DLA Piper’s Scott McDonald acts as Norrie’s solicitor in Australian High Court case

The High Court of Australia has dismissed an appeal from the Register of Births, Deaths and Marriages (NSW) (Registrar) and has upheld the decision of the NSW Court of Appeal in the case of Norrie v NSW Registrar of Births, Deaths and Marriages [2014] HC 11. DLA Piper partner Scott McDonald acted as Norrie’s solicitor.

The decision affirms that a person can be recognised as something other than ‘male’ or ‘female’ on their birth certificate and that the Registrar is required at law to register any form so marked.

In May 2013, the NSW Court of Appeal held that the word ‘sex’ under the legislation is not limited to ‘male’ or ‘female’ but can include other options. The Registrar appealed to the High Court and the High Court has now published its judgment confirming that the appeal was dismissed.

The case began in 2010 when Norrie, an androgynous person who does not identify as specifically male or female, applied to the NSW Registrar to register Norrie’s sex as ‘non-specific’. The NSW Administrative Decisions Tribunal (ADT) and its Appeals Panel both held that that this was not possible as the word ‘sex’ was binary and could only mean either male or female. The NSW Court of Appeal overturned this decision, effectively recognising that sex is not necessarily a binary concept. The High Court has affirmed the decision of the NSW Court of Appeal.

The High Court was asked to consider whether the Court of Appeal erred in ruling that: (a) Norrie could register a change of sex to something other than male or female; and (b) a person’s sex could be registered as ‘non-specific’. The High Court answered both in the negative.

The High Court, in a unanimous judgement, stated categorically that ‘not all human beings can be classified by sex as either male or female’.

It went on to say that there is nothing in the act that requires the Registrar to record someone’s sex inaccurately as male or female. To record someone’s sex as non-specific ‘would be no more than to recognise, as the act does, that not everyone is male or female’.

As other states have similarly worded legislation to section 32DC of the Births, Deaths and Marriages Registration Act 1995 (NSW), a decision by the High Court could have ramifications for other states.