Gender identity: Reassessing the definition of sex and gender

Abstract

In May 2013, the NSW Court of Appeal recognised that sex is not a binary concept and determined that a primary identity document could denote an identity which is neither male nor female. This is the first explicit legal recognition in Australia of a non-binary concept of sex. The appellant, Norrie, was born male and as an adult underwent sex reassignment surgery to become female. However, Norrie did not identify as female following the medical intervention, but developed or retained ambiguous gender identity. In 2009 Norrie applied to register a change of sex as 'not specified' under s 32DA of the 'Births, Deaths and Marriages Registration Act 1995' (NSW); the application was approved. A change of sex certificate was issued showing Norrie's sex as 'not specified.' However, in 2010, the Registrar notified Norrie that the certificate was issued in error and was invalid.