Beyond male and female: time for a non-specific sex category

The binary categories of male and female don’t align with the reality that sex and gender may be fluid. Keoni Cabral

Earlier this month the High Court indicated it was prepared to hear a legal case that tests the ability of intersex Australians to be legally recognised as being neither male or female.

The High Court hearing will be the final decision in a claim initiated in 2010 by NSW resident Norrie, who had applied to the NSW Registry of Births, Deaths and Marriages for a certificate to register a change of sex from male to “non-specific”.

The evidence before the hearing was that Norrie (who does not use a last name) did not identify as either male or female. Although at birth Norrie’s sex had been recorded as male, as an adult Norrie had undergone medical procedures, and now self-identified – and was identified in the community – as androgynous.

Statutory declarations from Norrie’s doctors supported the registration of a change in sex to “non-specific”. The NSW Registrar initially granted Norrie’s application, but this was later revoked.

Norrie appears to be the first person in Australia to litigate for the right to be identified as being of “non-specific” sex. This ground-breaking litigation squarely challenges the capacity of law to countenance sex and gender diversity.

Sex and gender identity

It is now well accepted in medicine, psychology, social sciences – and indeed in society more broadly – that the binary categories of male and female do not align with the reality that sex and gender are a continuum and may be fluid. Some people are intersex, as situated between male and female.

Yet in key areas, the legal system not only requires that people identify their sex status, it provides a choice of only male or female. There is no possibility of a non-specific sex.

This failing of Australian law leaves Norrie and the 1-2% of the population thought to be intersex in a position of being required to nominate a sex category they find fundamentally wrong to their identity. It may also give rise to practical problems of identification, as they may not present to the world as being within the nominated category.

Legal shortcomings

Norrie’s litigation is a prime example of the legal system refusing to deal with widely understood dynamics of the real world.

In the first two decisions that found against Norrie, the judges relied heavily on earlier Australian and UK legal cases – some more than 20 years old – to show that Australian law recognises only two mutually exclusive categories of sex. But these cases do not reflect current values and understandings about the diversity of sex and gender identity and presentation.

There was very little use of academic literature, including medical, psychological and social sciences understandings of sex as a continuum rather than as a binary of male/female. Such material offers opportunities to open the debate further, and inform judges and others in the legal system of how people actually live their lives and function in society.

Encouragingly, the most recent court to hear Norrie’s case – the NSW Court of Appeal, which is the highest court in the state – made far greater use of academic literature, and gave less weight to earlier cases, ultimately unanimously finding in favour of Norrie. The court determined that a person is entitled under the NSW scheme to have an entry in the Register of a sex that is other than male or female.

It is from this decision that the NSW Registry has appealed to the High Court.

Like many litigants pursuing ground-breaking legal action, Norrie has been courageous and resilient; prepared to pursue legal action in a slow, insensitive, and at worst oppressive, legal system. And this is just to attain the ordinary things many of us take for granted, such as having a document like a passport accurately record our identity.

Towards intersex recognition

Regardless of the High Court decision in the Norrie case, parliamentary action is needed to legislate a broad-reaching framework for people to identify their sex as non specific.

But first, we need to ask whether it’s relevant to require people to specify their sex under the current range of circumstances where it is presently required. Is sex status important these days – for what purposes and in what range of situations?

* The original article may have given some readers the impression that Norrie was determined in the hearing to be intersex. That impression is incorrect. This has now been updated.

Help combat alt-facts and fake news and donate to independent journalism. Tax deductible.