NSW Registrar of Births, Deaths and Marriages v Norrie

• Jurisdiction: Australia Federal only
• Judge: French CJ,Hayne,Kiefel,Bell,Keane JJ
• Judgment Date: 02 April 2014
• Neutral Citation: [2014] HCA 11
• Docket Number: S273/2013
• Court: High Court
• Date: 02 April 2014

[2014] HCA 11

HIGH COURT OF AUSTRALIA

French CJ, Hayne, Kiefel, Bell and Keane JJ

S273/2013

Nsw Registrar of Births, Deaths and Marriages

Appellants

and

Norrie

Respondent

Representation

J K Kirk SC with K M Richardson for the appellant (instructed by Crown Solicitor (NSW))

D M J Bennett QC with A J Abadee for the respondent (instructed by DLA Piper Australia)

K L Walker with E A Bennett for A Gender Agenda Inc, as amicus curiae (instructed by Human Rights Law Centre)

Births, Deaths and Marriages Registration Act 1995 (NSW), ss 32A, 32DA, 32DB, 32DC, 32J.

NSW Registrar of Births, Deaths and Marriages v Norrie

Statutes — Interpretation — Registrar's power to register a ‘change of sex’ under Births, Deaths and Marriages Registration Act 1995 (NSW) — Respondent underwent sex affirmation procedure — Respondent applied for registration of change of sex under Act — Whether Registrar has power to register change of sex to ‘non-specific’.

Words and phrases — ‘change of sex’.

1. Set aside paragraph 3(b) of the order of the Court of Appeal of the Supreme Court of New South Wales made on 14 June 2013 and, in its place, order that the respondent's applications dated 26 November 2009 be remitted to the NSW Registrar of Births, Deaths and Marriages for determination in accordance with the reasons of this Court.

2. Appeal otherwise dismissed.

3. Appellant to pay the respondent's costs of the appeal to this Court.

1 French CJ, Hayne, Kiefel, Bell and Keane JJ Not all human beings can be classified by sex as either male or female 1. The Births, Deaths and Marriages Registration Act 1995 (NSW) (‘the Act’) expressly recognises that a person's sex may be ambiguous 2. It also recognises that a person's sex may be sufficiently important to the individual concerned to warrant that person undergoing a sex affirmation procedure to assist that person ‘to be considered to be a member of the opposite sex’ 3. When a person has undergone a sex affirmation procedure, s 32DC of the Act empowers the Registrar to register a change of sex of the person upon an application by that person.

2 The question in this appeal is whether it was within the Registrar's power to record in the Register that the sex of the respondent, Norrie 4, was, as she said in her application, ‘non-specific’. That question should be answered in the affirmative.

3 It is convenient to begin an explanation of the reasons why that is so by referring to the material provisions of the Act while summarising the circumstances of Norrie's application to the Registrar.

The Act and the application

4 The Act provides for the registration of births, deaths and marriages. Section 6 of the Act provides that the Registrar is to ‘establish and maintain the registers necessary for the purposes of this Act’.

5 The objects of the Act, stated in s 3, include ‘the recording of changes of sex’. Pursuant to s 43(1) of the Act, the Registrar must maintain a register of ‘registrable events’. Section 4(1) provides that a change of sex is a registrable event.

6 The provisions of the Act relating to the registration of a change of sex are contained in Pt 5A. They are engaged by an application made by an adult or, in respect of a child, by its parent or guardian. Part 5A of the Act was inserted by the Transgender (Anti-Discrimination and Other Acts Amendment) Act 199(NSW) (‘the 199Amending Act’). The 199Amending Act made provision for the alteration of the Register to record a change of sex in the case of persons born in New South Wales 5.

7 The Act was further amended by the Courts and Crimes Legislation Amendment Act 2008 (NSW) to address the situation of people who were not born in New South Wales. This amendment added ss 32DA to 32DD and s 32J to Pt 5A of the Act. This case concerns an application made under these provisions.

8 Section 32DA provides that a person whose birth was not registered in New South Wales may apply to register that person's sex. Sub-section (1) is in the following terms:

‘(1) A person who is 18 or above:

• (a) who is an Australian citizen or permanent resident of Australia, and

• (b) who lives, and has lived for at least one year, in New South Wales, and

• (c) who has undergone a sex affirmation procedure, and

• (d) who is not married, and

• (e) whose birth is not registered under this Act or a corresponding law,

may apply to the Registrar, in a form approved by the Registrar, for the registration of the person's sex in the Register.’

