This is an HTML version of an attachment to the Official Information request 'Criteria under which a transgender person may amend their birth certificate'.



the Births Deaths and Marriages 
Registration Act 1995 
Appearances:  A Bean for the Applicant 
S Hillda for the Registrar-General 
H Janes to assist the Court 
9 June 2008 
[A declaration as to sex] 
004-002325 [9 June 2008]  


[1] The applicant (“Michael”) seeks a declaration that he is a male and for birth 
certificates issued to record his name as Michael [surname].  Currently his birth 
certificate records he is a female and his name [female name]. 
[2] The application is made under s 28 (“the section”) of the Births, Deaths and 
Marriages Registration Act 1995 (“the Act”).  The full text of the section is 
contained in the appendix to this judgment. 
[3] The Registrar-General believes this application raises important and novel issues 
of public interest not previously considered by the Family Court and seeks a decision 
that will give guidance as to how the section should be interpreted and applied in 
future.  What follows are my efforts to do so, as well as decide this application, and I 
have been greatly aided in that by the excellent presentation of the case and the 
careful, thorough submissions of counsel to whom I am grateful. 
[4] This application raises, in particular, the question as to the degree of medical 
(including surgical) intervention required to achieve the necessary physical 
conformity with the nominated sex required for an applicant to be granted a 
declaration under the section.  It seems there has been a growing anxiety in some 
quarters about that issue and how the statutory test is being, or will be applied. 
[5] Reaching a decision, (and therefore understanding how that has happened) has 
required careful analysis of the facts in this case and also the medical, legal, social 
and policy issues behind the section coming into force, as well as consideration of 
how the section is framed and to be applied. 
[6] Michael was born with a female body on [date of birth] but, from early 
childhood, he identified himself as being male.  Since the age of nine he has 
consistently worn male clothing.  At about the age of 12 he realised he was sexually 
attracted to women and thought at that time he must be gay and had several 
relationships with women over the next four or five years. 

[7] After his fourth form year at school, Michael went straight to the sixth form and 
then on to university at age 16.  He completed his first degree by age 19.  While at 
university he realised he was probably not gay, but transgender, which was not 
something about which he was aware until then.  
[8] After finishing his first degree, Michael went to live in X for about a year and did 
so as a male.  He chose X after researching transgender web-sites and discovering 
that there was a reasonably large transgender community there.  He wanted to learn 
from people who had made the change, as well as having the experience of living as 
a male.  Whilst there he saw a psychotherapist to talk issues through and “…get 
things sorted out in my head.” 
[9] In mid 2003, after returning to Auckland, Michael first saw Dr F, a sexual health 
physician, in relation to treatment for gender dysphoria.  Initially Michael was 
interviewed and examined by Dr F every three weeks.  Consultations now occur 
about once a year.  After seeing Dr F, Michael received counselling and assistance 
from psychotherapists and psychologists in Auckland. 
On 24 September 2003 he changed his name by Deed Poll from [female 
name] to [male name].   
In January 2004 Michael first consulted Dr R, Psychiatrist and then 
subsequently in June 2004 and July 2006.  Dr R deposes that Michael’s history is,  
“…consistent with strong and persistent cross gender identification since 
early childhood, and it is my opinion that Michael is a genuine male to 
female transgender”.   
Also in January 2004 Michael commenced hormone (testosterone) treatment 
which he has continued with since and expects to do for the rest of his life. 
On 16 April 2004 Michael first saw Mr D, a plastic and reconstructive 
surgeon, who carried out a bilateral mastectomy as part of a gender reassignment 
programme done under the supervision of Dr R.  The initial surgery was carried out 
on 24 August 2004 with revisional surgery on 25 January 2005. 

Dr H, who has been Michael’s GP since childhood, deposes that he is “fully 
aware of Michael’s journey through his gender reassignment” and that he continues 
to prescribe testosterone replacement therapy.  He says Michael presents and 
identifies as a male, and his appearance, manner and outlook are consistent with that.   
In Dr F’s opinion, Michael has transitioned permanently to the male gender 
and his acclimatisation in society as a male has been successful.  He believes 
Michael has assumed the gender identity of a male, has undergone such medical 
treatment as is desirable to enable him to acquire the physical conformation of a 
male, and such medical treatment will allow him to maintain that gender identity.  
Surgery, he says, is not an essential part of gender reassignment therapy, but is 
merely part of treatment.  In all cases, the amount of surgery undertaken is largely 
dependent on the comfort of the patient, with some requiring more surgery in order 
to feel they have transitioned to the opposite sex.  Therefore the amount of surgery 
must be assessed on a case by case basis.  He believes hormone therapy and a 
mastectomy is sufficient medical treatment to enable Michael to acquire the physical 
conformation of a male.  A hysterectomy, ovarectomy or reconstructive surgery are 
not essential and he would not recommend such surgery for Michael at this stage.  
He notes the basic premise that “all unnecessary surgery should be avoided as it is 
contrary to the health and interests of the patient”.  He points out that, in female to 
male transgender cases, genital reconstruction is more complicated and possibly less 
effective than for male to female cases and the surgery is not available in New 
Zealand.  It usually requires multiple operations and therefore cumulative added risk.  
The cost of such procedures is in the region of USA $50,000 to $100,000. 
Dr F feels able to make this assessment of Michael confidently because of the 
steps that have been taken to date.  Firstly, and importantly, Dr R, (who Dr F 
describes as “the pre-eminent psychiatrist in New Zealand who deals with gender 
identity issues and has done for many years”) has made a diagnosis of Michael 
having gender dysphoria in accordance with appropriate international guidelines, 
namely the ICD 101 and the DSM IV2.   Secondly, Michael has followed a process of 
real-life experience as a male, over a period of time, before taking further steps.  
1 International Classification of Diseases, tenth edition. 
2 Diagnostic and Statistical Manual of Mental Disorders, fourth edition. 

