Questions of Gender and the Law

About a month ago I attended a student-run activity, where at the start of the meeting everyone had to say which gender pronoun they preferred to be referred to as. For example: as a person identifying as a female I would say female and gender-neutral pronouns are ok with me. Before this time I never really thought about gender identity as an issue, mainly because I identify as a female and I generally look like what people would stereotype as a female, so it is not really a problem for me.

However looking further into this issue, I found myself a few weeks ago at the High Court of Australia. This is where a gender issue case was being heard involving New South Wales (NSW) Births, Deaths and Marriages v Norrie. This case, on a national level, has put gender back on the, ahem, agenda.

Norrie was born a male before undergoing gender alteration surgery in 1989. She now does not identify with either male or female genders. When Norrie applied for a name change with the NSW Birth, Deaths and Marriage Registrar she also wished and attempted to alter her gender, to not male, not female, but “non-specified”.

Norrie was actually issued with a non-specified gender birth certificate. But the NSW Registrar subsequently rescinded it. They claimed the change in gender on the birth certificate was issued in “error”.

Since this time, Norrie challenged this decision by the NSW Registrar in the Administrative Appeals Tribunal in 2010 and between 2010 and early March this year the case has been appealed all the way to the High Court.

The main basis for the appeal made by the NSW Registrar in the High Court, is that it wishes to argue there is a binary approach to gender for birth certificates, namely that there can only be either male or female. There is no third category for non-specified. If Norrie is successful it could mean drastic changes to how people can identify their gender on birth certificates, allowing for widespread recognition that there is not simply a “male” or “female” gender binary, but there also exists unspecified, intersex and indeterminate genders.

At the hearing, the NSW Registrar cautioned that there would be numerous pieces of legislation affected if there is to be a third category of gender.
Justice Bell stated during the High Court hearing there are “comparatively few pieces of legislation [that] draw the binary distinction for which you [the NSW Registrar] contend”. The NSW Registrar included many pieces of legislation in their submission that would be affected by the third gender category. Once of which included the combat sports regulation. Justice Bell referred to, in slight jest, this particular inclusion, specifying a female gendered combatant “may wear a lightweight sports-type brassiere.” Perhaps she was implicitly raising the question that if there was a third gender category of non-specified, what would they wear when engaging in combat sports? Maybe we should all panic because the combat sports regulation does not specify this! The non-specified gender player might have to choose between male and female sporting attire.

This is not the first time gender identity has been questioned in court. In 2003, Alex MacFarlane successfully had a passport issued with their gender identified as X. You can still chose your gender as neither male nor female but under the category of ”indeterminate/unspecified or intersex” for the purposes of an Australian passport. This change, according to the Department of Foreign Affairs and Trade, is a step forward in “removing discrimination on the grounds of sexual orientation or sex and gender identity”.

MacFarlane successfully campaigned to have a third gender category of ‘indeterminate’ as an option for Victorian birth certificates. This is currently not possible in NSW.

It seems the real question for the court at this point is to see if there is a large amount of legislation that would be affected by a third category of gender on birth certificates. It also begs the question: if it is already possible in Victoria, then why not New South Wales? The High Court of Australia is still hearing the case with the decision pending.