Two female-to-male transsexuals have won a landmark High Court battle to be legally recognised as men under WA's gender reassignment laws.
The judgment, handed down by the Full Court in Canberra this morning, means that female-to-male transsexuals do not have to undergo dangerous penis construction surgery that is not performed in Australia to legally swap genders under the WA legislation.
They also do not have to have their internal female reproductive organs removed to be given gender reassignment certificates.
One of the men, whose identities have been suppressed, said the High Court's decision to uphold the appeal had followed a three-year battle and would set a precedent which would make it easier for transsexual men to obtain documentation which accurately reflected their identity and physical appearance.
The judgment sets a legal precedent on the extent of medical intervention which is required for females to have their gender reassigned to males.
Applications by the men were initially refused by the Gender Reassignment Board of WA, but the decision was overturned by the State Administrative Tribunal in 2009. The tribunal ordered the board to grant certificates recognising a change of gender.
Attorney-General Christian Porter, who had intervened in the case, then took the matter to the Court of Appeal to clarify the gender reassignment legislation which came into effect 10 years ago.
Mr Porter's appeal was upheld by a majority decision which found the transsexual men did not have the physical characteristics which would identify them as men according to "community standards and expectations". The majority decision found the transsexuals had none of the genital and reproductive characteristics of a male and had kept all of the normal external and internal reproductive organs of a female.
The transsexuals have had double mastectomies, testosterone treatment and are infertile, but have not had penis construction surgery or hysterectomies.
This morning, the High Court unanimously upheld the appeals by the transsexual men and reinstated the tribunal's decision to grant them reassignment certificates.
A summary of the judgment said the court had held that for the purposes of the Gender Reassignment Act, the physical characteristics by which a person was identified as male or female were confined to external physical characteristics that were socially recognisable.
"Social recognition of a person's gender does not require knowledge of a person's remnant sexual organs," the judgment summary said.
"The requirements of the Act…are to be given fair and liberal interpretation in order that they achieve the Act's beneficial purposes. The Act contains no warrant for implying further requirements such as potential adverse social consequences or community standards and expectations."
One of the men said the decision would make it easier for transsexual men to be protected under discrimination laws and set a precedent about how the laws governing the recognition of gender in Australia operate.
"After over three years of fighting this case, we are incredibly excited that the High Court has upheld our appeal," he said."The High Court has taken a common sense approach to the interpretation of the law, recognising that it is unrealistic to require people to undertake specific, medically unnecessary surgical requirements that are neither practical nor attainable. The decision is completely in line with the recommendations of the Australian Human Rights Commission, as well as with other, similar cases around the world."
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