Gender ruling: High Court recognises third category of sex

Updated

A Sydney resident who fought to be legally recognised as being of non-specific sex has hailed a High Court ruling that New South Wales laws do permit the registration of a category of sex other than male or female.

Norrie was born male but had a sex change and now does not identify as specifically male or female.

After a four-year legal battle, Norrie has won the right to be legally recognised as being of non-specific sex.

Norrie, who had been quietly confident of winning the case, says the historic verdict is a big win for the wider transgender community.

"I screamed a squeal of delight. Very loudly. It's very thrilling, very exciting," Norrie said.

"I'm overjoyed that it has happened. It's important for people to have equal rights in society and if some people are granted the right to have their sex and certain benefits that go along with that, then why shouldn't everyone have that right?

"Why should people be left out because they're not seen as male or female? They should be recognised as whatever they are and allowed to participate in society at an equal level."

The case began in 2010 when Norrie applied for a name change and to be registered as being of non-specific sex.

It's important for people to have equal rights in society and if some people are granted the right to have their sex and certain benefits that go along with that then why shouldn't everyone have that right? Norrie

The registrar at first agreed, but that recognition was revoked, with the registrar arguing it was beyond the power of the law to recognise options other than male or female.

Norrie went on to challenge the decision and last year the NSW Court of Appeal found the existing law could recognise additional options.

The registrar turned to the High Court in an attempt to have that decision overturned, but today the court dismissed the appeal.

It reached the unanimous decision that the law does recognise a person may be neither male nor female.

The court ordered Norrie's application for registration be remitted to the registrar for determination. The registrar has also been ordered to pay Norrie's legal expenses.

"By taking it all the way to the High Court, we now have something that's applicable Australia-wide," Norrie said.

"So it's a great victory for sex and gender diverse people throughout Australia."

The state's Attorney-General is not commenting on the High Court decision.

A spokeswoman says the Government is considering the judgement and any legal and policy implications.

Rights commissioner welcomes decision, Amnesty says more needs to be done

Human Rights Commissioner Tim Wilson has welcomed the decision.

"It's quite clear that people who are intersex or transgender face very significant issues, both in the public domain and in the private domain," he said.

"The key thing is government shouldn't be adding to those issues by discriminating against them and telling them how to live their lives."

Sorry, this video has expired Video: Norrie May tells The Drum the ruling validates her true identity (ABC News)

But Amnesty International's Senthorun Raj says while the High Court's decision is promising, there is more to be done.

The court's ruling only applies to someone, like Norrie, who has had what is commonly known as sex reassignment surgery.

Mr Raj says but it will still be difficult for people who have not had surgery to be able to formally identify as gender-neutral.

"The concern is obviously that it comes back to showing that you've undertaken medical or surgical treatment that you can demonstrate that you're no longer within a male or female category in order to be considered sex-not-specified," he said.

"And you also need to be single, so obviously it doesn't really give the same rights to people who can't afford to or don't want to engage in surgical procedures in order to have their sex documentation or gender documentation amended."

Other states urged to recognise personal identification

The ACT recently passed a law recognising a third category of sex and the Commonwealth is rolling out a set of guidelines for government departments to also allow similar recognition.

Wednesday's ruling has been hailed as a victory for the wider transgender and intersex community.

"The High Court...has set some really important guidance for every other state and territory jurisdiction," said Sam Rutherford from A Gender Agenda.

"We're very glad for Norrie that a lot of years of determination and probably a lot of stress in taking her fight all the way to the High Court has finally paid off."

Mr Rutherford says he is confident the progressive ruling will speed up change across the country.

"The High Court is the highest court that we have. They've made very clear indications in their judgement that people of non-binary gender identities are in the community and they need to be recognised legally," he said.

"It will certainly be difficult for other state legislators not to pay attention to it."

Mr Rutherford says they are particularly happy with the term "non-specific".

"The High Court was really clear that [the term] needs to be as inclusive as possible, and anyone that falls outside that male-female binary needs to be recognised and non-specific is the best way to do that," he said.

"It could be an intersex person, it could be a transgender person, it could be a someone whose identity is neither male or female. But the really important thing is that it is about personal identification by that person, rather than letting the registrar make the decision."

He says identity recognition is a fundamental human right.

"This judgement is affirming on a personal level for people," he said.

"We're seeing more and more people identifying as androgynous or neither male nor female, particularly younger people. So this is going to be really important for them to have this decision as a precedent."

Topics: sexuality, courts-and-trials, act, canberra-2600, sydney-2000, nsw

First posted