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

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

IN THE FAMILY COURT AT WAITAKERE

Court:

D G Mather Family Court Judge

FAM-2009-090-002000

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

Counsel:

Applicant in person

J Surgenor, Counsel to Assist

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.

Held: For a number of years H had lived as a woman and since 2008 had taken active steps to live as a female. She had been 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. H was to undergo gender reassignment surgery at the end of 2010.

H had met the requirements of s28 of the Act. She was over the age of 18 years, the application had been served and the birth certificate showed the sex as the opposite of her nominated sex. Therefore, as far as the test under s28(3)(b)(i) of the Act was concerned, the evidence showed that H had assumed and intended to maintain the gender identity of a female and she clearly wished that nominated sex to appear on her birth certificate.

Where, as in this case the active steps to change gender identity had occurred relatively recently, the Court had to be careful that the test under s28(3)(c) of the Act was met. The medical evidence established that H had not only assumed the gender identity of a female but had also undergone medical treatment usually regarded by medical experts as desirable to enable persons to acquire the physical conformation that accorded with the gender identity of a person of the nominated sex.

As a result of the medical treatment undertaken, the requirements of s28(3)(c)(i)(C) of the Act (will, as a result of the medical treatment undertaken, maintain a gender identity of a person of the nominated sex) had also been met. Although H had not yet undertaken the gender reassignment surgery planned, she had undertaken the appropriate medical treatment in the form of counselling and hormonal therapy. The Court was satisfied H would maintain the gender identity of a female. There was no reason to defer the decision until completion of the surgery as the Court was satisfied of H's commitment to her gender change.

Application allowed. H's birth certificate was to be amended to record her sex as female.

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...