Australian Court says you don’t have to be ‘M’ or ‘F’

The New South Wales Court of Appeal has handed down a historic judgement confirming that the Registry of Births, Deaths and Marriages is not confined to registering only ‘male’ or ‘female’ sexes.

The sequence of events began when the NSW Registry for Births, Deaths and Marriages allowed Sydneysider Norrie to register as “non-specific,” but after seeking legal advice it retracted the registration. This lead to Norrie (pictured) taking on the Registrar and litigating all the way to the New South Wales Court of Appeal.

The Court of Appeal had to consider whether the word “sex” (in the legislation which gives the Registrar powers to register sexes), meant only male or female, or whether it could include “non-specific.”

“‘Sex’ or ‘gender’ is not a straightforward notion reflecting only a ‘male’ and ‘female’ sex.”

Norrie’s lawyers argued that the Registrar’s powers were not limited to registering male and female sexes. The arguments about what the legislation meant included, dictionary definitions, second reading speeches, academic materials, other pieces of legislation and case law.

Norrie argued that since the law recognises that it is possible to have “ambiguities relating to the sex of a person,” so it must also be possible to have a description of sex other than male and female.

The Court heard that Norrie had undergone surgery to correct or eliminate ambiguities relating to sex, but the surgery had failed in that the ambiguity remained.

Importantly, the Court recognised that language is constantly evolving as a result of our understanding about the world and ourselves. In particular it recognised the “increasing medical, psychological and social recognition that ‘sex’ or ‘gender’ is not a straightforward notion reflecting only a ‘male’ and ‘female’ sex.”

The Court went on to say, “the recognition of gender identity extending beyond the binary form of ‘male’ and ‘female’ is relatively recent and legislative recognition of that has occurred in the context of increasing medical, scientific and social awareness.”

The decision confirms as a matter of law that the Registry “is not confined to registration of sex as only male or female,” and refers the matter back to the NSW Administrative Decisions Tribunal to determine Norrie’s application on this basis.

The Court did not determine whether “non-specific” which is Norrie’s preferred description, would satisfy the definition of “sex” within the meaning of the Act. Instead it said that “it will be for the Tribunal to determine whether, within the terms of the Act, a sex described as “non specific”, that is, a sex that is not precise or definite, may be registered.”

The Court’s decision is in line with other recent changes in noting sex on official documents. Since 2003 and more accessibly since 2011, Australian passports have had three gender options – Male, Female and an ‘X’ option for those of indeterminate or ambiguous gender. Read more about ‘X’ passports here on the Intersex Australia website.

Find out more about Norrie on the video story below.




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