Tuesday 24 September 2013

Sex - the new definition

Is ‘sex’ limited to male or female, or can it include individuals who identify as neither?  For the first time, an Australian court has legally recognised people who do not identify as male or female.

This case doesn’t have any immediate consequences for the interpretation of Victorian laws.  However, it provides food for thought for Victorian legislative drafters, policy developers and certain public servants, such as those working in criminal law or other laws premised on a binary understanding of sex.  It could also be raised in Victorian matters involving recognition of the non-specific gender of a person.

In Norrie v NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145, the NSW Court of Appeal considered the meaning of ‘sex’ in the context of the NSW Births, Deaths and Marriages Registration Act 1995 (NSW BDMR Act).  The decision was handed down on 31 May 2013.

The appellant, Norrie, was born male and had a sex change operation that left Norrie not identifying with either gender.  In March 2010, the NSW Registrar of Births, Deaths and Marriages issued Norrie with a Recognised Details Certificate, which recorded Norrie's sex as 'not specified'.  This type of certificate is issued to immigrants to Australia, such as Norrie who was born in Scotland, who have changed sex and want it formally recorded.  However, shortly afterwards, Norrie was advised by the Registrar that the Certificate had been issued in error and was invalid.  The Registrar claimed that her power to register a sex change was limited to a change from male to female or vice versa.

Norrie first applied for review of the Registrar's decision to the NSW Administrative Decisions Tribunal (ADT), which dismissed the application.  Norrie was also unsuccessful before the Appeal Panel of the ADT.  Accordingly, Norrie appealed the Appeal Panel's decision on a question of law in the NSW Court of Appeal. 

The issue was whether the Registrar's power under s 32DC to register a person's change of ‘sex’ after a ‘sex affirmation procedure’:
  • is limited to registering a change of a person's sex from male to female (or vice versa); or
  • extends to changing the sex to some other specification.

‘Sex’ is not defined by the NSW BDMR Act.  Section 32A defines ‘sex affirmation procedure’ as:
a surgical procedure involving the alteration of a person's reproductive organs carried out:
(a) for the purpose of assisting a person to be considered to be a member of the opposite sex, or
(b) to correct or eliminate ambiguities relating to the sex of the person.
Section 32A(b) was relevant to Norrie.

The Registrar contended that:
  • ‘Sex’ should be given its ordinary meaning – that is, male or female – given there was no contrary intention in the Act. 
  • The use of the phrase ‘opposite sex’ in s 32A confirmed this interpretation, as the meaning of sex should remain constant throughout the Act. 
  • As other NSW legislation was premised on a binary construction of ‘sex’, it would be contrary to the purpose of the Act, which was to clarify a person’s legal status, to enable registration of a sex not recognised in any other NSW law.

This last point may be of interest to Victorian legislative drafters and certain public servants, particularly those working in criminal law.  The decision identifies several NSW legislative provisions based on a binary understanding of sex that may no longer protect a person like Norrie.  Such examples also exist in Victoria, including: 

The Court disagreed with the Registrar, finding it was open to the Registrar to register Norrie’s sex as ‘non-specific’.  It reasoned as follows:
  • The word ‘sex’ no longer bears a binary meaning of male or female, according to extrinsic material including the most recent Oxford Dictionary, academic material, a very broad interpretation of the Second Reading Speech and the rule that beneficial legislation should be interpreted liberally.
  • The use of the word ‘sex’ in the definition of ‘sex affirmation procedure’ did not limit its meaning in s 32DC (where it is unqualified).  Rather, the recognition in s 32A(b) of sexual ambiguities is an indication that Parliament intended ‘sex’ in s 32DC to be interpreted liberally.
  • The possible legislative consequences of the registration of a person as neither male nor female should not dictate the construction of s 32DC.  This is because no one is compelled to seek a change of sex, and because courts may be able to interpret legislation in individual cases to avoid any absurdity.

The Registrar has applied to the High Court for special leave to appeal the decision. 

The only people for whom this decision has direct consequences are those in NSW who meet the requirements of Part 5A of the NSW BDMR Act (ie persons who have undergone a 'sex affirmation procedure').

The Victorian Act is likely distinguishable as its definition of 'sex affirmation surgery' excludes the second limb of the NSW definition.

However, the decision may have indirect consequences in Victorian case law and legislative and policy development.

Firstly, the decision may be persuasive to a Victorian judge, regardless of the differences between the two Acts.

Secondly, the decision is consistent with new federal laws and the policy of the previous federal Government to define ‘sex’ more broadly than as male or female and to change public service practices in this regard.

The federal Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was passed by the previous Parliament on 25 June 2013 and will commence before the end of the year.  It amends the Sex Discrimination Act 1984 to cover discrimination on a range of new grounds, including intersex status.

Assuming the amendments are valid, if the Victorian Act is not proscribed under the new s 40(2B) of the federal Act, any sections of the Act that are inconsistent with the Commonwealth law will be invalid to the extent of the inconsistency.  The Explanatory Memorandum noted that the previous federal Government had not yet decided which Victorian laws that might be proscribed under this provision.

Also, the previous federal Government developed guidelines on sex and gender recognition for federal departments and agencies.  The Australian Government guidelines on the recognition of sex and gender, which came into force on 1 July 2013, standardise sex and gender classification in federal government records and evidence required to establish or change sex.  All departments and agencies have until 1 July 2016 to comply with the guidelines.

If you are in the Victorian Government and would like more information about this decision and its possible consequences, please contact:

Joanne Kummrow
Managing Principal Solicitor
t 8684  0462

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