NSW legal rejection of “sex non-specific”: implications for intersex Victorians

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On Friday 13 May 2011 a decision on the case of Norrie v Registry of Births Deaths and Marriages [2011] NSWADT 102 was handed down with the outcome being that people living in New South Wales cannot have a sex other than female or male recorded on their birth certificate or other official documentation.

Uniquely amongst Australian states and territories, Victorian law permits the sex of those intersex newborns whose genitals are clearly neither female nor male at birth to be recorded as unspecified.

Case law made in one state or territory of Australia has a habit of influencing the laws and legal trials in another. Such influence also extends across national borders. This case may have been heard in NSW but its judgement may well flow south, into Victoria.

The question now is whether or not this judgement will now affect the lives of those Victorians born intersex. We hope that it will no impact.

Alex MacFarlane, the first “X” passport holder

65 The Applicant referred to the “case” of “Chris Somers”, who was said to have had an Australian passport issued with an “X” in the “sex” field as the result of legal proceedings against the Commonwealth. No further details were provided in relation to that matter and it does not appear to be a reported decision. …

82 With respect to the Applicant’s reference to the “case” of “Chris Somers”, the Respondent noted an article published in the West Australian newspaper on 11 January 2003, which states that after several months of negotiation with the Department of Foreign Affairs and Trading, intersex person Alex MacFarlane was issued a passport identifying Alex as neither male nor female, but simply as X.

OII board member Chris Somers xxy does not have a passport marked with X instead of M of F. Chris was not born in Victoria. Victorian-born Alexan MacFarlane, now living in Western Australia, was deemed to have been born with an unspecified sex and possesses a passport with an X in the sex field.

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