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The Norrie Case and the Australian High Court

Discussing the Third Sex

by BINOY KAMPMARK

The High Court of Australia occasionally surprises, and while it lacks the political and social ballast of its peers in other countries – the US Supreme Court, for instance – it demonstrated on Wednesday how it can give certain policies a push. According to their honours on the bench, the Births, Deaths and Marriages Registration Act 1995 (NSW) permits the Registrar to designate a person sex as “non-specific”.

The Registrar was obviously stumbling in the dark over the process, having initially issued the applicant, Norrie May-Welby, a “not specified” status on her Change of Sex certificate and Change of Name certificate. Had it been left at that, the press vultures, and the legal eagles, would have kept quiet. Instead, the Registrar, in what can only be described as habitual bureaucratic response, decided to alter the wording after declaring that the Chang of Sex certificate was invalid. The change of Notice certificate noted Norrie’s name as “not stated”.

Norrie was born in Scotland with male organs. In 1989, he undertook to have “a sex affirmation procedure” which did not, in the court’s words “resolve her sexual ambiguity.” Such a process, the judges noted, was defined by purpose, not outcome. It need not, for the purposes of legislation, had to have been “successful”.

In NSW Registrar of Births, Deaths and Marriages and Norrie [2014] HCA 11, it was clear that the bureaucrats had misread the signs. Keep it simple, they thought, while ignoring the fact that the Act in question did allow for an ambiguity to exist over sex. There are categories. Follow them. Most importantly, they misread the fact that the High Court would so unanimously come down on the side of a broad reading which accepted the unsurprising fact that, “Not all human beings can be classified by sex as either male or female.”

The law on that score did not prove progressive so much as prosaic. “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’.” A Registrar’s power was held to be broader than the simple binary of man and woman.

Within Australia, the Australian Capital Territory recognised a third category of gender, while Australian passports have moved into the realm of gender neutrality without having surgery as proof of a sex change. (The classification allowed on the latter is “indeterminate”.)

Naturally, such categories – between sex and gender – get conflated. One is born with a sex but one’s identity is a matter of gender. While the distinction can be artificial, it can also be useful. Referring to gender may be the more fundamental point, since one’s organs do not necessary dictate one’s identity. How complex this can be is well illustrated in a solid collection of essays Third Sex, Third Gender, edited by Gilbert Herdt. Sexual and gendered bodies over history have found variety, contradiction and power over a range of cultures, be it Byzantium’s powerful eunuchs or biological females who lived in Serbo-Croatian culture as “social men”, much of it to do with substitutes for male heirs.

Other countries do accept the third sex, or gender, as an official category. Germany and Nepal are examples, though again, the language used can conflate gender and sex. The Nepalese case is striking, largely because it shows that matters of the third sex are not confined to a debate about “First World” privileges. Bangladesh and Pakistan similarly allow for a third gender to be used in some government documentation. India, more narrowly, does the same.

Defining a sex is not merely a quibble of identity, the luxury afforded to some as to what they are or what they think they are. A sex can be definitive in the sense of state bureaucracy. It brings into existence a legal being in terms of the purchasing of property, insurance, the acceptance of employment or applying for a passport.

As Australian Senator Louise Pratt explained after changes made to Australian rules on sex in applying for a passport, such matters can be “very distressing, highly inconvenient and frankly sometimes dangerous.”

For all of those moves, states can strive to draft laws on the third gender yet fail to patch the gaps and alleviate the inequities. Germany provides an instance of that. Its third-gender law does not have a noisy following. When introduced in 2013, it became clear that facilitating the procedure of leaving the box empty did not facilitate the outcome of rights and entitlements. Third-sex children, for instance, might be designated as such, but they were hardly going to be given the same services, notably in terms of health insurance. Much remains to be done beyond the matter of pure procedure.

Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge.  He lectures at RMIT University, Melbourne.  Email: bkampmark@gmail.com