origin within the brain."

6.69 The Full Family Court agreed with Lord Justice Thorpe in Bellinger
who rejected the Corbett test when he said:

"To make the chromosomal factor conclusive, or even

dominant, seems to me particularly questionable in the
context of marriage. For it is an invisible feature of an
individual, incapable of perception or registration other than
by scientific test. It makes no contribution to the
physiological or psychological self. Indeed in the context of
the institution of marriage as it is today it seems to me right
as a matter of principle and logic to give predominance to
psychological factors just as it seems right to carry out the
essential assessment of gender at or shortly before the time
of marriage rather than at the time of birth."

6.691 Counsel for the Attorney-General further argued that it is not

appropriate for a Court to give an interpretation to a word or
concept (such as 'man') that does not reflect the clear
understanding of Parliament at the time of the enactment of the
original legislation. The Full Family Court did not accept this
argument. It preferred the argument of the Human Rights and
Equal Opportunity Commission that the Court should be slow to
adopt a restrictive interpretation of the Marriage Act which would
have such a discriminatory effect, in circumstances where there is
no clear expression of a legislative intention to adopt such a
restrictive approach.

6.692 The Full Family Court noted that the case did not require it to
decide how a case would be decided where the transsexual
person had not had the extensive medical intervention undergone
by Kevin. Its comments are worth noting:

a) “This leaves the more difficult question of the position of

pre-operative transsexual persons. As we have said,
this case does not require us to determine this question.
In all of the decided cases to which we have referred
their position has been distinguished from post-
operative transsexual persons and comments have
been made to the effect that this is a matter for
Parliament to determine.”

b) “A question arises as to whether the Courts can

logically maintain that the position of post-operative
transsexual persons is a matter for them but that of pre-
operative transsexual persons is one for Parliament.
This has the effect of leaving such persons as the only

12 January 2005
 36

persons in the community who are prevented from

marrying a person who they legitimately regard as a
person of the opposite sex, while remaining free to
marry a person of their own sex.”

c) “The reluctance of Courts to enter this area seems to be

based upon something of the same logic as that of
Corbett, namely an inability to be able to make a
physical or scientific examination in order to determine
the sex of a person.”

d) “Mr Basten's oral submissions [counsel for HREOC]

were relevant to this issue. He said:

‘ ... we would say that the actual nature of the

surgical intervention and its achievements may be
a factor that could be taken into account - we don't
suggest it's irrelevant - but it is not a factor which
will be determinative in all cases and may not be of
great importance, at all, in some cases.’

He then highlighted that the direction of transition (male

to female in contrast with female to male) may give rise
to different considerations:

‘ ... in the circumstances of this case, it is worth

accepting that surgical intervention in relation to
the removal of gonads maybe relatively straight
forward, surgical intervention for a MTF
transsexual person in relation to the construction
of a vagina may be common place, surgical
intervention which requires the construction of a
penis is much more problematic and even where it
takes place may or may not give rise to something
which would be readily accepted as a penis of a
sexual kind which has a particular sexual
function’.”

6.7 In Re Alex, decided in April 2004, the Family Court of Australia

approved an application brought on behalf of a 13YO FTM
transsexual person to authorise medical treatment involving the
administration of hormonal therapies until he reaches the age of
18. The then Chief Justice of the Court, Nicholson CJ, sitting as a
trial judge decided that it was in Alex's best interests that he
should authorise both reversible and irreversible hormonal
therapies. While the case does not deal with issues of sex
discrimination there are aspects of it which are relevant to the
issue of whether a requirement for surgery should be
determinative of the gender the law will regard the person as
having.

12 January 2005
 37

6.71 In the course of his decision Nicholson CJ discussed statutory

requirements relating to the change of sex on a birth certificate.
Nicholson CJ noted that surgery is not a pre-requisite in Western
Australia or South Australia. Surgery is required in New South
Wales, the Northern Territory, the Australian Capital Territory,
Tasmania and Queensland. He commented:

a) “I consider it is a matter of regret that a number of Australian

jurisdictions require surgery as a pre-requisite to the
alteration of a transsexual person's birth certificate in order
for the record to align a person's sex with his/her chosen
gender identity. This is of little help to someone who is
unable to undertake such surgery.”

b) “A requirement of surgery seems to me to be a cruel and

unnecessary restriction upon a person's right to be legally
recognised in a sex which reflects the chosen gender identity
and would appear to have little justification on grounds of
principle.”

c) “The requirement of prior surgery in order to establish the

fact that a person is a man for the purposes of a valid
marriage was questioned in Re Kevin – see para 6.61 above.
The Full Court there also noted the submission of [HREOC]
that the efficacy of surgical intervention is more problematic
where the transition is from female to male. Senior Counsel
for [HREOC] in that case said:

‘ … in the circumstances of this case, it is worth

accepting that surgical intervention in relation to the
removal of gonads maybe relatively straight forward,
surgical intervention for a male to female transsexual
person in relation to the construction of a vagina may be
common place, surgical intervention which requires the
construction of a penis is much more problematic and
even where it takes place may or may not give rise to
something which would be readily accepted as a penis
of a sexual kind which has a particular sexual function’.”

d) “If one accepts such a submission, a requirement of surgery

is not only generally inconsistent with human rights. The
requirement is more disadvantageous and burdensome for
people seeking legal recognition of their transition from
female to male than male to female. Expressed in this way,
there is an additional objection to surgery as a pre-requisite;
the requirement of surgery is a form of indirect
discrimination.”

6.72 Nicholson CJ said that he agreed as a matter of general principle

with some of the submissions made by HREOC. HREOC
contended that:

12 January 2005
 38

“There is no single definition of ‘transgender identity’ but

referring to the NSW Anti-Discrimination Act noted that the
definition if transgender person in the Act included a person
‘who identifies as a member of the opposite sex by living, or
seeking to live as a member of the opposite sex.’ HREOC
described the definition as ‘inclusive’ in the sense that it is
not restricted to persons who have undergone or wish to
undergo medical or surgical treatment to reassign their
gender. An ‘inclusive’ definition is to be preferred to a
definition that draws a distinction between transgender
persons who have undergone medical or surgical treatment
and these who have not. Such a definition would be in
keeping with the sentiment expressed by the Full Family
Court in Re Kevin (of which Nicholson CJ was a member)
where the court termed a rhetorical question as to why
surgery should be a pre-requisite to establish the fact of a
change of sex.”

6.8 In 2001 the Commonwealth Crimes Act was amended so that

certain provisions relating to females are extended to include, “a
transgender person who identifies as a female.”

