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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 2 | Version 3 |
|---|---|
| Neither male nor female – a great victory for Norrie | Neither male nor female – a great victory for Norrie |
| (5 months later) | |
| Q: 'Are you male or female' | |
| A: 'No' | A: 'No' |
| Q: -System Error- | Q: -System Error- |
| 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 you? | |
| 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 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 extension, social acceptance. | |
| 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 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 removing discrimination and furthering human rights: for example, how can we know the extent of the wage gap otherwise? | |
| 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 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 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 life. | |
| Today, that changed. Norrie, who was told back in 2010 that birth certificates issued following gender affirmation surgery could only 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 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 recognise people who do not identify as male or female. | |
| The ruling can be seen as the culmination of years of gradual legal recognition of sex and gender diversity. Over the last few 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 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, when asked whether "sex" could encompass a third, "non-specific" category, gave 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 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 register, then Norrie is sex non-specific for almost everything – banks, 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 out that Norrie may possibly not be able to marry under the current marriage act. | |
| 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 recognition? | |
| 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 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. | |
| But the consequences can also be horrifying. Norrie was at 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 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 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 gender doesn't match up with their assigned sex. | |
| The law has an important role to play in shaping and 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 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 laws, will hopefully go some way towards removing stigma and creating greater 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. | |
| 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 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 law has to be for everyone." | |
| • Both authors work for DLA Piper, the firm which represented Norrie | • Both authors work for DLA Piper, the firm which represented Norrie |