In a decision that could have far-reaching implications for intersex and gender nonspecific people nationwide, the NSW Court of Appeal has ruled that the term ‘sex’ does not have a binary meaning of ‘male’ or ‘female’.
On Friday the court overturned a ruling by the Administrative Decisions Tribunal stating that all people must register as either male or female with the NSW Registrar of Births, Deaths and Marriages, allowing 52-year-old Sydney resident Norrie, who identifies as neuter and only uses one name, should be allowed to list an explicitly ‘non specific’ gender classification on official documents.
However, the ruling only applies for people who have had what the court termed a “sex affirmation procedure”, not to people who were born with ambiguous gender. The court also interpreted the terms ‘sex’ and ‘gender’ to mean the same thing, a conflation Organisation Intersex International Australia (OII) President Gina Wilson claims “further stigmatises an already stigmatised minority”.
Wilson pointed out that there is no legal recognition of people with something other than ‘male’ or ‘female’ on their birth certificates and warned that the ruling could have “far-reaching unintended consequences” for intersex people, including the inadvertent creation of a “new class of people, a third sex” unrecognised in law who would be unable to ever get married.
Norrie is not intersex in the commonly understood sense of the term as someone born with physical characteristics neither wholly male nor female. Registered ‘male’ at birth, Norrie began hormone treatment and surgery to become a woman at age 23 before going off hormones and deciding to live as neither man nor woman.
In February 2010 Norrie applied for a Recognised Details (Change of Sex) Certificate with a change in gender to ‘non-specific’, and received an approved certificate making Norrie the first person in NSW to be given the designation ‘sex not specified’. However, the Registrar ruled the certificate invalid three weeks later and changed Norrie’s sex to ‘not stated’, saying it had been issued in error.
Norrie unsuccessfully contested the decision in front of the Administrative Decisions Tribunal and the Tribunal’s Appeal Panel, both of which found that the Registrar only had the power to list people’s gender as either male or female.