New South Wales

7.1 In a 1988 decision in R v. Harris & McGuiness a majority of the

NSW Court of Criminal Appeal adopted the formulation of the New
Jersey Superior Court in MT v. JT (see para 10.1 below). The
Court noted that as a more compassionate, tolerant attitude to the
problem of human sexuality emerges amongst the civilised
nations of the world the founding of that decision on clinical
factors present at birth has come under increasing criticism. The
Court held that a post-operative MTF transsexual was not a man
for the purpose of the particular offence that was charged. The
Court also held that a pre-operative MTF transsexual was a male.

7.11 The Court decided that in determining the issue of sex it was
necessary to add to the 3 criteria set out in Corbett another
criterion:

a) “Whether through medical intervention or otherwise, the

person has assumed the external genital features of the
opposite sex, thereby bringing those genital features into
conformity with the person’s psychological sex.”

7.2 If someone lives, has lived, or wants to live as a member of the

opposite sex to their birth sex the NSW Anti-Discrimination Act
counts them as a transgender person. This means you can be
considered as a transgender person if:

• You want to live as a member of your preferred sex; or

12 January 2005
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• You are in the process of changing over into your preferred

sex; or

• You live as a member of your preferred sex; or

• You have lived as a member of your preferred sex in the

past; or

• You are intersexed and you live as a member of your

preferred sex.

It is not necessary to have had any “sex change” or other surgery.

Victoria

7.3 In 1989 the Supreme Court of Victoria in R v. Cogley the issue

was whether a charge of assault on a post-operative MTF
transsexual could be sustained. It was argued that the
complainant was a male and not a female. The trial judge ruled
that the law should regard as a woman a MTF transsexual where
core identity is established (i.e., the psychological personality or
character of the person concerned) and where sexual
reassignment surgery has taken place.

7.31 A subsequent appeal was dismissed but the Court of Criminal

Appeal noted that the judge had erred in finding that the
complainant was a woman because sexual identity is a matter of
fact which should have been decided by the jury and not by the
judge.

7.4 In 2001 the Victorian Civil and Administrative Tribunal considered

a complaint by Sharon Menzies, a post-operative MTF
transsexual, of discrimination in employment based on
transsexualism. The Tribunal considered whether transsexualism
was covered by the attributes of “sex”, “physical features” and /or
“impairment”.

7.41 The Tribunal dismissed the complaint in so far as it relied on the

attributes of sex and/or physical features. It is of interest that
when the complaint was made to the Equal Opportunity
Commission it declined to entertain the complaint so far as it was
based on the attribute of sex.

7.42 The Tribunal decided that sex in the EO Act has the
straightforward meaning of the state of being male or the state of
being female. The attribute of sex is included in the EO Act to
prohibit discrimination on the basis of a person being a male or on
the basis of a person being a female. This means that
transsexualism is not covered by the attribute of sex because
transsexualism is the condition of one who firmly believes that he
or she belongs to the opposite sex to his or her biological gender.

12 January 2005
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7.43 The Tribunal decided the concept of transsexualism was not

encompassed by the attribute of physical features. Physical
features were defined in the Act as meaning a person’s height,
weight, size or other bodily characteristics.

7.44 The relevant part of the definition of impairment was “malfunction

of a part of the body, including – a mental or psychological
disease or disorder.”

7.45 Given the definition of impairment and bearing in mind the

dictionary definitions of the key terms, the Tribunal reached a
preliminary view that transsexualism amounts to a failure by a part
of the body to function properly, and that the failure has a mental
component. A transsexual has the physical body of one sex but
considers they are truly of the opposite sex, and so firmly is this
conviction held that the person may take significant steps
including surgery, to try and mend the dissonance between mind
and body.

7.46 The Tribunal considered the evidence of Dr Bower, a psychiatrist

associated with the Gender Dysphoria Clinic of the Monash
Medical Centre. Dr Bower emphasised that transsexualism is a
biological disorder. He said that to describe gender identity as a
biological disorder does not mean that it is not properly
characterised as a mental disorder. Any disorder involving an
abnormality in behaviour, i.e. a divergence from normal, can be so
characterised as there is a mental manifestation of the disorder.

7.47 The essence of Dr Bower’s evidence was that transsexualism had

a biological basis; that biological factors affected Sharon
Menzies’s mental processes so that she had a deeply-held belief
that despite being a male physically, she was more truly a person
of the female sex; and that she had no mental or psychological
disease or disorder of the kinds regularly seen by psychiatrists
(such as schizophrenia or a depressive disorder). The Tribunal
understood Dr Bower to be saying that a person such as Sharon
Menzies functions normally, save for a deeply-held belief which
defies logic – and which the transsexual knows defies logic – that
the person’s sex is really the opposite of that represented by the
person’s physical body.

7.48 When asked if a person ceases to be a transsexual if the person

goes through the Clinic’s programme, including gender
reassignment surgery, Dr Bower said that:

a) “My own feeling is that he or she ceases to be transsexual

and is now a person of the opposite gender … In my opinion
the disorder no longer exists … The belief in terms of gender
identity disorder is really a lack of synchronism between the
gender identity of that person and sexual organs. There is a
lack of synchronism. That synchronism has then been

12 January 2005
 41

established. In other words, the person, the male to female

says, I feel I’m a female and the person now has female
genital organs so from disorder or asynchronism we have
turned to synchronism.”

7.49 “On Dr Bower’s evidence, the condition has a biological basis

resulting in a lack of synchronism between the psychological
gender identity of the person and the person’s physical gender.
There is, in other words, a biological malfunction in a transsexual
person and the malfunction has psychological manifestations.”

7.491 “Does transsexualism constitute a ‘malfunction of a part of the

body?’ In the Tribunal’s view, bearing in mind the evidence of Dr
Bower that transsexualism is a disorder with a biological basis, the
answer is yes. In a transsexual person, there is a failure of a part
of the body to function normally as the essence of the condition is
dissonance or maladjustment between the person’s sex as
apparent from their physical body, and the person‘s sense of
sexual identity.”

7.492 “Dr Bower’s evidence was that transsexualism has a biological

basis that produces a psychological manifestation, that is, a firmly-
held belief on the part of a transsexual that he/she is really of the
opposite sex to that represented by his/her body. This amounts to
a mental or psychological disorder within the meaning of those
words in the definition of impairment.”

7.493 “Transsexualism is included in the DSM - IV. Given this, there is

congruence between the ordinary meaning of ‘mental disorder’ in
the context of the words ‘ … including a mental or psychological
disease or disorder’ – that is, that ‘mental disorder’ includes
transsexualism – and the psychiatric meaning of ‘mental disorder’
– that is, that the term also includes transsexualism.”

