High Court rejects outdated notions of gender

The High Court has delivered a landmark judgment that recognises sex other than male or female, representing a victory for growing numbers of gender diverse people across Australia.

The High Court upheld the decision of the NSW Court of Appeal that allowed Norrie, an androgynous person, to be recognized as a sex other than male or female. Norrie had originally sought to be identified as “non-specific” rather than “male” or “female” on identity documents and sought to be identified as “intersex” at the High Court hearing. 

The Human Rights Law Centre assisted A Gender Agenda, an organisation representing gender diverse and intersex people, to provide expert advice to the High Court given its insights into how current laws impact gender diverse and intersex people on a day to day basis.

The HRLC’s Director of Advocacy & Strategic Litigation, Anna Brown, said the decision was of profound importance, given that identity documents such as birth certificates were an important foundation for ensuring equal recognition before the law for gender diverse and intersex people.

“Sex and gender diverse people face problems every day accessing services and facilities that most Australians can use without thinking twice. It’s essential that our legal systems accurately reflect and accommodate the reality of sex and gender diversity that exists in our society, and the High Court has taken an enormous leap today in achieving that goal,” said Ms Brown.

The Executive Director Gender Agenda, Samuel Rutherford, said the High Court’s decision recognition that “transgender” and “intersex” were not appropriate categories was a relief for gender diverse and intersex people. AGA’s submission to the court represented a broader group of people affected by this case, whose needs and interests may not have otherwise been raised in the arguments put before the Court. 

“This a fantastic decision for gender diverse and intersex people, who simply want to be recognised for who they are. The High Court has also recognised  it would be inappropriate for a third category to be labelled intersex, which means they understood that intersex people often identify as male or female,” said Mr Rutherford.  

“Transgender, gender diverse and intersex people face high levels of stigma, social exclusion and discrimination. To have the Highest Court in our land say the law recognises the reality of our existence is not only important in a practical way, but paves the way for achieving equality and freedom from discrimination,” said Mr Rutherford.

The case comes as Australian parliaments are starting to reform their laws to better accommodate differences of sex and gender, including the introduction of federal discrimination protections on the basis of “gender identity” and “intersex status” and, most recently, legislation that would reform ACT births, deaths and marriages laws to allow people to be registered as a sex other than male or female. 

Norrie was represented on a pro bono basis by DLA Piper in the High Court appeal as well as the earlier stages of the litigation. Barristers David Bennett QC and Alister Abadee represented Norrie on a pro bono basis. A Gender Agenda was assisted on a pro bono basis by barristers Kris Walker and Liz Bennett, the Human Rights Law Centre and law firm Allens. 

For legal submissions filed by the parties – click here

A copy of the judgment can be found here: