High Court recognises “non-specific” gender identity, implications for intersex people

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Intersex people have all sorts of gender identities
The High Court handed down judgement today in the case of NSW Registrar of Births, Deaths and Marriages v Norrie on Wednesday 2 April. The case is about a transgender person who was born biologically male, had gender reassignment as an adult to affirm an identity as a woman, and who now identifies as being neither male nor female. The High Court was asked to recognise a non-binary gender, and Norrie’s legal team has stated their client prefers the word “intersex” to describe their gender identity. Our concern is with that final detail.

The High Court ruled that NSW laws do permit the registration of a third classification other than male or female. We expected the High Court to uphold this ruling of the court of Appeal, given the speed of the decision.

It appears from the Judgement Summary that the High Court has recognised the innate, biological nature of intersex and diversity in identities of intersex people, and so has chosen the neutral term, “non-specific” to describe Norrie’s gender. We are greatly relieved by this welcome decision. In the full judgement, the High Court stated:

31. Norrie’s counsel went further, arguing that, as the Court of Appeal accepted, Norrie might more accurately be assigned to a category of sex such as “intersex” or “transgender”. On this view, the expression “change of sex” in s 32DC does not mean changing from one sex (male or female) to another (female or male): a reference to change of sex simply means an “alteration” of a person’s sex so that registration of categories of sex such as “transgender” and “intersex” is within the scope of the Registrar’s powers under s 32DC. This further argument goes too far; it should be rejected.

We welcome this assessment. We hope that the media will respect the difference between intersex and transgender, and acknowledge Norrie’s gender classification as “non-specific”.

At the start of the process, the Registrar of Births, Deaths and Marriages issued a certificate to Norrie stating “non-specific” gender, before it was withdrawn. At the end of the process the High Court requires the Registrar to issue this same certificate. Neither the Registrar nor the High Court appear to see “non-specific” as a third sex or gender, but rather as simply neither male nor female. The decision essentially treats sex and gender as synonymous.

The judgement may only have an immediate impact in NSW, and then only on people who medically transition from one gender to another, and who satisfy other considerations such as being single, but it forms part of a pattern of recent judgements, legislation and guidelines in Australia that all have a similar trajectory: recognition of a third classification.

Intersex gender identities

Intersex people are recognised by international, national and State/Territory bodies as being born with biological sex characteristics, including genetic, hormonal or anatomical differences, that are not typically male or female. Norrie is not intersex. Intersex was not redefined by the High Court using language of personal identity.

Intersex, once described as “hermaphroditism”, is about biology, not gender identity. Most intersex people grow up to identify as we were assigned at birth – men or women. There is no standard or default intersex identity; we believe that whatever gender identity an intersex person chooses is ok.

Most intersex people have “male” or “female” on birth certificates. Portraying intersex as if it is a non-binary gender identity misgenders the majority of intersex people; it fails to respect their identities.

Some Victorians, like Alex MacFarlane who was granted the first Australian passport with an ‘X’ sex marker in around 2003, or Tony Briffa, the world’s first openly intersex mayor, have chosen other classifications on their birth certificates.

Speaking before the decision, Ms Tony Briffa, Vice-President of Organisation Intersex International (OII) Australia stated:

I just accept the way nature made me. I was biologically part male and part female when I was born, and I naturally feel that way too. I would be happy for my birth certificate to say that I am both male and female. One day, hopefully, I will have that as well.

If the Court chooses to recognise a third gender or sex classification, then we hope they will choose to recognise an ‘X’ classification, as is already the case in Commonwealth guidelines and ACT birth registration law. We hope that such a classification will be ‘opt in’. It would be abhorrent for children to be assigned an experimental third sex knowing the assignment will be wrong in almost all cases.

Also speaking before the decision, Morgan Carpenter (Mr), President of Organisation Intersex International (OII) Australia said:

The High Court case contains within it the potential to turn ‘intersex’ into a gender identity for trans and gender diverse people who reject a binary assignment. Such a judgement would not respect the diversity of identities already held by intersex people, or our biology. It would erase intersex people as a distinct group with our own distinctive lives and experience. It would further marginalise our community.

Further, it has the potential to disrupt efforts to improve the health and human rights of intersex people. Last week, the Senate debated a world-first parliamentary report on intersex health, the Community Affairs Committee report ‘Involuntary or coerced sterilisation of intersex people in Australia’.

Senators from the three main parties described the medical treatment of intersex infants and children as a human rights issue. They each recognised the right of children to be involved in decision-making processes. As with the sterilisation of women with disabilities, they recognised that parents’ wishes are not more important than the wishes of the individuals themselves.

The attention being paid to intersex health and human rights issues has never been greater, but it is at risk of being derailed by an ill-conceived attempt to redefine intersex as an issue of personal identification.

Summary

The High Court has ruled that NSW laws do permit the registration of a third classification other than male or female.

Our concern has been predominantly with the fine print: ensuring that the diverse gender identities of intersex people are recognised.

It appears from the Judgement Summary that the High Court has recognised this diversity, and has chosen the neutral term, “non-specific”. We are greatly relieved by this welcome decision. We welcome the High Court’s statement in respect of the decision of the Court of Appeal.

We welcome this assessment. We hope that the media will respect the difference between intersex and transgender, and acknowledge Norrie’s gender classification as “non-specific”.

This page may be updated again when we’ve made a more complete analysis.

More information on the case

The High Court judgement:

OII Australia’s perspective:

Press

Definitions

World Health Organization definition:

Intersex is defined as a congenital anomaly of the reproductive and sexual system.

Office of the UN High Commissioner for Human Rights:

An intersex person is born with sexual anatomy, reproductive organs, and/or chromosome patterns that do not fit the typical definition of male or female. This may be apparent at birth or become so later in life. An intersex person may identify as male or female or as neither. Intersex status is not about sexual orientation or gender identity: intersex people experience the same range of sexual orientations and gender identities as non-intersex people.

Commonwealth Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013:

intersex status means the status of having physical, hormonal or genetic features that are: (a) neither wholly female nor wholly male; or (b) a combination of female and male; or (c) neither female nor male.

Note that this definition deliberately contains no barrier preventing people perceived to be intersex from gaining protection from the law.

Australian Commonwealth guidelines on sex and gender recognition:

An intersex person may have the biological attributes of both sexes or lack some of the biological attributes considered necessary to be defined as one or the other sex. Intersex is always congenital and can originate from genetic, chromosomal or hormonal variations. Environmental influences such as endocrine disruptors can also play a role in some intersex differences. People who are intersex may identify their gender as male, female or X.

More information

This page is not intended as an introduction to intersex.