Australian High Court Legally Recognizes Nonbinary Gender Identities -- But The News Isn't All Good

It's important to avoid conflating non-binary sex and gender identities with being born intersex, as these are very different identity categories.
Publish date:
April 8, 2014
transgender, gender, australia, gender binary, nonbinary

In 2010, Australian resident Norrie (Norrie uses only one name) made international headlines by requesting a simple modification to her1 identity documents: she wanted to be recognized as "non-specific," not male or female, reflecting her self-identity as neuter. After receiving gender reassignment surgery in 1989, she'd struggled with her sex and gender identity, and felt that "non-specific" most accurately summed up who she was.

The government initially complied, but later backtracked, leading Norrie to take the case to Australia's Human Rights Commission as well as the Court of Appeal, which ruled in her favor, spurring an appeal by the Registry of Births, Deaths, and Marriages because it claimed people would be "confused" by nonbinary gender identities. Four years later, Norrie has finally won the ensuing court case, which dragged on so long not just because legal matters get tangled, but because Norrie was cutting to the core of some very complicated social issues by demanding that the government recognize nonbinary gender identities.

On the surface, this case is nothing but good news. The Australian Capital Territory just passed a law recognizing nonbinary identities, and now this court case enforces the same in New South Wales, making Australia more friendly to nonbinary people who want their identities more accurately described on their government identification. Neighboring states will certainly be taking note, which means progress for transgender Australians. While "non-specific" isn't exactly as all-encompassing as one might want, it's a step in the right direction.

Norrie was ecstatic at the news that she'd finally won, saying that she was overjoyed at a press conference celebrating the win: "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."

Unfortunately, the law isn't as clear-cut on what non-specific gender designations will mean for people seeking marriage licenses and legal recognitions of partnerships. At this time, legal scholars suspect that Australians registered this way may not be able to marry, which creates a considerable social injustice that needs to be addressed.

Moreover, there is another catch to the decision: in order to be identified as "non-specific," people must present medical proof of gender confirmation surgery. For Norrie, this wasn't a problem, but for others, it would be more complex -- nonbinary people who can't afford or don't want surgery wouldn't be able to select this option for their government identifications. The same holds true for Australia's "X" designation on passports.

This raises some questions about sex, gender, and identity in a world where people are very fixated on the simplistic myth of "biological sex." Should a person with large breasts and internal genitals be classified as a woman in terms of sex, regardless of that person's gender identification? That's what the court stated, and it's certainly what some people may think, but how accurate is it? Is sex merely a physical trait, or is it something deeper? (The old shorthand that "sex is the thing between your legs and gender is the thing between your ears" feels more and more inadequate for modern understandings of both sex and gender.)

The important distinction about surgery brings us to the other big "but" in Norrie's case.

The court's opinion on the case makes some of the more explicit details clear, recognizing that there are more than two sexes. It discusses nonbinary sexes and genders, and the fact that some people are born intersex, with genitalia and chromosomes that don't fit neatly into a male/female dichotomy. It also stops short of what Norrie's attorneys wanted, which was, oddly, a recognition that she was intersex, or a recognition of "transgender" as some sort of third gender. ("Transgender" is generally argued to be an adjective, not a gender.)

Though Norrie may identify as transgender as part of her gender and sex identity, it's not the whole picture; she a transgender person, but she's also neuter. One thing she isn't, though, is intersex. Norrie is not and never was intersex, and while some intersex people pursue gender confirmation surgery, they're typically men or women, and are not interested in being registered as "non-specific." They want their actual genders recognized. It's important to avoid conflating non-binary sex and gender identities with being born intersex, as these are very different identity categories, and the court's ruling could have serious implications for Australia's intersex community.

"The [Births, Deaths, and Marriages Registration Act] does not require that people who, having undergone a sex affirmation procedure, remain of indeterminate sex -- that is, neither male nor female -- must be registered, inaccurately, as one or the other. The Act itself recognises that a person may be other than male or female and therefore may be taken to permit the registration sought, as 'non-specific,'" the opinion concludes. This sounds like an affirmation of nonbinary gender identities, but the larger language in the opinion often seems to include intersex people in its evaluation of nonbinary identities, confusing the two in a way that has troubling implications.

Some intersex people are in fact nonbinary and would want this option (and in fact take it, as at least two Australians have), but being intersex doesn't by default make someone nonbinary, or indicate that someone's gender is "non-specific." And transgender nonbinary people like Norrie (and me, for that matter) aren't intersex.

This case isn't just about the transgender community, but also about the intersex community, which is often ignored and sometimes actively shoved to the side in situations like these. The intersex community faces a very specific set of social issues that need to be addressed, and awareness of the community is an important aspect of getting attention for these issues -- because as long as people continue to collapse gender, sex, and identities like this, it serves everyone poorly.

While this case was an important step forward for Australia, it came with some baggage that can't be ignored, and the media need to be careful about their handling of it to ensure that intersex Australians get their due. Norrie's legal team also should have been more cautious in their articulation of the case, to avoid attempting to seize rights that intersex Australians are fighting for.


1. In legal documents and discussions of the case, I've consistently seen Norrie referred to with female pronouns, which is why I am choosing to use them here -- if Norrie has expressed a preference for other pronouns, please point me to it so I can update this article to reflect that! It's regrettably common for legal teams to be forced to use binary pronouns and I'm well aware that the media are frequently incapable of recognizing preferred gender pronouns, so I am not operating on the assumption that Norrie prefers female pronouns, but rather on the basis of the information I have regarding this case. Return