We’re not all male or female, New South Wales court rules

Ruling tells Australian state to add gender category to registry


A landmark ruling won by an Australian gender trailblazer that finds that sex does not just mean male or female could have broader implications as society becomes more accepting of diversity, experts say.

Norrie, who does not identify as either male or female, last month won a bid to have a new gender category on the register of births, deaths and marriages in New South Wales.

“I’m very happy that I have been told in no uncertain terms that what sex you are is not just male or female necessarily,” said Norrie, who uses only a first name.

Born as a male, Norrie underwent gender reassignment surgery in 1989 to become a woman. However, the surgery failed to resolve Norrie’s ambiguity about sexual identity. The sexual equality campaigner made global headlines in February 2010 when an application to New South Wales’ Department of Births, Deaths and Marriages accepted that “sex nonspecific” could be accepted for Norrie’s records.

Soon afterward, however, the office revoked its decision, saying the certificate was invalid and had been issued in error. At the time, Norrie said the decision left her feeling “socially assassinated”.

But the New South Wales Court of Appeal last month ruled that sex should not be limited to male or female, although it stopped short of defining other categories.

“She feels that every time she has to sign a form, every time she has got to fill something out and it says, ‘What’s your sex?’ and it only has male or female, she feels that she is being forced to live a lie,” said Norrie’s lawyer, Emily Christie.

Christie said that while Norrie’s passport has had an ‘X’ instead of male or female, this only goes so far, as a birth certificate creates a person’s identity under a range of different laws.

The case has been sent back to the Administrative Decisions Tribunal to determine what the description for Norrie will be, and whether a term such as “nonspecific” is acceptable.

Anna Brown, director of advocacy and strategic litigation at the Human Rights Law Center, said it was important the law “recognize that sex and gender are more complex and nuanced than a simple binary of ‘M’ and ‘F’ “.

“Law, policy and practice should reflect the reality of sex and gender diversity, and new anti-discrimination laws on the basis of ‘gender identity’ and ‘intersex status’ and the availability of passports with an ‘X’ marker are all significant strides in the right direction,” she said.

“Sadly, in many respects intersex, transgender and gender diverse people remain invisible. We need to ensure their stories are told to build greater understanding and reduce the stigma, discrimination and harassment they face, often on a daily basis.”