High Court Finds Non-Specific Gender Able to Be Recognised Under NSW Law
Wednesday 2 April 2014 @ 11.41 a.m. | Legal Research
As previously reported on TimeBase (see Gender Not Specified: NSW Registrar Births, Deaths and Marriages v Norrie in the High Court), the High Court has heard an appeal as to whether NSW laws permit the registration of a person’s sex as neither male or female, but as a third ‘non-specific’ category.
Today (2 April 2014), in NSW Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11, the High Court unanimously held that the Births, Deaths and Marriages Registration Act 1995 (NSW) ("the Act") recognises that a person may be registered under this "non-specific sex" category.
Norrie, who identifies as neither male nor female, applied to be registered as being of non-specific sex in 2010. The NSW Registrar of Births, Deaths and Marriages initially provided Norrie with a certificate reflecting this, but this was revoked four months later after the Registry took legal advice. The Administrative Decisions Tribunal Appeals Panel found the Registry’s actions were correct, but this decision was overturned in the NSW Court of Appeal (NSW Registrar of Births, Deaths and Marriages v. Norrie [2013] NSWCA 145). The Registrar then appealed to the High Court, which has today upheld the Court of Appeal judgment.
In a unanimous decision, French CJ, Hayne, Kiefel, Bell and Keane JJ recognised that "[n]ot all human beings can be classified by sex as either male or female" and found that the Act expressly recognises the possibility of ambiguity [at 1].
Sex affirmation procedure
The Act includes a provision that allows a person over 18 who has undergone a sex affirmation procedure to apply to the Registrar for the registration of their sex (section 32DA). In section 32A, a 'sex affirmation procedure' is defined as:
"a surgical procedure involving the alteration of a person's reproductive organs carried out:
a) for the purpose of assisting a person to be considered to be a member of the opposite sex, or
b) to correct or eliminate ambiguities relating to the sex of the person."
The Registrar argued that this definition supported the idea of a binary construction of gender, with sexes being construed as 'opposite'.
Norrie underwent a sex affirmation procedure, but felt that this did not resolve Norrie’s sexual ambiguity. Under the Act, an application under section 32DA must be accompanied by statutory declarations from two medical practitioners verifying that the subject has undergone such a procedure. Norrie’s application to be registered under the Act was accompanied by statutory declarations by two doctors which affirmed this, and supported Norrie’s desire to be registered as of "non-specific" gender.
Purpose of the Register
Norrie argued that the purpose of the Register is to state the truth about matters recorded in the Register, and that to categorise people as being male or female would be to record misinformation.
The High Court agreed, finding that
“there is nothing in the Act that suggests that the Registrar is entitled, much less duty-bound, to register the classification of a person’s sex inaccurately as male or female having regard to the information which the Act requires to be provided by the applicant”.
Their Honours considered that the role of the Registrar was to record information provided by the community, and should not involve "the making of moral or social judgments". In paragraph [16] of the joint judgment, they found it:
“certainly does not extend to the resolution of medical questions or the formation of a view about the outcome of a sex affirmation procedure”.
The High Court found that there may be instances where the Registrar needs to address a concern whether an application is made in good faith, but found that this was not such an occasion. Norrie had complied with the statutory requirements set out in the act, and on the materials before the Registrar it should have been clear that the sex affirmation procedure had not eliminated the ambiguities relating to Norrie’s sex.
Their Honours rejected an argument by Norrie's counsel that the Act could recognise a third specific category such as "transgender" or "intersex", finding that male and female were the only registrable classes, even though this classification does not have to apply to everyone.
Impact on other legislation
The High Court also rejected an argument made on behalf of the Registrar that the recognition of more than two categories of sex would lead to "unacceptable confusion", finding that "for the most part, the sex of the individuals concerned is irrelevant to legal relations" [at 42]. Their Honours found that the only case it would make a difference is with laws relating to marriage – and found that "where another Act does differentiate between male and female it will prevail", according to the section 109 inconsistency provisions in the Constitution [at 43].
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Sources:
NSW Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11
