Why Norrie’s court victory is a leap forward for everyone

The high court has ruled that New South Wales must allow Norrie to legally identify as having a non-specific gender. AAP/Daniel Munoz

Have you ever asked yourself why institutions continue to demand that we identify ourselves as male or female on every form? What difference does gender make to my bank account, to the tax office, or to the many other bureaucracies we deal with in daily life?

While it may only a minor irritation for me to have to specify that I’m female, for many others it’s a constant confrontation of who they are and how they identify. But now there’s hope for change.

Many of you would have read about the case of Norrie versus NSW Registry of Births, Marriages and Deaths this morning. Norrie was born male, undertook gender reassignment surgery, but subsequently felt that neither gender matched their feelings.

Yesterday, the high court ruled that New South Wales must allow Norrie to legally identify as having a non-specific gender. What’s telling is that in its ruling, the court pointed out that yet again the law is behind scientific facts:

For the most part, the sex of the individuals concerned is irrelevant to legal relations.

The obvious exception to this is the Marriage Act, which, in Australia, was modified in 2004 to specify that marriage is not between two people, but a man and a woman.

This anomaly led to bizarre circumstances for Jan Morris (formerly James Morris) a renowned UK author. As Jan tells in her account of her gender transition (Conundrum), James was married to Elizabeth.

When James transitioned to become Jan, he had to divorce Elizabeth because two women couldn’t be married. Nonetheless they stayed together as a couple and, entered into a civil partnership, when that became an option in the UK in 2008.

A spurious dichotomy

Most people working in this field have argued that the dichotomy male/female is spurious. They point out that there’s a continuum of biological features that are used to distinguish between male and female (more or less reliably), but that there’s a significant number of people (commonly called inter-sex) for whom differentiation is not straightforward.

What’s more, there are many people who don’t identify with the sex to which they were assigned at birth (trans-gender) at all. And even within “transgender”, there are some who clearly identify with their re-assigned binary, while others insist on the gender “trans” in its own right.

In 2007, some colleagues and I undertook a national survey of 253 trans-gender people from all states and territories in Australia and New Zealand. We found clear evidence of diverse views on how these people identify and describe themselves.

Half of respondents (50.6%) reported that they’d tried to amend public documentation to reflect their current gender identity and that this was crucial to their sense of personal and identity recognition.

The documents they’d tried to change included bank accounts; insurance details; birth certificate; car registration; naturalisation papers; citizenship certificates; passport; council rates; post office box details; credit cards; police security checks; driver’s licenses; superannuation; electoral details; tax file number; gun licenses; and university records.

Buried in bureaucracy

Experiences and outcomes varied, and even within the same organisation, there appeared to be different practices, leading to different experiences and degrees of difficulty and frustration.

The organisations they’d dealt with included electoral commissions; tax offices; financial institutions (banks, credit card companies, superannuation funds); public companies such as telecommunications providers; government departments; health insurance companies; local councils; the police; post offices; and transport departments.

Those who’d been able to successfully change their documentation experienced this as affirming their gender while the inability to change their documents naturally had consequences in participants’ lives. As one said:

My bank has outright refused to stop addressing my mail as “Mr” until I can provide them with either an updated birth certificate or a letter from a surgeon saying I have undergone GRS (gender reassignment surgery).

What came across most clearly was exactly this kind of irritation, frustration and distress, which resulted from dealing with the binary world of organisations (banks came in for particular criticism). Understandably, most people had a strong desire for recognition of who they were.

Norrie’s victory in the high court means the enforced adoption of either male or female as the only way of being, or “doing gender” in Australia will come under increasing scrutiny and challenge.

So well done, Norrie. With any luck, the rest of us will benefit from your persistence and avoid the unnecessary task of identifying our gender every day.


Further reading
Norrie’s gender win brings us closer to knowing who we are

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