High Court: Australia Recognises Third Category of “Non-Specific” Gender

Lawyer Mal Byrne analyses the landmark Australian High Court decision impacting the way gender is defined in Australia.

The High Court decision in the matter of New South Wales Registrar of Births, Deaths and Marriages and Norrie [2014] HCA 11 handed down on 2 April 2014 is a landmark decision in that it recognises that some human beings do not identify either as male or female, that gender is a matter of identity rather than biology and that a person can be classified as “non-specific” under New South Wales law in gender terms.

Norrie was born with male reproductive organs but underwent a “sex affirmation procedure” in 1989.  The surgery did not resolve Norrie’s sexual ambiguity.  On 26 November 2009, s/he applied for his/her sex to be registered under the Births Deaths and Marriages Registration Act 1995 (NSW) as “non-specific”.  As required by the legislation, Norrie’s application was submitted with statutory declarations from two medical practitioners confirming that Norrie had undergone a sex affirmation procedure.  The doctors also provided statements in support of the application, although statements were not required under the legislation.

On 24 February 2010, the Registrar wrote to Norrie approving his/her application attaching a “recognised details” (change of sex) certificate reporting Norrie’s sex as “not specified”.  However the Registrar had a change of heart and wrote to Norrie again shortly afterwards advising that the certificate previously provided was invalid and amending the change of names certificate to record Norrie’s sex as “not stated”.  Norrie lodged an application for review of this decision by the Registrar in the Administrative Decisions Tribunal of New South Wales.  The Registrar argued that his powers were confined to registering a person’s sex as either male or female.  Although the Tribunal agreed that Norrie did not identify as male or female, the Tribunal found that the Registrar did not have the power to register a person’s sex other than as male or female.  Norrie appealed to the Appeal Panel of the Tribunal but that appeal was dismissed.  Norrie then appealed to the New South Wales Court of Appeal which allowed the appeal and ordered that the matter be remitted back to the Tribunal for determination.  The Registrar appealed that decision to the High Court.

Norrie argued that the Registrar had a duty to record an applicant’s sex in as accurate a way as possible and that an assumption under the legislation that every person is male or female would mean that the Registrar was recording misinformation.  Norrie argued that the expression “change of sex” in the legislation was not limited to medical reassignment but simply altering a person’s sex on the record to reflect identity rather than just biology.  The Registrar argued that the Act recognised only male or female as registrable classes of sex.

The Court found that S32A(b) which required the Registrar to take into account transgendered applicants meant that the Act itself recognised that a person can be classified as other than male or female and therefore gives the Registrar discretion to register a person’s sex as “non-specific”.  The Court did not agree that allowing the Registrar this discretion would lead to unacceptable confusion.  The Court found that New South Wales legislation generally could be construed and operate to allow for the third category and that the only law of the land where the third category would not be applicable would be the Marriage Act (1961) (Cth).

Legislation has previously recognised transgender status as limited to people in a state of transition from the traditional categories of male to female and vice versa. However, this has largely been based on the idea of gender dysphoria where a person is considered “trapped” in a body of a gender with which s/he does not identify.  People in this situation may then resolve the issue of their gender by having reassignment surgery.  However, there is a class of transgender intersex or androgynous people who decide not to have surgery, or who have the surgery and it does not resolve sexual identity, and who don’t necessarily feel “trapped” in another body or unhappy with their circumstance.  The High Court now recognises that this occurs and that people with unresolved gender identity who are comfortable with that unresolved gender identity should have that position recognised legally.

This legal development is progressive and in keeping with gender and sexual identity in contemporary Australia.  For some people, sexual identity is not about biological parts and hormones.  Most of us identify as male or female and are comfortable that the gender identified matches how we look and feel. But that is not the case for everyone.  For some people, who they are does not necessarily match up with what they see when they look in the mirror.  On some occasions, surgery resolves that ambiguity, but some transgendered people are just happy to stay that way.  While the traditional gender categories will always dominate, people who just do not fit into those categories and/or do not want to fit into those categories should be entitled to live that way and have the law recognise that choice.  Norrie is another step towards full legal recognition for transgender, intersex and androgynous people as complete human beings comfortable with their own ambiguity.

Further, the decision also challenges previous social and legal positions on gender as a precise essential required manner of identifying someone legally. If a person wants to open a bank account, take out a loan or even get married, does his/her gender really matter? If a person can present a birth certificate, passport and other proof of identity, does it matter what that document says about his/her gender? In the end, isn’t it about who we are and not what we are?

For further information or assistance contact the TGB team at your nearest office.