Legal recognition for those who don't identify as either 'M' or 'F'

The Sydney Morning Herald, Paul Bibby, Court Reporter, May 31, 2013

Long awaited victory: A specific sex identity shouldn't be forced
on anyone, says Norrie. Photo: Dallas Kilponen

People who do not identify as male or female have achieved formal legal recognition in Australia for the first time, after the NSW Court of Appeal overturned a ruling that everyone must be listed as a man or a woman with the Registry of Births Deaths and Marriages.

In a landmark decision with major implications for thousands of intersex, androgynous and neuter people across the country, the court on Friday upheld an appeal by Sydney activist 'Norrie' against a decision by the Administrative Decisions Tribunal that people must be officially registered as 'M' or 'F'.

"It's not good enough if the law is just for the majority of people"

In 2010, Norrie, who identifies as neuter and uses only a first name, became the first in NSW to be neither man nor woman in the eyes of the NSW government when the 52-year-old Sydneysider was given the designation "sex not specified".

But four months later the registry wrote to Norrie, saying that the change was invalid and had been "issued in error".

Norrie subsequently appealed the decision in the Administrative Appeals Tribunal. But this was dismissed, with the tribunal declaring that, as a matter of law, the Registry must list someone's sex as either male or female.

Norrie appealed to the Court of Appeal and on Friday, three years later, won a near-total victory. The three-judge appeal panel unanimously declared that "as a matter of construction ... the word sex does not bear a binary meaning of 'male' or 'female'".

"The Appeal Panel erred in law in concluding that it was not open to the Registrar to register Norrie's sex as 'non-specific'," the judges said.

The matter has now been sent back to the Administrative Decisions Tribunal which must decide on a 'sexless' designation for Norrie in the Registry of Births Deaths and Marriages.

Though strictly the decision only applies to those such as Norrie who have had sex affirmation surgery (previously known as sex change surgery), it has potential implications for many others, including babies who are born with ambiguous genetalia, and people who do not identify as male or female despite having physical characteristics of a man or a woman.

"This is the first decision that recognises that 'sex' is not binary - it is not only 'male' or 'female' - and that we should have recognition of that in the law and in our legal documents," one of Norrie's solicitors, Emily Christie from DLA Piper said.

"This sets a precedent. In future, government departments and courts may adopt the reasoning found here."

Norrie said the decision was recognition that not all people were "unambiguously male or female".

"It's not good enough if the law is just for the majority of people," Norrie said.

"We accept that most people are going to be unproblematicly male or female, but the law should include everybody."