The HCA (French CJ, Hayne, Kiefel, Bell and Keane JJ) states that
Not all human beings can be classified by sex as either male or female. The Births, Deaths and Marriages Registration Act 1995 (NSW) expressly recognises that a person's sex may be ambiguous. It also recognises that a person's sex may be sufficiently important to the individual concerned to warrant that person undergoing a sex affirmation procedure to assist that person "to be considered to be a member of the opposite sex". When a person has undergone a sex affirmation procedure, s 32DC of the Act empowers the Registrar to register a change of sex of the person upon an application by that person.
The question in this appeal is whether it was within the Registrar's power to record in the Register that the sex of the respondent, Norrie, was, as she said in her application, "non‑specific". That question should be answered in the affirmative.The Court [at 35-37] states that
The Registrar's initial determination of Norrie's application was right. The appropriate record of her change of sex was from "male" (as it may be taken to have previously been recorded outside of New South Wales) to "non‑specific". To make that record in the Register would be no more than to recognise, as the Act does, that not everyone is male or female and that the change to be registered was from an assumed registered classification outside of New South Wales as a male to, as Norrie's application put it, non‑specific.
The Registrar's submission must be rejected at the point at which it insists that the Registrar is required to decide whether he or she is satisfied (let alone that it has been demonstrated objectively) that, despite an application showing persisting ambiguity in the sex of the applicant following a sex affirmation procedure, the applicant's sex should be recorded in the Register as being either male or female. The registration of a change of sex records the facts supplied by the application so long as the application is supported in accordance with s 32DB.
The provision of the Act which acknowledges "ambiguities" and the context of the 1996 Amending Act, which referred to persons of "indeterminate sex", are a sufficient indication that the Act recognises that, as this Court observed in AB v Western Australia, "the sex of a person is not … in every case unequivocally male or female."It goes on [at 43-44] to state
The submission made on behalf of the Registrar that, given s 32J of the Act, unacceptable confusion would ensue if the Act recognised more than two categories of sex or an "uncategorised" sex should be rejected.
The difficulty foreshadowed by this argument could only arise in cases where other legislation requires that a person is classified as male or female for the purpose of legal relations. For the most part, the sex of the individuals concerned is irrelevant to legal relations. In this regard, s 8(a) of the Interpretation Act 1987 (NSW) provides that "[i]n any Act or instrument … a word or expression that indicates one or more particular genders shall be taken to indicate every other gender". The chief, perhaps the only, case where the sex of the parties to the relationship is legally significant is marriage, as defined in the fashion found in s 5(1) of the Marriage Act 1961 (Cth).
As the Registrar acknowledged, the circumstance that s 32J operates subject to other laws of New South Wales serves to ensure that where another Act does differentiate between male and female it will prevail over s 32J so that an individual is not left in a "legal no‑man's land". The Registrar during the course of argument did not identify any particular statute which could not be construed so as to operate as intended in respect of a person whose sex was recorded in the Register as "non‑specific".
The Registrar's argument from inconvenience should be rejected.The HCA concludes -
The Court of Appeal went beyond the scope of Norrie's application to the Registrar and the issue as to the Registrar's power under s 32DC raised by the Registrar's refusal to record her sex as "non‑specific". While the Court of Appeal did not proceed without encouragement from Norrie's counsel, it was neither necessary nor appropriate for it to accept that encouragement. It would have been sufficient for it to determine the issue raised by the determination of Norrie's application and the appeal from the Tribunal to hold that the Tribunal erred in answering the question as to the Registrar's power under s 32DC on the basis that the Act is predicated on the assumption that "all people can be classified into two distinct and plainly identifiable sexes, male and female."
The Act does not require that people who, having undergone a sex affirmation procedure, remain of indeterminate sex – that is, neither male nor female – must be registered, inaccurately, as one or the other. 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 judgment is concerned with the specific wording of the Act and Norrie's particular circumstances.
I have commented elsewhere that in looking beyond contested taxonomies of identity (male, female, other, transgender, queer, gay and so forth) we should be respecting Norrie as a person, rather than as a manifestation of particular attributes. We might also wonder at the expense involved in the NSW government's litigation.