Norrie May-Welby's battle to regain status as the world's first legally genderless person

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Chancellor's Postdoctoral Research Fellow, University of Technology Sydney

View more articles from Alecia Simmonds

Norrie May-Welby was Australia's first genderless person.

Norrie May-Welby was Australia's first genderless person. Photo: Dallas Kilponen

According to family psychologists, the best way to create emotionally disturbed children is to be inconsistent. Being consistently neglectful will also get results, but advice for sadistic parents is this: give your kids love, then inexplicably snatch it away.

So if we imagine Australia as our mother or fatherland then we, its children, should be raving sociopaths. Our government has long been a model of bad parenting. Think the gift of women's suffrage followed by the wooden spoon of lawful unequal pay; or native title rights followed by the intervention – akin to planning a perfect family holiday only to leave the kids locked in the car.

Today the Federal Court will bear witness to the latest undeserved governmental smack. The Registry of Births, Deaths and Marriages will challenge the right that it gave to Norrie May-Welby and other transgender people in 2010 to legally identify as gender neutral.

The story goes like this: Norrie May-Welby is a fearsomely talented activist and artist who at the age of 28 underwent female gender reassignment surgery. But like many of us, Norrie found the choice between two discrete boxes of male or female slightly limiting. It just didn't fit with lived experience: the Adam's apple that told people Norrie was male, yet the lilting voice seemed ever so feminine.

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On asking for a birth certificate in 2010 Norrie requested that there be a third box to tick: "gender not specified".

The registrar of the Department of Births Deaths and Marriages behaved like any progressive, loving parent should and said yes. Norrie was presented with a delightful piece of paper that legally recognised Norrie's identity as neither male nor female.

For four months everyone celebrated. The Huffington Post whooped about "the world's first legally genderless person" and transgender people toasted our nation's acceptance of gender diversity.

That is, until Norrie received a letter from Births, Deaths and Marriages saying the document was "issued in error" and was invalid.

Norrie went to the Administrative Appeals Tribunal to challenge the decision, but lost. She said the tribunal went into "robot mode", declaring in a series of speech spasms that sex means "male or female, male or female, 1100110011001100".

After this, the Court of Appeal considered the case and responded with more intellectual rigour. The word sex does not bear a binary meaning of "male" or "female", it said.

We have always accepted that not everyone fits into these boxes. Why else do we have such words as hermaphrodite, intersex and androgynous? Norrie won.

(I might add that the law has long recognised transgender identity. Bracton's 13th-century legal commentary said: "Mankind may also be classified in another way: male, female or hermaphrodite." And some doctors in the mediaeval period recognised five genders.)

Tonight the New South Wales government will once again take on Norrie, this time in the High Court. The court will have to determine whether the government's argument – that the Court of Appeal made an error and that it has the right to not legally recognise transgender people – is good enough to be heard later in a full High Court trial.

Quite frankly I think it's baffling. How do the Liberal governments on a federal and state level find the money to challenge every progressive decision – from ACT gay marriage laws to transgender rights – and yet claim to be too poor to fund public servants, schools or universities? Pursuing a case in the High Court is not cheap, but there is always money to challenge laws that help minorities.

Norrie says the Court of Appeal decision helps in a practical sense.

"If I need to show identity documents, I certainly don't want details that are false, for this will only cause trouble when officials realise I don't match my documents.

"If my passport states that I'm female, I may be detained because of my … large chest. If male, there will be a dissonance with my physical form caused by castration: I move and talk like a woman."

This is not an issue of whether a person "identifies as male or female", it is simply a matter of biological fact. "The question is about sex not gender."

The federal government took a positive step in 2011 by allowing people to declare their sex as X on their passports. Registry documents perform a similar work of creating a person's legal identity, so given the federal precedent, BDM's position is bizarre.

The case also has wider political significance. First, it's about removing discrimination in law and recognising someone's right to self-determination – of reforming legal categories so that they reflect their experience of the world.

It's also an issue that affects you and me in so far as it makes clear that the law does not consider you to have an identity unless you can fit into one of two suffocatingly narrow boxes: male or female. If you rebel against our system of gender then you have no legal personhood.

On a positive note, as Judith Butler has argued, the scientific fact of transgender identity shows that our binary system of gender is neither necessary nor accurate.