Next, the approach taken by those with whom Michael has consulted has been in 
keeping with relevant international guidelines such as the Harry Benjamin Standards 
of Care3, or the World Association for Transgender Care (as it is now renamed).  The 
purpose of the Standards of Care is to articulate that international organisation’s 
professional consensus about the psychiatric, psychological, medical and surgical 
management of gender identity disorders and to provide flexible directions for the 
treatment of persons with gender identity disorders. 
As a result of testosterone therapy a number of changes occur in a person, 
some of which are permanent, some may be permanent and some are reversible.  
Examples of permanent changes are increased facial and body hair, deepened voice 
and clitoromegaly (enlargement of the clitoris by 4-5cm after 1-3 years).  Some 
changes that may happen are male pattern baldness, infertility (changes to the 
ovaries that make it difficult or impossible to produce eggs or get pregnant), 
increased risk of ovarian or uterine cancer and more.  Reversible changes include 
increased libido, increased muscle mass, redistribution of body fat, increased sweat, 
changes in body odour, increased appetite and more. 
The fact that he has the internal reproductive organs and external genitalia of 
a female does not bother Michael, he says, because he cannot see them.  He is aware 
there is additional surgery available to remove of his female organs and create 
external male genitals and that such surgery is complex and expensive.  For him it is 
not necessary to undergo further surgery in order to feel he has altered his gender to 
that of a male.  He can see no benefit in having further surgery, with all the risk that 
would entail and he has no desire to stop hormone therapy. 
For the past four years Michael has been living openly as a male and does not 
consider there to be any prospect of him wanting to resume a female identity at any 
time in the future.  He has a girlfriend and has been in a relationship with her for 
approximately 18 months.  She has been aware of his gender reassignment surgery 
and is very supportive of him.  Michael is now studying at University.  He has had a 
3 “The Harry Benjamin International Gender Dysphoria Association’s Standards of Care for Gender 
Identity Disorders”, Sixth Version, February 2001 

part time job at Y for the past three years.  In his life as a student, and in his 
employment, he is recognised and accepted as a male. 
Michael’s father deposes that he, and the rest of the family, believe Michael 
is now definitely in his correct gender.  He is sure Michael would never revert to 
being female, or want to have children as a mother and says the approach Michael 
has taken to his gender dysphoria is typical of the very systematic and careful way 
Michael goes about making all decisions.   
When Michael gave his evidence he presented as being an intelligent, 
articulate and thoughtful man and I readily accept his father’s description if him as 
being “incredibly capable intellectually, socially and emotionally, and very 
To determine whether the requirements of the section are met (and also to 
understand this judgment), some understanding of transsexualism and gender 
dysphoria is necessary. 
Transexualism has been described as the enduring, pervasive, compelling 
desire to be a person of the opposite sex.  Unlike the majority of people who have a 
gender identity that matches the sex they were born with, transsexuals experience a 
conflict between their physical sex and their gender identity as a man or woman.  
While having the physical characteristics of one gender, psychologically they 
identify with members of the opposite gender.4 
Transsexualism is recognised as a psychiatric disorder, often known as 
gender dysphoria or gender identity disorder.  It is necessary to distinguish it from 
other concepts with which it is sometimes confused.  On this issue it is helpful to 
begin with reference to the following key factors and observations taken from the 
House of Lord’s decision, Bellinger v Bellinger5.  
4 Heike Polster, “Gender Identity as a New Prohibited Ground of Discrimination” (2003) 1 NZJPIL 
157 at 164 
5 [2003] 2 All ER 594 (HL) @ pp 597 & 598. 

The indicia of human sex or gender are: 
Chromosomes: XY pattern in males, XX in females.  
Gonads: testes in males, ovaries in females.  
Internal sex organs other than gonads: eg; sperm ducts in males, 
uterus in females.  
External genitalia.  
Hormonal patterns and secondary sexual characteristics, such as facial 
hair and body shape.  
Style of upbringing and living.  
Self-perception.  Some medical research has suggested that this factor 
is not exclusively psychological but is associated with biological 
differentiation within the brain.6 
In the vast majority of cases these indicia in an individual all point in the 
same direction.  There is usually no difficulty assigning male or female gender to the 
individual.  However, some people are born with physiological characteristics which 
deviate from the norm in one or more respects and to a lesser or greater extent.  
These people are referred to as being inter-sexual.  Inter-sex is an umbrella medical 
term that covers a variety of diagnoses and conditions where a person is born with 
reproductive or sexual anatomy that does not fit the typical biological definitions of 
female or male, or where these conditions appear later in life.  Inter-sexuality is a 
state of indeterminate sexuality in an individual and may be present in many 
different forms.  A characteristic is that only one type of gonad – testes or ovary – is 
present.7 A hermaphrodite is an individual in whom both ovarian and testicular tissue 
is present.8 
Transexual people are to be distinguished from inter-sexual people. A 
transsexual person is born with physical characteristics that are congruent but whose 
self-belief is incongruent.  Transsexual people are born with the anatomy of a person 
6 The research has been very limited, and in the present state of neuroscience the existence of such an 
association remains speculative. 
7 Black’s Medical Dictionary; 41st Edition, page 373. 
8 Black’s Medical Dictionary @ p 329. 

