On February the 12th I will be attending a hearing of the WA Gender Board, a group of people made up of a Medical Dr. A Lawyer, and a Judge.
Their role is to decide if I am suitable to receive a Gender Recognition certificate. They will make this judgement by assessing the evidence of my transition, against the contents of the WA State Specific, Gender Reassignment Act of 2000.
It is highly likely they will reject my application based on my Marital Status, and they have already advised me as much. The 2000 Act forbids the issue of a certificate to a Married Transgender person. A piece of legislation that remains in force, despite the recent progress with the legalisation of same sex marriage.
However, I am entitled to a voice in this process and rather than just stamping my feet and claiming it’s not fair, I have prepared two legal arguments against rejection of recognition of my status.
The first argument I is based on section 109 of the Australian Constitution, that provides legislation for occasions where there is an inconsistency between State and Federal Law. In this case, Federal Law grants me a right, that State Law removes. A clear inconsistency, but I believe this approach will be countered by a Federal Law contained in the Sex Discrimination Act allowing individual States the right to deny Transgender people recognition. This law has been repealed, but will remain in force until the 9th of December 2018. So although technically speaking the argument is valid, the State of WA has a time boxed get out clause.
The second argument is more promising for me, and I am pinning my hopes on being able to argue my case using section 117 of the Australian Constitution.
Section 117 states :-
“A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other state.”
This is important, in South Australia the State Law permits Married Transgender people to receive legal recognition of their Gender Status. In Western Australia this is not possible. The important part in this argument is proving that if I were to be judged by a South Australian Board to be eligible for Gender Recognition, then the State of WA is discriminating against me, and Section 117 of the Constitution can be invoked.
It is almost certain that on February the 12th my application will be rejected, and to this end I have already begun preparing the paperwork to lodge an appeal to a higher court.
This may seem trivial, but the Gender Marker is an important milestone on my Journey. Jane has been aware of my struggle with Gender Dysphoria since our second date, which was 29 years ago, we have been married for 27 years. Marriages that survive a Transition are rare, and this is why we have no intention of divorcing to accommodate some out of date legislation.
Leave a Reply