In a unanimous judgment, the High Court has held that the Births, Deaths and Marriages Registration Act 1995(NSW) (the Act) empowers the Registrars to register a person’s sex as “non-specific”.
Norrie, who was born a male and underwent a “sex affirmation procedure”, applied to the Registrar pursuant to s 32DA of the Act to have her sex registered as “non-specific” in accordance with the powers granted to the Registrar by s 32DC. After initially approving the application, the Registrar recorded Norrie’s sex as “not stated.” Norrie sought review of the Registrar’s decision in the Administrative Decisions Tribunal, which held that it was not open to the Registrar under the Act to register Norrie’s sex as “non-specific”. This decision was upheld by the Administrative Decisions Tribunal Appeal Panel. The New South Wales Court of Appeal allowed Norrie’s appeal against the Tribunal decisions. The question for the High Court was whether the Act recognised that a person’s sex may be neither male nor female and therefore whether the Act allowed for registration under a “non-specific” sex category.
The High Court Decision
In discussing the provisions of the Act, the Court observed, among other matters, that the function of the Registrar in determining an application under s 32DC of the Act for registration of a person’s change of sex is principally to record information provided by members of the community; the Registrar’s decision-making power does not extend to the making of an moral or social judgments, the resolution of medical questions or the formation of views about a sex affirmation procedure.
The Court further observed that the relevant legislative provisions dealing with an application to register a change of sex (being Part 5A of the Act) were introduced by legislation which amended the Anti-Discrimination Act 1977 (NSW) by adding definitions of “recognised transgender person” and “transgender person”. Accordingly, the Court noted that it must interpret the relevant provisions of the Act in the context in which they were enacted, i.e., a context of express legislative recognition of the existence of persons of “indeterminate sex”.
Given the provisions of the Act and the context in which the Act is to be construed, the Court held that the Act recognises that not everyone is male or female and acknowledges “ambiguities.”
Further, the Court rejected a submission by the Registrar that unacceptable confusion would ensue if the Act recognised more than two categories of sex (i.e., male and female) or “uncategorised” sex. The Court held that this difficulty only arises where the law requires categorisation as male or female for the purposes of legal relations whereas, for the most part, an individual’s sex is irrelevant to such legal relations (putting aside the issue of marriage).
The Court noted that the material before the Registrar showed that Norrie’s sex affirmation procedure had not eliminated the ambiguities relating to Norrie’s sex. In those circumstances, the Court concluded that the Registrar was not required to resolve those ambiguities; it was open to the Registrar to register Norrie’s change of sex by recording the change from classification as male to non-specific.
The High Court’s decision is particularly significant in recognising the possibility of an alternative to binary male or female sex categories, and expressly acknowledging an individual’s right to adopt a legal status outside those strict and traditionally enforced categories.
While the decision is limited in application to Part 5A of the Act, it may well serve as a useful precedent for the purposes of interpreting analogous state legislation outside NSW and more broadly.