Intersex Human Rights Australia

This is an analysis of the NSW Court of Appeal judgement in the matter of Norrie v the NSW Registrar of Births, Deaths and Marriages (BDM), in relation to its relevance to intersex people.

Update

The case has now been appealed to the High Court by the NSW government.

Our briefing paper on the High Court case.

Background

It is necessary to clarify at the outset that intersex is not the same thing as a non-binary identity, as is implied in many news reports. Intersex people are not synonymous with non-binary trans or gender diverse people. Intersex is primarily a matter of the body, and innate atypical physical sex characteristics. Some of us have identities that reflect our embodiment; very many others have male or female identities. This is recognised in the government’s new guidelines on the recognition of sex and gender which state that:

People who are intersex may identify their gender as male, female or X.

This acknowledgement was crucial to our support for the new guidelines. An X passport or identity is a choice for some of us, and should never be regarded as mandatory or inherent to our embodiment.

Further, X passports and indeterminate birth certificates have been with us for over a decade.

Alex MacFarlane, the first recipient, was able to argue the case for an X passport on the basis of Alex’s Victorian birth certificate which did not specify a binary sex.

The issues at the heart of the Norrie case are, therefore, not new to us. They are also not priority issues, even though they generate significant interest (and concern about the creation of a third sex). The far more fundamental issues of bodily autonomy and integrity, and protection from discrimination, are our priorities.

The findings of the Court are less expansive than may have been thought by many. We believe that they have no bearing on intersex people, and especially none in respect of intersex infants, children and adolescents. OII strongly contends the notion that assigning intersex children to experimental social categories would benefit them, and is concerned by the use of intersex children’s rights as a basis for arguments in respect of the rights of a non-intersex adult.

It is somewhat naive to assume that action on adult, transgender or gender diverse provisions on birth certificates will impact on the registration and treatment of intersex infants.

It is abhorrent when the opportunity currently exists to act on concern about intersex children’s rights, but that opportunity is not taken. Such an opportunity currently exists in the Senate Inquiry on involuntary and coerced sterilisation – but the lack of such action on a fundamental intersex issue by any but a handful of intersex, and intersex-inclusive LGBTI organisations, and no human rights bodies, is a matter of deep regret.

Scope and definitions

The finding is narrow and limited to transgendered people who, in seeking to resolve ambiguities in respect of their “sex identity”, have undergone sex affirmation surgery in order to resolve that ambiguity.

The question the Court of Appeal sent back to the Administrative Appeals Tribunal for resolution, to summarise is: if a person undergoes sex affirmation surgery to resolve ambiguity in their “sex identity” and that surgery fails in that endeavour, then what category, other than male or female, should that person be assigned to?

In handing down this judgement Justice Beazley noted in obiter that, in [206]:

206 I should make one final observation. On the argument on the appeal, Norrie’s Senior Counsel used the language of “intersex” to describe Norrie’s sexual identity. There are two problems with this. First, Norrie did not make an application to the Registrar that her sex be registered as “intersex“. Secondly, from the understanding of the term “intersex” I have gleaned from the material, it would seem that Norrie is not an intersex person, although Professor Greenberg’s work indicates there is some fluidity around the language relating to these matters. Norrie will need to take care in specifying the “sex” that she contends should be registered.

Also Sackville at [228-229] detailed how “transsexual” has a distinct, and narrower, meaning:

228 …Norrie appears not to be an intersex person. But the existence of intersexuality is a matter to be taken into account in the construction of Part 5A.

…Intersexuality is not the same as transsexuality (sometimes known as gender dysphoria syndrome and so described by the High Court in AB v Western Australia [2011] HCA 42; 244 CLR 390); JL Taitz, “Confronting Transsexualism, Sexual Identity and the Criminal Law” (1992) 60 Medico-Legal Journal 60, at 61, 63; Secretary v “SRA”, at 315. A transsexual at birth has the sexual organs of a male or female but does not identify as a member of the sex that was assigned at birth: J Greenberg, at 2; Secretary v “SRA”, at 313-314, 315, per Lockhart J. In this sense, the term includes pre-operative, post-operative and non-operative transsexuals.

The Judgement throughout makes it clear the laws being examined are laws with provisions for transgendered people albeit, as Sackville comments, taking “the existence of intersexuality” into account.

How intersex people in NSW can change birth certificate details

There are no laws extant in NSW that make meaningful provisions for intersex people. Intersex people are, however, able to change details on a birth certificate on the basis of an administrative correction. The provisions in the Births Deaths and Marriages Act lie in Div 2. 17

(2) However, if the particulars available to the Registrar are incomplete the Registrar may register a birth on the basis of incomplete particulars.

