The NSW Administrative Decisions Tribunal has upheld a NSW Births, Deaths and Marriages decision to cancel a “sex not specified” details certificate it issued to sexless activist norrie mAy-welby in February 2010.
NSW Births, Deaths and Marriages also issued mAy-welby a change of name certificate at the same time which also stated “not specified” under sex, and the tribunal found the decision to cancel that document and replace it with one listing sex as “not stated” had also been correct.
In his verdict, Justice Steven Montgomery wrote that the case rested on whether the Registrar had power under the Births, Deaths and Marriages Registration Act to register a change of sex by a person to “Non-specific” or “Not specified”.
“This in turn raises the preliminary issue of the meaning of the word ‘sex’ in the Act — specifically, whether ‘sex’ means ‘male’ or ‘female’ or has some more expansive meaning,” Montgomery wrote.
“It is my view that Parliament did not intend that ‘sex’ in Part 5A of the Act would allow a more expansive meaning than ‘male’ or ‘female’.”
Montgomery accepted that mAy-welby “perceives herself, and is perceived by others, to be of non-specific sex — I also accept that this reflects the medical reality”.
“The state of the law may well be out of step with current social, medical and scientific views.”
However, that was for Parliament to solve.
“In my view … the Registrar does not have the power under section 32DC of the Act to register a change of sex by a person to ‘Non-specific’ or ‘Not specified’.”
MAy-welby, who was represented at the tribunal by Greens MLC David Shoebridge, said further legal avenues were being examined.
“This is not the end. It’s a minor skirmish and I think they are more bloodied than I am,” mAy-welby said.
In the meantime mAy-welby has been left in legal limbo.
“At the moment I don’t know what my legal name is and they don’t know what my legal sex is, so it would be pretty difficult for me to travel out of the country,” mAy-welby said.
“Is anyone going to charge me with fraud for having changed my documents with government departments now that the document that allowed me to do that is now invalid?”
In the meantime she hoped politicians would move to amend the law to cater to people who were neither male nor female.
“The law should be there for all people and given that the court has accepted that my sex is not specific, clearly there needs to be a change in the law.”