of one sex but with an unshakeable belief or feeling that they are persons of the 
opposite sex. 
Also, a transsexual is to be distinguished from a homosexual.  A homosexual 
is attracted sexually to persons of the same sex.  Nor should a transsexual be 
confused with a transvestite who is someone who enjoys dressing in the clothes of 
the opposite sex, usually for his/her own sexual gratification. 
The treatment for gender dysphoria depends on the severity and the 
circumstances of the individual.  Ultimately the most that medical science can do to 
alleviate the condition is, in appropriate cases, to rid the body of its intensely 
disliked features and make it accord, so far as possible, with the anatomy craved.  
This is done by means of hormonal and other treatment and major surgery, popularly 
known as a ‘sex change’ operation.  In this regard medical science and surgical 
expertise have advanced much in recent years.  Hormonal treatment can change a 
person’s secondary sexual characteristics.  Irreversible surgery can adapt or remove 
genitalia and other organs, external and internal.  By this means a normal body of 
one sex can be altered so as to give the appearance of a normal body of the other sex.  
But there are still limits to what can be done.  Gonads cannot be constructed.  The 
creation of replica genital organs is particularly difficult with female-to-male gender 
reassignment surgery.    Chromosomal patterns remain unchanged.  The change of 
body can never be complete. 
There are typically four steps of treatment, namely psychiatric assessment, 
hormonal treatment, a period of living as a member of the opposite sex subject to 
professional supervision and therapy (the ‘real life experience’), and finally, in 
suitable cases, gender reassignment surgery.  Surgical intervention takes many forms 
and, for a variety of reasons, is undertaken by different people to different extents.   
Not all transsexuals wish to have treatment.  In Goodwin v United Kingdom9
the Court noted the following passage from a report commissioned by the Secretary 
of State for the Home Department: 
9 [2002] 2 FCR 577,  

Transsexual people deal with their condition in different ways.  Some 
live in the opposite sex without any treatment to acquire its physical 
attributes.  Others take hormones so as to obtain some of the secondary 
characteristics of their chosen sex.  A smaller number will undergo 
surgical procedures to make their bodies resemble, so far as possible, 
those of their acquired gender.  The extent of treatment may be 
determined by individual choice, or by other factors such as health or 
financial resources.  Many people revert to their biological sex after 
living for some time in the opposite sex, and some alternate between the 
two sexes all their lives.  Consideration of a way forward [in reference to 
status under the law] must therefore take into account the needs of people 
at these different stages of change.”   
Like any medical treatment decision, the decision whether or not to undergo 
treatment for transsexualism is one informed by professional clinical guidelines, the 
clinical judgement of the medical professionals involved and the particular 
circumstances, needs and desires of the individual client. 
The House of Lords noted in Bellinger10 that there is no ‘standard’ operation 
or recognised definition of the outcome of completed surgery.  Further, the surgery, 
however “extensive and elaborate”, was inevitably incomplete, with a complete 
change of sex being “unachievable”.  It was noted that the point at which a change of 
gender should be recognised is not easily ascertained. The line could be drawn at a 
number of different points from the initial diagnosis of gender disorder to the 
completion of reconstructive surgery.  The point at which people feel they have 
achieved their change of gender varies enormously.  From the research it can be seen 
how much more difficult it is to undergo successful female to male reconstructive 
surgery than the male to female but the self-identification in the preferred male 
gender can be as strong as in a post-operative male to female transsexual.  The Court 
expressed the view that it is questionable whether the successful completion of some 
sort of surgical intervention should be an essential pre-requisite to the recognition of 
gender reassignment.  If it were, individuals may find themselves coerced into major 
surgical operations they otherwise would not have.  The aim of the surgery is to 
make the individual feel more comfortable with his or her body, not to ‘turn a man 
into a woman’ or vice versa.11   
10 at pp 603 & 607 
11 at p 603 

The House of Lords recognised that the issue of transsexualism includes 
definitional questions of how far the person must go in order to qualify as a 
transsexual.  Is merely assuming the life and clothing of a woman enough or must it 
include irreversible gender reassignment?  Or something in between?  The Court 
noted that there are cogent arguments against adopting any specific criterion and also 
that many people revert to their biological sex after living for some time in the 
opposite sex and some alternate between the two sexes throughout their lives.12 
In  Re Alex: Hormonal Treatment for Gender Identity Dysphoria13, 
Nicholson CJ considered it a matter of regret that a number of Australian 
jurisdictions require surgery as a pre-requisite to the alteration of a transsexual 
person’s birth certificate in order for the record to align a person’s sex with his/her 
chosen gender identity noting that this is of little help to someone who is unable to 
undertake such surgery.  He said the requirement of surgery seems to be a cruel and 
unnecessary restriction upon a person’s right to be legally recognised in a sex which 
reflects the chosen gender identity and would appear to have little justification on 
grounds of principle. And further, that the requirement of surgery is generally 
inconsistent with human rights – and that the requirement is more disadvantageous 
and burdensome for people seeking legal recognition of their transition from female 
to male than male to female.  There was therefore that additional objection to surgery 
as a pre-requisite as being a form of indirect discrimination.   
In a meticulous judgment in the case of Re: Kevin14, Chisholm J found that 
from the medical information provided, it would be wrong to identify and define a 
person’s gender simply on the basis of the chromosomes, genitals and gonads with 
which they are born.  The mind as well as the body determines the sex of an 
individual.  Evidence from Professor Diamond15 provided an illuminating account of 
the processes by which children come to perceive themselves as male or female.  
Professor Diamond suggests that while young children might be aware of their 
genitals, their self-identification derives more from things other than genitals, such 
12 at p 612 
13 [2004] FamCA 297 
14 Re: Kevin (Validity of marriage of transsexual) 2001 FamCA 1074 at paras 267-269. 
15 Professor Milton Diamond PhD; Professor of Anatomy and Reproductive Biology, School of 
Medicine, University of Hawaii. 

