The two appellants identify as male and applied for certificates to the Gender Reassignment Board which stated that they were male. Section 15(1)(b)(ii) of the Act relevantly provides that the Board must be satisfied that the person applying for a recognition certificate has the "gender characteristics" of the gender to which the person has been reassigned. "Gender characteristics" is defined by s 3 of the Act as "the physical characteristics by virtue of which a person is identified as male or female".
Despite the appellants undergoing the gender reassignment procedures of a bilateral mastectomy and testosterone therapy, their application was refused because they retained female sexual reproductive organs. Following a review of the Board’s decisions, the Tribunal set aside the decisions, granted each application for a certificate and directed the Board to issue such a certificate. The Court of Appeal of the Supreme Court of Western Australia allowed the appeals from those decisions and set aside the Tribunal’s decision.
The High Court, however, accepted the Tribunal’s construction and meaning of "gender characteristics" in s 15(1)(b)(ii) of the Gender Reassignment Act 2000 (WA). The Court held that, for the purposes of the Act, the external physical characteristics by which a person is identified as male or female are socially recognisable and do not require knowledge of a person’s remnant sexual organs. The requirements of the Act, including s 15(1)(b)(ii), are to be given a 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.