7.494 The Tribunal found that the condition of transsexualism amounts

to a “malfunction of a part of the body” in the definition of
“impairment”. The Tribunal also found that the condition of
transsexualism is “a mental or psychological disorder.”

7.5 In October 2000 the Victorian Equal Opportunity Act was

extended to introduce the attribute of gender identity to protect
against discrimination those people whose gender identity does
not match their sex at birth. Gender identity was used in the Act
as the amendment was designed not only to protect transgender
people but also people born of indeterminate sex.

Queensland (Qld)

8.1 In 1996 a member of the Qld Anti-Discrimination Tribunal, C E

Holmes, provided an opinion on whether the Qld Anti-

12 January 2005
 42

Discrimination Act provides protection against discrimination to

transgender persons.

8.11 C E Holmes noted that South Australia, the Australian Capital

Territory and the Northern Territory all had equivalent legislation
which proscribed discrimination on the ground of transsexuality.

8.12 The Qld Act contained three attributes upon which discrimination
is prohibited which were of relevance:

• Sex;

• Lawful sexual activity;

• Impairment.

8.13 C E Holmes opined that on any sensible construction of sex or

sexual they can not be said to include the process or fact of
change from one gender to the other, whether by assumption of
its characteristics or surgical intervention.

8.14 “If a transgender individual were discriminated against on the

ground of either his or her natal or on the ground of his or her
assumed gender, the Act would apply; e.g.; if a MTF post-
operative transgender were discriminated against in what would
be her female capacity the Act would apply as it would for any
woman. If a pre-operative MTF transgender were discriminated
against because of a perception that she was female the Act
would apply because the assumption that they were female would
suffice to constitute the attribute the subject of discrimination.”

8.15 “There is no protection where discrimination occurs because of

the very change from sex to sex itself. The Act does prohibit
discrimination on the basis of an attribute that a person had, even
if he or she did not have it, at the time of the discrimination.”

8.16 “In the instance where there was resistance to continued

employment of a person because of the very fact of their sex
change rather than because of their previous life as a man or their
current life as a woman I do not think that the attribute of sex can
be so broadly interpreted as to afford protection.”

8.17 “On any common sense, everyday approach to the meaning of the
term ‘lawful sexual activity’ it does not extend to include the
process of change between genders.”

8.18 “ ‘Impairment’ is defined to include a ‘condition, illness or disease

that impairs a person’s thought processes, perception of reality,
emotions or judgement, or that results in disturbed behaviour.’
Given the inclusion of gender identity disorder as a disorder in the
DSM–IV I think it can be regarded as a condition. Whether it has

12 January 2005
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any of the effects specified, i.e. impairment of thought processes

etc etc is obviously a question of fact in any case. It by no means
follows that the condition would have any such consequences at
all. If the fact of being transgender did lead in a given individual to
impairment of intellectual processes or disturbed behaviour,
discrimination on that basis would be unlawful.”

8.19 “The other possible occasion for protection of transgender in

connection with the impairment attribute would arise where a
transgender was presumed to suffer from an impairment because
of the fact of being a transgender. If that were to lead to
discrimination the person discriminated against on that basis
would be able to seek redress under the Act.”

8.191 “There is no protection afforded by the Act where discrimination

occurs on the basis of transgenderism per se, i.e. it is not
presently unlawful under the Act to discriminate against a person
purely on the ground of their having changed their sexual identity
from one gender to another.”

UNITED STATES OF AMERICA

Federal jurisdiction

9.1 The Americans with Disabilities Act expressly excludes

transsexualism as a covered disability.

9.2 Title VII of the Civil Rights Act provides it shall be an unlawful
employment practice for an employer to discharge an individual
because of the individual’s sex.

9.21 The scope of the term “sex” in Title VII was initially interpreted by
Federal Courts to not include transsexualism. Federal Courts
initially adopted the approach that sex is distinct from gender, and,
as a result, held that Title VII barred discrimination based on the
former but not on the latter. Discrimination against transsexuals
was on basis of "gender" rather than "sex". A Federal court held,
that "[t]he term ‘sex' in Title VII referred to an individual's
distinguishing biological or anatomical characteristics, whereas
the term ‘gender' referred to an individual's sexual identity," or
socially-constructed characteristics.

9.22 MTF transsexuals, as anatomical males whose outward behaviour

and inward identity did not meet social definitions of masculinity,
were denied the protection of Title VII by these courts because
they were the victims of gender, rather than sex, discrimination.

9.3 In 1984 in its decision in Ulane v. Eastern Airlines Inc the US

Court of Appeal, Seventh Circuit, considered whether a post-
operative MTF transsexual person had been discharged from
employment in violation of Title VII of the Civil Rights Act. The

12 January 2005
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Court held that Title VII did not protect transsexuals. Sex as used
in Title VII means biological male or biological female sex – it
does not protect a person born with a male body who believes
himself to be female or a person born with a female body who
believes herself to be male. If any new definition was to emerge it
must be from Congress.

9.4 The initial judicial approach taken in cases was overruled by the
logic and language of Price Waterhouse v. Hopkins a 1989
decision of the Supreme Court. The Supreme Court held that
Title VII barred not just discrimination based on the fact that
Hopkins was a woman, but also discrimination based on the fact
that she failed "to act like a woman"--that is, to conform to
socially-constructed gender expectations. Hopkins did not wear
makeup or dress femininely.

9.5 Schwenk v. Hartford a 2000 decision of US Court of Appeals for

the Ninth Circuit involved a case brought by Douglas Schwenk, a
pre-operative MTF transsexual person, known as Crystal Marie.
Schwenk was a prisoner in all-male penitentiary. She complained
of an attempted rape by a prison guard. It was alleged that her
rights under the Gender Motivated Violence Act (GMVA) had been
breached. The guard asserted that Schwenk's allegations did not
constitute a claim that the attack was based on gender, as
required by the statute, but rather on transsexuality. Therefore,
he reasoned, the requisite gender motivation was absent.

9.51 The Court rejected the argument saying:

a) “We therefore decline to give the term ‘gender,’ as used in

the GMVA, a narrow interpretation that would exclude all
those, like Schwenk, who do not conform to socially-
prescribed gender expectations.”

b) “What matters, for purposes of this part of the Price

Waterhouse analysis, is that in the mind of the perpetrator
the discrimination is related to the sex of the victim: here, for
example, the perpetrator's actions stem from the fact that he
believed that the victim was a man who ‘failed to act like’
one. Thus, under Price Waterhouse, ‘sex’ under Title VII
encompasses both sex - that is, the biological differences
between men and women - and gender. Discrimination
because one fails to act in the way expected of a man or
woman is forbidden under Title VII. Accordingly, the
argument that the GMVA parallels Title VII and applies only
to sex is in part right and in part wrong. The GMVA does
parallel Title VII. However, both statutes prohibit
discrimination based on gender as well as sex. Indeed, for
purposes of these two acts, the terms ‘sex’ and ‘gender’
have become inter-changeable.”