as preferring to be with and engage in the activities of one sex, or such physical 
markers as clothes, hairstyle and height.  Only as they grow older and more 
sophisticated do they come to see their genitals as sex markers, and for atypical 
individuals, “the discordance is cause for serious reflection and introspection”.  
While for other children the various aspects are concordant, for these children their 
anatomy “does not provide the feedback offered to typical individuals”. 
It was noted that the subjective experience of transsexuals is described 
movingly in the literature.  They speak of being trapped in their bodies.  One is 
reported as saying after sex reassignment: “before this treatment I had/was nobody; 
now I am somebody”.  Chisholm J commented that it seems quite wrong to think of 
these people as merely wishing or preferring to be of the opposite sex, or having the 
opinion that they are.  As the authors put it, given the fact that transsexuals frankly 
and ingenuously view their gender identity/role as correct and their body as totally 
wrong, psychotherapy to reconcile their gender identity to their body is doomed to 
fail.  In their reflections transsexuals have no options:  “there is only one way out of 
their deadlock: “the body” must follow “the mind”.   
Chisholm J concluded that the experience of transsexuals and the strength 
and persistence of their feelings fits well with the view that they have a sexual brain 
development contrary to their other sex characteristics such as the nature of their 
chromosomes, gonads and genitalia. 
While it was noted that there is still doubt about precisely what 
characteristics of the brain are involved, how the development takes place, and the 
extent to which the development extends beyond the time of birth, whatever the 
answers to these questions might prove to be, the evidence demonstrates that the 
characteristics of transsexuals are as much “biological” as those people thought of as 
inter-sex.  The difference is essentially that we can readily observe or identify the 
genitals, chromosomes and gonads, but at present we are unable to detect or 
precisely identify the equally “biological” characteristics of the brain that are present 
in transsexuals. 

The Attorney-General for the Commonwealth v “Kevin and Jennifer” and 
Human Rights and Equal Opportunity Commission16  was a hearing of an appeal 
against the decision of Chisholm J in Re: Kevin by the full Court of the Family 
Court of Australia.  In dismissing the appeal, the Court noted that the reluctance of 
Courts to “enter this area” seems to be based on something of the same logic as that 
of in earlier cases such as Corbett v Corbett17; namely an inability to be able to make 
a physical or scientific examination in order to determine the sex of a person.  The 
Full Court said that, if one accepts the argument of [the applicant’s counsel] and the 
evidence given in that case, Kevin (the applicant) had always perceived himself to be 
a man.  One then asks the rhetorical question as to why he must subject himself to 
radical and painful surgery to establish this fact. 
With that general background as to Transsexualism, and the views expressed 
in the judgment’s cited, it is next helpful to consider the passage of the section into 
law by reference to the Parliamentary debates.  As introduced to the House, clause 
29 of the initial Bill, required that the applicant,  
“has undergone surgical and medical procedures that have effectively 
given the person the physical conformation of a person of the opposite 
Medical evidence would be required to show that the person had,  
“undergone surgical procedures sufficient (when accompanied by the 
appropriate medical procedures) effectively giving the person the 
physical conformation of a person of the sex concerned”.19 
The purpose of the provision was described in Parliamentary debates as 
“… to allow those people who have undergone surgical and medical 
procedures, and are thus firmly and irreversibly committed to assuming 
the physical identity of the sex that conforms with their psychological 
view of themselves, to be issued with birth certificates that accord with 
16 [2003] FamCA 94 
17 Corbett v Corbett (Otherwise Ashley) [1971] P 83 
18 The Births Deaths and Marriages Registration Bill No. 193-1 (5 December 1989) clause 
19 Clause 29(2)(a) of that same Bill 

that sex.  Such people should not be subjected to embarrassing and 
distressing problems at present associated with routine activities 
requiring the production of a birth certificate.” 20 
Reference in the Bill to “surgical and medical procedures that have 
effectively given  the person the physical conformation of a person of the opposite 
sex” indicates that genital surgery was originally intended to be a requirement for a 
declaration as to change of gender to be made.  So too does the reference in 
Parliamentary debates to a person being “irreversibly committed” to assuming the 
desired gender identity.    
[45]  However, clause 29 was amended twice before it was enacted in its present 
form.  Supplementary Order Paper (“SOP”) 45, dated 25 July 1991, proposed 
changes to clause 29 including the redrafting of the criteria the Family Court was to 
apply when considering an application for a declaration.  Clause 29(3)(a), as 
amended by SOP 45, provided that, before issuing the declaration the Court must be: 
“…satisfied, on the basis of expert medical evidence, that – 
The person has undergone all medical procedures 
usually regarded by medical experts as necessary to 
enable persons with the person’s former physical 
conformation to assume the gender identity of a person 
of the nominated sex.”  
SOP 45 also amended the definition of the term “medical” to include surgical 
procedures.  The Justice and Law Reform Committee recommended changes be 
made to the drafting of clause 29(3)(a) as amended by SOP 45 to make clear the 
distinction between the psychological adoption of a gender identity and the adoption 
of a physical conformation of the sex which accords with the gender identity of the 
person concerned.  The committee also recommended that the word “all” be omitted 
when stating the requirement for transsexuals to have undergone the necessary 
medical procedures.  The committee then noted: 
20 (Parliamentary Debates, Hon Philip Woollaston (Associate Minister of Justice) on moving 
the introduction of the Bill on 5 December 1989 

