03 April 2014
Third gender must be recognised by NSW after Norrie wins legal battle
Norrie applied for non-recognition of gender in 2010 after surgery in 1989
The Australian high court has ruled that New South Wales must recognise a third gender after handing down its decision in the long-running case of 'Norrie'
The Australian high court has ruled that New South Wales must recognise a third gender after handing down its decision in the long-running case of Norrie, who has been fighting since 2010 to have a sex change recognised as non-specific.
Norrie, who was identified as male at birth, had applied for a name change and 'non-specific' gender in 2010, having not identified as either sex since gender reassignment surgery in Scotland in 1989.
The NSW Registry of Births, Deaths and Marriages revoked its earlier decision in support of Norrie's application, and Norrie took it to the court of appeal in 2012. The court found in Norrie's favour but the registrar appealed to the high court.
Norrie's legal team argued that to force Norrie to identify as either male or female when Norrie belonged in neither specification would maintain a fiction.
Among the arguments of the registrar was that it would cause 'unacceptable confusion' if state legislation, the Births, Deaths and Marriages Registration Act 1995 (NSW), were to recognise more than two genders. The high court rejected the argument.
The Australian Capital Territory is currently the only Australian jurisdiction to recognise a third category of gender, although commonwealth-issued passports do.
The five-judge panel of the high court ruled unanimously, in what Norrie's lawyer, Scott McDonald of DLA Piper, said was a rare fast turnaround.
The question in this appeal is whether it was within the registrar's power to record in the register that the sex of the respondent, Norrie, was 'not specific',
the high court said.That question should be answered in the affirmative.
Norrie said it was a 'great outcome' particularly that it happened so quickly and applies Australia-wide, not just in NSW.
Maybe people will understand there's more options than the binary, Norrie told reporters in Sydney on Wednesday. Even if an individual might be male or female their friends might not be.
Of the personal toll the four-year fight had taken, Norrie joked: It was swings and roundabouts, but I'm on Wikipedia now. And these people have done the hard work. I didn't have to stand up in court.
Norrie added: It's important for people to have equal rights in society. Why should people be left out because they're seen as not male or female? They should be recognised wherever they are and allowed to participate in society at an equal level.
The ruling will affect some states that have similarly worded legislation to NSW. A couple of states have similar legislation, Victoria and Queensland. WA has quite different legislation, McDonald said. It won't be binding [there]. It will have persuasive authority.
To the extent it sent a message of what the high court expects, and that sex is not binary, I think that's a message that can be felt through the states' legislation on this issue.
There are a number of countries around the world which recognise a third or non-specific gender beyond passports, including Germany and Nepal.
The court found the act does not require a person who has undergone a sex affirmation procedure and remains 'of indeterminate sex' has to be registered as either male or female.
The act itself recognises that a person may be other than male or female and therefore may be taken to permit the registration sought, as 'non-specific', read the judgment.
The court also ordered the registrar to pay Norrie’s court costs.
And from the comments section of the original article...
More informed people will know that sexuality is a spectrum ( just put 100 supposedly straight men on a ship or in prison for a lengthy period and you will see that diversity manifest itself in some mathematically predictable distribution). More so, scientifically minded and medical people will tell you that firstly, genotype (your genetic make up) does not entirely dictate your phenotype (how we appear, behave, or develop) - the latter is subject to both environmental factors as well as the science behind how genes express themselves in relation to other surrounding genes. Secondly, medical people will tell you that primary and secondary sexual characteristics develop at different stages, are in part hormone dependent and remain complex processes that occur both sequentially and in tandem so that genitalia may not match your chromosomes, which may again not match your personal/mental identification of your own sexuality or sexual desires. This is why Facebook has 50 something gender allocations.
BUT, just because gender is complex doesn't mean there isn't a role for having set gender subtypes. The argument for having zero or rather 50 something formally recognized gender categories both seem absurd and impractical. Besides, if gender really is a fluid construct then who's to say 50 subdivisions are sufficient. Is gender a discrete or continuous variable? Should we have a peer reviewed calculator that gives us a gender score to 2 decimal places based on a series of validated questions? if the argument is that we shouldn't lump people into categories because it is regarded as generalizing and de-individualising, then one could argue that being a "splitter" as opposed to a "lumper" is still segregating people into boxes , except now there are more narrow, in someways less inclusive subgroups. If people feel discriminated being lumped into say one of two or 3 or 4 predetermined gender subtypes, they could as easily be discriminated by having to choose from 50, if the 50 choices don't adequately represent them.
Of course the converse, having no gender categories in our society would seem a rather radical proposition. There are reasons why we need to allocate a gender to people from a societal point of view even if these standards fall short of being perfect. For example, public toilets, certain jobs (and before people accuse me of sexism, let's admit for a moment that certain roles are more suited to certain genders or at the very least, the customer prefers to have a person of that gender servicing them, such as women having pap smears by female GPs) or even for statistical/data-collecting methods. So we need to decide what a reasonable number of genders for our modern society might be, and how to apply these new ideas to our society in 2014.
The last point I would make is that while I understand why it is important to such individuals to be acknowledged for their ambiguous or at least unconventional genders, we need to recognize that these afflictions (and they're not all the same) are a form of psychiatric illness, or at least a biological anomaly. They are, at least for some, a disability and while this is not to be shunned or vilified, nor excluded from public view or acknowledgement, IMO it isn't to be celebrated or considered a normal variant with equal representation in the gender sphere (at least not for social construct purposes). Thus, government cannot be expected to have these genders fully accounted for in its day to day proceedings. Just like while its important that we strive to have wheelchair access to most public venues, it is also important we accept the fact that these access points cannot be individually tailored to every type of disability out there - sadly for some they will remain at least partly inadequate.
We shouldn't get too caught up in being recognized for the individuals we supposedly are. Most of us are fairly pedestrian. Besides, if we want to be accepted and included (an argument a lot of individualists make), we have to be prepared to give up some of that individualist mentality and join the crowd, even if that means picking which preset, generic table we want to sit with at lunch time (and you won't like everyone on your table). Even if you are genuinely unique, it doesn't necessarily entitle you to your own checkbox every time it comes to filling a form.
Gender is complex. That's why in some domains, we should keep it simple...