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You can find the current article at its original source at http://www.theguardian.com/commentisfree/2014/apr/02/neither-male-of-female-a-great-victory-for-norrie
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| Version 0 | Version 1 |
|---|---|
| Neither male nor female – a great victory for Norrie | |
| (35 minutes later) | |
| Q: 'Are you male or | Q: 'Are you male or |
| female' | female' |
| A: 'No' | A: 'No' |
| Q: -System Error- | Q: -System Error- |
| Equal recognition and protection under the law is a concept | Equal recognition and protection under the law is a concept |
| that we hold sacred. But if the law does not recognise you, how can it protect | that we hold sacred. But if the law does not recognise you, how can it protect |
| you? | you? |
| The answer is, it can’t. It can only protect a legal fiction of you. In a | The answer is, it can’t. It can only protect a legal fiction of you. In a |
| world where sex means male or female, this is an issue that sex diverse | world where sex means male or female, this is an issue that sex diverse |
| individuals such as Norrie, who do not identify as either, face daily. Denied | individuals such as Norrie, who do not identify as either, face daily. Denied |
| legal recognition of their sex identity, they are denied protection and, by | legal recognition of their sex identity, they are denied protection and, by |
| extension, social acceptance. | extension, social acceptance. |
| That sex and gender identity is important in our society is | That sex and gender identity is important in our society is |
| an understatement. When we meet someone, we notice their sex. When a baby is | an understatement. When we meet someone, we notice their sex. When a baby is |
| born we ask "girl or boy?". And of course, there are situations where | born we ask "girl or boy?". And of course, there are situations where |
| we want to know a person's sex or gender for the purposes of | we want to know a person's sex or gender for the purposes of |
| removing discrimination and furthering human rights: for example, how can we know the extent | removing discrimination and furthering human rights: for example, how can we know the extent |
| of the wage gap otherwise? | of the wage gap otherwise? |
| But that data must be accurate, and it is imperative that we make the law fit the | But that data must be accurate, and it is imperative that we make the law fit the |
| facts, and not force the facts to fit the law. Until today, we didn’t, requiring | facts, and not force the facts to fit the law. Until today, we didn’t, requiring |
| everyone to legally identify as male or female. And while many sex diverse | everyone to legally identify as male or female. And while many sex diverse |
| people will identify as either male or female, Norrie is one of a small number | people will identify as either male or female, Norrie is one of a small number |
| of people who don't. Yet the law demanded they choose. It is a Kafkaesque | of people who don't. Yet the law demanded they choose. It is a Kafkaesque |
| absurdity to be told your identity doesn't exist, and yet for Norrie that is | absurdity to be told your identity doesn't exist, and yet for Norrie that is |
| life. | life. |
| Today, that changed. Norrie, who was told back in 2010 that | Today, that changed. Norrie, who was told back in 2010 that |
| birth certificates issued following gender affirmation surgery could only | birth certificates issued following gender affirmation surgery could only |
| record "male" or "female", took the case to court. The case has been going ever | record "male" or "female", took the case to court. The case has been going ever |
| since and last month the high court was asked to decide a beguilingly simple | since and last month the high court was asked to decide a beguilingly simple |
| question: "what does "sex" mean?" One side argued that "sex" meant "male" or "female". The other side had Norrie, who wasn't either. Today the | question: "what does "sex" mean?" One side argued that "sex" meant "male" or "female". The other side had Norrie, who wasn't either. Today the |
| court, in a landmark decision, held that the law can and should | court, in a landmark decision, held that the law can and should |
| recognise people who do not identify as male or female. | recognise people who do not identify as male or female. |
| The ruling can be seen as the culmination of years of | The ruling can be seen as the culmination of years of |
| gradual legal recognition of sex and gender diversity. Over the last few | gradual legal recognition of sex and gender diversity. Over the last few |
| decades the courts have established that people are not unambiguously male or | decades the courts have established that people are not unambiguously male or |
| female and that many people may exist somewhere between those two concepts. The federal government released guidelines allowing for | female and that many people may exist somewhere between those two concepts. The federal government released guidelines allowing for |
| recognition of a third sex or gender, and the sex discrimination act protects against discrimination on the basis | recognition of a third sex or gender, and the sex discrimination act protects against discrimination on the basis |
| of gender identity and intersex status. Drawing on this history, the court, | of gender identity and intersex status. Drawing on this history, the court, |
