Focus on transgender rights 1: Transgendered wins recognition as woman

The Social Security Act positively discriminates in favours of gays and lesbians by failing to recognise same sex relationships, as it only recognises “marriage like relationships”.

This was recently highlighted in Scafe and Another v Secretary, Department of Employment and Workplace Relations, a decision of the Administrative Appeals Tribunal.

Samantha Scafe,, a male to female transgendered person, who was pre-operative, was found to be able to keep Centrelink benefits because her relationship with her female partner was not a “marriage like relationship” because it was a lesbian relationship.

The Department opposed Samantha receiving any benefits, because it held the view that she was male, that the relationship was therefore a heterosexual one, and was a marriage like relationship.

Her doctor said in evidence:

“I consider Ms Scafe to be a true male-to-female transsexual , and in the time I have known her she has been living full-time in a female role and has been taking the female hormone, oestrogen.

Given that she has been taking oestrogen for many years, I believe that her penis would now be non-functioning with regards to sexual intercourse. This is, of course, one of the intended results of hormonal therapy.

The loss of sexual function in her genitalia may well be irreversible, as this may occur after many years of oestrogen therapy. The only way to determine this in a practical sense is to have a period of time off therapy, and to assess the return of function – if any – of her penis (and testicles). This would not be recommended, however, due to the detrimental effects this would have on Ms Scafe’s psychological health.

The other physiological effects of her hormonal therapy include breast growth, a reduction in hair growth on the face and body, reduction of hair loss on the scalp, and a change in body fat distribution to a more female form. Some of these effects are irreversible after some months or years on therapy.

Ms Scafe tells me that she had a skin infection with the bacterium Staphylococcus aureus (‘Golden Staph’) in 2001 and that she was advised that subsequent genital surgery (sex reassignment, or ‘realignment’, surgery) would be dangerous in the future because of the risk of incurring infection with this organism. Should this bacterium remain present in Ms Scafe, such surgery would, in my opinion, pose a significant risk to Ms Scafe. Her other medical conditions of obesity, asthma, diabetes mellitus, and hypertension would also pose significant and potentially life-threatening risks should major surgery be undertaken. In addition, she also advises me she has chronic hepatitis C infection which would pose a small risk of transmission to a surgeon. Given these factors, I would seriously doubt that any surgeon would be willing to undertake such major surgery on Ms Scafe currently, or in the foreseeable future.”

The Tribunal held:

“Ms Scafe is unable, for sound medical reasons, to have the genital surgery for gender realignment. Ms Scafe is, we accept, psychologically, socially and culturally a woman and has taken all the physiological steps that she can take to become a woman.”

The Tribunal cited an earlier decision of the Federal Court, which said in part:

” Negative attitudes towards transsexuals are based fundamentally on religious and moral views and assumptions which are slowly changing in modern society. There is an increasing awareness today of the importance of the right to privacy, and growing tolerance of a person’s identity. But where the psychological sex and the anatomical sex of a person do not conform to each other it seems to me that the sex of a person must be determined by the anatomical sex. The day may come when the same result may be achieved by chemical treatment as is now achieved by surgery, but this has not arrived yet. I do not rule out the case where a person may achieve the anatomy of the other sex through chemical treatment if that ever becomes possible; but the evidence in this case and the material which is before the Court do not support the conclusion that this stage has been reached. When it does, the result may be different.”

The Tribunal went on to say:

“Furthermore, the Full Court … selected sexual anatomy as the controlling consideration when determining gender…. Although Lockhart J envisaged the future possibility of a gender reassignment being effected by new chemical treatments, his Honour observed that the evidence before the Court did not indicate that such a chemical reassignment had taken place in that case. In Ms Scafe’s situation, on the other hand, there have been manifest physical changes in her appearance and physiology as a result of extensive oestrogen hormone treatment.
The present case, therefore, is not one in which it is appropriate to frame the question of gender as turning on whether primacy should be given to anatomical as opposed to psychological characteristics, which was the approach taken in SRA. We are of the view that such a dichotomy oversimplifies the issue.
There is much to be said for the view that, in reaching a conclusion as to the gender of an individual, consideration should be given to and a determination made in light of all the characteristics of that person, including behavioural and psychological matters and social circumstances. The individual should be evaluated as a complete human being, taking into account their full range of behaviour, physiology, psychology and any other relevant features and characteristics.

