A Centrelink decision to reduce a pre-operative transsexual lesbian’s pension because she was in a relationship with another woman has been overturned by the Administrative Appeals Tribunal.
Samantha Scafe lodged an appeal when Centrelink claimed she was in a “marriage-like relationship” with her partner Colleen Smith and gave her the partnered rate of disability support pension, less than the single rate. The pair did not deny being in a relationship.
In a case that pitted transgender rights against same-sex equality, Justice John Tamberlin found Scafe was a woman, and thus she and Smith were in a same-sex relationship, which did not fit the criteria of a marriage-like relationship.
“We do not consider that the Australian community would regard the present relationship as one ‘resembling marriage’,” Tamberlin wrote.
The Social Security Act defines a couple as a male and a female. A recognised partner’s assets and income are also taken into account when determining the rate of benefits.
Scafe, who had taken female hormones since 1997, was not able to undergo surgical sex reassignment because of other medical concerns.
In a previous 1993 case, the Federal Court overturned a Tribunal decision that recognised a pre-operative transsexual as a woman known as SRA, instead finding both hormones and surgery were required for a sex change to be recognised legally.
“In contrast, Ms Scafe in the present case has done everything that she can reasonably be expected to do in order to effect a transition from the male to the female gender, taking into account medical and psychological considerations,” Tamberlin wrote.
“In reaching a conclusion as to the gender of an individual … the individual should be evaluated as complete human being.”
Prior to the 2007 election, Labor’s then spokesperson on legal affairs Senator Joe Ludwig told a gay and lesbian community forum that same-sex equality could be detrimental to individuals in some cases, such as Centrelink payments.
He promised to consult all parties and consider phased implementation where it could be financially detrimental.