“… medical intervention alone cannot enable a person to adopt the 
gender identity of a nominated sex.  An adult transsexual’s gender 
identity will have been established prior to medical intervention.”21 
During the Parliamentary debates this shift in emphasis was referred to as 
The select committee…recognised that it was principally a 
psychological, rather than a surgical, matter of identity, and that to 
require people to go through the full gamut of very expensive surgery in 
order simply to have themselves recorded on their birth certificate as 
being the sex with which they identify was inappropriate.”22 
SOP 45 was withdrawn and replaced by SOP 76, which substituted the 
original clause 29 in one significant aspect by providing that the birth certificate 
would record the nominated gender only after an applicant had undergone: 
“… all medical treatment usually regarded by medical experts as 
desirable to enable persons of the genetic and physical conformation of 
the applicant at birth to acquire a physical conformation that accords with 
the gender identity of a person with the nominated sex.”  
By the time of the Bill’s third reading, clause 29 had been amended to its 
present form by substituting “such medical treatment” for “all medical treatment”.  
At that time, the Parliamentary debates note that this change was made because there 
was “…some confusion about what medical procedures should and could and need 
to be taken.”23  This appears to be a reference to the possibility of medical 
technology developments by which means of change other than physical procedures 
may become available. 
The legislative history of the section reveals a significant relaxation by 
Parliament in relation to the extent of medical treatment an applicant seeking a 
declaration needed to undergo.  It is apparent from the legislative history, that by the 
time the Bill was passed, Parliament did not intend an applicant should necessarily 
have to undergo all available surgical procedures, including full genital surgery, to 
satisfy the test under the section.  The records would seem to support an 
21 Report of the committee on the supplementary order Paper No 45 relating to the Births, Deaths and 
Marriages Registration bill, tabled in the House on 22 June 1993 – Appendix to the Journals of the 
House of Representatives of New Zealand 1991-1993 Vol XXIII, I.8 page 33 at 35-36. 
22 Richard Northey during the 3rd reading of the Bill – 28 March 1995. 
23 Diane Yates, 28 March 1995. 

interpretation of the section as requiring some degree of permanent physical change 
as a result of the treatment (including psychological treatment) received.   
Counsel point out that what is not clear is the point at which change on the 
treatment continuum will satisfy the requirement for a physical conformation that 
accords with the nominated sex.  It can be inferred from the debates that the absence 
of definition on that point was deliberate and that what was intended was a case by 
case assessment of whether the steps taken by an applicant satisfied the test.  Such an 
approach would also accord with the views expressed in many of the cases about the 
inappropriateness of specifying where the line on treatment is drawn because of how 
the circumstances of individual applicant’s will vary. (See for instance in Bellinger 
referred to at para [33] above). 
Next, it is helpful to analyse the section itself; the way it is framed and the 
language used. 
Section 28(1) 
The use of the word “may” in subs (1) of the section is empowering, but does 
not provide a residual discretion because it is subject to subs (3) which provides that 
the Court “shall” issue the declaration if, and only if all three of the mandatory 
tests set out in subs (3) are satisfied.  In addition to those three tests, the applicant 
must also be over 18 years of age. 
Section 28(2) 
Subsection (2) requires the Registrar-General to be served with a copy of the 
application (as well as any other person who, in the Court’s opinion, is interested or 
might be affected by the making of the declaration). 

Section 28(3) 
Under subs (3) the Court is required to carry out what Ms Janes eloquently 
described as “cascading levels of assessment”: 
Section 28(3)(a)(i),(ii) & (iii) 
The first step involves determining whether the registration of the applicant’s 
birth includes information that the applicant is a person of the sex opposite to the 
nominated sex (or else that the person is of indeterminate sex, or there is no 
information at all as to the applicant’s sex). 
Section 28(3)(b)(i) & (ii) 
If satisfied that an applicant is not a person of the nominated sex, the second 
step is to determine whether the applicant has assumed, and intends to maintain, or 
always has had and intends to maintain, the gender identity of a person of the 
nominated sex and wishes that sex to appear on his/her birth certificates.   That 
enquiry rests on assessment of the applicant’s own evidence as to his/her intentions 
and wishes.   
Firstly, it requires being satisfied that the applicant has assumed or always 
has the gender identity of the nominated sex.  Secondly, that the applicant has the 
requisite intention to maintain the gender identity of the nominated sex.  That “test’ 
is necessarily prospective and to a large extent can only be met by assurances from 
the applicant and a review and analysis of historical conduct and other social and 
psychological factors.  
Section 28(3)(c)(i) 
The third step (so far as it is relevant in the context of this case – given that 
there is nothing in the evidence to suggest that subs 28(3)(c)(ii) applies here) 
involves a three-limb test which must be satisfied on all levels on the basis of expert 
medical evidence.  

Section 28(3)(c)(i)(A) 
The first limb requires being satisfied on the basis of such evidence that the 
applicant has assumed the gender identity of the nominated sex. 
Section 28(3)(c)(i)(B) 
The second limb requires being satisfied on the basis of such evidence that an 
applicant has undergone such medical treatment as is desirable to acquire a physical 
conformation that accords with the gender identity of the nominated sex.  It is 
helpful, I think, to pick this test apart as follows: 
“Medical” is defined in s 2 of the Act as including psychological and 
surgical.  Therefore, in the context of this provision, “medical treatment” is capable 
of meaning both surgical interventions and non-surgical measures such as 
counselling and other psychological treatment as well as hormonal and 
pharmacological therapies. 
“Usually regarded by medical experts as desirable” means the assessment of 
what is desirable is that of a group or consensus of medical experts, rather than the 
opinion of an individual medical expert.  The test is not what the applicant considers 
to be desirable for him/her to achieve personal comfort with, or physical conformity 
to, their nominated gender identity.  
“Desirable” means “worth having or wishing for.”24 It does not mean 
necessary or essential. 
“To enable the applicant,” means the focus of the assessment regarding 
medical treatment is on the individual applicant and what is required for him or her 
to achieve the “desirable” objective.  Assessment on a case-by-case basis is required 
and this will take into account the unique circumstances of the particular applicant. 
24 The Concise Oxford Dictionary, 9th ed. 

