Anna Chapman, ‘Beyond Male and Female: Time for a Non-Specific Sex Category’ (3 December 2013).

Brad Jessup, ‘News: Sex, No Specified Sex, and Same Sex: The ACT’s “Marriage Equality Laws” and Norrie’s Case’ (27 October 2013).

The High Court has partly allowed an appeal against the decision of the New South Wales Court of Appeal in Norrie’s case. Norrie, who does not identify as male or female, sought to have the Registrar change Norrie’s sex to ‘non-specific’. The Registrar decided not to do so on the basis that it could only change a person’s ‘sex’ from male to female or female to male, and was not empowered to enter sex as ‘non-specific’. The NSWCA held that the relevant statute did not confine the Registrar’s powers in that way, and that sex does not have a binary meaning of ‘male’ or ‘female’.

In a unanimous judgment, the Court affirmed that sex is not a binary characteristic, that it may be ambiguous, and that the Registrar had the power to record Norrie’s sex as ‘non-specific’. The Court rejected the Registrar’s argument that, despite an application showing persistent ambiguity in Norrie’s sex, that Norrie had to be recorded in the Register as either male or female. Because the provisions of the Act acknowledges ‘ambiguities’ in sex, a ‘non-specific’ entry can be made. The only limit is that the application contains all information required by the Act and is made in good faith. In Norrie’s instance, there was no suggestion that either of these requirements had not been met. The Court ordered Norrie’s application to be remitted to the Registrar for determination in accordance with the Court’s reasons, and dismissed the remainder of the appeal.