H v Registrar-General of Births, Deaths and Marriages Fc Wait

• Jurisdiction: New Zealand
• Judge: D G Mather
• Judgment Date: 21 September 2010
• Court: Family Court
• Docket Number: FAM-2009-090-002000
• Date: 21 September 2010

IN THE MATTER OF the Births, Deaths, Marriages, and Relationships Registration Act 1995

BETWEEN

H

Applicant

and

Registrar-General Of Births, Deaths and Marriages

Respondent

Court:

D G Mather Family Court Judge

FAM-2009-090-002000

IN THE FAMILY COURT AT WAITAKERE

Application under s28 Births, Deaths, Marriages, and Relationships Registration Act 1995 (Declarations of Family Court as to sex) to change the sex listed on the applicant's birth certificate to female — applicant born a male but had assumed the gender identity of a female and undergone appropriate medical treatment intending to have gender re-assignment surgery — whether the applicant met the test under s28 of the Act for the gender to be amended on the birth certificate.

Counsel:

Applicant in person

J Surgenor, Counsel to Assist

JUDGMENT OF JUDGE D G Mather

Introduction

1 In October 2009 H applied for an order, under The Births Deaths, Marriages and Relationships Registration Act s 28, that the sex listed on her birth certificate be recorded as female.

2 H was born a male, but has assumed the gender identity of a female, has undergone appropriate medical treatment, intends to maintain female gender identity, and wants her birth records amended to reflect this.

3 Her application was served on the respondent, who filed a memorandum by counsel advising that he did not intend to take any active steps in the proceedings and was willing to abide the decision of the Court.

4 Ms Surgenor was appointed as counsel to assist the Court, and she has filed a comprehensive and helpful memorandum. H is unrepresented and appeared in person at the hearing as did Ms Surgenor.

Background

5 H says that for most of her life she has experienced the desire to be female and to live as a woman. She has struggled with her sexual identity for many years and has felt since her early teens that she should have been female. For a number of years she has dressed as a woman. Since 2008 she has taken active steps to live as a female.

6 In October 2008 she was referred by her GP to the Auckland Sexual Health Clinic and subsequently engaged in counselling with a psychotherapist who diagnosed her as meeting the criteria for gender identity disorder. She commenced hormonal treatment in January 2009, with the intention of effecting changes in her physical appearance including the development of secondary sexual characteristics.

7 In April 2009 a doctor at the Auckland Sexual Health Clinic expressed the opinion that H met the criteria for gender identify disorder and she was started on oestrogen and cyproterone. She had earlier been started on oestradiol.

8 The most recent updating report from this doctor records:

“She has been living full-time as a woman since early 2009. She has good support from her family and friends and is coping well with her university studies.”

The doctor noted that H was keen to undergo gender reassignment surgery in Thailand at the end of this year. She also says:

“[H] has consistently shown a commitment to permanently change from male to female. I support her desire to be recognised as a female on her birth certificate.”

9 H was also assessed by a psychiatrist in February and again in June this year. It was his opinion that:

“[H] most definitely fulfils the diagnostic criteria for gender identity disorder. She gives a strong history of gender dysphoria from an early age and first underwent counselling in relation to this in the early 1990's.

…

I am of the opinion that [H] is committed to proceeding with full gender reassignment surgery and that this is appropriate given her underlying condition. She has demonstrated an awareness of the condition for 20 years and has gone about moving towards reassignment surgery quite appropriately. I have no doubt that this will be a permanent and appropriate decision for her.

I have assessed approximately 50 patients for gender reassignment surgery suitability over the last decade. I would rate [H] as being one of the most well informed and appropriate for that procedure that I have assessed.”

10 There is substantial evidence of H adopting a female identity in all aspects of her life over the last 18 months to two years. She is studying for a Bachelor of Arts degree at Auckland University where she is known as a woman and has a student identity card to that effect. A university counsellor has provided a letter confirming that since November 2008 H has, “lived her life physically, mentally, emotionally, and spiritually as a woman. [H]'s decision is thoroughly considered and she is fully informed of the consequences of her decision.”

11 H has provided character references from her landlady and from friends who acknowledge her as a woman. She is member of GenderBridge, a transgender support group. GenderBridge report H as having, “taken all possible steps to living socially and legally as a female”.

12 Since early 2009 H has worked as a community social worker. Her employer has provided a letter confirming that at the time of interview H disclosed her gender transition and in July 2009 advised her intention to live as a woman as from September that year.

13 All issues relevant to applications under's 28 are comprehensively dealt with by the decision of Judge FitzGerald in this court of Michael v Registrar-General of Births, Deaths and Marriages (2008) 27 FRNZ 58. This addresses the medical, legal, social and policy issues which arise. The Court was assisted on that occasion by legal representation on behalf of the Registrar-General.

14 I adopt the analysis of the issues in that case without repeating them extensively.

15 Judge FitzGerald describes transsexualism as a recognised psychiatric disorder, often known as gender dysphoria or gender identity disorder. It has been described as the enduring, pervasive, compelling desire to be a person of the opposite sex. Distinctions are made between inter-sexual people (born with physical characteristics that are congruent but whose self-belief is incongruent), transsexual people (born with the anatomy of a person of one sex but with an unshakeable belief of feeling that they are persons of the opposite sex), and homosexual people (attracted sexually to persons of the same sex). Transvestites are those who enjoy dressing in the clothes of the opposite sex, usually for their own sexual gratification.

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