The High Court today unanimously ruled not all human beings could be classified as male or female.
In a case expected to help reshape binary definitions of gender, the judges said it was open to the NSW Registrar or Births, Deaths and Marriages to register a person’s sex as “non-specific”.
Norrie was born in Scotland as a male, and underwent sexual reassignment surgery in 1989, but does not identify as being male or female.
In 2010, Norrie applied for a name change and to be registered as being of non-specific sex.
At first the NSW Registrar of Births, Deaths and Marriages agreed, but soon after, revoked that decision.
In May last year, the NSW Court of Appeal ruled the registrar had the power to recognise options other than male or female, and to register Norrie’s sex as “non-specific’’.
The High Court today dismissed an appeal by the registrar against that decision.
It said the legislation did not require people who had undergone gender reassignment surgery and remained of an indeterminate sex be registered inaccurately as either male or female.
“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’,” the judges said.
Norrie said the decision was an exciting victory.
“It’s important for people to have equal rights in society,” Norrie said.
“Why should people be left out because they are seen as not male or female? They should be recognised as whatever they are and be allowed to participate in society at an equal level.”
Samuel Rutherford, executive director of A Gender Agenda, which intervened in the proceedings, said the High Court’s judgment was very satisfying.
“We’re really happy for Norrie that several years of persistence has paid off,” he said.
“We’re also really happy to get this particular judgment from the High Court because it’s going to be an important indicator to legislators in other states and territories that they need to recognise there are people in the community with a non-binary gender identity and they should be legally recognised along with everyone else.”
Mr Rutherford, who is transgender, said his organisation had decided to intervene in the case because it was worried the High Court’s ruling would be too narrow, and recognise only intersex people.
“An intersex person is someone who is born with biological features that are neither male or female, which could be a result of any number of biological variations — it could be hormonal, or anatomical or genetic,” he said.
“But that’s a different thing to someone who is transgender or gender diverse. Those people are born biologically all-male or all-female and then later choose to identify or transition to something other than that.”
He said he was delighted with the High Court’s decision, which was broad enough to include all individuals who did not fall within male or female gender categories.