Intersex Human Rights Australia

Update: We welcome the High Court judgement to recognise Norrie as having “non-specific” gender.

We take no pleasure in having to comment on this case, currently before the High Court, Australia’s highest court, which has a hearing likely to be heard on 4 March 2014.

However, the case raises the stakes for intersex people in a way that is of deep concern. We believe that Norrie’s strategy is long-standing, with a track record that seeks to utilise intersex to deliberately “mess with the system”. At the same time, Norrie’s legal arguments about surgically-demarcated identities are antithetical to the goals of the intersex movement.

Intersex people are collateral damage in this process. We seek an outcome that recognises Norrie as trans, and non-binary, and not as intersex. The submissions to the High Court cause doubt, despite earlier court decisions. This briefing paper, available to download in PDF form, sets out our case. It accompanies a longer paper on Intersex people and identification documents.

• Download the briefing paper (PDF, 428 KB)

Why are we concerned?

Much of the High Court appeal is focused on definitions of intersex, and whether or not the existence of intersex people is relevant to New South Wales on the registration of births. The State argues that only male and female categories are recognised and necessary. Norrie and Norrie’s legal team argue that an additional category of “non specific” or “intersex” is necessary and permissible under the existing law.

We detail our position on birth registrations in a separate briefing paper, Intersex people and identification documents. Here we focus on the broader issues on our community that are raised by the case.

Precise definitions of intersex recognise that intersex people are born with atypical physical sex characteristics. A number of Australian and international definitions are included in the attached briefing paper.

In contrast, Norrie’s background, as stated in Norrie’s own autobiography and court statements by Norrie’s legal team, is of a transsexual, born male. Norrie consented to sex affirmation surgery, but subsequently prefers a non-binary identity, i.e. an identity that is neither male nor female.

In the High Court, Norrie’s team is the respondent in an appeal by the State. In parts 39 and 40 of the respondent’s case, they argue in favour of using the word ‘intersex’ and synonyms to describe Norrie.

39. … “Non- specific” is suitable, but “intersex” is another possible description. Despite Professor Greenberg’s definition (CA [1 09]), there is no reason to confine it to congenital intersexuality and current and proposed legislative definitions of that expression do not so confine it. Indeed, the mythological origins of the word “hermaphrodite” relate to a person who acquired that status as an adult.

Paragraph 40 presents a perplexing and unrealistic hypothesis, which seeks to surgically align body and identity. As in the previous appeal of this case, Norrie’s arguments posit an intersex identity as an outcome of a failed surgical process:

40. (AS 51-52) The Court of Appeal was correct to identify the significance of intersex persons to the operation of Part SA. Referring back to the hypothetical indicated earlier in these submission, Part SA of the Act should not preclude a person mis-identified as a male but who is an intersex person and who has a surgical procedure in the expectation or hope that by doing so, it may assist them to identify further as male or female, but who in the result, does not identify as male or female, from applying to register a change to ‘intersex’, since, as noted earlier, the criteria ins 32DA(l)(c) does not mandate the result that a person identifies exclusively as male or female. That person may, following the surgery, continue to have characteristics not univocally fitting the binary norm, and identify as an intersex person.

The respondents refer to the federal Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013. However, this explicitly and correctly recognises “intersex status” as separate and distinct from gender identity issues, and from sex and sexual orientation.

The risks

Much of the case focuses on the use of surgery to demarcate and justify legally approved identities. Sections 18 and 22 of the respondent’s case state:

18. … read literally, Part 5A would not even preclude an intersex person, not born in New South Wales, who does not identify exclusively as male or female, but who identifies as an intersex person, who has surgery for the purpose of confirming that the person is a halfway between male and female (that is, a hermaphroditus verus).

22. … The true position for Norrie, after the surgery, is that, physically, she is not unequivocally male or female and, psychologically, she does not specifically identify as male or female. The record of alteration, or “change” of sex, following that surgery, on an official register should reflect that position.

The reliance on surgery to confirm an identity, and the conflation of (post-surgery) intermediate sex appearance and an intersex identity both risk reinforcing perceptions that bodies and identities, sex and gender, must match each other to be valid.

The impact of this on people born intersex is that it reinforces contentious surgeries to make intersex people ‘appear’ male or female. Yet the goals of the intersex movement are to be accepted the way we are born.

The conflation of intersex status with an intermediate gender identity reveals a very narrow and unrealistic vision of who intersex people are. It’s also damaging: it reinforces notions that intersex people who identify as male or female are not valid or considered suspect; should Norrie win the case, this situation will be exacerbated.

Intersex people have a wide range of gender identities, just as non-intersex people do. We do not wish to be coerced into identifying as a third gender. Federal guidelines on the recognition of sex and gender recognise that intersex people may legally identify as male, female or X.

Intersex people include mothers with adopted or natural children, men with facial hair, and people of androgynous appearance. Some intersex people have identities that are both male and female. Our identities often do not match our appearance.

The political goals of Norrie and fellow members of Australian organisation Sex and Gender Education are stated to “really mess with the system”. We resist the instrumentalisation of intersex by trans groups; its appropriation for other purposes.

Such an ambit claim erases intersex people as a distinct group with our own distinctive lives and experience. Indeed, over recent years, a great number of press articles have sought to present Norrie as the face of intersex issues in Australia.

Conflating intersex and trans risks confusing the public about the nature of intersex and our concerns. Identity issues obscure our health concerns. Conflating intersex and trans also risks damage to the development of optimal medical and legal protocols for intersex people. We resist this.

Update

We welcome the High Court judgement to recognise Norrie as having “non-specific” gender.

More information

At the third International Intersex Forum in 2013, Europe was overrepresented, and the global South underrepresented. Within those constraints, this is what intersex people (and 5 allies) look like:

 
The full, 9-page briefing paper contains WHO, OHCHR and Commonwealth of Australia definitions of intersex, together with key literature on trans and intersex, and a review of some material produced by members of Sex and Gender Education Australia.

An earlier version of the document has been used to brief the legal teams for the NSW government (the appellant) and the proposers of an amicus curiae submission to the High Court, following publication of the respondent’s submission.

• Download the briefing paper, NSW Registrar of Births, Deaths and Marriages v. Norrie (PDF, 428 KB)
• Briefing paper on Intersex people and identification documents (PDF, 461 KB)

More information

This page is not intended as an introduction to intersex.

• We recommend our Intersex for allies leaflet as an introduction to intersex.
• On intersectionalities with trans experiences.
• On intersectionalities with gay and lesbian communities.
• On intersectionalities with disability.
• Defining intersex: Australian and international definitions.
• All FAQs listed – a curated list of key articles on the OII Australia site.