Australia’s highest court yesterday recognized the existence of a third, “non-specific” gender that is neither male nor female, in a landmark ruling campaigners said would help end years of discrimination.
The High Court of Australia ruled that not everyone should be forced to identify as a man or woman when dealing with officials, saying some people could legitimately describe themselves as gender neutral.
“The High Court ... recognizes that a person may be neither male nor female, and so permits the registration of a person’s sex as ‘non-specific,’” it said in a unanimous judgment.
The decision ended a long legal battle by sexual equality campaigner Norrie, who goes by one name, to overturn a New South Wales (NSW) state edict that gender is an inherently “binary” concept involving only men or women.
“I’m overjoyed,” the Sydney-based activist said. “It’s been a long time from start to end, but this has been a great outcome.
“Maybe people will understand now that there’s more options than just the binary. So while an individual might be male or female, not all their friends might be and maybe they might be more accepting of that,” Norrie, 53, said.
Norrie, who uses only a single name, was born male and underwent gender reassignment surgery in 1989 to become a woman.
However, the surgery failed to resolve the Scottish-born activist’s ambiguity about sexual identity, prompting a push for the recognition of a new, non-traditional gender.
Norrie made global headlines in February 2010 when an application to the NSW Department of Births, Deaths and Marriages accepted that “sex non-specific” could be accepted for Norrie’s records.
However, soon afterward the office revoked its decision, saying the certificate was invalid and had been issued in error.
At the time, Norrie said the decision felt like being “socially assassinated.”
That sparked a series of appeals which resulted in the NSW Court of Appeal recognizing Norrie as gender neutral last year, a decision which the High Court backed yesterday.
The Human Rights Law Center, which provided expert testimony in Norrie’s case, said the court had “rejected outdated notions of gender” in the decision.
“Sex and gender-diverse people face problems every day accessing services and facilities that most Australians can use without thinking twice,” the center’s litigation expert Anna Brown said. “It’s essential that our legal systems accurately reflect and accommodate the reality of sex and gender diversity that exists in our society. The High Court has taken an enormous leap today in achieving that goal.”
Brown said the decision did not mean people could simply identify themselves as “non-specific” and expect legal recognition.
Under the law, only a person who had undergone gender reassignment surgery could nominate themselves as “non-specific” after presenting medical evidence to back up their claims, she said.
Brown added that it remains unclear who gender-neutral people would be able to marry.
“No one has actually looked at that question legally,” she said, adding that there were few international precedents for the decision.
In most states across Australia same-sex couples can have civil unions or register their relationships, but the government does not consider them married under national law.
Germany last year passed a law allowing babies born with characteristics of both sexes to be registered as neither male nor female.