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9.6 On 1 June 2004 the 6th US Circuit Court of Appeals in Smith v.

City of Salem, Ohio ruled that Title VII protects trans people and
that the sex-stereotyping doctrine enunciated in Price Waterhouse
covers people who change their sex.

9.61 Smith contended that he was a victim of discrimination “because

of . . . sex” both because of his gender non-conforming conduct
and, more generally, because of his identification as a
transsexual. Smith claimed that the discrimination he experienced
was based on his failure to conform to sex stereotypes by
expressing less masculine, and more feminine mannerisms and
appearance. The Court found both bases of discrimination
actionable pursuant to Title VII.

9.62 The Court made the following points of interest:

a) In Price Waterhouse the Supreme Court decided that Title

VII barred not just discrimination because Hopkins was a
woman, but also sex stereotyping – that is, discrimination
because she failed to act like a woman.

b) As Judge Posner has pointed out, the term “gender” is one

“borrowed from grammar to designate the sexes as viewed
as social rather than biological classes.”

c) The Supreme Court made clear that in the context of Title

VII, discrimination because of “sex” includes gender
discrimination: “In the context of sex stereotyping, an
employer who acts on the basis of a belief that a woman
cannot be aggressive, or that she must not be, has acted on
the basis of gender.”

d) By holding that Title VII protected a woman who failed to

conform to social expectations concerning how a woman
should look and behave, the Supreme Court established that
Title VII’s reference to “sex” encompasses both the biological
differences between men and women, and gender
discrimination, that is, discrimination based on a failure to
conform to stereotypical gender norms.

e) After Price Waterhouse, an employer who discriminates

against women because, for instance, they do not wear
dresses or makeup, is engaging in sex discrimination
because the discrimination would not occur but for the
victim’s sex. It follows that employers who discriminate
against men because they do wear dresses and makeup, or
otherwise act femininely, are also engaging in sex
discrimination, because the discrimination would not occur
but for the victim’s sex.

12 January 2005
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f) As such, discrimination against a plaintiff who is a

transsexual – and therefore fails to act like and/or identify
with the gender norms associated with his or her sex – is no
different from the discrimination directed against Ann
Hopkins in Price Waterhouse, who, in sex-stereotypical
terms, did not act like a woman. Sex stereotyping based on
a person’s gender non-conforming behaviour is
impermissible discrimination, irrespective of the cause of that
behaviour; a label, such as “transsexual,” is not fatal to a sex
discrimination claim where the victim has suffered
discrimination because of his or her gender non-conformity.

g) Even if Smith had alleged discrimination based only on his

self-identification as a transsexual – as opposed to his
specific appearance and behavior – this claim too is
actionable pursuant to Title VII. By definition, transsexuals
are individuals who fail to conform to stereotypes about how
those assigned a particular sex at birth should act, dress,
and self-identify. Ergo, identification as a transsexual is the
statement or admission that one wishes to be the opposite
sex or does not relate to one’s birth sex. Such an admission
– for instance the admission by a man that he self-identifies
as a woman and/or that he wishes to be a woman – itself
violates the prevalent sex stereotype that a man should
perceive himself as a man. Discrimination based on
transsexualism is rooted in the insistence that sex (organs)
and gender (social classification of a person as belonging to
one sex or the other) coincide. This is the very essence of
sex stereotyping. Accordingly, to the extent that Smith also
alleges discrimination based solely on his identification as a
transsexual, he has alleged a claim of sex stereotyping
pursuant to Title VII.

New Jersey

10.1 In 1976 the Appellate Division of the Superior Court of New

Jersey in MT v. JT disagreed with the conclusion reached in
Corbett that, “sex is somehow irrevocably cast at the moment of
birth, and that for adjudging the capacity to enter marriage, sex in
its biological sense should be the exclusive standard.” The Court
commented:

a) “Evidence and authority which we have examined, however,

shows that a person’s sex or sexuality embraces an
individual’s gender, that is, one’s self-image, the deep
psychological or emotional sense of sexual identity and
character.”

10.11 The case concerned a post-operative MTF transsexual person.

The Court attached great significance to the sexual reassignment
surgery:

12 January 2005
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a) “If such sex reassignment surgery is successful and the

postoperative transsexual is, by virtue of medical treatment,
thereby possessed of the full capacity to function sexually as
male or female, as the case may be, we perceive no legal
barrier, cognizable social taboo, or reason grounded in public
policy to prevent the persons identification at least for
purposes of marriage to the sex finally indicated.”

b) “Recognition will promote the individual’s quest for inner

peace and personal happiness, while in no way disserving
any societal interest, principle of public order or precept of
morality.”

10.2 In a 2001 decision in Enriquez v. West Jersey Health Systems the

New Jersey Superior Court, Appellate Division decided that a
transgender physician may pursue sex and disability claims
against a former employer that terminated her when she began to
undergo the process of sex reassignment.

Texas

11.1 In 1999 the Texas Court of Appeals in Littleton v. Prange ruled

that a transsexual person who had gone through a marriage
ceremony was not the deceased partner’s surviving spouse for
the purpose of a wrongful death and survival statute.

11.11 The Court found that even though surgery and hormones can
make a transsexual male look like a woman, including female
genitalia:

a) “Transsexual medicine does not create the internal sex

organs of a woman (except for a man-made vaginal canal).
There is no womb, cervix, or ovaries in the post-operative
transsexual female. The chromosomes do not change.
Biologically, the post-operative female is still a male.”

New York

12.1 In 1966 the New York Appellate Court in Anon v. Weiner

considered a challenge by a post-operative MTF transsexual who
had sought a new birth certificate which was denied on the basis
that sex cannot be changed by surgery. The Court ruled that the
decision maker did not act in an arbitrary, capricious or otherwise
illegal manner.

12.2 In 1968 in Re Anonymous Judge Pecora of the Civil Court of the

City of New York considered an application by a post-operative
MTF transsexual to change her name and sex on her birth
certificate. The Court found it lacked jurisdiction in relation to sex
but made some pertinent comments.