“Conformation”  means “shape or structure”25, and “physical conformation” 
therefore refers to the structure or appearance of the applicant’s body or physical 
“A” physical conformation is what is required.  Use of the indefinite article 
“a” rather than the definite article “the” suggests that the degree of conformation is 
not intended to necessarily be complete conformity with the physical characteristics 
of the nominated sex. 
“Accords with,” means to “be consistent with” or “not contradictory”26. 
The individual applicant’s degree of comfort with, or physical conformity to 
their nominated gender identity is the proper focus of treatment decisions by medical 
specialists, and the therapeutic approach taken should be consistent with accepted 
and recognised treatment options for gender dysphoria of the type affecting the 
particular applicant.  
The focus of the legal test is the nature of the medical (psychological and 
surgical) treatment received and it’s effect on the degree to which the applicant’s 
physical conformation accords with that of the nominated gender.   
A transsexual who has undergone “complete gender reassignment” will 
satisfy the test under this subsection. That is not is dispute.  The issue raised in this 
case, and in respect of which clarification is sought, is at what point short of 
complete gender reassignment surgery a person’s physical appearance has changed 
such that it “accords with the gender identity of a person of the nominated sex”.  
More particularly, whether an applicant must have undergone surgery to alter their 
genitals to satisfy that test; and if so, at what point on the continuum of surgical 
treatments available to them the genitals are considered to be sufficiently consistent 
with those of the nominated sex. 
For reasons which follow from the comments made at para [51] above, I do 
not think it appropriate or relevant to talk in terms of “thresholds” or “points on the 
25 The Concise Oxford Dictionary, 9th ed 
26 The Concise Oxford Dictionary, 9th ed 

continuum of surgical treatments” in a generalised way in cases under the section.  I 
do not believe Parliament intended there be a standardised test to apply to all 
applicants and to do so would be to misunderstand transsexualism and the treatment 
for it.  The short answer to the question is that it is not necessary in all cases for an 
applicant to have undergone full gender reassignment surgery in order to obtain a 
declaration under the section.  Just how much surgery he/she needs to have had is 
determined on a case by case basis by reference to the evidence in the particular 
case, including that of the medical experts.   
Section 28(3)(c)(i)(C) 
The third limb requires being satisfied on the basis of such evidence that, as a 
result of the medical treatment undertaken, the applicant will maintain the new 
gender identity. 
“Will” again means that the test to be applied is prospective. 
“As a result” introduces a causation element to the test.  The medical 
treatment must itself have the effect of maintaining a particular gender identity.   
“The medical treatment undertaken” refers back to the medical treatment in 
the preceding provision; that is, to medical treatment (both psychological and 
surgical) already undergone or being received by the applicant at the time of the 
“Maintain” means “cause to continue; keep up, preserve a state of affairs, an 
activity etc.”27   
The Court must be satisfied that the applicant’s adoption of the physical 
conformation of the nominated gender will be maintained as a result of the medical 
treatment already undergone at the time of the application.  This suggests that the 
medical treatment referred to in s 28(3)(c)(i)(B) must result in a degree of permanent 
change.  Alternatively, that the Court is satisfied on the basis of expert medical 
27 The Concise Oxford Dictionary 9th ed 

evidence that the applicant is currently undertaking medical treatment which 
achieves physical conformity with the nominated gender, and will in future continue 
to undertake such medical treatment which will maintain the gender identity of the 
nominated sex. 
The declaration may be issued if, and only if, the Court is satisfied in respect 
of each step of those tests under the section. Whether or not the test is satisfied in 
any given case is a matter of fact to be decided by the Court on the basis of evidence 
presented to it.   
As a matter of statutory interpretation, the tests under the section require a 
large measure of certainty that an applicant has psychologically, socially and 
physically assumed the nominated gender identity and a degree of permanence in the 
physical changes brought about by medical treatment. 
It is now appropriate to apply the statutory criteria to the facts of this case. 
Section 28(1) 
The criteria in this subsection are met.  Michael is over the age of 18.  
Section 28(2) 
Service has been affected. 
Section 28(3)(a)(i) 
The notation on Michael’s current birth certificate, that he is a female, plus 
the evidence of Michael and others that his nominated sex is male, satisfies the 
requirements of this subsection.   

Section 28(3)(b)(i) & (ii) 
The evidence satisfies me that Michael has assumed, and intends to maintain 
the gender identity of a male, which is the nominated sex.  I am also satisfied he 
wishes the nominated sex to appear on birth certificates issued for him.  In reaching 
that conclusion I have regard to the careful and thorough way he has gone about 
understanding his transsexualism, the early age at which he identified himself as 
being male, the period over which he has lived and been accepted in society as a 
male, the convincing way in which he speaks of his determination to live the rest of 
his life as a male and the professional advice he has taken and acted on to date.  He 
also gets strong corroborative support for his position from those who know him 
well, in particular his father.  The medical experts, Doctors R and F, who have 
worked closely with him regarding his gender dysphoria, are also convinced of his 
intention to maintain his identity as a male. 
Although Michael still has the genitalia and reproductive organs of a female, 
and transgender people have been known to revert to their biological sex or alternate 
between the sexes, I assess the chances of that happening in this case to be very slim.  
Michael gives cogent reasons for not wanting to undertake any further surgical 
intervention and is supported in this regard by Dr F.  The non-reversible effects of 
his hormone treatment (see at para [17] above) are such that, to some extent, 
Michael’s gender identity as a male is established permanently.   
Section 28(3)(c)(i)(A) 
Dr R, Dr F, and Mr D all qualify as medical experts.  On the basis of their 
evidence (see paras [11],[13],[15],[16] & [17] above) I am satisfied that Michael has 
assumed (or has always had) the gender identity of a male. 
Section 28(3)(c)(i)(B) 
The evidence of Dr F is that Michael has undergone such medical treatment 
as is usually regarded by medical experts as desirable for him to acquire a physical 
conformation of a male.  The treatment started with the assessment and diagnosis by 

