home Australia, Feminism, GLBTQI, Human Rights, Politics A Legal Third Sex? Norrie’s Win in Australia

A Legal Third Sex? Norrie’s Win in Australia

International media are abuzz with the recent news out of Australia, where Scottish-Australian Norrie sued for the right to select “non-specific” as a sex option on her (Norrie’s been identified in court documents by female pronouns) birth certificate, subsequently permitting her to use the same designation on a range of government identifications. Her success in court has paved the way for other Australians who want to do the same, coming hard on the heels of legislation in the Australian Capital Territory allowing people to select a similar nonbinary option on government identification; and Australia has been allowing intersex residents to select ‘X’ as a sex designation on passports for a decade now.

As we celebrate Norrie’s historic high court victory, what does it mean for Australia’s intersex community, though? It’s a question that’s not being asked enough in the coverage and thinkpieces about the recent ruling affirming her status as a person of non-specified gender, reflecting her self-identity as neuter. There’s a great deal at stake for the intersex community in Australia with this case as well as future cases of a similar nature, and if these issues aren’t addressed now, when will they be? Critically, could the case be creating a domino effect that actually leads to greater problems?

First, Norrie’s backstory, for those unfamiliar with the case: Norrie underwent gender confirmation surgery in 1989, but struggled in the wake of the surgery with her sex and gender identity. Over time, her understanding of herself evolved, and she began identifying as neuter, formally requesting a change on her birth certificate to reflect that in 2010. Initially, the Registrar granted her request to be listed as a person of non-specific gender, but then, abruptly, the Registrar retracted it, compelling Norrie to sue to be rightfully recognized. After winning in court, she was challenged with an appeal by the Registrar’s office, which claimed that non-binary genders would cause ‘confusion.’

Now, the court has issued an opinion dismissing the appeal (and demanding that the Registrar’s office handle Norrie’s legal costs) and establishing a precedent: Australians in New South Wales can now register as ‘non-specific’ on their birth certificates. There’s a catch, however: they must provide proof that they have received gender confirmation surgery that leaves them in a state of ‘ambiguity.’ This differs from the standards in ACT, where recent revisions to the law lifted the requirement that transgender people undergo surgery in order to correct gender markers on identification.

Additionally, thanks to confusion and ambiguity in the law, it’s not clear whether people identified as non-specific will be able to marry. This raises concerns about full civil liberties for non-binary Australians who choose to take advantage of this option, and adds nuance to the larger global discussion about marriage equality.

The decision is being widely hailed as a victory by Australians concerned about gender justice and equality, especially members of the nonbinary transgender community. Though additional progress—such as lifting the surgery requirement, which poses an unfair barrier to low-income Australians and people who don’t need gender confirmation surgery—is clearly required, the court’s decision sets a clear and important precedent for NSW and Australia as a whole. It clearly recognises the presence of genders beyond the binary, and stresses the importance of honouring the human rights of all Australians.

However, discussions about the case haven’t accounted for some of its more troubling aspects. Norrie’s initial case involved a request to be recognized as ‘transgender,’ as though transgender itself is some sort of gender, rather than an adjective, or as ‘intersex.’ Being neuter, however, is not at all the same thing as being intersex; intersex people are born with chromosomes, endocrine systems, and/or genitalia that do not fit neatly into a binary. Norrie’s at one point did, and she transitioned to bring her body into alignment with her gender identity. To recognise her as intersex would be to legally redefine the term ‘intersex,’ which would be highly damaging to the intersex community, as well as to the nonbinary trans community, which needs to focus on building justice for itself without coopting the language, rights, and fights of other gender and sexual minorities, and while working in solidarity with the surrounding community.

Intersex activists and members of the intersex community are concerned about the implications of Norrie’s case, looking both at how the suit was originally presented, and how it’s being interpreted. The court actually didn’t fully meet the request of the legal team: it stopped short of describing ‘non-specific’ as intersex or the vague ‘transgender.’ In this sense, the court made a highly progressive decision, although some of the larger language of the decision suggested that it wasn’t actually clear on the fine-grained and important specifics of sex and gender identity. While the court understood that there are more than two sexes, and genders, there were times when the opinion veered dangerously close to collapsing intersex and transgender identities: while some intersex people are transgender, not all are, and many are binary trans people who wouldn’t be interested in a ‘non-specific’ sex marker on their identifications anyway.

Some of the issues with the decision and the media’s reporting on it stem from a lack of awareness about the intersex community, the issues it faces, and the definitions the community has developed within itself. The general lack of awareness isn’t the fault of the community, but of the larger world around it, which systemically ignores intersex people even as the transgender community gains wider and wider visibility. Celebrating this case solely as a victory for nonbinary people leaves out the important larger implications, and further contributes to the invisibilisation of intersex people.

In some senses, 2014 seems to be shaping up to be the year of transgender visibility, with women like Janet Mock and Laverne Cox capturing the limelight to draw attention to transgender issues. Profiles of nonbinary people are also rising in frequency, with a growing social understanding of not just the transgender community as a whole, but the complex permutations of sex and gender identity within it. While these are both markers of social progress, the intersex community continues to remain in the shadows, with no personable and aggressive figurehead to make sure it’s fairly, accurately, and openly represented in media, pop culture, and society.

Without that visibility, the intersex community is continually talked over in coverage of cases like these. This is not the fault of the community itself; marginalised groups are routinely suppressed in media and pop culture, and even when they fight tooth and nail for recognition, a critical mass along with intense pressure is required for them to gain sociopolitical attention. Rather, it is the fault of the larger society, and especially the LGBQT movement, which has chosen very consciously not to incorporate intersex issues into many of its discussions.

A victory for Norrie could also be turned into a chance for visibility and discussion, but only through the work of those with the power to make their voices heard, and the patience to do their reporting well.