Court overturns male‒female binary understanding of sex, recognises sex may be non-specific

Summary

The NSW Court of Appeal has recognised that “sex” can mean more than male and female, allowing for the legal recognition of individuals who identify as neither. Asked to interpret the word “sex” in the Births, Deaths and Marriages Registration Act 1995 (NSW), the Court overturned a decision of the Administrative Decisions Tribunal Appeals Panel ruling that, contrary to the Appeals Panel decision, it was open to the Registrar to register as person’s sex as “non-specific”.

Facts

Born with male sex characteristics, Norrie (the appellant) never identified as male and in the 1980s underwent sex affirmation surgery. Following this Norrie did not identify with either the male or female gender, nor was Norrie physically unambiguously male or female. In 2009 Norrie applied to for a Recognised Details Certificate (Norrie wasn’t born in NSW) stating sex “non specific” rather than male. At the same time Norrie also registered for a Change of Name certificate, also recording her sex as “non specific”.

Initially successful, she was informed three months later that the Registrar had made a mistake and the Recognised Details Certificate was invalid; the Change of Name Certificate was reissued with the sex field as “not stated”. When asked for reasons, the Registrar stated that only male or female could be recorded for a person’s sex. Norrie appealed this decision to the Administrative Decisions Tribunal and the ADT Appeals Panel, both of which agreed with the Registrar. Norrie then took the case to the NSW Court of Appeal.

Law and argument

The primary question before the court in this case was whether the word “sex” on birth certificates could mean anything other than male and female.

The Act in question provides for the registering of “registrable information” with the Registrar, including a person’s birth, name, sex, marriage and death. In 1996, the Act was amended to include Part 5A, which allows persons who have undergone sex affirmation surgery to change their sex on the register and be issued with a new birth certificate. For those born outside NSW, they could receive a Recognised Details Certificate. The legislation stated:

32DA Application to register change of sex

(1) A person who is 18 or above:

(a) who is an Australian citizen or permanent resident of Australia, and

(b) who lives, and has lived for at least one year, in New South Wales, and

(c) who has undergone a sex affirmation procedure, and

(d) who is not married, and

(e) whose birth is not registered under this Act or a corresponding law,

may apply to the Registrar, in a form approved by the Registrar, for the registration of the person's sex in the Register

Section 32A defines “sex affirmation procedure” as follows:

sex affirmation procedure means 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 amending legislation also introduced protection against discrimination for Transgender persons into the Anti-Discrimination Act 1977 (NSW). Sex is not defined in the primary or amending legislation.

The case concerned the meaning of the word “sex” in both sections 32A(b) and 32DA. Norrie claimed to have had surgery to correct or eliminate ambiguities relating to the sex of the person. In support of the application, Norrie provided two statutory declarations from doctors stating that the surgery had been undertaken and that Norrie’s sex was non-specific. Norrie noted that the legislation itself does not explicitly confine the meaning of sex to male and female; section 32A(b) recognises that a person may not be unambiguously male or female. Previous case law had also recognised that a person’s physical sex characteristics may not be unambiguously male or female and that a person’s gender identity should be taken into account when determining their sex for the purposes of birth certificates.

The Registrar contended that the word should be given its ordinary meaning, that is, male and female. As other legislation seemed to be premised on a binary construction of “sex”, it would be contrary to the purpose of the Act, which was to clarify a person’s legal status, to enable to registration of a sex not recognised in any other state law. The Registrar also contended that the meaning of sex should remain constant throughout the Act.

Decision

In construing the legislation, the Court noted that Part 5A of the legislation was beneficial legislation and that, as such, it should be given a liberal construction, rather than a literal or technical one that is unreasonable or unnatural. Regard must be had to its context and legislative purpose. 

The Court dismissed concerns that a non-binary definition of sex may cause difficulties with other legislation where sex is used in a binary sense saying that “is a matter for consideration by the legislature and/or law reform bodies”.

The Court noted that language develops, evolves and changes. The fact that a word is currently evolving does not mean the traditional meaning of the word must be taken as an absolute meaning, nor is a dictionary definition necessarily a statement of a word’s ordinary meaning. Developments in the last two decades evidence an increased understanding that sexual identity is not dependent solely upon physical characteristics and is not necessarily unambiguous.

Taking into account the previous case law and noting that section 32A(b) expressly recognises the existence of sexual ambiguities, “the proper construction of the word ‘sex’ in Pt 5A and s32DC in particular, points to a meaning that is not confined to ‘male’ and ‘female’.” It therefore follows, that a person is entitled to have an entry in the Register of a sex other than male or female. It was therefore open to the Registrar to register Norrie’s sex, depending on the evidence put before it, as non-specific.

The court did not confine the Registrar’s powers to male, female and non-specific; rather, it noted that there may be, in some cases, good reason for other options to be recorded, such as intersex and androgynous.

Finally, two judges noted that Part 5A only relates to people who personally do not identify as male or female and who choose to change their sex to reflect this. It is a matter of choice for an individual and the Court ensured this was highlighted in the judgment.

The NSW Registrar of Births, Deaths and Marriages has now sought special leave to appeal to the High Court.

Commentary

This is the first time a court in Australia has recognised a legally valid alternative to the traditional binary male‒female view of sex. At the moment the decision is confined to people in NSW who fulfil the requirements under Part 5A of the Act. It is possible, however, that this decision will act as a precedent both for other areas of law and also other states’ equivalents to the NSW Act.

Norrie’s case is the latest development regarding legal recognition of transgender, intersex and gender diverse peoples. While there have been reports of states such as Western Australia and Victoria issuing certificates to individuals without an ‘F’ or ‘M’ marker, it was only recently that a more sophisticated approach to sex recognition has been applied consistently across Australia. In 2011 the Federal Government allowed individuals greater ability to be issued a passport with an ‘X’ marker and recognised transgender people as their affirmed gender without the need for surgery. The Government is now expanding their passports policy to all government records under their “Guidelines on the Recognition of Gender”. In the last few decades the Australian courts have considered a number of cases raising the issues of recognition of sex. Through cases such as AB v Western Australia [2011] HCA 42 and Kevin v Attorney-General (Cth) [2001] FamCA 1074 a body of jurisprudence is slowly being built that recognises that sex is more nuanced and complex than a simple ‘male’ and ‘female’ binary. Finally, the Federal Government recently passed the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 that provides protection against discrimination on the basis of sexual orientation, gender identity and intersex status.

This decision is available online at: http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=165088

Emily Christie is a lawyer seconded from DLA Piper to the Human Rights Law Centre.