| when asked whether "sex" could encompass a third, "non-specific" category, gave | when asked whether "sex" could encompass a third, "non-specific" category, gave |
| an emphatic yes. | an emphatic yes. |
| So what exactly does this mean? | So what exactly does this mean? |
| As your identity on the register of births, deaths and marriages is the source | As your identity on the register of births, deaths and marriages is the source |
| of your legal identity for almost all other legal purposes in Australia, it | of your legal identity for almost all other legal purposes in Australia, it |
| means a lot. For Norrie, if the certificate states sex is non-specific on the | means a lot. For Norrie, if the certificate states sex is non-specific on the |
| register, then Norrie is sex non-specific for almost everything – banks, | register, then Norrie is sex non-specific for almost everything – banks, |
| employment, library card, you name it. Unfortunately because not all legislation may | employment, library card, you name it. Unfortunately because not all legislation may |
| allow for a non-binary interpretation of the word "sex", the high court pointed | allow for a non-binary interpretation of the word "sex", the high court pointed |
| out that Norrie may possibly not be able to marry under the current marriage | out that Norrie may possibly not be able to marry under the current marriage |
| act. | act. |
| People have lived beyond the binary for probably as long as | People have lived beyond the binary for probably as long as |
| there have been people. So why has it taken us this long to afford them | there have been people. So why has it taken us this long to afford them |
| recognition? | recognition? |
| Part of the problem is that the law has never been good at | Part of the problem is that the law has never been good at |
| recognising difference. For a long time, sex binarism has been accepted as a | recognising difference. For a long time, sex binarism has been accepted as a |
| fact and people behaved accordingly. Often this is in the most mundane of ways, | fact and people behaved accordingly. Often this is in the most mundane of ways, |
| such as choosing which public bathroom to go into or what clothes to wear. | such as choosing which public bathroom to go into or what clothes to wear. |
| But the consequences can also be horrifying. Norrie was at | But the consequences can also be horrifying. Norrie was at |
| least able to choose whether to have surgery and decide which box to tick. | least able to choose whether to have surgery and decide which box to tick. |
| Others are not always afforded the luxury of choice: babies born with ambiguous | Others are not always afforded the luxury of choice: babies born with ambiguous |
| genitalia are often assigned a sex at birth and undergo "correctional surgery". | genitalia are often assigned a sex at birth and undergo "correctional surgery". |
| Parents and doctors, living in a sex binary world, want what they consider is | Parents and doctors, living in a sex binary world, want what they consider is |
| best for their child. Hormones don't kick in till much later, at which point a | best for their child. Hormones don't kick in till much later, at which point a |
| teenager may be faced with an identity crisis, and possibly sterility, if their | teenager may be faced with an identity crisis, and possibly sterility, if their |
| gender doesn't match up with their assigned sex. | gender doesn't match up with their assigned sex. |
| The law has an important role to play in shaping and | The law has an important role to play in shaping and |
| reinforcing cultural attitudes. It can reflect norms, but it can also help | reinforcing cultural attitudes. It can reflect norms, but it can also help |
| create them. It’s one of the reasons why we have anti-discrimination laws and | create them. It’s one of the reasons why we have anti-discrimination laws and |
| vilification laws. Having the high court recognise that not everyone is | vilification laws. Having the high court recognise that not everyone is |
| strictly male or female, and that this can and should be recognised in our | strictly male or female, and that this can and should be recognised in our |
| laws, will hopefully go some way towards removing stigma and creating greater | laws, will hopefully go some way towards removing stigma and creating greater |
| acceptance of diversity in our community. At the moment the decision is | acceptance of diversity in our community. At the moment the decision is |
| confined to people who have had sex affirmation surgery, but it’s a start. | confined to people who have had sex affirmation surgery, but it’s a start. |
| To have your identity, your own identity recognised in law, affords you some of the dignity and | To have your identity, your own identity recognised in law, affords you some of the dignity and |
| the respect that you deserve as a human being. It is a message from your | the respect that you deserve as a human being. It is a message from your |
| community telling you to stand up and be counted, for you are one of us. | community telling you to stand up and be counted, for you are one of us. |
| As Norrie said, "I know there's not many of us, but the | As Norrie said, "I know there's not many of us, but the |
| law has to be for everyone." | law has to be for everyone." |
| • Both authors work for DLA Piper, the firm which represented Norrie in her recent court case | • Both authors work for DLA Piper, the firm which represented Norrie in her recent court case |