Two Western Australian (female-to-male) trans men have vowed to fight a state Government appeal against a recent State Administrative Tribunal decision to allow legal gender recognition without surgery.
The office of WA Attorney-General Christian Porter indicated the Government would appeal the Tribunal decision that surgery should not be the definitive factor in determining a person’s official gender when interpreting the state’s Gender Reassignment Act.
The Tribunal decision, handed down late last month, found the two men should be granted legal recognition as men, despite not having a hysterectomy, as both had bilateral mastectomies, were infertile on testosterone treatment and “presented as, and appeared to be, males”.
One of the men, who cannot be legally named, told the Star he was confident the orginal decision would hold up against an appeal.
“We’re confident that as a question of law, the interpretation of the Act that has been reviewed by the Tribunal was pretty final and detailed,” he said.
“What the Attorney-General is saying is contrary to the findings in the [national] Human Rights Commission report …we’re dealing with a conservative Attorney-General, so we’re going to go back and argue this all again.”
The case came about after the WA Gender Reassignment Board refused to issue gender recognition certificates to the men.
During the Tribunal trial, the Government argued that under the state’s Gender Reassignment Act the two should not be considered men until they have hysterectomies.
A statement issued last week from the Attorney-General’s office said an appeal would be launched because the decision allows legal men to potentially bear children.
“This is a major decision, which if allowed to stand, could have significant and unforeseen effects on the laws of this State,” the statement said.
“For this reason, the State Government is intending to appeal the decision.”
One of the men involved in the case said he felt the decision to appeal would only confuse transgender people and take up time going through court.
The men now have gender recognition certificates, however, due to the appeal, they are unable to change the sex on their birth certificate, leaving them in a gender limbo.
“It’s a confusing situation,” the man said.
“I’m not sure if I said I wanted to marry my [female] partner whether I would be allowed to at this stage. It certainly would be confusing.”
The Australian Human Rights Commission’s 2008 Sex Files report recommended relaxing laws so surgery is not the only criterion in determining gender.
The appeal is set to go to the Supreme Court. A date has not been decided.

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