Sex identity ruling against ‘common sense’

SYDNEY: Local sex and/or gender diverse (SGD) person Norrie has had a setback in their continuing case for an official certificate to state sex ‘not specified’, after an appeal panel of the Administrative Decisions Tribunal confirmed a previous decision that the NSW Births, Deaths and Marriages (BDM) registrar doesn’t have the power to allow a person to have an unspecified sex recorded. 

The decision handed down late last month is the latest  in a legal battle that has lasted over 18 months after Norrie was initially given a Recognised Details Certificate – which is provided to immigrants who want to officially change their gender – with the sex field stating ‘not specified’.

Norrie (pictured), who prefers the pronoun zie, was born in Scotland before moving to Australia in the late 1960s.

On the eve of last year’s Mardi Gras, Norrie was given a ‘not specified’ sex marking after expert testimony from medical professionals that zie no longer adhered to either the male or female gender despite being born male.

However, those documents were soon cancelled in mid-March 2010, when then Attorney-General John Hatzistergos directed the matter to be discussed between the Director-General of his department and the registrar, with subsequent legal advice sought from the Crown Solicitor.

In the decision handed down on November 29, the appeal panel said that it had found no error of law in the Tribunal’s decision in May of this year to revoke a change of name certificate for Norrie with the sex declared as ‘not specified’.

“The Registrar refused Norrie's application saying that he did not have power to register a person's change of sex to ‘not specified’. The only two options were registering a change of sex from male to female or from female to male,” the judgement reads.

Norrie has told SX that the decision will be appealed.

“They clearly don't have a snowball’s, their whole argument that there are only two answers allowed to the question of ‘what sex are you’ flies against common sense, the English language, the International Civil Aviation Organisation agreement of 1950-something, and the issuing of my Australian Passport with ‘Sex: X’,” Norrie said.

“The insistence that everyone is either M or F not only has history and common sense against it, but has also been entirely superseded by events.”

Dr Tracie O’Keefe, a sexologist and spokesperson for Sex and Gender Education Australian (SAGE), told SX that it was ludicrous that a government department was continuing to go against directives in the 2009 Sex Files Report released by the Australian Human Rights Commission and supported by the federal Attorney-General’s department.

“[The report recommends] that people like Norrie be able to be registered as ‘sex non specific’. Common law permits people to do anything unless it is prohibited by law,” O’Keefe said.

“The NSW BDM, having registered Norrie as ‘sex non specific’, now say they are not allowed to register anyone unless it is as male or female, but that does not appear in any of the law.”