NSW Registrar of Births, Deaths and Marriages v. Norrie

[2014] HCA 11
Download Judgment: English

The Births, Deaths and Marriages Registration Act 1995 (the “Act”) empowered the Registrar to register a change of sex of a person upon that person’s request. Norrie applied to the Registrar to record her sex as non-specific as she had undergone a sex affirmation procedure but her gender ambiguity remained unresolved. Norrie did not identify as either male or female and thus considered that classifying himself/herself as one of such options would be a false statement. In conformity with s 32DB of the Act, Norrie provided statutory declarations to this effect from two medical practitioners. The Registrar initially accepted the application and recorded Norrie’s sex as “non-specific”. However, the Registrar later declared the certificate of change of sex to be invalid.

Norrie then lodged an application of review with the tribunal who upheld the Registrar’s decision on the basis that the Act was predicated on the assumption that all people could be classified in two distinct sexes. Norrie appealed to the Court of Appeals, which held that the Act contemplated that Norrie could be recognized as a sex other than male or female but that a specific determination on this basis would depend on further findings of fact by the lower tribunal.

The Registrar appealed this decision to the High Court on grounds of special leave.

The Court held that the Act did not require that Norrie’s gender be recorded as either male or female. Due to the fact that Norrie had undergone a “sex affirmation procedure”, with the result being that Norrie’s gender was indeterminate, the Registrar had the power to record Norrie’s gender as “non-specific”.

The Registrar asserted that the Act did not contemplate a range of sexes being registered: that the use of the term “opposite sex” outlined that the Act only recognized male or female as categories of sex and that if any other category were intended to have been recognized, such other category would have been expressly stated in the Act.

Norrie argued that the purpose of the register was to record truthful information. Norrie further argued that, considering various textual intricacies,  the sex affirmation procedure described in the relevant sections of the Act was predicated upon legislative recognition that not every person could be classified as male or female. If the Registrar recorded Norrie’s sex as male or female after his/her sex affirmation procedure, then the record would be inaccurate.

The Court accepted the Registrar’s argument that the Act only recognized male and female as categories of sex  but also held that the Registrar was not required to apply these categories where they would be inaccurate or constitute an untruthful representation of the applicant’s sex. The Court acknowledged that the Act recognized ambiguities of individual’s sex and that such person may be neither female nor male; it further determined that the role of the Register was confined to maintain the registers by recording information provided by applicants. On the basis of this analysis, the Court held that the Registrar had the ability to register Norrie’s sex as non-specific as Norrie provided consistent supporting opinions and it would have been an inaccurate representation to record Norrie’s sex otherwise.

“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 Australia16, ‘the sex of a person is not … in every case unequivocally male or female.’” Paragraph 37

“The Act does not require that people who, having undergone a sexaffirmation procedure, remain of indeterminate sex – that is, neither male norfemale – must be registered, inaccurately, as one or the other.  The Act itselfrecognises that a person may be other than male or female and therefore may betaken to permit the registration sought, as ‘non-specific.’” Paragraph 46.