Norrie applied for non-recognition of gender in 2010 after surgery in 1989

This article is more than 6 years old

This article is more than 6 years old

The Australian high court has ruled that New South Wales must recognise a third gender after handing down its decision in the long-running case of Norrie, who has been fighting since 2010 to have a sex change recognised as non-specific.



Norrie, who was identified as male at birth, had applied for a name change and “non-specific” gender in 2010, having not identified as either sex since gender reassignment surgery in Scotland in 1989.

The NSW Registry of Births, Deaths and Marriages revoked its earlier decision in support of Norrie’s application, and Norrie took it to the court of appeal in 2012. The court found in Norrie’s favour but the registrar appealed to the high court.

Norrie’s legal team argued that to force Norrie to identify as either male or female when Norrie belonged in neither specification would maintain a fiction.

Among the arguments of the registrar was that it would cause “unacceptable confusion” if state legislation, the Births, Deaths and Marriages Registration Act 1995 (NSW), were to recognise more than two genders. The high court rejected the argument.

The Australian Capital Territory is currently the only Australian jurisdiction to recognise a third category of gender, although commonwealth-issued passports do.

The five-judge panel of the high court ruled unanimously, in what Norrie’s lawyer, Scott McDonald of DLA Piper, said was a rare fast turnaround.

“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 'not specific',” the high court said. “That question should be answered in the affirmative.”

Norrie said it was a “great outcome” particularly that it happened so quickly and applies Australia-wide, not just in NSW.

“Maybe people will understand there’s more options than the binary,” Norrie told reporters in Sydney on Wednesday. “Even if an individual might be male or female their friends might not be.”

Of the personal toll the four-year fight had taken, Norrie joked: “It was swings and roundabouts, but I’m on Wikipedia now. And these people have done the hard work. I didn’t have to stand up in court.”

Norrie added: “It’s important for people to have equal rights in society. Why should people be left out because they’re seen as not male or female? They should be recognised wherever they are and allowed to participate in society at an equal level.”

The ruling will affect some states that have similarly worded legislation to NSW. “A couple of states have similar legislation – Victoria and Queensland. WA has quite different legislation,” McDonald said. “It won’t be binding [there]. It will have persuasive authority.

“To the extent it sent a message of what the high court expects, and that sex is not binary, I think that’s a message that can be felt through the states’ legislation on this issue.”

There are a number of countries around the world which recognise a third or non-specific gender beyond passports, including Germany and Nepal.

The court found the act does not require a person who has undergone a sex affirmation procedure and remains “of indeterminate sex” has to be registered as either male or female.

“The act itself recognises that a person may be other than male or female and therefore may be taken to permit the registration sought, as ‘non-specific’,” read the judgment.

The court also ordered the registrar to pay Norrie’s court costs.

• This article was amended on 1 July 2014 to change the image.