And Div.3

45 Correction of Register
(1) The Registrar may correct the Register:
(a) to reflect a finding made on inquiry under Division 2, or
(b) to bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event.
(2) The Registrar must, if required by a court, correct the Register.
(3) The Registrar corrects the Register by adding or cancelling an entry in the Register or by adding, altering or deleting particulars contained in an entry

Both of those provisions have been used by intersex people to correct entries when there has been a mistaken or no assignment at the time of birth. Norrie’s argument was not based on such provisions, rather, the evidence was that Norrie was physically unambiguously male at the time of birth and that, over time, an ambiguity in Norrie’s identity became apparent. Beazley at [6] explains:

She identified that ambiguity to be that although she was born with male reproductive organs, she identified as having a non specific gender identity.

To understand this matter it important to understand what the Court of Appeal can and cannot do. The Court can only make findings in matters of law; it cannot make findings in matters of fact (see [52] – [53]).

In sending the matter back to the Administrative Appeals Tribunal (AAT) it has not found that Norrie is, in fact, a person of third sex or of indeterminate sex. It has found that the Tribunal can order the Registrar of Births, Deaths and Marriages to specify a sex other than male or female on a gender Recognition Certificate.

It has done so in a situation where a person has undertaken sex affirmation surgery, and that that surgery has failed to reach an objective of satisfactorily male or satisfactorily female in the mind of the person undertaking the surgery to resolve ambiguity in their sex identity.

That the matter is an issue for transgender people who have undergone sex affirmation surgery was made clear by the Court in many places, but especially in relying on the Births Deaths and Marriages Registration Act 1995 [judgement sections 17-28]. The Act states:

32DA Application to register change of sex
(1) A person who is 18 or above:
(a) who is an Australian citizen or permanent resident of Australia, and
(b) who lives, and has lived for at least one year, in New South Wales, and
(c) who has undergone a sex affirmation procedure, and
(d) who is not married, and
(e) whose birth is not registered under this Act or a corresponding law,
may apply to the Registrar, in a form approved by the Registrar, for the registration of the person’s sex in the Register …

And the Anti-Discrimination Act 1977, as amended [judgement parts 29-30]; the part cited being:

38A Interpretation
A reference in this Part to a person being transgender or a transgender person is a reference to a person, whether or not the person is a recognised transgender person:
(a) who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or
(b) who has identified as a member of the opposite sex by living as a member of the opposite sex, or
(c) who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex,
and includes a reference to the person being thought of as a transgender person, whether the person is, or was, in
fact a transgender person.” (emphasis added)

Part (c) is sometimes though to include intersex people. The Court of Appeal noted, though, at [251] in the Anti-Discrimination Act this was a protection against “discrimination on transgender grounds” then goes on to note at [253]

The definition is a clear indication that the word “sex”, when used in legislation intended to facilitate a change of sex by a person whose sexual identity is uncertain, is not necessarily to be understood in a binary sense.

This places the issue as being one of identity and not of intersex status. In this regard, the judgement coincides with the Commonwealth government’s new guidelines on the recognition of sex and gender, which similarly distinguishes between “indeterminate sex” and “intersex”.

Intermediate
A person of indeterminate sex or gender is someone whose biological sex cannot be unambiguously determined or someone who identifies as neither male nor female.

Intersex
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.

Conflating sex and gender

The Court of Appeal judgement’s use of the words “sex identity” is confusing given the efforts in the past to separate biological sex from one’s lived sex role. The former being used to describe anatomies, the latter being gender roles.

The terms are not clarified in this judgement. Gender identity is referenced ten times, gender over seventy times with a reliance on the following provision [127]

For the purpose of this Statute, it is understood that the term ‘gender’ refers to the two sexes, male and female, within the context of society. The term ‘gender’ does not indicate any meaning different from the above

This makes no distinction between sex and gender, and is consistent with most Australian law.

For the Court of Appeal, the situation would be especially delicate given that apparent contradictions in NSW law in this matter: birth certificates and recognition certificates both indicate a person’s sex. If such documents were to indicate one’s gender in the sense of lived sex role then that part of a birth certificate or recognition certificate could not be completed until an individual was able to express what that role might be. That is to say, no gender assignment is possible at the time of birth because there is no way to ascertain gender by the physical inspection of a newborn.

Although the Court of Appeal was dealing with interpretations of the transgender provisions of the Births Deaths and Marriages Act and the Anti-Discrimination Act, the issue is the sex marker not the gender marker, and what an appropriate sex marker might be – although Norrie and the Court were clearly talking about gender identity.

The court seems to resolve the issue by supposing sex and gender to be the same thing and the appellation on cardinal documents, where the marker is “sex” is identical to that marker being seen as “gender”.

