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Australian court agrees, we're not all male or female

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(Globalpost/GlobalPost)

A landmark ruling won by an Australian gender trailblazer which finds that sex does not just mean male or female could have broader implications as society becomes more accepting of diversity, experts say.

Norrie, who does not identify as either male or female, last month won a bid to have a new gender category on the register of births, deaths and marriages in New South Wales, Australia's most populous state.

"I'm very happy that I have been told in no uncertain terms that what sex you are is not just male or female necessarily," Norrie, who uses only a first name, told AFP.

Born as a male, Norrie underwent gender reassignment surgery in 1989 to become a woman. However, the surgery failed to resolve Scotland-born Norrie's ambiguity about sexual identity.

The sexual equality campaigner made global headlines in February 2010 when an application to New South Wales' department of Births, Deaths and Marriages accepted that "sex non-specific" could be accepted for Norrie's records.

But soon afterwards, the office revoked its decision, saying the certificate was invalid and had been issued in error. At the time, Norrie said the decision left her feeling "socially assassinated".

"There was a lot of support for fighting for it," the 52-year-old recalled.

So began a series of appeals, ending with a decision last month in the New South Wales Court of Appeal which ruled that sex should not be limited to male or female, though it stopped short of defining other categories.

"There are a few people, not many, who are like Norrie and don't want male or female on their birth certificate," said Norrie's lawyer Emily Christie.

"She feels that every time she has to sign a form, every time she has got to fill something out, and it says 'What's your sex?' and it only has male or female, she feels that she is being forced to live a lie."

Christie said that while Norrie's passport has had an 'X' instead of male or female, this only goes so far, as a birth certificate creates a person's identity under a range of different laws.

"If Births, Deaths and Marriages recognises that you can be something other than male and female, then she can be something other than male and female potentially under other legislation," Christie explained.

"This is the first time that we have actually had a court case say that just the ordinary meaning of sex, in this legislation, in our current day and age given our understanding of diversity in the community and how people want to be identified, can mean more than just male and female and so should recognise Norrie."

The case has now been sent back to the Administrative Decisions Tribunal to determine what the description for Norrie will be, and whether a term such as "non-specific" is acceptable.

Within two weeks of the Norrie decision, the Australian government had released new guidelines stating that individuals should be given the option of selecting "male", "female" or "indeterminate, intersex, or unspecified" on their Australian Government documents.

"Transgender and intersex people in Australia face many issues trying to ensure the gender status on their personal records matches the gender they live and how they are recognised by the community," Attorney-General Mark Dreyfus said in announcing the new guidelines.

Anna Brown, the director of advocacy and strategic litigation at the Melbourne-based Human Rights Law Centre, said while Norrie's case had an unusual set of facts, it was important the law "recognise that sex and gender are more complex and nuanced than a simple binary of 'M' and 'F'".

"Law, policy and practice should reflect the reality of sex and gender diversity in our community, and new anti-discrimination laws to prohibit discrimination on the basis of 'gender identity' and 'intersex status' and the availability of passports with an 'X' marker are all significant strides in the right direction," she said.

"Sadly, in many respects intersex, transgender and gender diverse people, such as Norrie, remain invisible. We need to ensure their stories are told in order to build greater understanding and ultimately reduce the stigma, discrimination and harassment they face, often on a daily basis."

Norrie, who believes officials have been sympathetic to her case all along, is "enormously pleased" and confident of further progress.

"I've had X on my passport for two years now, and I've been putting my sex down as non-specific since I was first granted a certificate back in 2010. People seem to be able to accommodate the truth.

"I'm not the first person like this in society, I'm the one that happened to put my hand up for this particular case," Norrie said. "I stand on the shoulders of giants."

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http://www.globalpost.com/dispatch/news/afp/130617/australian-court-agrees-were-not-all-male-or-female-0