So why does BDM care? Is it because it is scared of women adopting the behaviour of men, or men adopting the behaviour of women, and actually liking it? In the four months that Norrie was recognised as genderless the world did not come to an end. In fact, it was made more just.

Perhaps the problem is just that the Australian government has always been a slightly erratic parent. And as children to this neglectful parent I think it's time that we all rebelled.

13 comments

  • "How do the Liberal governments on a federal and state level find the money to challenge every progressive decision – from ACT gay marriage laws to transgender rights – and yet claim to be too poor to fund public servants, schools or universities?"

    And then there's the flipside to that point - how do legislative assemblies and local councils keep finding the money to pursue all these 'progressive' decisions, yet never be able to find any money to fix roads, or deliver consistent public transport and waste management systems? You know, things they are actually paid to do.

    Commenter
    Markus
    Location
    Canberra
    Date and time
    November 08, 2013, 9:46AM
    • Gender rights is the topic du jour. If it's not this, it'll be something else.

      Commenter
      GitL
      Location
      Bris
      Date and time
      November 08, 2013, 10:31AM
  • This is a great article, but the title probably shouldn't contain the word "her". I think I read that Norrie prefers "zher"?

    Commenter
    Red Pony
    Date and time
    November 08, 2013, 10:24AM
    • Yes, absolutely! I was shocked about this considering the content of the article/the rest of the title even?

      Commenter
      Kala
      Location
      Sydney
      Date and time
      November 08, 2013, 11:26AM
    • This will come across to some as insensitive, but I make no apologies for it. So begs the question, which (male or female) public toilet does "zher" use?

      Commenter
      GitL
      Location
      Bris
      Date and time
      November 08, 2013, 2:58PM
    • YES that's what I came here to say. An entire article supporting someone's right to be genderless and then boxing them up in the headline. So close and yet so far.

      Good luck Norrie. We'll all get there one day.

      Commenter
      Winter
      Location
      Perth
      Date and time
      November 08, 2013, 4:01PM
    • @GitL - The public male/female bathroom problem is a direct result of the sex-segregated world we live in, and groups of trans and other-identifying people have been working against it for a long time; developing sexless bathrooms etc..

      Commenter
      Kala
      Location
      Sydney
      Date and time
      November 08, 2013, 4:03PM
  • I have known of Norrie and her fight for many years and admire the strength shown in the face of such boring, narrow-mindedness on the part of this state, country and particularly BDM. As usual, straight men (and women) with no contact or interest in the diversity of our society hold positions that they think gives them the right to decide for others how they should live their lives and be seen and perceived by the community. Keep pedalling your bubble-machine, Norrie and good luck with this important issue.

    Commenter
    ACF
    Location
    Redfern
    Date and time
    November 08, 2013, 11:06AM
    • It was a Labor government that changed the decision, the current government is just continuing the action. I am a proud leftie but I'm not going to blame everything bad on the conservatives. The current NSW AG despite a religious conservative has actually removed the politics out of law and order in NSW and is doing a much better job than anyone else in the last 10 years.
      Also I think you will find that the law being challenged in the High Court goes beyond this issue and deals with a range of legal issues including the Evidence Act amongst others. I don't want to be a bore but the High Court wouldn't be dealing with the issue if it was just whether or not the NSW government could or should register a third gender. I am all for the third gender or gender neutral where needed. But a bit better job investigating or perhaps getting Richard Ackland to write the piece might have been more appropriate.

      Commenter
      Missing Details
      Location
      Sydney
      Date and time
      November 08, 2013, 1:57PM
      • Unlike Norrie, I fit well into the Gender Binary model. Standard Female.

        But biologically - let's put it this way. in 1985 I was (mis)diagnosed as an Intersex male. In 2005 that was corrected to "severe androgenisation of a non-pregnant woman".

        It's long past time that the Law recognises that the Earth isn't flat, that the Sun doesn't orbit the Earth, and that the binary models of sex and gender don't reflect reality very well. It causes us real, concrete problems, this is not some hypothetical or academic philosophical exercise.

        Both Federal and State Governments are in full reality-denial mode, and acting in ways that can only be described as petty. Enough, already.

        Commenter
        Zoe Brain
        Location
        Canberra
        Date and time
        November 08, 2013, 2:21PM

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