“In this case, the evidence indicates that the sexual and reproductive functions of Ms Scafe’s genitalia have probably been lost as a consequence of the chemical changes effected by extensive and lengthy hormone treatment. This means that anatomical attributes which were treated as determinative in …. have been rendered non-functional, and probably irreversibly so. The qualifier “probably” is used because the evidence indicates that to make a conclusive determination of whether sexual and reproductive functions have been irreversibly lost would require both a cessation of hormone treatment and consideration of whether such functions were restored; a process which the evidence shows could be psychologically damaging for Ms Scafe.

“The consequences of the hormone treatment upon the sexual and reproductive functions of Ms Scafe in this case are similar to those which would arise if the male genitalia had been surgically removed, namely the destruction of Ms Scafe’s sexual and reproductive functions as a male. This consideration points to a conclusion that surgical intervention should not, of itself, be finally determinative of gender, and calls into question the cogency of treating the presence of male genitalia as the deciding factor of gender when those organs do not function sexually or reproductively. Finally, it was not disputed in this case that Ms Scafe lives psychologically as a woman. She socialises as a female; presents in identity and dress as a female; and is considered by the community to be part of a lesbian couple.

” In light of the circumstances of this case, there is support for the view that it would be appropriate for a court to consider whether the decisive weight given to anatomy by the Full Court in SRA as the essential and determinative factor of a person’s gender should be revisited in the context of the hardship and psychological difficulties borne by Ms Scafe and persons like her, who have lived much of their lives regarding themselves as trapped in the body of a person of the opposite sex…”

“If we were unconstrained by the authority …, we would accept the submission that, in the circumstances of this case, Ms Scafe’s gender is female.
However, although there are grounds for distinguishing the circumstances and reasoning in [that case] from the present case, we consider that the unanimous and clear statements of the Full Court of the Federal Court that a completed surgical reassignment is necessary for an alteration of gender must be treated as determinative of the outcome in this case. Accordingly, we find that Ms Scafe is to be treated as a male for the purposes of the Act….

“We do not consider that the Australian community would regard the present relationship as one “resembling marriage”. That view is fortified by the exclusion of same sex couples from the ambit of a marriage-like relationship.
We do not accept the Secretary’s view that the perception of Ms Scafe and Ms Smith is irrelevant. That perception, and the perception of their friends and associates, is made relevant by e.g. s 4(3)(c) and (e) of the Act. That perception of the relationship is that it is a lesbian relationship, not a marriage-like relationship.
It follows in our view, as a matter of statutory construction, that a same sex marriage cannot amount to a marriage-like relationship, a conclusion which is supported in this case by the community perception of the relationship between Ms Scafe and Ms Smith.

“Whilst it is, strictly speaking, unnecessary to determine the question of whether in fact the relationship is “marriage-like”, we will deal with the arguments of the parties and indicate our conclusion.

“There is no dispute about the factual components of the relationship which are set out at some length in the findings of the Social Security Appeals Tribunal. The financial aspects of the relationship and the nature of the household, viewed alone, might perhaps point towards the existence of a marriage-like relationship. And that is true of some aspects of the nature of the commitment that evidently exists between Ms Scafe and Ms Smith. But the other features enumerated in s 4(3) of the Act, particularly the nature of the household, the social aspects of the relationship and the sexual relationship between Ms Scafe and Ms Smith, do not do so. They point to a same sex relationship.

“Viewing the relationship as a whole we could not conclude that it is a marriage-like relationship. Were it to be necessary to apply a description to the relationship, having rejected the description marriage-like relationship, we would describe it as a same sex relationship.”