Australia Australian Human Rights Commission in their 2009 Sex Files Report, recommended that a ‘person over the age of 18 years should be able to choose to have an unspecified sex noted on documents and records’. This recommendation was picked up on in late 2011 when the Department of Foreign Affairs and Trade announced a number of changes to its passport policies.

The Australian Government Guidelines on the Recognition of Sex and Gender (2013) are a set of guidelines relating to sex identification and record keeping that apply to ‘all Australian Government departments and agencies’. They came into force on 1 July 2013 and will be fully implemented by 1 st July The Government Guidelines require that where sex/gender information is collected and recorded, ‘individuals should be given the option to select M (male), F (female) or X(Indeterminate/Intersex/Unspecified)’.

20. The X category refers to any person who does not exclusively identify as either male or female,i.e. a person of a non-binary gender People who fall into this category may use a variety of terms to self-identify

24.When responding to a request for amendment or correction, or where it is necessary to verify a person’s sex and/or gender to confirm identity or determine eligibility for a service or entitlement, departments and agencies will recognize any one of the following as sufficient evidence of their sex and/or gender: a)a statement from a Registered Medical Practitioner or a Registered Psychologist which specifies their gender b)a valid Australian Government travel document, such as a valid passport, which specifies their gender, or c)a state or territory birth certificate, which specifies their gender. A document from a state or territory Registrar of Birth Deaths and Marriages Recognizing a change of sex and/or gender will also be seen as sufficient evidence.

“indeterminate” For the purposes of these Guidelines, a person of indeterminate sex or gender is either someone whose biological sex cannot be unambiguously determined or someone who identifies as neither male nor female.

The relevant background was that Norrie had been born biologically male but had undergone ‘sexual reassignment surgery to female and currently ‘identified as having a non specific gender identity’. The Registrar initially approved the application, but later notified Norrie that this wasan error and amended the sex on Norrie’s birth certificate from ‘not specified’ to‘not stated’.

NSW Registrar v Norrie case(2014) This ‘third’ sex approach is also echoed in the High Court’s NSW Registrar v Norrie decision. This case concerned an application made by Norrie to the NSW Registrar of Births, Deaths and Marriages to alter the sex recorded on her birth certificate to ‘not specified’.

Norrie applied for review of the Registrar’s decision and the Registrar defended their decision on the basis that they did not have the legal power under the Births, Deaths and Marriages Registration Act 1995 (NSW) to alter the record of a person’s sex to something other than ‘male’ or ‘female’ The Court found that S32A(b) which required the Registrar to take into account transgendered applicants meant that the Act itself recognised that a person can be classified as other than male or female and therefore gives the Registrar discretion to register a person’s sex as “non-specific”.

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