The words “sex identity” are used in the judgement in a way that seems to mean “gender identity”. For example, [195]

In the second ground of appeal, Norrie contended that the Tribunal erred in its construction of s 32DA in holding that s 32DA could only be satisfied if an applicant had undergone a surgical procedure for the purpose of being more definitively regarded as either “male” or “female“, but not for the purpose of correcting the ambiguity between physical characteristics and a person’s sex identity.

The lack of clarity between sex and gender in Australian law and in cases such as this one is especially poignant for intersex people, given that a good deal of our issues and our lack of rights are contingent on our biological sex, irrespective of our gender identities or sexual orientations. The complete lack of consultation with intersex people or organisations during the course of this judgement, together with our lack of representation, ran the very significant risk of causing collateral damage.

Where gender identity appropriates intersex, as appears to be the case in this matter, critical issues such as the involuntary sterilisation of intersex people, lack of appropriate medical and government services, non-consensual appearance-related genital surgeries, lack of anti-discrimination protection and uncertain status in areas such as marriage and superannuation entitlements are invisibilised.

Sex affirmation procedures and a non-binary registration

Though the court found [200]:

It follows from what I have said that I consider that the word “sex” in Pt 5A of the Act does not bear a binary meaning of “male” or “female” and that a person is entitled to have an entry in the Register of a sex other than either of those two identifiers.

That entitlement is not unconstrained. Those constraints are:

At [169-170]:

169 On Norrie’s argument, the first purpose was, as specified in para (a), “for … assisting a person to be considered to be a member of the opposite sex“. Norrie accepted that the language of “opposite sex” in para (a) indicated that the purpose was to achieve the status of either male or female. In contrast, para (b) provides that a sex affirmation procedure may be carried out to “correct or eliminate ambiguities relating to the sex of the person“. Norrie submitted that the reference to “ambiguities relating to the sex of a person” indicated that the legislature recognised that a person may not be unambiguously “male” or “female” and that the purpose of para (b) was to ensure that a person may undergo a surgical procedure to correct or eliminate any ambiguity as to the person’s sex.

170 Norrie submitted that that had occurred in this case, in that she had had surgery to correct or eliminate the ambiguities relating to her sex, but that the surgery had failed in that the ambiguity remained. Norrie also submitted that para (b) recognised that an individual may not conform to conventional attitudes that one is either a male or a female.

At [187-188]:

187 Accepting that for the moment, when the definition of “sex affirmation procedure” in s 32A is transposed into s 32DA(1)(c), that section will require one of two things. Either, a person will have undergone a surgical procedure involving the alteration of a person’s reproductive organs carried out for the purpose of assisting a person to be considered to be a member of the opposite sex. Or the person will have undergone a surgical procedure involving the alteration of a person’s reproductive organs to correct or eliminate ambiguities relating to the sex of the person. A person who satisfies the legislative precondition of having undergone surgery, whether by reference to the first or second limb of s 32A, is entitled to apply for the registration of the person’s “sex“.

188 If a person satisfies each of the preconditions in s 32DA(1), including the precondition in par (c) of having undergone a sex affirmation procedure, the person “may apply to the Registrar … for the registration of the person’s sex in the Register“. The word “sex” in that phrase is unqualified. In particular, there is no reference to registration of the “opposite sex” of that which the person was prior to surgery or to the registration of a sex according to the person’s post surgery anatomical features. The section facilitates the registration of a person’s sex, whatever that may be. It is apparent, therefore, from the terms of s 32DA, that where the Legislature intended for the word “sex” to be qualified, it used language that reflected that intention. Accordingly, I am of the opinion that there are sufficient indications in the language used by Parliament that when the word “sex” was not so qualified in Pt 5A, the Legislature did not intend that it bore a binary meaning such as is reflected in the use of the phrase “opposite sex“.

See also Sackville [257-258] – which ensures that, while there is recognition that an intersex person may with to obtain a correct designation, they are obliged to undergo “affirmation” surgery.

257 … the better interpretation of s 32DC of the Act, when construed in its legislative context, is that it empowers the Registrar, at least in some circumstances, to register a change of sex of a person from male or female to a category that is neither male nor female. An example could be a person who is registered in New South Wales at birth as a male or female (or is so registered in the person’s place of origin), but who subsequently ascertains that the correct medical classification of the person’s physiological characteristics is intersex. If such a person wishes to invoke the Act, it is necessary for the person to undergo a sex affirmation procedure, since that is a statutory precondition.

