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Social Security Reporter |
Marriage-like relationship: meaning of person of the opposite sex, pre-operative male to female transgender person, whether same sex relationship
(2008/104)
Decided: 8th February 2008 by J. Tamberlin, D. P. Hack and S.M. Carstairs
Scafe was a pre-operative male to female transsexual, living as a female in a lesbian relationship. Scafe was in receipt of disability support pension. In August of 2006, Centrelink determined Scafe was a member of a couple within the meaning of s.4(2) of the Social Security Act 1991 (the Act), on the basis that she was a member of a couple and began paying her the lower, partnered, rate of payment.
That decision was affirmed by an ARO but set aside by the SSAT on 26 April 2007, with the non-legal member of the two panel tribunal dissenting from the decision.
The issue in contention was whether Scafe was a member of the opposite sex or, as contended by the Department, remained a member of her birth sex.
Section 4(2) of the Act defines member of a couple, specifically that, the person has a relationship with a person of the opposite sex.
Section 4 (3) is composed of criteria to assist the decision maker to ‘form an opinion’, as to whether an association between two people is, relevantly, a marriage like relationship.
The Tribunal set out the issues as follows,
(1) is Ms Scafe a person of the opposite sex to Ms Smith?
(2) can a relationship between same sex couples be described as a marriage-like relationship?
(3) is the relationship between Ms Scafe and Ms Smith in fact a marriage-like relationship?
Regarding the first issue, the Tribunal noted Scafe was born a male, had taken medication under medical supervision and was pre-operative. Her treating doctor, who gave evidence, was clear that she had completed male to female transition, including the social and cultural aspects. She had acquired female bodily attributes associated with breast and hair growth and her penis was now non-functioning, an intended medication outcome, which condition, the doctor said, ‘may well be irreversible’. In the doctor’s evidence, the only way to check was a test period without the hormone replacement medication Scafe had taken since 1997.However, this was not recommended due to the potential negative psychological impact on her. He also stated that an operation to complete the genital transition was contra-indicated due to the attendant medical risks.
The Tribunal began from the premise that Scafe was unable to have gender re-assignment surgery and that she had taken all the steps she could toward becoming a woman.
Standing in the way of a direct finding that Ms Scafe was a woman for the purposes of the Act was the decision in Secretary, Department of Social Security v SRA [1993] FCA573. There the Full Court of the Federal Court held, in the words of Black CJ:
it would be going well beyond the ordinary meaning of the words in question to conclude that a pre-operative male to female transsexual, having male external genitalia, is a ‘woman’ for the purposes of the Social Security Act and may be a ‘wife’ as that expression is defined in the Act. I do not consider that the language used in the relevant parts of the Act allows primacy to be given to psychological factors and certainly not to the virtual exclusion of anatomical factors.
In the same case, Lockhart J, agreeing, set out a scenario that was close to the one before the Tribunal; the Tribunal quoted from Lockhart’s reasons, including the following:
‘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 maybe different’.
It was submitted for Scafe that the day had come for equal regard to be had to the effects on a person of chemical treatment and physical operations. However, the Tribunal demurred, preferring to distinguish SRA on its facts, noting in SRA that it was for financial reasons that SRA did not have surgery, while Ms Scafe would put her health at risk should she proceed. Going further, the Tribunal was at pains to make clear that neither framing the gender debate as a dichotomy between anatomical and psychological characteristics nor selecting gender anatomy as the ‘controlling consideration’ as done by the Full Court, would resolve the question of gender for an individual.
The Tribunal considered the case would not be appropriately determined by an assessment of the person’s physical attributes. It said:
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.(Reasons, para 21)
Noting the medical history and hardship suffered by Scafe, the effect of which had been to ‘probably’ remove the function of her sexual organs, and the impossibility of obtaining definitive answers without causing further hardship, and noting that the decision in SRA was now fifteen years old, the Tribunal voiced a view that:
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’.(Reasons, paras. 24 -25)
The Tribunal was reinforced in its view by comments from the Full Court of the Family Court in Attorney-General for the Commonwealth v Kevin [2003] FamCA 94; (2003) 172 FLR 300 (Re Kevin), that the understanding of gender is an evolving concept. Further, that there appears to be a questionable difference in treatment before the law of pre-operative and post-operative trans-gender persons, citing Kevin:
A question arises as to whether the courts can logically maintain that the position of post-operative transsexual persons is a matter for them but that of pre-operative transsexual persons is one for parliament. This has the effect of leaving such persons as the only persons in the community who are prevented from marrying a person who they legitimately regard as a person of the opposite sex, while remaining free to marry a person of their own sex.
(Reasons, paras 25 and 26).
Closing the gender discussion, the Tribunal noted that:
... unconstrained by the authority in SRA, we would accept the submission that, in the circumstances of this case, Ms Scafe’s gender is female’, (Reasons, para28).
However, the Tribunal found itself unable to avoid making a finding that Scafe should be treated as a male for the purposes of the Act. It said:
...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.
(Reasons, para.29)
It went on to apply s.4 of the Act, and to consider particularly the nature of the relationship and what is meant by the term ‘marriage-like’ in the section. It noted the opinion of the treating doctor that male functioning had ceased, and the perception of the parties to the relationship that the association was lesbian in character.
The Tribunal noted at paragraph 31, that the Marriage Act has been relevantly and recently amended, stating as follows:
It is plain (and some might think anomalous) that the Act does not recognize same sex relationships as being capable of being regarded as ‘marriage-like’. That that is the intention of the Parliament is evident, as well, by the passage of the Marriage Amendment Act 2004. That Act amended the Marriage Act 1961 to define marriage as meaning:
the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.’
It declared, as well that a union solemnised in a foreign country between same sex couples ‘must not be recognized as a marriage in Australia.
(Reasons, para 31)
For the Secretary, it was argued that all the indicia in s.4 of the Act were met and the relationship should be characterized as marriage like. It was further submitted that the views of the parties to the relationship and the way the relationship was held out to society, these points both having the quality of a lesbian relationship, were not relevant. The Tribunal disagreed. It referred to the Federal Court decision in Pelka, (2006) 151FCR 546, on the construction of s.4, to the effect that the ‘decision-maker must have regard to the interpersonal relationship as a whole, not limited by the factors in s 4(3),
(Reasons, para33).
The Tribunal next looked for clarification from the Department’s policy guide:
The language of s.4(2)(b)excludes sibling relationships and parental relationships. It excludes same sex relationships. The exclusion of such relationships is reflected in the Secretary’s policy manual, the Guide to Social Security Law, which at Chapter2.2.5.10 refers to a marriage-like relationship in terms of a couple “living together as husband and wife’.
The decision of Deputy President Forgie in VCG and Secretary, Department of Employment and Workplace Relations [2006] AATA 956; (2006) 93 ALD 215, was also considered. The Deputy President, with the Tribunal’s approval, was quoted as follows:
Having regard to the meaning of “marriage” to which I have referred above, it seems to me that “marriage-like” must be understood as referring to that nebulous sense of joinder and common purpose of two persons that would be recognised by the Australian community as resembling marriage in one or other of the many forms in which it currently exists in Australia.
(Reasons, para 36)
In considering the above, the Tribunal determined that, given the wording of the Marriage Act, the Australian community would not consider the relationship in question marriage-like. It specifically disagreed with the Secretary’s contention that the perceptions of Scafe and of her friends and community were not relevant considerations.
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.
(Reasons, para 39)
The Tribunal went on to find that there was no marriage-like relationship, and that, if asked for a description, it would have described the relationship in question as a same sex relationship.
The Tribunal affirmed the decision of the SSAT.
[J.S.]
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URL: http://www.austlii.edu.au/au/journals/SocSecRpr/2008/24.html