‘Not all human beings can be classified by sex as either male or female’: Accuracy trumps institutional convenience.

Post by Dr Laura Grenfell

‘Not all human beings can be classified by sex as either male or female’.  In the twenty-first century this statement regarding gender and sex diversity is hardly ground-breaking.  However, coming from our apex court in Australia, the High Court, it will create ripples in the legal world.  In the past three years the High Court has considered two cases relating to the problems gender diverse people face when dealing with institutions and service-providers in Australia.

In the latest decision of Norrie regarding the New South Wales system of classifying sex on birth certificates, the Court held that classifying everyone according to the male/female binary is not always feasible or even desirable where such classification will lead to inaccuracies.  In the specific context of the NSW legislation, the Births, Death and Registration Act 1995, the Court decided that it was open to the Registrar to officially record Norrie’s sex as ‘non-specific’ as Norrie could not be accurately classified as either male or female. However, it also held that it was not open to the Registrar to classify Norrie as ‘transgender’ or ‘intersex’ as the legislation does not create such a third classification of sex even though the NSW Anti-Discrimination Act does give legal recognition to such status for the purpose of anti-discrimination protection. In refusing to read the classifications of ‘transgender’ or ‘intersex’ into the Births, Death and Registration Act 1995, the Court overruled the NSW Court of Appeal.

For Norrie, this is the end of a legal chapter which began in 2009 with Norrie’s application to have Norrie’s birth record altered to ‘non-specific’ after having undergone a sex affirmation procedure which did not, to use the legislation’s terminology, ‘eliminate ambiguities’ relating to Norrie’s sex.  This application was initially successful but, following media coverage, the Registrar retracted this determination saying it had been ‘issued in error’. In the High Court the Registrar argued, unsuccessfully, that the classification of ‘non-specific’ would lead to unacceptable confusion and inconvenience but he was unable to identify any particular statute, apart from the Commonwealth Marriage Act, in which a binary classification was critical.

This High Court decision does not bind other Australian jurisdictions; since 1988 when South Australia led the charge, all the states and territories have introduced legislation, each slightly different, to allow adult transgender people who have undergone gender reassignment and are not married to apply to amend the gender on their birth certificates.  More recently, the ACT has taken the lead to become the first Australian jurisdiction to explicitly allow ‘intersex’ status to be recorded on birth certificates and to explicitly remove the requirement of surgical intervention before a change of sex on a birth certificate.

The question of surgical intervention was at issue in the 2011 High Court case of AB v Western AustraliaIn this case two female-to-male [FTM] transgender persons challenged the decision of the Western Australian Registrar not to change the sex recorded on their birth certificates under Western Australia’s Gender Reassignment Act 2000 on the basis that they had not undergone surgery to alter their internal reproductive organs or, indeed, any surgical intervention as part of their gender reassignment. The ambiguous nature of the WA legislation, in particular the term ‘gender characteristics’ in reference to gender reassignment, meant that the degree of anatomical intervention required was unclear.  The High Court held that to focus on reproductive organs as determinative of whether an individual was identified as male or female was an incorrect interpretation of the WA legislation.  The Court suggested that the WA legislation actually required consideration of gender from a social perspectiveIt stated:

The question whether a person is identified as male or female, by reference to the person’s physical characteristics, is intended by the Act to be largely one of social recognition.. … Such a [social] recognition does not require knowledge of a person’s remnant sexual organs.[35]

In AB v WA the High Court took a liberal, facilitative reading of the WA legislation in its application to FTM transsexuals by ruling that it does not mandate the alteration of internal reproductive organs or, indeed, any surgical intervention.  Such a progressive interpretation is also apparent in Norrie’s case.

The degree of anatomical alteration required to legally change one’s sex differs between jurisdictions and also, in a practical sense, depends whether the transgender person was born with female or male genitalia.  Most state and territory anti-discrimination legislation takes an approach which emphasises psychology as the determining factor of sex, with WA legislation being a notable exception. The 2011 federal guidelines on passports prioritise psychology and permit a legal change of sex on an Australian passport without mandating any anatomical alterations.  Similarly, the 2013 amendments to federal anti-discrimination law offer protection on the ground of intersex status and gender identity, the latter referring to ‘gender-related characteristics of a person (whether by way of medical intervention or not)’.

These recent High Court decisions and legislative amendments show that small but sure steps are being taken to bring the law into line with social understandings of sex and gender diversity.  This marks an important change in a society that has been blinkered too long by the so-called ‘convenience’ offered by binaries regardless of their accuracy and impact on lives.  This range of developments should provide sufficient impetus for state and territory parliaments to follow suit and remove binary classifications and requirements for surgical intervention.

 Dr Laura Grenfell is a Senior Lecturer at the Adelaide Law School, University of Adelaide

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