Gender Identity: Reassessing the Definition of Sex and Gender
![handle is hein.journals/alterlj38 and id is 192 raw text is: GENDER IDENTITY
Reassessing the definition of sex and
gender
AILEEN KENNEDY explains the judgment which led to Australia's first legal recognition
of a non-binary concept of sex
In May 2013, the NSW Court of Appeal recognised
that sex is not a binary concept and determined that
a primary identity document could denote an identity
which is neither male nor female.' This is the first
explicit legal recognition in Australia of a non-binary
concept of sex.
The appellant, Norrie, was born male and as an adult
underwent sex reassignment surgery to become
female. However, Norrie did not identify as female
following the medical intervention, but developed or
retained ambiguous gender identity. In 2009 Norrie
applied to register a change of sex as 'not specified'
under s 32DA of the Births, Deaths and Marriages
Registration Act 1995 (NSW); the application was
approved. A change of sex certificate was issued
showing Norrie's sex as 'not specified.' However, in
2010, the Registrar notified Norrie that the certificate
was issued in error and was invalid.
Under Part 5A (s 32AD) of the Act, a person who has
undergone a 'sex affirmation procedure,' can apply to
the registrar to change their sex in the register. Under
s 32AD, the Registrar is given power to 'determine an
application ... by registering the person's change of sex
or refusing to register the person's change of sex.'
The issue before the court was whether the Registrar
had power to register the applicant's sex as anything
other than male or female. Norrie argued that the
legislation contemplates inclusion of people who are
not unambiguously male or female, which is supported
by the contemporary ordinary meaning of the word
'sex' taking into account social, medical and scientific
knowledge.
The argument of the Registrar was that the legislation
in question, in line with many provisions in Australian
and NSW law generally, only contemplates a binary
sex system and the word 'sex' in the statute should
be interpreted as confined to 'male' or female.' One
argument put by the Registrar was that allowing a
person to register their sex as something other than
male or female could lead to that person falling outside
those provisions in law which are premised on a binary
concept of sex, leaving the person in legal limbo.
The Court determined that the Registrar's power
was not limited to registering a person's sex as only
'male' or 'female.' Further, the Court determined that
the word 'sex' in s 32DA of the Act does not bear
a binary meaning of 'male' or 'female.' The practical
impact of the decision is quite narrow. In order to
apply for a change of sex in NSW, the applicant must
have undergone a sex affirmation procedure, which
is defined as a surgical procedure. This precludes, for
example, pre- or non-operative transsexual people
from applying. Similarly, intersex people who have not
had surgical intervention cannot apply to be registered
as 'non-specific'. Furthermore, applicants must produce
medical evidence in support of their non-specific or
non-specified sex identity.2
However, the decision is momentous in terms of
opening up space within legal discourse for a
re-assessment of how we define sex and gender.
The decision is in line with the federal government's
administrative initiative in 2011 to allow passports
to be issued in sex of X to denote indeterminate,
unspecified or intersex. The federal government has
now issued guidelines on sex and gender recognition
in the administrative context that affirms and expands
this approach.
This is not the first legal recognition that sex is not a
fixed biological given. In Norrie Beazley AJA discusses
the most significant cases in Australia which grappled
with challenges to normative understandings of sex
and gender. However none of these cases directly
challenged the underlying assumption that sex is a binary
system of categorisation - they challenged whether a
person born into one fixed category could move into
the opposite category and, if so, what that required.
Perhaps the case that offers the most overt challenge
to a binary concept of sex is In the Marriage of C and
D (falsely called C).4 This Family Court decision from
1979 dealt with an application for nullity of marriage
on the grounds that the husband was intersex. Justice
Bell granted the declaration, citing Corbett v Corbetts
as authority for the proposition that sex is defined
solely according to biological characteristics of genitals,
gonads and chromosomes at birth. According to
Bell J, 'the husband, after surgery, exhibited as male in
two of the three criteria. However the chromosomal
indications are that he is a female' and, accordingly,
'the husband was neither a man nor woman but was a
combination of both.'6 The husband was left in the legal
limbo that the Respondent in Norrie argued would be
avoided by adopting a restrictive binary interpretation
of the concept of 'sex'.
Corbett v Corbett, decided in 1971, became authority
in the UK,7 Australia' and many other jurisdictions9 for
the proposition that sex is fixed at birth irrespective
of psychology or identity, and the effects of medical
intervention are irrelevant. In 1993 the House of Lords
affirmed the authority of the Corbett test in Bellinger
v Bellinger.'o By contrast, in the same year in Australia
the Full Court of the Family Court held that a post-
operative transsexual could marry in their reassigned
186-AtL Vol 38:3 2013
REFERENCES
I. Norne v Registrar of Births, Deaths and
Marriages ('Norrie') [2013] NSWCA 145.
2. The court did not order the issue of a
certificate showing Norrie's sex as 'non-
specific.' The matter was remitted to the
Tribunal for further evidence as to what the
wording should be.
3. Commonwealth of Australia, Guidelines
on the Recognition of Sex and Gender,
Attorney-General's Department, July 2013.
4. In the Marriage of C and D (falsely called
Q (1979) 28 ALR 524.
S. Corbett v Corbett [1971) P 83.
6. In the Marriage of C and D (falsely called
Q (1979) 28 ALR 524, 525.
7. Bellinger v Bellinger [2003] 2 AC 467.
8. In the Marriage of C and D (falsely called
C) (1979) 28 ALR 524.
9. For example; Re T [I 975]2 NZLR 449
(New Zealand); W v W 1976 (2) SALR
308 (South Africa).
10. Bellinger v Bellinger [2003] 2 AC 467.
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Gender Identity: Reassessing the Definition of Sex and Gender
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