Dr R (see para [11] above).   Next, Michael has undergone psychological 
counselling, has been on continuous hormone therapy since January 2004  - relevant 
given the medical evidence that it can take 2 years for full effects to occur - and has 
undergone a bilateral mastectomy to acquire the chest of a male.   
There is expert medical evidence from Mr D that Michael’s surgery has 
resulted in a masculinised chest.  The combination of the ongoing testosterone 
hormone therapy, and the surgery, mean that Michael will never exhibit the 
secondary sexual characteristics of breasts in future and therefore will continue to 
physically conform in that respect to the nominated gender.  The ongoing 
testosterone will also ensure maintenance of the effects set out above. 
Dr F is of the opinion that further surgery is not an essential part of gender 
reassignment treatment.  In his view hormone therapy and the mastectomy are 
sufficient for Michael to have undergone the treatment usually regarded by medical 
experts as being desirable to enable him to acquire the physical conformation of a 
male, and he would not recommend other reconstructive surgery at this stage for 
Michael.  This is an opinion provided by Dr F, as an expert, but with reference to the 
internationally recognised standards of care for transsexual people by medical 
professionals (see para [16] above]). 
Section 28(3)(c)(i)(C) 
This subsection requires expert medical evidence that Michael will maintain 
his male gender identity as a result of the medical treatment undertaken.  Dr F and 
Dr H are continuing to prescribe/provide testosterone replacement therapy, and to 
some extent the effects of that are irreversible.  Dr F deposes that Michael will, as a 
result of his treatment, maintain a gender identity of male.  That is in part because of 
his confidence in the diagnosis that was made by Dr R, and then the medical 
treatments that Michael has subsequently received.  Dr F’s evidence is clear that 
there is no further surgical intervention contemplated at this time as further surgery 
is not required in order for [him] to consider that Michael is now of the male sex. 

It follows from the findings recorded above that the grounds are made out 
and the application is therefore granted. 
A declaration is now made that Michael is a male and that birth certificates 
issued record his name as [his male names]. 
Given the issues and concerns raised in Counsel’s submissions, and noted in 
material presented to the Court regarding transsexualism and the law, I think it 
would be useful to mention something about the effect of the declaration now made, 
followed by comment of the application of the statutory test generally. 
Section 64 of the Act provides for birth certificates for Michael to now record 
he is a male, and his name is [male names] – as if he has had that sex and those 
names since birth. 
Section 71 of the Act provides that a birth certificate shall in any proceedings 
be received as prima facie evidence of the truth of the information it contains.   
However, s 33 of the Act provides that the sex of every person shall continue 
to be determined by reference to the general law of New Zealand. 
The effect of s 33 is that the registration of information that the person is of 
the nominated sex does not itself determine the person’s sex in the eyes of the law in 
all respects.28 
Following alteration of the birth record, Michael will be legally recognised as 
a male only to the extent that the general law provides for a birth certificate to be 
determinative or that he otherwise qualifies.  He will not necessarily be a male for all 
legal purposes. 
28 Births, Deaths and Marriages Registration Bill No 193-1, Explanatory Note, page iii 

[100]  A properly issued birth certificate will qualify him to hold a New Zealand 
passport and driver’s licence as a male because in each case a birth certificate is 
required as evidence of identity.   A passport and drivers licence in turn serve as 
evidence of legal identity for many purposes.    
[101]  Section 77(9) of the Act provides for notification of the fact that Michael has 
a reassigned sex on his birth certificate to any Government agency having an interest 
in ensuring that people should not have more than one legal identity.    
[102]  The Act expressly provides for limited disclosure of birth information where 
sexual reassignment has been registered.  Section 77(6)(c) authorises a marriage 
celebrant or Registrar to access information that a person is of an opposite sex to that 
recorded in the original birth record, where the information is material for the 
purpose of investigating whether or not the parties to a proposed marriage are a man 
and a woman.    
[103]  Coupled with the effect of s 33 of the Act, s 77(6)(c) suggests that Parliament 
did not intend that legal recognition of the nominated sex under the section (ie s28) 
would be determinative of a transsexual’s sex for the purposes of marriage.  
However, in that regard it is relevant to note the decision of Judge Aubin in M v M29 
where it was declared that a marriage between a woman and a male to female 
transsexual was a valid marriage. 
[104]  Also see Attorney-General v Family Court at Otahuhu30  in which Ellis J 
drew a distinction between the recognition of a change of sex on birth certificates 
and whether or not a female to male transsexual was a male for the purposes of 
marriage.  Anticipating the introduction of the Births, Deaths and Marriages 
Registration Act he noted that: 
“Even if a birth certificate was issued for a person in the alternate sex, 
that would not automatically allow a person to marry as a member of that 
sex unless the Courts were willing to endorse such a marriage.  It is 
possible that even though a person has a birth certificate as a female, for 
29 M v M (marriage: transsexuals) [1991] NZFLR 337. 
30 [1995] NZLR 603 

example, pursuant to such legislation, a Court could still hold that the 
person did not have the attributes to marry in that sex…”.31  
[105]  However he also held that there is no social advantage in the law not 
recognising the validity of a marriage of a transsexual in a reassignment case.32 
[106]  As Ms Janes points out in her submissions in the present case, if the test 
under the section (s28) can be satisfied by a lower threshold than the test for 
marriage, transsexuals with amended birth certificates will not necessarily be unable 
to form legally recognised relationships as a person of their nominated sex.  They 
will be entitled to enter a civil union.  However, if they wish to marry, a female to 
male transsexual, for example, may live as a male, be socially perceived as a male, 
and be legally recognised as a male in official identity documents, but only be able to 
marry as a female.   
[107]  The Court of Appeal confirmed in Quilter v Attorney-General  33that under 
the Marriage Act 1955 same-sex couples are not entitled to obtain a marriage licence 
and marry.  That Act confines marriage to a union between a man and a woman.   It 
is not suggested that the interpretation of the statutory test should be determined by 
reference to the general law.   The threshold adopted for legal recognition under the 
section may however influence the future development of the general law.  Therefore 
the potential social and policy implications arising from adoption of different 
thresholds for legal recognition in different aspects of the applicant’s life may 
require further legislative consideration.   
31 @ p 616; para 8.9 
32 @ p 629; para 15.3 
33 [1998] 1 NZLR 523 

