: ‘Gender Not Specified’: NSW Court of Appeal to Rule

‘Gender Not Specified’: NSW Court of Appeal to Rule

Anthea Vogl
New South Wales

An appeal against a decision holding that the NSW Registry of Births Deaths and Marriages does not have the power to register the sex of person as ‘non-specific’ or ‘not specified’ is set to be heard in the NSW Court of Appeal.

The appellant in the case, Norrie, was the first person to receive a document stating that sex was ‘not specified’ from the NSW Registry of Births Deaths and Marriages in February of 2010. The document received was a ‘Recognised Details Certificate’, which performs a similar function to a birth certificate. The non-specification of sex was requested as Norrie does not identify as male or female.

Less than one month after issuing the certificate, the NSW Births Deaths and Marriages Registrar Greg Curry declared it to be invalid, and issued a media release stating that the certificate had been cancelled. The invalidation of the certificate followed national and international media stories reporting Norrie to be ‘first legally genderless person’ and subsequent legal advice given by the NSW Solicitor-General that the Registrar does not have the power to issue certificates denoting sex as anything other than male or female.

Norrie lodged an appeal against the Registry’s decision to the NSW Administrative Decisions Tribunal (ADT). In May of 2011 the ADT affirmed the Registry’s decision, finding that the Births Deaths and Marriages Registration Act 1995 (NSW) ‘is predicated on an assumption that all people can be classified into two distinct and plainly identifiable sexes, male and female’ and that it does ‘not allow a person to choose to have an unspecified sex recorded’.

The ADT decision accepted that a designation of sex as ‘non-specific’ reflected both Norrie’s medical reality and self-perception. It also considered the Australian Human Rights Commission’s recommendation that that a person over the age of 18 years should be able to choose to have their sex noted ‘as something other than male or female’ and be allowed to choose to have an unspecified sex recorded on official documents (Sex Files: The Legal Recognition of Sex in Documents and Government Records (2009)). A further appeal, lodged in the Appeal Panel of the ADT, was also unsuccessful. The NSW Court of Appeal will hear the case in November 2012.

The full decisions handed down by the ADT can be found here:

Norrie v Registry of Births Deaths and Marriages [2011] NSWADT 102 (General Division): http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=151840

Norrie v Registrar of Births, Deaths and Marriages (GD) [2011] NSWADTAP 53 (Appeal Panel): http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=155878

ANTHEA VOGL is a Doctoral Candidate at the Faculty of Law, University of Technology Sydney.

(2012) 37(3) AltLJ 205
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