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Australia High Court: Not Everybody is Male or Female

Posted on: April 3rd, 2014 by Art Leonard 3 Comments

Imagine a decision by the highest court of a country that begins by stating, “Not all human beings can be classified by sex as either male or female.” This is how the High Court of Australia beings its opinion in New South Wales Registrar v. Norrie, [2014] HCA 11, announced on April 2. According to the court, the New South Wales Births, Deaths and Marriages Registration Act of 1995 “expressly recognizes that a person’s sex may be ambiguous,” and thus lends itself to the interpretation that a person could decide that their own sex is indeterminate.

The case involves a person who uses only a first name, Norrie, born in Scotland “with male reproductive organs” and thus listed as male on a birth certificate. However, Norrie did not self-identify as male, uses feminine pronouns to refer to herself, and underwent a “sex affirmation procedure” in 1989. According to the statute, such a procedure might have either of two purposes: to assist a person “to be considered a member of the opposite sex,” or “to correct or eliminate ambiguities relating to the sex of the person.” Norrie, who had moved to Australia, sought surgery for the second purpose, but she “considered that the surgery did not resolve her sexual ambiguity.”

On November 26, 2009, Norrie applied to the New South Wales Registrar for her sex to be registered as “non-specific.” She accompanied her application, as required by the statute, with declarations from two medical practitioners, each of whom stated that she had undergone a sex affirmation procedure and that he supported her application to have her birth record altered to show her sex now to be “non-specific.”

The statute instructs the Registrar to rule on such an application by either registering the person’s change of sex or refusing to register the person’s change of sex, and such an application must be refused if the person is married. In response to the application, the Registrar wrote Norrie approving the application and an application Norrie had filed to register a name change. However, after having written to tell Norrie that her request for her sex to be registered as “non-specific” had been approved, the Registrar sent a second letter stating that it had not been approved, and the name-change certificate was reissued with Norrie’s sex designated as “not stated.” Norrie found this unacceptable and appealed to the Administrative Decisions Tribunal.

Before the Tribunal, the Registrar argued that his powers were limited to registering a person as male or female. The Tribunal found that Norrie did not identify as either male or female, and she would consider such an identification as false, but the Tribunal found that the Registrar was not authorized to register somebody as having a “non-specific” sex, because, in the view of the Tribunal, “the Act is predicated on an assumption that all people can be classified into two distinct and plainly identifiable sexes, male and female.” Norrie then took her case to the Appeal Panel, which dismissed her appeal.

Then, on to the Court of Appeal of New South Wales she went. The court sent the case back to the Tribunal for reconsideration because, it held, the Act “contemplated that Norrie might be assigned to a specific category of sex other than male or female such as ‘intersex’, ‘transgender’ or ‘androgenous’. This would require the Tribunal to engage in fact-finding to determine how to label her. The Registrar appealed this ruling to the High Court of Australia.

While the High Court acknowledged that under “ordinary usage of language, to speak of the opposite sex is to speak of the contrasting categories of sex: male and female,” under the terms of the statute and “the context in which it is to be construed, the Act recognizes that a person’s sex may be indeterminate.” That is, the statute says that a medical procedure can be undertaken “to correct or eliminate ambiguities” as to sex. This means, the statute recognizes that somebody may be other than simply male or female.

“The Registrar’s initial determination of Norrie’s application was right,” wrote the Court. “The appropriate record of her change of sex was from ‘male’ (as it may be taken to have previously been recorded outside of New South Wales) to ‘non-specific.’ To make that record in the Register would be no more than to recognize, as the Act does, that not everyone is male or female and that the change to be registered was from an assumed registered classification outside of New South Wales as a male to, as Norrie’s application put it, non-specific.”

The Court found that the Act doesn’t give the Registrar discretionary authority to insist that a person be registered as male or female when that person does not identify with either of those labels. “There is nothing in the text of the Act which gives support to the view that the Registrar must initiate, much less resolve, a dispute concerning matters of fact and expert opinions presented to the Registrar.” The Registrar’s job is to maintain the register “by recording information provided by members of the community.” While the Registrar might raise a question whether a particular application is submitted in good faith, the Court found that there was no question here of Norrie’s good faith in submitting the application, which “is not deficient in terms of the information required by the Act.” The medical practitioners whose views were submitted lined up with Norrie’s understanding of her own identity.

The Court rejected the Registrar’s argument that recording Norrie’s sex as “non-specific” would cause “unacceptable confusion,” stating that this problem would arise only “in cases where other legislation requires that a person is classified as male or female for the purpose of legal relations,” and as to that the Court could identify only the marriage statute, which in Australia limits marriage to the union of a man and woman and, at least as of now, that is not an issue with Norrie. “The Registrar during the course of argument did not identify any particular statute which could not be construed so as to operate as intended in respect of a person whose sex was recorded in the Register as ‘non-specific,” stated the Court.

Thus, the Court of Appeal’s decision was modified. Instead of sending the case back to the Tribunal for reconsideration, it was sent back to the Registrar to record Norrie’s sex as “non-specific” according to her application. Norrie is represented by Queen’s Counsel D. M. J. Bennett and A. J. Abadee (barristers) as instructed by DLA Piper Australia (solicitors). The Human Rights Law Centre submitted an amicus brief in support of Norrie’s position.