9 Norrie was born in Scotland with male reproductive organs. In 198she underwent a ‘sex affirmation procedure’.

10 A sex affirmation procedure is defined in s 32A as:

‘a surgical procedure involving the alteration of a person's reproductive organs carried out:

• (a) for the purpose of assisting a person to be considered to be a member of the opposite sex, or

• (b) to correct or eliminate ambiguities relating to the sex of the person.’

11 Norrie considered that the surgery did not resolve her sexual ambiguity. She applied on 26 November 2009 for her sex to be registered under the Act as ‘non-specific’.

12 Section 32DB of the Act requires that an application under s 32DA be accompanied by:

‘statutory declarations by 2 doctors, or by 2 medical practitioners … verifying that the person the subject of the application has undergone a sex affirmation procedure’.

13 In conformity with s 32DB, Norrie's application was accompanied by statutory declarations from two medical practitioners. Each medical practitioner stated that Norrie had undergone a sex affirmation procedure. Each also stated, in a pro forma sentence in the declaration, that he supported the application of Norrie to have her birth record altered showing the sex now to be non-specific. Despite the provision in the statutory declaration for a statement of support, it had no apparent statutory significance as it was neither required nor provided for by the Act or the regulations made under the Act.

14 Section 32DC of the Act provides for the determination of an application under s 32DA in the following terms:

• ‘(1) The Registrar is to determine an application under section 32DA by registering the person's change of sex or refusing to register the person's change of sex.

• (2) Before registering a person's change of sex, the Registrar may require the applicant to provide such particulars relating to the change of sex as may be prescribed by the regulations.

• (3) A registration of a person's change of sex must not be made if the person is married.’

15 Four points should be noted in respect of these provisions. First, a sex affirmation procedure is defined by reference to its purpose, not its outcome. Section 32DA(1)(c) does not refer to a ‘successful’ sex affirmation procedure.

16 Secondly, the function of the Registrar is principally that of recording in the Register information provided by members of the community. Section 32DB makes express provision for the verification of an aspect of the information to be provided. Further, s 32DC(1) confers a limited and specific decision-making power on the Registrar. While the Registrar may require such particulars ‘relating to the change of sex as may be prescribed by the regulations’, neither the Act nor the regulations suggest that the Registrar's function extends to the making of any moral or social judgments; it certainly does not extend to the resolution of medical questions or the formation of a view about the outcome of a sex affirmation procedure.

17 Thirdly, s 32DA is headed ‘Application to register change of sex’; but s 32DA(1) expressly authorises an application by a person ‘for the registration of the person's sex’ rather than ‘a change of sex’. Further, the modes of determination of an application under s 32DA provided by s 32DC, which involve either registration or refusal of registration of a ‘change of sex’, are not precisely congruent with the express terms of s 32DA(1). It is tolerably clear, however, and it was not disputed, that s 32DC speaks of the registration of, or refusal to register, a ‘person's change of sex’ on the basis of a legislative assumption that this first registration in New South Wales of an applicant's sex may differ from an earlier record (made outside New South Wales) of that person's sex. On that basis, an application under s 32DA for the registration of the sex of a person for the first time in New South Wales falls to be determined under s 32DC by a registration of, or a refusal to register, the person's change of sex.

18 Fourthly, the 1996 Amending Act, which introduced Pt 5A (but not including ss 32DA to 32DD and s 32J) into the Act, also amended the Anti-Discrimination Act 1977 (NSW) by adding to that Act definitions of ‘recognised transgender person’ (a person ‘the record of whose sex is altered under Part 5A of the Births, Deaths and Marriages Registration Act 1995’) and ‘transgender person’ (which is defined to include a person ‘who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex’). These definitions in the 1996 Amending Act are part of the context in which Pt 5A of the Act was enacted. Accordingly, the provisions of Pt 5A are to be applied in a context of express legislative recognition of the existence of persons of ‘indeterminate sex’.

19 Section 32J of the Act provides that registration of a person's sex under Pt 5A is effective to deem the person to be of that sex. Importantly, it has that effect subject to other New South Wales laws. It relevantly provides:

• ‘(1) A person the record of whose sex is registered under this Part is, for the purposes of, but subject to, any law of New South Wales, a person of the sex so registered.

• (2) A person to whom an interstate recognised details certificate relates is, for the purposes of, but subject to,...