NSW Registrar of Births, Deaths and Marriages v Norrie  HCA 11 (2 April 2014)
The High Court of Australia has held that NSW births, deaths and marriages law recognises that a person’s sex may be other than male or female, and that the NSW Registrar has the power to register someone’s sex as “non-specific”.
Norrie was born in Scotland with male reproductive organs. In 1989, Norrie underwent a “sex affirmation procedure”, but Norrie’s sex remained “ambiguous” post-surgery. Norrie does not identify as either male or female. Norrie used the personal pronouns “she” and “her” during the case.
In 2009, Norrie applied to the NSW Registrar of Births, Deaths and Marriages for her sex to be registered in the NSW register as “non-specific”. This was to be the first registration of Norrie’s sex in NSW, though it was assumed Norrie had been classified as “male” overseas. The application was governed by the “change of sex” provisions in the Births, Deaths and Marriages Registration Act 1995 (NSW), which required Norrie to provide statutory declarations from two medical practitioners to show that she had undergone a “sex affirmation procedure”.
The Registrar initially approved Norrie’s application, but later advised Norrie this decision was invalid. The term “sex” is not defined in the Act. The Registrar took the view that “sex” for the purposes of the register was limited to “male” or “female”, and so he did not have the power to record Norrie’s sex as “non-specific”.
History of Proceedings
Norrie applied for review of the Registrar’s decision to refuse to register her sex as “non-specific”.
Norrie was unsuccessful in the NSW Administrative Decisions Tribunal and its Appeal Panel, where it was held that the Act was predicated on the assumption that all people can be classified as “male” or “female”. Despite finding that Norrie identified as “non-specific” and that she believed identifying herself as male or female would be a false statement, the Tribunal concluded that it was not open to the Registrar to register Norrie’s sex as “non-specific”.
On appeal, the Court of Appeal of NSW found in Norrie’s favour. The Court held that Norrie might be assigned to a category of sex other than male or female, such as “non-specific”, or, indeed, “intersex” or “androgynous” (Beazley ACJ at ), and remitted the matter back to the Tribunal to make findings of fact in relation to Norrie’s specific sex classification.
High Court Decision
The Registrar appealed to the High Court of Australia. The principal question before the Court was whether the Act gave the Registrar the power to record Norrie’s sex as “non-specific”.
In a concise, unanimous judgment, the Court held that the Act expressly recognises that a person’s sex may be ambiguous or indeterminate, and that the Registrar does have the power to register Norrie’s sex as “non-specific”.
The decision turned on the precise wording of the relevant provisions of the NSW Act, and was influenced by the broader NSW legislative context, such as the Acts Interpretation Act 1987 (NSW). The Court held that the Act recognises only male and female as “registrable classes” of sex, and rejected Norrie’s argument that the Registrar could register specific other categories of sex such as “transgender” or “intersex”. This was consistent with the submissions made by A Gender Agenda (an organisation represented by the Human Rights Law Centre intervening as amicus curiae on behalf of gender diverse and intersex people), which argued that labelling the third category “intersex” would be detrimental to intersex people.
However, this does not mean that the binary male/female classification can or should apply, inaccurately, to everyone. The Court noted that the Registrar’s job is principally to record in the register information provided by members of the community, and does not extend to making any moral or social judgments or forming a view about the outcome of a sex affirmation procedure. The Court said that to make Norrie’s requested record in the register “would be no more than to recognise, as the Act does, that not everyone is male or female and that the change to be registered was from an assumed registered classification outside of New South Wales as a male to, as Norrie’s application put it, non-specific.”
The Court remitted the matter back to the Registrar to be decided in accordance with its reasons, which effectively requires the Registrar to register Norrie as sex “non-specific”.
This decision provides important legal recognition that not all people identify, or can be classified, as either male or female. The specific rejection of intersex as an appropriate label for a third category is also of benefit to intersex people, the majority of whom identify as male or female and wish to avoid the risk of default assignment into a third category of sex.
The decision turned on the specific wording of the NSW Births, Deaths and Marriages legislation, so will not be automatically binding on the registration of sex in other states and territories. However, the approach to statutory construction taken by the Court and the recognition that sex can exist outside male and female categories will influence judicial consideration of analogous legislation in other states and territories. The wording of births, deaths and marriages legislation varies from jurisdiction to jurisdiction and each statute would need to be considered in its legislative context. .
It should be noted that the fact scenario in this case was relatively unique. Transgender and gender diverse people have long campaigned for surgery not to be required in order to change sex and this decision does not alter this requirement. People who identify other than male or female that do not undergo surgery will continue to remain ineligible for a sex “non-specific’ designation in NSW. However, the Norrie case comes amid a growing trend towards legal recognition of differences of sex and gender. For example, in 2013, federal discrimination legislation was amended to protect against discrimination on the basis of “gender identity” and “intersex” status. The ACT has also recently amended its laws to allow people to be registered as a sex other than male or female, and to register a change of sex without a surgical requirement, now representing the high watermark in legal recognition of sex.
The Norrie decision should serve as an impetus for further law reform and harmonisation across other Australian jurisdictions in line with best practice.
The decision can be found at http://www.austlii.edu.au/au/cases/cth/HCA/2014/11.html.
The HRLC’s media release about the case can be found at http://hrlc.org.au/media-release-high-court-rejects-outdated-notions-of-gender/
Louise Brown is a solicitor at King & Wood Mallesons and is currently on secondment to the Human Rights Law Centre and Anna Brown is Director of Advocacy & Strategic Litigation at the Human Rights Law Centre. They were part of the legal team acting for A Gender Agenda, which intervened as amicus curiae in the case.