12 January 2005
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12.21 The judge observed that where there is disharmony between the
psychological sex and the anatomical sex, the social sex or
gender of the individual will be determined by the anatomical sex.
Where, however, with or without medical intervention, the
psychological sex and the anatomical sex are harmonised, then
the social sex or gender of the individual should be made to
conform to the harmonised status of the individual and, if such
conformity requires changes of a statistical nature, then such
changes should be made. Of course, such changes should be
made only in those cases where physiological orientation is
complete.

12.22 The judge noted that it had been stated that MTF transsexuals are
still chromosomally males while ostensibly females.

a) “Nevertheless, should the question of a person’s identity be

limited by the results of mere histological section or
biochemical analysis, with a compete disregard for the
human brain, the organ responsible for most functions and
reactions, many so exquisite in nature, including sex
orientation? I think not.”

12.3 In 1971 in Anonymous v. Anonymous a New York court had to

consider whether a marriage between a man and a pre-operative
MTF transsexual was valid. Subsequent to the marriage the wife
underwent sex change operations. The Court ruled the marriage
a nullity as it had been contracted between persons of the same
sex. Validity of the marriage had to be determined at the date of
the marriage.

12.4 In 1974 in B v. B a New York court had to consider whether a

marriage between a woman and a FTM transsexual who had had
a mastectomy and a hysterectomy was valid. The Court held that
while it was possible that the defendant may function as a male in
other situations and in other relationships, the defendant could not
function as a husband by assuming male duties and obligations
inherent in the marriage relationship, as he did not have a penis.

12.5 In 1977 a post-operative MTF transsexual, Renee Richards was

barred from playing in the US Women’s Open Tennis
Championship. The US Tennis Association applied a
chromosome test to determine sex. It was obvious such a test
had been applied in order to exclude Richards. The Supreme
Court of New York expressed its concern about the discriminatory
application of the test deliberately for the purpose of excluding
her. The Court expressed its view that the overwhelming medical
evidence was that Richards was now a female. The Court
indicated that the chromosome test should not be the sole
criterion upon which a sex determination is made.

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12.6 In Maffei v. Kolaeton Industry, Inc a 1995 decision of a New York

state court Daniel Maffei, a FTM transsexual person, complained
under New York City law which prohibited discrimination in
employment because of gender. Judge Lehner ruled in her favour
that gender discrimination applied to a transsexual man. He said:

a) “Our New York City law is intended to bar all forms of

discrimination in the workplace and to be broadly applied.
Accordingly, I find that the creation of a hostile work
environment as a result of derogatory comments relating to
the fact that as a result of an operation an employee
changed his or her sexual status creates discrimination
based on ‘sex’, just as would comments based on the
secondary sexual characteristics of a person. For example,
an employer who continually made derogatory comments
regarding an employee's breasts could clearly be found to be
in violation of the law's provisions against sexual harassment
... Thus, an employer who harasses an employee because
the person, as a result of surgery and hormone treatments, is
now of a different sex has violated our City prohibition
against discrimination based on sex. In other words, an
employee who has fulfilled a sexual identity urge by
changing sex and is harassed because of such fulfillment is
entitled to the law's protection against employer
harassment.”

b) “In the complaint plaintiff alleges that he is now a male based

on his identity and outward anatomy. Being a transsexual
male he may be considered part of a subgroup of men.
There is no reason to permit discrimination against that
subgroup under the broad antidiscrimination law of our City.”

Kansas

13.1 The appellate courts of Kansas have twice considered the validity
of a marriage of a post-operative MTF transsexual J Noel
Gardiner. In a 2001 decision the Court of Appeals decided that
the District Court should not refer to chromosomes as the
exclusive factor in determining sex. The trial court was directed to
consider factors in addition to chromosome make up, including;
gonadal sex, internal morphologic sex, external morphologic sex,
hormonal sex, phenotypic sex, assigned sex and gender of
rearing, and sexual identity. In addition the listed criteria should
not preclude the consideration of other criteria as science
advances.

13.11 The Court of Appeals was asked to rule that the marriage
between the post-operative MTF transsexual, J Noel Gardiner,
and Marshall Gardiner was void as same sex marriages are
prohibited by Kansas law.

12 January 2005
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13.12 The Court observed that if one concludes that chromosomes are
all that matter and that a person born with “male” chromosomes is
and evermore shall be male, then one must confront every
situation which does not conform with such a rigid framework of
thought. There are situations of ambiguity in which certain
individuals have chromosomes that differ from the typical pattern.
The questions which must be asked, if not answered, are: “Are
these people male or female?” and, “Should they be allowed to
get married?”

13.13 The Court referred to an article by Professor Julie Greenberg from

the Thomas Jefferson School of Law, San Diego entitled,
“Defining male and female: Intersexuality and the collision
between law and biology.” In her article Professor Greenberg
stated:

“Medical experts recognise that many factors contribute to

the determination of an individual’s sex. According to
medical professionals, the typical criteria of sex include:

a) Genetic or chromosomal sex – XY or XX;

b) Gonadal sex (reproductive sex glands) – testes or

ovaries;

c) Internal morphologic sex (determined after 3 months

gestation) – seminal vesicles/prostate or
vagina/uterus/fallopian tubes;

d) External morphologic sex (genitalia) – penis/scrotum or

clitoris/labia;

e) Hormonal sex – androgens or estrogens;

f) Phenotypic sex (secondary sexual features) – facial and

chest hair or breasts;

g) Assigned sex and gender of rearing; and

h) Sexual identity.

For most people, these factors are all congruent, and one’s
status as a man or woman is uncontroversial. For
intersexuals, some of these factors may be incongruent, or
an ambiguity within a factor may exist.

The assumption is that there are 2 separate roads, one

leading from XY chromosomes at conception to manhood,
the other from XX chromosomes at conception to
womanhood. The fact is that there are not two roads, but
one road with a number of forks that turn in the male or

12 January 2005
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female direction. Most of us turn in the same direction at

each fork.

The bodies of the millions of intersexed people have taken a

combination of male and female forks and have followed the
road less travelled. These individuals have non-congruent
sexual attributes.”

13.14 The Court rejected the conclusion reached by the Texas Court of
Appeals in Littleton – see para 11.1 above – as a rigid and
simplistic approach to issues that are far more complex than
addressed in the opinion.

13.2 In 2002, following an appeal, the Supreme Court of Kansas (the

highest court in the State’s judicial system) concluded that the
words “sex”, “male”, and “female” in everyday understanding do
not encompass transsexuals. The plain, ordinary meaning of
“persons of the opposite sex” contemplates a biological man and
a biological woman and not persons who are experiencing gender
dysphoria. A MTF post-operative transsexual does not fit the
definition of a female. The male organs have been removed, but
the ability to “produce ova and bear offspring” does not and never
did exist. There is no womb, cervix, or ovaries, nor is there any
change in his chromosomes. As was noted in Littleton the
transsexual still, “inhabits … a male body in all aspects other than
what the physicians have supplied.”

