An upcoming case in the New South Wales Court of Appeal will challenge the definition of s-x and gender as Norrie May-Welby fights to be identified as “s-x not specified” on identity papers.

The 51-year-old Sydneysider was born as a male but underwent s-x-change surgery at 23. Norrie lived as a woman for a period but has since has stopped taking female hormones.

Physically and psychologically, Norrie is considered androgynous, not aligning with either of the genders. Norrie therefore cannot be assigned with a “male’ or female” classification on a passport and birth certificate — in Norrie’s case, a details recognition certificate as Norrie was born overseas.

In September last year, Norrie had a passport issued with a simple  “X” under gender. Norrie has been fighting to have the same categorisation in their details recognition certificate, a cardinal document. The case will be heard at the NSW Court of Appeal in November.

Tracie O’Keefe is a s-x therapist and psychos-xual therapist specialising in s-x and gender diverse people. She explained Norrie’s genderless status: “Norrie is a really, really interesting person because they have been certified by two practitioners to have no s-x”.

“In other words they have no gonads, no testes, no ovaries. Their hormone levels are different to either females or males. Norrie doesn’t have any breasts but has a vag-na. So Norrie sees them self as having no s-x and of course the medical organisation sees Norrie as not having a s-x either.”

O’Keefe says that there is a subset in Australian society of people that do not fit the standard male and female binary categories, the term “zie” has been adopted in place of gendered pronouns he/she.

“Approximately 1% of the populations have some kind of physiological s-x diversity or gender diversity. Either they are not physically male or female or they don’t associate as acting out male or female. They are somewhere in between,” said O’Keefe. “Some of those people may want to identify as neuter or even male or female but there are also a whole plethora of other people that have gender fluidity.  They may not see their gender as either male or female.”

In March of 2010, Norrie was issued with Australia’s first “s-x not specified” identity document, a details recognition certificate. A media storm ensued and four days after the media publicised the monumental document, the Attorney-General’s office reneged the certificate, claiming the NSW Registry of Births, Deaths and Marriages did not have the power to issue a s-xless status.

Norrie elaborates: “They gave me a certificate of recognition of details. They changed the computer system because it was ‘m’ or ‘f’ and they gave it gender non-specific because they agreed with the Australian Commission of Human Rights findings that an option should be allowed because that is how it is coded.

“We then went to the press and said ‘hey we got this certificate that says X’, the option to be non-specific about gender, isn’t this great’ and then the government apparently had a lot of phone calls that day on the Friday. By the Monday they had a legal opinion telling them they couldn’t have done what they thought they had done so the whole thing had been a dreadful mistake. They claim they didn’t issue it.

“I’ve got the certificate, it still exists, their claiming that they made a mistake that they were incompetent with the issue in the first place, I am agreeing that they were incompetent but I am questioning at which point the incompetency arose.”

Norrie and O’Keefe are members of S-x and Gender Education Australia (SAGE), an advocacy group for s-x and gender diverse Australians. SAGE was instrumental in the establishment of the Human Rights Commission’s 2009 report entitled the S-x Files: the legal recognition of s-x in documents and government records. Recommendation five on the report states “A person over the age of 18 years should be able to choose to have an unspecified s-x noted on documents and records”.

In September last year, then foreign minister Kevin Rudd and attorney-general Robert McClelland followed recommendation five and enforced new guidelines in the Department of Foreign Affairs. An “X” for gender and s-xually diverse Australians could now be issued on passports

Historically, Australia has used “X” on identity papers in exceptional cases when the s-x of the individual migrating to Australia was not known. In the 1950s, an international agreement with the United Nations High Commissioner for Refugees facilitated the migration of war refugees and displaced people who were not in possession of appropriate identification papers. Here an “X” for gender could be was assigned.

After the details recognition certificate was reneged, Norrie made an appeal to the Administrative Decisions Tribunal and went to global law firm DLA Piper, which took the case pro bono as a public-interest case. The ADT found that the NSW Registrar did not have the power to mark “X” or “not specified” for someone’s birth certificate or details recognition certificate, interpreting s-x as either male or female.

Currently, DLA Piper Australia is in the midst of an appeal with the NSW Court of Appeal based on the interpretation and definition of the word “s-x” in the NSW Registry of Births Deaths and Marriages legislation.

Emily Christie, a solicitor from DLA Piper Australia, says that denying Norrie a non-specific s-x status is a breach of international human rights laws in terms of discrimination, freedom of expression and privacy.“A lot of us take it for granted that we have documents that reflect our identity under the law, we aren’t forced to fit in with one category or another we don’t identify with. Norrie doesn’t have that right and so is discriminated against for not having a male or female identity,” Christie said.

“Australia has certain obligations under the international human rights laws. Under the covenant for civil and political rights in the UN, we have obligations not to discriminate against people on the basis of s-x and to treat people equally and provide equal recognition under the law. We also have an obligation to respect people’s privacy and allow for freedom of expression. All of these human rights are engaged in issues when a person cannot be recognised under their own identity in the law.

“So Norrie will always be revealed as either transs-xual or transgender under the law once she has to show someone her birth certificate. She is also not given recognition for her identity in the law because she is forced to select either male or female under the law she recognises as neither than these.”

Though it is not known exactly how many countries grant a non-specific s-x status on identity papers, India, Nepal and Pakistan have been recognised as countries that do permit it. According to Christie, it is believed Thailand is to follow suit.

In India there are more than 6 million people who don’t fit the male/female gender binary.

O’Keefe says the appropriate amendments need to be made to identity documents so that they do not convey falsehoods: “The law should not record lies and it’s a lie to say Norrie is male or Norrie is female. It’s wrong for a government to force people to record lies on their documents. People can have their documents amended if a mistake is made or if a change is made, for example, if people get divorced or if people change their name. Transs-xuals are able to change their s-x on the document.

“So Norrie is not a special case. We are just asking for the same rights for Norrie that other people in Australian are afforded. Norrie just wants to have their real identity recorded legally and their true identity to be acknowledged in society.”

Peter Fray

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