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No sex please! We’re gender non-specific!

No Sex Please! We’re Gender Non-specific!

Sex, sex, sex. Yes, it’s everywhere – even on our Birth Certificates.

But this may soon change in light of a recent High Court case known as “Norrie’s case”1, named after the person who sparked it all.

Norrie was born in Scotland with male reproductive organs. In 1989, she (and I am using the gendered language of the High Court here) underwent a “sex affirmation procedure”, designed to correct or eliminate sexual ambiguities. Unfortunately for Norrie, the surgery wasn’t successful, in that she could not identify fully with either sex. To put it in her words, her gender was “non-specific”.

Norrie applied to the NSW Registry of Births, Deaths & Marriages to have her sex recorded as “non-specific”. Initially, the Registrar accepted her application and issued a Change of Sex Certificate and a Change of Name Certificate, both of which recorded her sex as “not specified”. However, the Registrar later wrote to Norrie, advising her that her Change of Sex Certificate was invalid. It issued a fresh Change of Name Certificate which said that her sex was “not stated”.

Norrie appealed this decision in the Administrative Decisions Tribunal (ADT), which upheld the Registrar’s decision. The Tribunal affirmed that the Registrar could only register a person’s sex as “male” or “female”. The Tribunal accepted, however, that Norrie identified neither as male nor female and that she believed saying otherwise would be a false statement.

Norrie then applied to the Appeal Panel of the ADT, but that appeal was once again unsuccessful.

She then appealed to the Supreme Court of NSW, which ruled in her favour, finding that:

“The Appeal Panel (and the Tribunal and the Registrar) erred in determining that the current ordinary meaning of the word “sex” is limited to the character of being either male or female”. That involved an error on a question of fact. But the Appeal Panel’s error in arriving at the common understanding of the word “sex” was associated with its error in construction of the effect of the statutory provision of s32DC (and also of s32DA), and accordingly is [an error] of law …”.

The Court of Appeal also held that both the ADT and the Appeal panel had not properly interpreted the words of the NSW law and that she could register her sex as “non-specific”.

But things did not end there for Norrie. The NSW Registrar of Births, Deaths & Marriages appealed this finding in the High Court of Australia.

All five High Court judges who determined the case delivered a joint judgment, which began with:

“Not all human beings can be classified by sex as either male or female.”

The High Court was limited to looking at the legal (as opposed to factual) issues in the case, and it reviewed the NSW law in some depth, which said that anyone who has undergone a “sex affirmation procedure” (sometimes also known as gender re-assignment surgery) was eligible to have a change of sex recorded.

The High Court held that:

  • “A sex affirmation procedure is defined by reference to its purpose, not its outcome” – i.e. the procedure did not have to be successful.

 

  • The Registrar’s functions did not extend to making moral or social judgments and that “it certainly does not extend to the resolution of medical questions”.

 

  • The existing law in NSW specifically gave recognition to persons of “indeterminate sex”.

 

  • “There is nothing in the Act which suggests that the Registrar is entitled, much less duty-bound, to register the classification of a person’s sex inaccurately as male or female …”.

The High Court dismissed the Registrar’s appeal, and determined that the Registrar was obliged to accept Norrie’s application for her sex to be recorded as “non-specific”.

This was the last avenue of appeal available, which means that in NSW anyone of indeterminate or non-specific gender can now have their sex recorded accurately and appropriately in the Register.

1NSW Registrar of Births, Deaths & Marriages v Norrie [2014] HCA 11, 2 April 2014

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