Sex-Reassignment Surgery does not Resolve Sexual Ambiguity

Patricia E. Alva, Barrister-at-Law

A binary division of sex may not apply to everybody. It did not apply to a person who underwent sex-reassignment surgery. Norrie was born with male reproductive organs and in 1989, underwent sex-reassignment surgery to become a member of the opposite sex. In 2009, however, she decided that the appropriate change of sex had to be from “male” to “non-specific”, rather than from “male” to “female”.

In NSW Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 1, 2 April 2014 S273/2013, the High Court of Australia held that it was within the powers of the Registrar of New South Wales’s Births, Deaths and Marriages to record in the Register Norrie’s application for change of sex as “non-specific”. The Births, Deaths and Marriages Registration Act 1995 (NSW) (the “1995 Act”) itself recognised that a person may be other than male or female and therefore may be taken to permit the registration sought as “non-specific”.

Section 32A of the 1995 Act provides that “a sex affirmation procedure means 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”.

The High Court noted that the sex affirmation procedure was defined by reference to its purpose, not its outcome. As such, the surgery did not eliminate the ambiguities relating to Norrie’s sex. The procedure was complied with. It was not open to the Registrar to resolve disputes regarding matters of fact or expert opinions, nor was his function to make moral or social judgments.

An amending provision in the 1995 Act (inserted by the Transgender (Anti-Discrimination and Other Acts Amendment) Act 1996 (NSW)) which has the effect that a person of “indeterminate sex” could identify itself as a member of the male or female sex by living as a member of that sex, meant that express legislative recognition was given to the existence of persons of “indeterminate sex”, subject to other laws.

The High Court indicated that confusion could only arise in cases where there is legislation requiring a person to be classified as “male” or “female” for the purpose of legal relations. But the Court said that for the most part, the sex of a person was irrelevant to legal relations and that section 8(a) of the Interpretation Act 1987 (NSW) was clear enough to recognise “every other gender” as it reads: “[i]n any Act or instrument ... a word or expression that indicates one or more particular genders shall be taken to indicate every other gender”.

However, the Court acknowledged that the main and perhaps the only case where the sex of a person is of legal significance is marriage. Nevertheless, it was noted that the 1995 Act operated subject to other laws in New South Wales. This served to ensure that where another piece of legislation differentiates between male and female it will prevail over the relevant provision of the 1995 Act. In this regard, it should be remembered that despite the fact that Australia recognised the marriage of post-operative transsexual persons since 2001, it maintains that marriage is heterosexual. Recognising same-sex marriage will arguably eliminate any confusion. It is not difficult to predict that same-sex marriage will be allowed sooner or later.

In Hong Kong, we are still waiting for legislation that is expected to resolve difficulties faced by transsexual persons. A bill to amend the Marriage Ordinance (Cap. 181), the Marriage (Amendment) Bill 2014, published recently by the Security Bureau introduces a requirement for a transsexual person to undergo sex-reassignment surgery before being able to marry a person of the opposite sex. This follows previous administrative measures.

However, the case of Norrie should be a wake-up call as it illustrates that even after undergoing such invasive surgery, a person’s sex can remain ambiguous. The Government should consider a holistic approach to the issue of gender identity. Marriage is becoming but one aspect in a person’s life. There is a change in attitudes and perspectives that must be taken into account before introducing legislation which may have undesirable consequences.