The High Court today formally upheld the right of Redfern resident Norrie, who uses only a first name, to be registered as neuter with the NSW registry of births, deaths and marriages.
In its historic ruling, the five-judge panel declared that “sex” is not binary – male or female – and that this should be mirrored by the law and in basic legal documents.
“The question in this appeal is whether it was within the registrar’s power to record in the register that the sex of the respondent, Norrie, was, as she said in her application, ‘non specific’,” the High Court said.
“That question should be answered in the affirmative.”
The judges supported the argument that to classify Norrie as male or female while the artist’s sex remained ambiguous would be to record misinformation in the register…
Here is the High Court’s judgement and related documents: Case S273/2013 NSW Registrar of Births, Deaths and Marriages v. Norrie (2014) and here is the case that led to that appeal: Norrie v NSW Registrar of Births, Deaths and Marriages  NSWCA 145 (2012). See also Mar 15, 2010 — David Pescovitz, Becoming legally androgynous.
One of the most perceptive commentaries I have seen is in this morning’s column by Charles Waterstreet.
In Australia, the High Court has affirmed the legal death of the binary conceptualisation of sex – either male or female. In fact, it graphically demonstrates the fallacy of speaking about people being of the “opposite sex”. Males and females are not opposite, they are more alike than the general public believes. The language of “opposite sex” perpetuates the sexism that was built on a false premise. We are a little bit of each.
The High Court has approved the legislation that NSW passed in 1996 that in certain circumstances a person, such as High Court applicant Norrie, can be of non-specific or indeterminate sex and formally registered as such. The court did not sub-categorise “non-specific” into boxes called “intersex”, “transgender”, or “androgynous”. Married people cannot register their sex change or alteration, presumably because it directly threatens the Marriage Act which only recognises male/female unions. The 1996 amendments also required a condition that the applicant for sex status change must have “undergone a sex affirmation procedure”, which is an alteration of a person’s reproductive organs that switches one to the “opposite sex” (clanger!) or corrects “ambiguities”.
Why should surgery be the sole arbiter of changing one’s sex status? One might like to keep one’s willy, but have breasts. Another might want to keep her uterus, but grow hair on her face without losing her eggs and womb. If Aboriginality is based, not on the colour of your skin but the way you feel and are accepted and regarded in society, then sexuality should be defined by attitude, not surgery. Legislators are very mechanical when they draw lines in the sand like surgeons. The truth is so much more nuanced, ambiguous and undefined.
The Norrie case is a small step for man, but a large leap for non-specific sexual beings. Parliament now needs to cut the umbilical chord of surgery as the condition of sexual identity change. Whenever I fill in a document that asks “sex”, I always write “yes, more please”.
I can remember being a bit concerned about a terminology issue back around 2010. Here – and it is already online – is an image of norrie’s passport:
I wondered about “not specified” as against “non-specific” on the grounds the former simply meant, to me, that you hadn’t ticked a box, but the latter affirmed a status. Looking at the recent court cases, however, it appears that affirmation is what has been recognised. Subject to the issues Charles Waterstreet raises.
norrie: international phenomenon. Image from The Hindu
norrie is an amazing person. I got to know norrie – and Sam to whom norrie has just been engaged using a ring printed in a 3-D printer! – through South Sydney Uniting Church. norrie is also regular cartoonist for the South Sydney Herald, which I have written for in the past.
Mind you, I have to recognise that norrie is way beyond me in rather many ways… Here are some posts I have done over the years:
- The incomparable norrie 2010 — “One of norrie’s favourite quotes is ‘First they ridicule you, then they fight you, then you win.’”
- Not everything in this life is as simple as we first thought… 2010
- Lunch with Malcolm (updated), and the unique Christianity of norrie mAy-welby 2006
- Transamerica — SBS last Saturday night **** 2009
- I who may well be…: Cartoons and Violence/ Dorothy’s Autobiography 2006