Norrie: paving the way for meaningful recognition of sex and gender

5th Jun 2014

On May 17, the International Day against Homophobia and Transphobia was recognised worldwide, including by the UK, Brazil, the European Parliament and the World Bank. Sadly, it is not yet recognized by the Australian Government.

This provides an opportunity to reflect on the progress of LGBTI rights in Australia. There have been developments, but there are still issues of concern, particularly for trans and intersex people.

The recent High Court decision in the case of Norrie, (NSW Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11) was significant. To have the High Court unanimously declare that ‘not all human beings can be classified by sex as either male or female’ was key in the fight for recognition for intersex and trans people.

The male/female binary that structures much of our society was acknowledged for the oversimplification it is, and a centuries-old mindset was overcome. This had been building in the law for some time, but Norrie heralded its definitive arrival.

It reflects an acceptance that sex is more complex than simple concepts of ‘male’ and ‘female’. Neither law nor medicine can define ‘man’ or ‘woman’ with any precision.  No test definitively reveals someone’s sex, and there are eight different factors in sex classification.
In Norrie, the High Court acknowledged the existence of intersex and trans people, and their right to protection and social acceptance. This should not be underestimated, and will hopefully allow society to start dealing with discrimination and confusion towards intersex and trans people.

The decision however does not have as far-reaching implications as might be expected. While there is now an option to record one’s sex as ‘non-specific’ with the NSW Registry, this is only available to a limited group.

Only those who have undergone a sex affirmation procedure (a procedure altering a person’s reproductive organs) and who are not married (to prevent conflict with Commonwealth marriage laws) can opt for the ‘non-specific’ category.

This means intersex and trans people who cannot or do not want to undergo sex affirmation surgery, and those who are married, are still excluded. The law should be changed to allow all people, regardless of anatomical or marital status, to register their sex as ‘non-specific’ if they choose.

The decision is also binding only in NSW, although it will potentially influence other jurisdictions. It does not change the situation that already exists regarding other forms of identification or the collection of personal records by governments.

For example, since 2011, Australians who identify as being indeterminate, unspecified or intersex can use ‘X’ on their passport instead of ‘M’ or ‘F,’ with a doctor’s letter.

In addition, guidelines that started in 2013 and will be implemented by 2016 require all federal government departments that collect sex/gender information to give individuals the choice to select ‘X’ if they provide documentation, such as a statement from a doctor, a valid passport or a birth certificate showing a change of gender.

While Norrie doesn’t directly affect these areas, it may give impetus to changes that will make it easier for people to record their sex/gender truthfully, and ideally lead to a uniform approach to sex and gender recognition in all jurisdictions.

The effect is that intersex and trans people have gained increased recognition of their identity.
The challenge now, is meaningful protection of that existence. Intersex and trans people face problems every day in accessing services and facilities, including at work and health services.

Finally, it is of real concern that the practice of surgically altering intersex babies and young children to look ‘unambiguously male or female’ still happens in Australia, despite decades of protest from intersex advocacy groups. This violates fundamental human rights principles such as the rights to bodily integrity and self-determination and multiple studies have confirmed it often leads to negative outcomes for mental and physical health.

While female genital mutilation has been outlawed in Australia, similar practices are legal and acceptable for intersex babies. Both are surgical solutions to a cultural problem. However, one is ‘another culture’s problem’, allowing us to easily condemn and reject it; the other is our own cultural practice, making it immune to the same objective critique.

Intersex surgeries are justified by the argument that allowing intersex people to exist as they are with ‘ambiguous’ anatomy would be too confusing.

In Norrie, the Court specifically rejected the argument that allowing Norrie’s sex to be recorded as non-specific would lead to ‘unacceptable confusion’. This shows that we are capable of accepting that sex and gender are more complex, without anyone being ‘unacceptably confused’, and without the metaphorical sky falling in.

If the High Court can acknowledge sex and gender diversity in our society, then surely we all can. True acknowledgement won’t come just with intellectual acceptance, but with the removal of discrimination.  Recognising the International Day against Homophobia and Transphobia wouldn’t hurt either.

Giri Sivaraman is an accredited specialist in employment and industrial law and heads Maurice Blackburn’s Employment and Industrial team in Queensland. Giri regularly authors articles and submissions focused on issues of discrimination, as well as advocating for the rights of those impacted by adverse actions and unfair treatment, particularly in the workplace. He tweets @GiriDSivaraman.

Alessandra Peldova-McClelland
is a graduate lawyer currently working in the Employment and Industrial Law team in Maurice Blackburn’s Sydney office. She has long advocated against LGBTI discrimination, including recently completing her law honours thesis on the issue of normalising surgeries performed on intersex children.


The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: Human rights Equality Discrimination LGBTI Alessandra Peldova-McClelland Giri Sivaraman