13.21 The Court stated that it was not, “blind to the stress and pain
experienced by one who is born a male but perceives oneself as a
female.”

a) “We recognise that there are people who do not fit neatly into
the commonly recognised category of male or female, and to
many life becomes an ordeal. However, the validity of
J’Noel’s marriage to Marshall is a question of public policy to
be addressed by the legislature and not by this court.”

13.22 The Court acknowledged that its decision would allow a post-
operative male-to-female transsexual to marry a woman. Thus a
lesbian post-operative MTF transsexual person could legally
marry a woman, despite a prohibition on same sex marriage!

Massachusetts

14.1 In two decisions of November 2001 the Massachusetts

Commission Against Discrimination decided that transsexuals are
protected from discrimination based on sex and that transsexuality
may be considered a handicap within the meaning of the
Massachusetts Fair Employment Practices Act.

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Ohio

15.1 In re Elaine Ladrach, a 1987 decision of the Probate Court of

Ohio, involved a declaratory judgment action brought to determine
whether a male who became a post-operative female was
permitted to marry a male. The Ohio court decided she was not
permitted to marry.

15.11 The Court stated that a person’s sex is determined at birth by an

anatomical examination by the birth attendant, which was done at
Elaine’s birth. No allegation had been made that Elaine’s birth
attendant was in error. The Court reasoned that the determination
of a person’s sex and marital status are legal issues, and, as
such, the Court must look to the statutes to determine whether the
marriage was permissible. The Court concluded:

a) “This Court is charged with the responsibility of interpreting

the statutes of this State and judicial interpretations of these
statutes. Since the case at bar is apparently one of first
impression in Ohio, it is this Court’s opinion that the
legislature should change the statutes, if it is to be the public
policy of the state of Ohio to issue marriage licenses to post-
operative transsexuals.”

Florida

16.1 In February 2003 Judge O’Brien of the Sixth Circuit Court in

Clearwater, Florida ruled in Kantaras v. Kantaras that the
marriage of a post-operative MTF transsexual person, Michael
Kantaras, to a woman, Linda Kantatras, was valid.

16.11 Linda Kantaras claimed the marriage was legally invalid. She
claimed the marriage was never consummated and never could
be on the basis that Michael Kantaras was a woman at the date of
the marriage because he was born a woman.

16.12 The decision is 809 pages long. Judge O’Brien undertook an

extensive review of the evidence; the medical history of
transsexualism; and the jurisprudence from the USA, the UK
(Corbett), New Zealand and Australia.

16.13 It is interesting to note that the first reported case of transsexual

surgery being performed was in Germany in 1931.

16.14 The Judge noted that the law itself was experiencing a transition,
whereby some jurisdictions reflect the medical advancement in
gender therapy, while others prefer a nineteenth century binary
understanding of sex.

16.15 “Implications of scientific evidence that ‘brain sex’ differs in

transsexuals and occurs after birth means that to assign a specific

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sex on the basis of external genitals at birth was an ‘act of faith’.

To make a birth certificate an iron clad document that becomes an
immutable designation of sex, is inconsistent with current medical
knowledge.”

16.16 Judge O’Brien noted that the Court had a choice of paths to
follow, the “traditionalist” approach of Corbett, Littleton and
Gardiner or the reformist approach of Attorney-General v.
Otahuhu Family Court, MT v. JT and Re Kevin.

16.17 “As a post operative transsexual Michael Kantaras, is, by virtue of

all his medical treatment, possessed of the capacity to function
sexually as a heterosexual male. In accordance with MT v. JT
there should be no legal barrier, cognizable social taboo or reason
grounded in Florida public policy, to prevent Michael’s qualification
at least for purposes of marriage to be of the male sex and as
indicated by the medical experts in this case, Michael Kantaras
was certified to be a ‘male’.”

16.18 “The anatomical changes to the body of Michael are immutable.”

16.19 “There is no justification in the law to hold a transsexual to a

higher standard than all heterosexuals in approaching marriage.
Gender is only relevant, as male or female, at the time of
application for a license to marry, not at birth. Age is the only
requirement to be under oath. None for gender. The statement in
Corbett that sex is fixed at birth is not the controlling law of
Florida.”

16.20 “All heterosexuals are legally qualified to apply for a marriage

license without having to prove they are capable of producing a
family. Virility is not a requirement of either gender. Michael
Kantaras is a heterosexual and he is entitled to be treated at law
as a heterosexual male.”

16.21 “Fortunately, the Senior Citizens in Florida happily marry each

other without the ability to be fertile or even to engage in active
intercourse.”

16.22 “Marriage is fundamentally a state of mind, where two individuals

pledge their love and devotion to each other, in sickness and in
health, hopefully, until death do them part.”

16.23 “This Court rejects the traditionalist rule that it’s the law, not the
facts that decides the outcome of whether one is male or female.
The Corbett principles, that the law can dismiss medical science,
disregard it, and make decisions about who is male or female,
invites ‘arbitrariness,’ as Judge Ellis [in Attorney-General v.
Otahuhu Family Court] correctly observed.”

12 January 2005
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16.24 “Transsexualism is a massively complex and difficult problem

deserving of the highest respect and sympathy for those among
ourselves who fall afflicted with this sexual crisis that pervades
their every moment of consciousness wherein their anatomic sex
disagrees with their psychic or psychological self-identity as to
who they are. The unbearable doubt without resolution means a
lifetime of being a sexual ‘split personality.’ Being further denied
by the courts of the basic fundamental right to marry violates their
Constitutional rights and degrades them as human beings.”

16.25 “Medical science recognized this and gives diagnostic

identification, calling it transsexualism, or Gender Identity
Dysphoria (DSM – IV), for which the ethical treatment is
psychological aid, a minimum of one year ‘life experience’ in the
designated gender, hormonal therapy and surgical reassigned sex
in conformity with the known gender identity. It is a type of
metamorphosis of leaving one body and entering into another.
The medical technique is so refined the sexual genitalia and
secondary sexual characteristics are transsexed into the reformed
body.”

16.26 “The chromosome barrier is ignored. The result is a man

indistinguishable from a genetic male even though the
metamorphosis started with all the accoutrements of a woman.
Does the marriage statute of Florida, calling for a male and female
to apply for a marriage license exclude the reformed body of a
male, such as Michael Kantaras? He was a female transsexual
whose gender and genitalia were once discordant, but now
harmonized through medical treatment and who has become
physically and psychologically unified and fully capable of
heterosexuality consistent with his reconciled sexual attributes of
gender and anatomy as a ‘male.’ He passes in every social
activity and is seen by heterosexual men as a man. He is even
‘certified’ medically as a male, a distinction most men do not have.
He is unable physically or psychologically to ever revert back to
the body he departed.”

