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

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.


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.