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Scottish-born Australian wins the right to be considered gender-neutral

A Scottish-born Australian man has won the right to be considered gender-neutral in a ground-breaking legal case.

Now known only as ‘Norrie’, the Sydney resident began gender-realignment surgery in 1989 but stopped taking hormones before the process was complete. He now sees his gender as “non-specific” and applied for legal recognition of his, along with a name change, in 2010.

The New South Wales Registrar of Births, Deaths and Marriages initially agreed to register Norrie’s gender as neutral but later revoked its decision. The case went to the New South Wales Court of Appeal, where Norrie won a ruling that the registrar must recognise a gender other than male or female.

The registrar then appealed and the case went all the way to the top, reaching the Australian equivalent of the Supreme Court last year.

The High Court of Australia has has now unanimously ruled in Norrie’s favour.

Its judgement explains:

“The question in this appeal is whether it was within the Registrar’s power to record in the Register that the sex of the respondent, Norrie, was, as she said in her application, “non-specific”. That question should be answered in the affirmative.”

The judgement analyses the requirements and powers granted by the Australian Births, Deaths and Marriages Registration Act 1995.

“The…Act…expressly recognises that a person’s sex may be ambiguous. It also recognises that a person’s sex may be sufficiently important to the individual concerned to warrant that person undergoing a sex affirmation procedure to assist that person “to be considered to be a member of the opposite sex”. When a person has undergone a sex affirmation procedure, s 32DC of the Act empowers the Registrar to register a change of sex of the person upon an application by that person.”

The judgement continues:

“Norrie submitted that the purpose of the Register is to state the truth about matters recorded in the Register to the greatest possible extent…. In this case, the sex affirmation procedure, which is a precondition of an application under s 32DA, was carried out, but Norrie’s sex remained ambiguous so that it would be to record misinformation in the Register to classify her as male or female. There is evident force in this submission.”

The Registrar, by contrast, argued that recognising a third gender would cause “unacceptable confusion”.

But the High Court said the Births, Deaths and Marriages Registration Act 1995 does not require that everyone be registered as either male or female.

“The Act does not require that people who, having undergone a sex affirmation procedure, remain of indeterminate sex – that is, neither male nor female – must be registered, inaccurately, as one or the other. The Act itself recognises that a person may be other than male or female and therefore may be taken to permit the registration sought, as ‘non-specific’.”

The ruling applies to the whole of Australia, not just the state of New South Wales.

This is an innovative judgement and I would not be surprised to see a similar ruling over here in due course. What, after all, is recognition of the right to be gender neutral but a logical extension of the right of transsexual people, under the Gender Recognition Act 2004, to legal recognition of their new status? This ruling is not, of course, recognition of a biologically impossible third gender, merely a recognition of an individual’s right to be registered as non specific.

Currently, parents in Germany can leave the gender of their newborn babies unspecified if they have characteristics of both sexes, leaving the gender undeclared on birth certificates. In England and Wales it is also possible to leave a baby’s registered gender as ‘indeterminate’ although the General Register Office advice against this due to potential legal complications.

Such a registration would be a temporary measure only as the person would not be able to leave their gender unspecified on official documentation later in life such as passports. The Gender Recognition Act 2004 allows a person’s new gender to be officially recognised.

A recently tabled Early Day Motion, number 907, could however shake up the status quo. Tabled by Cambridge MP Dr Julian Huppert, it states:

“…this House recognises the issues faced by those in the UK who identify themselves as non-gender, bi-gender or intersex; believes that many of those who are non-gendered or bi-gendered feel compromised and diminished as a result of inappropriate gender references on their personal identity information; acknowledges that all passports issued by HM Passport Office are currently gender-specific and it is therefore not possible to obtain a passport that contains no reference to gendered identity; understands that, alongside F (Female) and M (Male), the International Civil Aviation Organisation’s Document 9303 already contains X (unspecified) as a permitted character for three permitted characters under the mandatory sex element for machine-readable travel documents; notes that in Australia and New Zealand citizens are able to obtain a non-gender specific X passport and that India, Nepal and Pakistan also recognise the legitimacy of X as a preferred option when M and F are not appropriate; further believes that allowing this possibility in the UK would go a long way to amend this discriminatory policy which denies non-gendered and bi-gendered people a legitimate identity; and therefore urges the Government and HM Passport Office to make non-gender-specific X passports available to those UK passport holders who do not identify with a particular gender.”

Currently, however, the motion has attracted only 39 signatures. Dr Huppert has now welcomed the Australian ruling, saying:

“This is a hugely important ruling and a giant step forward for equality. It is an exciting development which means that non-gender, bi-gender or intersex people no long have to feel compromised of diminished as a result of inappropriate references on their personal identify information. Australia already has non-gender specific passports and this ruling takes an important step forward towards giving all citizens equality. We have come a long way in our drive for equality but we still have a great deal to learn and are seriously lagging behind other countries in the way we treat these people. I hope this ruling will encourage our government to give the go-ahead for non-gender specific passports so we can start making up some ground.”

This is a fascinating are of law, and one remains relatively unexplored. How many people know that non-gender specific people even exist?

Photo of Sydney by Kazuhisa Togo via Wikipedia under a Creative Commons licence

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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  1. Luke says:

    What a waste of time and money…

    • Stitchedup says:

      Very politically correct though, and probably a clever call given the gender bias in the family courts. Damn!!! why didn’t I think of this, that would have given the judge something to think about!!

  2. Melissa Symes says:

    I think it’s important to draw a distinction here.

    There is a difference between someone choosing to identify as non-binary (neither male nor female) and who self identifies as “intersex” and someone who is born with an intersex medical condition.

    My understanding, on reading the Judgment in the Australian Courts, is that Norrie was born male but underwent gender reassignment surgery in 1989, but that this did not help her resolve her sexual ambiguity and that she applied for her sex to be registered as “non-specific”

    This is very different from someone who is born with a chromosomal condition, such as Turner Syndrom or Klinefelter Syndrome that can make it difficult for a doctor to accurately determine chromosomal sex at birth. Such babies are often “assigned” a sex at birth which they later desperately want to change, so that they can get married and adopt children.

    Unfortunately, this can only happen by going through the care pathway as transsexual people with all the attendant complexity of psychometric evaluations; social assessments; provision of medical reports leading to hormone therapy and in some cases, the long wait for surgery.

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