16.27 “Consequently, Petitioner Michael Kantaras should be considered

a member of the male sex for marital purposes.”

16.28 Judge O’Brien decided that the marriage law of Florida clearly
provides that marriage shall take place between one man and one
woman. It does not provide when such status of being a man or
woman shall be determined.

16.29 “For the purpose of ascertaining the legal validity of a marriage

between two adults of the opposite gender the question whether a
person is a man or woman should be determined as of the date of
the application for the license because that is the critical time, and
not later than the date of marriage.”

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16.30 “There is no rule of law or medical basis that requires the

circumstances at the time of birth to be the sole factor to
determine qualification for a license to marry because there are so
many medical variables between birth and a fully grown adult over
some 18 years and its on adults the obligation of marriage is
placed, particularly, if there are to be children of the marriage.”

16.31 “Michael at the date of marriage was a male based on the

persuasive weight of all the medical evidence and the testimony of
lay witnesses in this case, including the following:

a) As a child, while born female, Michael’s parents and siblings

observed his male characteristics and agreed he should
have been born a ‘boy.’

b) Michael always has perceived himself as a male and

assumed the male role doing house chores growing up,
played male sports, refused to wear female clothing at home
or in school and had his school high school picture taken in
male clothing.

c) Prior to marriage he successfully completed the full process

of transsexual reassignment, involving hormone treatment,
irreversible medical surgery.

d) At the time of the marriage his bride, Linda was fully

informed about his sex reassignment status, she accepted
along with his friends, family and work colleagues that
Michael in his appearance, characteristics and behavior was
perceived as a man. At the time of the marriage he could not
assume the role of a woman.

e) Before and after the marriage he has been accepted as a

man in a variety of social and legal ways, such as having a
male driving license; male passport; male name change;
male modification of his birth certificate by legal ruling; male
participation in legal adoption proceedings in court; and as a
male in an artificial insemination program, and participating
for years in school activities with the children of this marriage
as their father.”

16.32 “Chromosomes are only one factor in the determination of sex and
they do not overrule gender or self identity, which is the true test
or identifying mark of sex.”

16.33 “Under the marriage statute of Florida, Michael is deemed to be

male, and the marriage ceremony performed in the Sandford
County Court house on July 18, 1989, was legal.”

16.40 On 23 July 2004 the 2nd District Court of Appeal reversed Judge
O’Brien’s decision.

12 January 2005
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16.41 Judge Fulmer wrote an opinion agreed to by Judges Covington

and Wallace.

16.42 The Court decided that a post-operative FTM trans person cannot
validly marry a female.

16.43 The Court noted:

a) The Florida Legislature has expressly banned same-sex

marriage.

b) Courts in Ohio, Kansas, Texas and New York have in all

cases invalidated or refused marriage of post-operative trans
people either on the grounds it violated state statutes or
public policy.

c) It agreed with the Kansas, Ohio and Texas courts in their

understanding of the common meaning of male and female,
as those terms are used statutorily, to refer to immutable
traits determined at birth.

d) Whether advances in medical science support a change in

the meaning commonly attributed to the terms male and
female as they are used in the Florida marriage statutes is a
question that raises issues of public policy that should be
addressed by the legislature. Thus, the question of whether
a post-operative transsexual is authorized to marry a
member of their birth sex is a matter for the Florida
legislature and not the Florida courts to decide.

e) Until the Florida legislature recognizes sex-reassignment

procedures and amends the marriage statutes to clarify the
marital rights of a post-operative transsexual person, we
must adhere to the common meaning of the statutory terms
and invalidate any marriage that is not between persons of
the opposite sex determined by their biological sex at birth.

Maryland

17.1 In February 2003 the Court of Appeals handed down a decision in

an application for a change of name and change of sexual identity
by a MTF transsexual person, Robert Wright Heilig. The Court
observed:

a) gender itself is a fact that may be established by medical and

other evidence,

b) it may be, or possibly may become, other than what is

recorded on the person’s birth certificate, and

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c) a person has a deep personal, social, and economic interest

in having the official designation of his or her gender match
what, in fact, it always was or possibly has become.

EUROPE: OTHER THAN THE UK

Germany

18.1 In 1978 a West German Court concluded that the change of

sexual identity which results from successful reassignment
surgery should be deemed a change of sex for legal purposes.

18.2 German legislation provides for recognition by a court of acquired

gender under certain conditions. The requirements are:

a) a person has lived for 3 years as belonging to the sex the

person feels he or she belongs to;

b) the person is unmarried;

c) of age;

d) permanently sterile;

e) has undergone an operation by which clear resemblance to

the other sex has been achieved.

19.1 In 1945 a Swiss court in Re Leber concluded that in determining

the sexual identity of a post-operative MTF transsexual person
psychological sex had to be accepted as the legal standard when
a accompanied by surgical physical reassignment.

20.1 Austria provides for formal recognition of a change of gender and

allows the person to marry in the acquired gender.

21.1 Denmark has a similar scheme to Austria.

22.1 Belgium through judicial decisions, has achieved similar results to

the Austrian scheme.

23.1 In Finland, practice and Court rulings, have led to a process

whereby gender reassignment can be recognised for various
purposes including marriage. Surgery is not necessarily required.

24.1 France, Germany, Italy, the Netherlands, Portugal and Sweden

allow a transsexual to marry in the reassigned sex.

SINGAPORE

25.1 In 1997 Singapore passed legislation to the effect that for the
purpose of marriage a person who has undergone a sex-

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reassignment procedure shall be identified as being of the sex to

which the person has been re-assigned.

CONCLUSIONS

A post-operative trans person

26.1 The answer to the question, does sex discrimination under the
HRA include discrimination based on gender dysphoria or
transsexualism must be unequivocally yes if the transsexual
person has successfully undergone gender reassignment surgery.
Authority for the answer can be found in the following decisions:

• M v. M - Family Court of NZ: 1991

• A-G v. Otahuhu Family District Court - High Court of NZ:

1994

• Vancouver Rape Relief Society - Supreme Court of British

Columbia: 2000

• Quebec (CDPDJ) C. Maison - Quebec Human Rights

Tribunal: 1998

• MT v. JT - Superior Court of New Jersey: 1976

• I v. UK; Goodwin v. UK - European Court of Human Rights:

2002

• Harris - NSW Court of Criminal Appeal: 1988

• SRA - Full Federal Court of Australia: 1993

• Re Kevin - Family Court of Australia: 2001 & Full Family

Court of Australia: 2003

• KB v. National Health Services Pension Agency - European

Court of Justice: 2004

• Chief Constable of West Yorkshire Police v. A – House of

Lords: 2004

• Smith v. City of Salem, Ohio – 6th US Circuit Court of

Appeals: 2004.

