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He, She or Non-specific

Family Law: 23 March 2019

The recent High Court judgment of NSW Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11 highlights the notion that "not all human beings can be classified by sex as either male or female. Following a female sex affirmation procedure, Norrie who was born a male applied to the NSW Registrar of Births, Deaths and Marriages to change the sex record of her birth to 'non-specific'. The judgment reports that Norrie's sex affirmation surgery did not resolve her sexual ambiguity and therefore she sought to have her birth record rectified to more accurately record her sex.

At first instance, the Registrar accepted Norrie's application to be recorded as being of 'non-specific' sex. However, shortly thereafter Norrie received notification from the NSW Registry of Births, Deaths and Marriages that her application to change her sex was invalid. 
This sparked the commencement of numerous Court proceedings beginning with an application for review in the Administrative Decisions Tribunal of NSW all the way up to an appeal by the Registrar to the High Court.

In interpreting the Births, Deaths and Marriages Registration Act (1995) (NSW) the High Court ruled that it was not part of the Registrar's role to decide whether the applicant's sex should be recorded in the Birth Register as being either male or female and that the Registrar's initial determination of Norrie's application was right.

Whilst this decision is only binding in the NSW jurisdiction, it nevertheless strengthens the ideal that "the sex of a person is not in every case unequivocally male or female.
Having the High Court recognise that for some, the issue of gender identity is much more than simply ticking one of two boxes is a great step forward in encouraging acceptance and community awareness of sex and gender diversity.

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