Given these constraints the Court of Appeal found [201]

201 The Administrative Appeals Tribunal Act, s 120 provides that the Court may make such order as it thinks appropriate having regard to its determination. As there has been no determination by the Tribunal of the factual issue, I am of the opinion that this Court should order that Norrie’s application should be remitted to the Tribunal for determination in accordance with law. This will mean that the legislation should be applied on the basis that it is not confined to registration of sex as only male or female.

Though this might be thought to be creating a third sex it may not. It makes simply create a registration category which is neither male nor female but in the end is not descriptive of anatomical sex, as the Court noted [203]:

203 The question for the Tribunal will be whether there is evidence to support an entry in the register of Norrie’s sex as “non specific“. “Non specific” has a dictionary meaning of “not specific; not restricted in extent, effect; something lacking in specificity, definiteness or precision“: Oxford English Dictionary. Norrie’s identification with being neither male nor female may well appropriately be described in terms of this definition. Whether that is the identification of “sex” within the meaning of the Act is another and more vexing question.

And finally [205]:

205 Whether the Tribunal, on whatever material it has, will be satisfied that a person’s sex might be registered as “nonspecific“, will also be a matter for its determination, having regard to the case then advanced before the Tribunal. As I have concluded that the word “sex” in the Act is not confined to “male” or “female“, it is likely that other appropriate identifications such as “intersex“, “androgenous“, or “transgender“, being words that appear to be recognised designations of sexual identity, may be registered, subject to the applicant satisfying the precondition of having
undergone sex affirmation surgery. It will be for the Tribunal to determine whether a person’s sex may be so registered. Likewise, in this case, it will be for the Tribunal to determine whether, within the terms of the Act, a sex described as “non specific“, that is, a sex that is not precise or definite, may be registered. The Tribunal’s determination will depend upon the terms of the application made and the evidence before it in support of the application. For the reasons given, therefore, the third ground of appeal that it was not open to the Registrar, as a matter of law, to register Norrie’s sex as “non specific“, should be upheld.

Sackville noted [279]:

279 Since the Appeal Panel erred in law and the error was decisive to the outcome of the appeal to it, the matter should be remitted for determination according to law. That will require the Appeal Panel to reconsider the appeal on the basis that s 32DC of the Act, as a matter of construction, permits the Registrar, in an appropriate case, to register a change of sex from male or female to a sex that is neither male nor female. The Appeal Panel may be disposed, if there are no Insuperable procedural obstacles to doing so, to accord Norrie an opportunity to adduce further evidence bearing on the factual issues that now arise. This may be the appropriate course since both the Tribunal and Appeal Panel considered that they were resolving a preliminary legal issue and not the merits of the application. But the question of whether further evidence should be permitted is a matter for the Appeal Panel or the Tribunal, depending on what course the proceedings now take.

So Sackville indicated factual evidence as to one’s physical anatomy evidence other than a simple declaration that a person’s see themselves as “sex non-specific” must be put to the Tribunal. One would suppose this to be factual records that, as was noted throughout the trial, were sorely lacking. Norrie, for instance, produced no factual documentation to indicate an intersex anatomy despite claiming to be intersex during the course of these proceedings.

Conclusions

It is the view of OII Australia that this judgement in no way resolves the issues around male and female assignments. In many ways, a third sex category can be seen a way of purifying the existing two sexes by allowing people who are anatomically ‘impure” to be assigned otherwise.

So long as there is no legislative bar from doing so, it might be construed that an intersex person, having been subjected to non-consensual genital surgeries and who rejects their assignment might, indeed, be so assigned whether they want to be or not. However ideal those who are not intersex might find such an outcome, intersex organisations strongly resist this.

Though the issue of unintended consequences was put to the Court by the Crown solicitor, little weight seems to have been given to it. For instance, if an assignment other than male or female is given, that Norrie will no longer be able to marry anyone in Australia. Similar issues apply in other legislation.

In many ways, this case puts the cart before the horse. Rather than fixing legislation so that it is, by and large, sex-independent before playing around with sex categories, a sex category is being contemplated that has no legal standing beyond the NSW Births Deaths and Marriages Act.

In terms of the risk of collateral damage, much depends on the decision of the Tribunal and the new designation(s) it creates.

OII Australia has long held the position that rather than creating a third sex category when the current two sex system disadvantages half of our population and any further category will only further marginalise and stigmatise those assigned to it, all adults should have the right to not specify their sex. The need to specify one’s anatomical sex should only ever be voluntary, and only when a legitimate reason exists.

Ultimately, we can think of no good reason for sex to be on birth certificates in the first place.

Update

The case has now been appealed to the High Court by the NSW government.

Our briefing paper on the High Court case.

More information

NSW Court of Appeal: Norrie v the NSW Registrar of Births, Deaths and Marriages[2013] NSWCA 145