By way of an update on my previous post about two trans men in Western Australia who won the right to change the sex marker on their birth certificates without having had hysterectomies, a decision which was then overturned by the state Attorney-General, ABC News today reports that the men will now appeal against the Attorney-General’s decision in the High Court:
The state’s Attorney General appealed against the decision, arguing it could mean a person could be legally male but still bear children.
The Court of Appeal said fertility would not prevent them being considered men but they were precluded because they did not have male genitals.
One of the appellants, who can be identified only as AH, says he’s not happy with the court’s decision.
“It seems to be this cosmetic assessment, how do people physically present in the world.”
“The two judges who’ve upheld the State’s appeal have decided that your external, physical presentation (including your genitals) is incredibly important to whether you’re male or female.”
AH says the decision means the only way for transgenders to be considered male is genital surgery which can cost up to $100,000.
“It’s surgery that has a pretty poor surgical result for a huge amount of money and a big chunk of your life missing,” he said.
“Very expensive, very dangerous and not actually available in Australia so they’ve come up with a decision that sets the bar so high that I’m not sure that any trans-men in Australia are actually able to achieve it.”
“The reality is that it’s just not feasible.”
Meanwhile, the Attorney General, Christian Porter, continues to hold to an astonishingly unenlightened essentialist justification for his decision: he says that a person cannot be considered male if they have functioning internal and external female reproductive organs.
For AH, though, it’s an administrative nightmare – “I end up with this really mixed-bag of documentation.“:
“Some of my documents, such as my passport, say that I’m male. My birth certificate currently says I’m female. I suspect that if myself and another man turned up to get married, the response would be “no, no, no, you can’t do that.”
“It just creates all of these bizarre inconsistencies and you end up spending half your life in court or in conciliation meetings or mediation meetings trying to decide whether for the purposes of this particular activity or this particular document, am I male or female?”
AH goes on to point out another crucial aspect of this confusion: he says that without legal recognition, transgender people are not protected by anti-discrimination laws.
“If, for example, my employer found out that I had a trans-history, and my employer decided that they didn’t like the fact of my trans-history and they wanted to fire me, they could and that would be legal, I don’t have any protection.”
AH and his fellow appellant are confident that the appeal will succeed because of the inconsistencies of the state’s arguments:
“We’ve now had two rulings, from the State Administrative Tribunal and the Supreme Court saying that the issues of hysterectomies and fertility shouldn’t be an issue, so that, I think, has been pretty conclusively put to bed.”
“Now there’s this issue of whether trans-men should have to have surgery on their genitals.”
“It seems to me a bit farcical to have a law that is supposedly able to help people to amend their documentation, but that actually is impossible for anyone to meet.”