The Gender Binary

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Category: Constitutional Law, Family Law, Human Rights, Public
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Gender_signsWestern society has traditionally assumed a gender binary, classifying sex and gender as “male” or “female.” This binary is reflected in many aspects of our legal system. However in recent decades, the gender binary, and related assumptions about the fixed nature and unambiguous meaning of sex and gender, has been challenged by transsexual, transgendered and intersex people seeking legal recognition of their sex and/or gender identity and protection from discrimination based thereon.

In the US, the majority of states now permit alteration of sex on birth certificates for transsexual persons (whether sex-reassignment surgery is required varies from state to state), although a handful of states still take a “fixed from birth” approach to legal sex. The legal landscape in relation to marriage for transsexual people is similarly inconsistent and in flux.

Challenging the fixed nature of sex/gender is an important development, but in most jurisdictions, the gender binary has been kept legally intact. More recently, some jurisdictions are grappling with the question of “other-gendered” and “other-sexed” persons (the terms are not synonymous – the Norrie case, below, was framed as an issue of biological sex, not gender identity.) The issue has come to a head in Australia, where special leave to appeal to the High Court has been granted in a case involving a person who wishes to be recognized as legally genderless.  In 2010, Norrie May-Welby applied to the New South Wales Registrar of Births, Deaths and Marriages for an amended birth certificate, and requested that the Registrar record Norrie’s sex as “not specified.” By way of background, Norrie was born as a male, underwent sexual reassignment surgery, and identifies as having a non-specific gender identity. Her* request was granted.

However four months later, in an abrupt about-face, the Registrar informed Norrie that her birth certificate was issued in error – she was reissued a certificate identifying her sex as “not stated.” After unsuccessfully appealing to the Administrative Appeals Tribunal, Norrie took her case to the New South Wales Court of Appeal in May of this year.

At issue: whether the Registrar has power to alter the sex recorded on birth certificates only from male to female/female to male, or whether there is power to record other sex specifications? The Registrar submitted, in arguing for the former proposition, that, in the absence of a definition of the term “sex,” the words were to be given their natural and ordinary meaning – i.e. that “sex” bears a binary meaning of “male” or “female”.

The Court of Appeal recognized the complexity of the question, acknowledging that

“[m]atters such as gender identity and sexual preferences are often overlain with social, moral and religious considerations that may vary widely in different segments of the community. The law’s role in the regulation of such matters may itself be controversial or, at the least, influenced by the different views within the community on such matters.”

The issue was resolved in Norrie’s favor, with the Court of Appeal holding that the word “sex” as used in the legislation granting the Registrar power to record gender does not bear a binary meaning of “male” or “female.” The judgment acknowledged that this wider, non-binary conception of sex and gender has not been generally adopted by the Legislature across-the-board, but nonetheless found that in the context of “increasing medical, scientific and social awareness,” a relatively recent legislative recognition of non-binary gender identity has occurred.

However, the scope of the Court of Appeal finding is narrow, and its impact on Norrie, and others wishing to avoid a “male” or “female” designation, is unclear. While the Court of Appeal found that “sex” in the relevant legislation does not have a binary meaning, and a person is entitled to have an entry on their certificate of a sex other than “male” or “female,” the court did not identify what other sexual identifications may be registered. The court did suggest obiter dicta that “intersex” and “androgynous,” as recognized designations of sexual identity, may be registrable (although on the facts these terms do not appear applicable to Norrie), but it ultimately remitted the puzzling question of how to specify Norrie’s sex to the Tribunal. The court also noted that to issue Norrie a certificate stating her sex as “not specified” seems unsatisfactory, as this “does not seem, as a matter of ordinary English, to be a registration of a person’s sex at all.” In other words, it is not correct to say that Norrie has won (for now) the right to be genderless (or, perhaps more accurately, sexless); rather, the Administrative Appeals Tribunal now faces the question of how to identify her sex – “non-specific” perhaps? Whether “non-specific” satisfies the legal requirement to register a person’s sex is an interesting and “vexing question” indeed, and calls into question the function of sex and gender in a legal system generally.  The questions raised by Norrie’s case are questions that jurisdictions the world over will presumably be facing sooner or later, as “medical, scientific and social awareness” increase and the traditional gender binary continues to be challenged in a variety of contexts.

*In line with the New South Wales Court of Appeal judgment in Norrie’s favor, I have adopted the personal pronouns “she” and “her” when referring to Norrie.

Footnote: Although Norrie has been referred to in some media reports as “the world’s first legally genderless person,” the Australian government has permitted “sex and gender diverse applicants” to request passports specifying their preferred gender for just over ten years – the available options are M (male), F (female) or X (indeterminate/unspecified/ intersex.) The “X” sex assignation is permitted by the International Civil Aviation Organization, but is not universally recognized or understood at international borders, which can lead to problems for X passport travelers.

Footnote: One final point of note about Norrie’s case – the question of equal protection. Australia’s federal Sexual Discrimination Act prohibits discrimination against persons on the basis of intersex status and gender identity. This raises the possibility of a rights-based/constitutional argument for an evolved, non-binary construction of statutory references to “sex” when the High Court of Australia takes up the Norrie case in 2014.

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