26.2 There is a line of authority mainly from the UK and State courts in
the USA, which suggests that to discriminate against a post-
operative transsexual person because they are a member of their
assumed sex would not be sex discrimination, see:

• Kantaras – 2nd District Court of Appeal of Florida: 2004

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• Littleton -Texas Court of Appeals: 1999

• Gardiner -Supreme Court of Kansas: 2002

• Menzies - Victorian Civil and Administrative Tribunal: 2001

• Corbett - Divorce and Admiralty Division of the Probate

Court, UK: 1970

• Bellinger - Court of Appeal England & Wales: 2001 & House

of Lords: 2003

26.3 I am sure that neither the HRRT nor the High Court would choose to
follow this line of authority, given the NZ decisions to the contrary.

A pre-operative trans person

27.1 Should the transsexual person not have undertaken gender

reassignment surgery the answer to the question is not so
unequivocal. There are conflicting lines of authority and judicial
remarks on this question.

27.2. In considering whether the HRRT or the High Court would

recognize a pre-operative transsexual regard needs to be had to
the policy issue i.e. should it be a Tribunal or a Court granting
such recognition or should it be Parliament?

27.3 In its decision in Bellinger the majority of the Court of Appeal of

England and Wales recognised that the point at which a change of
gender should be recognised is not easily to be ascertained. The
majority decision noted:

“The point at which transsexuals feel they have achieved

their change of gender varies enormously.”

27.4 The majority considered that it was proper for Parliament and not
the courts to determine at what point it would be consistent with
public policy to recognise that a person should be treated for all
purposes, as a person of the opposite sex to that to which they
were correctly assigned at birth. In deciding the subsequent
appeal the House of Lords was also of the view that it was a
matter for Parliament.

27.5 The Australian Courts in Harris and SRA grappled with where
should the line be drawn on the recognition issue. In both
instances the Courts ruled that a pre-operative transsexual was
not a member of the sex opposite to that correctly assigned to
them at birth. The need for a measure of certainty in ascertaining
an individual’s sex was attractive to Chief Justice Black in SRA.
In the same case Justice Lockhart considered that there needed
to be a harmony between the individual’s anatomical sex and

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social sex. A requirement of reassignment surgery allowed

society to acknowledge that an irreversible medical decision has
been made confirming the individual’s psychological attitude.

27.6 The Quebec Human Rights Tribunal would recognise a pre-

operative transsexual person as a member of their adopted sex:
see Quebec (CDPDJ).

27.7 There are comments in more recent Australian decisions which

take a different approach to those expressed in Harris, SRA and
Bellinger. In its decision in Re Kevin the Full Family Court of
Australia noted:

“In all of the decided cases to which we have referred their

position has been distinguished from post-operative
transsexual persons and comments have been made to the
effect that this is a matter for Parliament to determine.”

“A question arises as to whether the Courts can logically

maintain that the position of post-operative transsexual
persons is a matter for them but that of pre-operative
transsexual persons is one for Parliament. This has the
effect of leaving such persons as the only persons in the
community who are prevented from marrying a person who
they legitimately regard as a person of the opposite sex,
while remaining free to marry a person of their own sex.”

“Mr Basten's oral submissions [counsel for HREOC] were

relevant to this issue. He said:

‘ ... we would say that the actual nature of the surgical

intervention and its achievements may be a factor that
could be taken into account - we don't suggest it's
irrelevant - but it is not a factor which will be
determinative in all cases and may not be of great
importance, at all, in some cases.’

“He then highlighted that the direction of transition (male to

female in contrast with female to male) may give rise to
different considerations:

‘ ... in the circumstances of this case, it is worth

accepting that surgical intervention in relation to the
removal of gonads maybe relatively straight forward,
surgical intervention for a male to female transsexual
person in relation to the construction of a vagina may be
common place, surgical intervention which requires the
construction of a penis is much more problematic and
even where it takes place may or may not give rise to
something which would be readily accepted as a penis
of a sexual kind which has a particular sexual function’.”

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27.8 In his decision of April 2004 in Re Alex, which approved a 13YO

girl beginning the process of making the transition to being legally
recognised as a male, the Chief Justice of the Family Court of
Australia (who was also one of the judges in the Full Family Court
decision in Re Kevin) commented:

a) “I consider it is a matter of regret that a number of Australian

jurisdictions require surgery as a pre-requisite to the
alteration of a transsexual person's birth certificate in order
for the record to align a person's sex with his/her chosen
gender identity. This is of little help to someone who is
unable to undertake such surgery. The reasons may differ
but for example in the present case, a young person such as
Alex, on the evidence, would not be eligible for surgical
intervention until at least the age of 18 years.”

b) “A requirement of surgery seems to me to be a cruel and

unnecessary restriction upon a person's right to be legally
recognised in a sex which reflects the chosen gender identity
and would appear to have little justification on grounds of
principle.”

c) “The requirement of prior surgery in order to establish the

fact that a person is a man for the purposes of a valid
marriage was questioned in Re Kevin. The Full Court there
also noted the submission of [HREOC] that the efficacy of
surgical intervention is more problematic where the transition
is from female to male.” The relevant part of the submission
is set out above.

d) “If one accepts such a submission, a requirement of surgery

is not only generally inconsistent with human rights. The
requirement is more disadvantageous and burdensome for
people seeking legal recognition of their transition from
female to male than male to female. Expressed in this way,
there is an additional objection to surgery as a pre-requisite;
the requirement of surgery is a form of indirect
discrimination.”

28. The weight of authority is not evenly balanced on the question of

whether a pre-operative transsexual can be recognized as a member
of the opposite sex to that correctly assigned to them at birth. By that I
mean the views expressed by the House of Lords, the Court of Appeal
for England and Wales, the Full Federal Court of Australia, and the
Court of Criminal Appeal of NSW may well be more persuasive than
those of the Full Family Court of Australia and the Quebec Human
Rights Tribunal. That is not however to say they will be determinative.

29. Given the special nature of the HRA and NZBORA, see Ministry of
Transport v. Noort, Coburn and Director of Human Rights Proceedings
v. NZ Thoroughbred Racing Inc., it is clearly arguable that

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discrimination against pre-operative transsexual by reason of the

gender they identify as belonging to, is sex discrimination.

12 January 2005