[108]  As mentioned in the introduction to this Judgment, the Registrar-General 
sought a decision that would provide guidance as to the interpretation and 
application of the section.  This, it seems, is due to the lack of reported decisions on 
the section and a growing uncertainty as to how the statutory test is being, or will be 
applied.  It was submitted that the difficult aspect of the present case would be to 
determine whether Michael is disqualified from meeting the test under the section 
because he still has the genitals and reproductive organs of a female, and does not 
have the sexual organs of a male. 
[109]  For the reasons set out in this judgment, I have not found those factors to 
disqualify Michael from obtaining a declaration which has now been made.  As to 
the approach to be taken generally to applications under the section, I refer back to 
paragraphs [51] and [72] above in particular.  
[110]  Counsel also drew my attention to the Human Rights Commission’s 
Transgender Report 200734 which mentions that transgender people are confused 
about what the test in the section means in practice.  Many thought that the 
requirement for “medical treatment ... to acquire a physical conformation” of the sex 
matching their gender identity meant that they must have had “full gender 
reassignment surgery”.  A number were given this advice by staff at the Department 
of Internal Affairs, or in their local Family Court.  Transgender people said the 
statutory test was unfair and problematic given the reality that most will never be 
able to access the full range of surgical procedures.  They also said that for many of 
them such surgeries are simply not available in New Zealand, are too costly, 
medically unnecessary, or undesirable for other medical or cultural reasons.  For 
these and other reasons most transgender people did not expect to ever have full 
gender reassignment surgeries, nor to be able to meet the “physical conformity” 
requirements of the statutory test. 
34 “To Be Who I Am”; Report of the Inquiry into Discrimination Experienced by Transgender People. 

[111]  In its conclusions, the Commission records that the current legal framework is 
complex and confusing to transgender people, who are very diverse and should not 
have barriers placed in the way of their human rights simply because that diversity 
presents legal complexity.  Account should be taken of both the transgender person’s 
subjective view of their gender identity and objective evidence that they have taken 
steps to live in the appropriate sex, it is said.  It is suggested by the Commission that 
the section should be amended to reflect this.  Importantly it says, the distinction as 
to whether a transgender person is pre- or post-operative should not be determinative 
of the gender the law should regard the person as having. 
[112]  In my view, such an approach to addressing the legal status of transgender 
people would be in keeping with the observations made by the courts overseas in 
cases such as those referred to earlier in this judgment and the knowledge and 
understanding the medical profession have of transgender issues, as is evident from 
the information presented in this case.  The law needs to keep pace with medical 
research and be applied in a manner that achieves justice for those concerned. 
[113]  Although the framing of the section is complex, I have found that, after 
analysis, it is intended to be applied in a manner that is capable of addressing the 
primary concerns raised.  It is clear that there can be no standard threshold test 
because each case must be dealt with on its own merits by reference to the evidence 
of the particular applicant, and of the medical experts familiar with that person’s 
situation.  How much surgery will be required in any given case depends on the 
circumstances of the particular applicant.  The legislative history suggests that 
Parliament did not intend that a transsexual should necessarily be required to 
undergo the full range of surgical procedures that may be available before being 
afforded legal recognition of their chosen gender.  Whilst there needs to be some 
degree of permanent physical change, that does not mean that full gender 
reassignment surgery will be required in all cases – and it has not been in this case. 
[114]  If this decision is reported in any way, it is to be with the name of the 
applicant deleted and replaced by the name “Michael”.  Also, all other names or 

particulars that might lead to his identification, (such as date of birth, place of work 
and study, plus courses of study) must be deleted too, so as to protect the applicant’s 
identity completely. 
A J Fitzgerald 
Family Court Judge 
Signed at  9.30 am this      9th    day of      June     2008 

Declarations of Family Court as to sex to be shown on 
birth certificates issued for adults 
Subject to subsection (3) of this section, a Family Court 
may, on the application of a person who has attained the age of 18 
years, declare that it is appropriate that birth certificates issued in 
respect of the applicant should contain the information that the 
applicant is a person of a sex specified in the application (in 
subsection (3) of this section referred to as the nominated sex). 
The Court shall cause a copy of the application to be 
served on the Registrar-General, and any other person who, in the 
Court's opinion, is interested in it or might be affected by the 
granting of the declaration. 
The Court shall issue the declaration if, and only if,— 
It is satisfied that there is included in the registration of 
the applicant's birth— 
(i) Information that the applicant is a person of the sex 
opposite to the nominated sex; or 
(ii) Information that the applicant is a person of indeterminate 
sex; or 
No information at all as to the applicant's sex; and 
It is satisfied that the applicant is not a person of the 
nominated sex, but— 
(i) Has assumed and intends to maintain, or has always had 
and intends to maintain, the gender identity of a person of the 
nominated sex; and 
(ii) Wishes the nominated sex to appear on birth certificates 
issued in respect of the applicant; and 
(c) Either— 
(i) It is satisfied, on the basis of expert medical evidence, that 
the applicant— 
Has assumed (or has always had) the gender 
identity of a person of the nominated sex; and 
Has undergone such medical treatment as is 
usually regarded by medical experts as desirable to enable 
persons of the genetic and physical conformation of the 
applicant at birth to acquire a physical conformation that 

accords with the gender identity of a person of the 
nominated sex; and 
Will, as a result of the medical treatment 
undertaken, maintain a gender identity of a person of the 
nominated sex; or 
(ii) It is satisfied that the applicant's sexual assignment or 
reassignment as a person of the nominated sex has been 
recorded or recognised in accordance with the laws of a state 
for the time being recognised for the purposes of this section 
by the Minister by notice in the Gazette.”