Battle of the sexes: what are the options?

Since February, Facebook users have been able to choose their gender
from a drop-down menu of 58 categories, including ‘agender’, ‘cisgender’, ‘genderqueer’ and the intriguing ‘neurtois’. Social media may have abandoned male, female and ‘prefer not
to say’ as the only options,
but should the law recognise a third sex? Or even a 58th sex?

Why should state registers
not allow for more descriptions than simply male and female? Judgments from Australia’s
and India’s highest courts on
2 and 25 April, respectively, suggest that the male-female dichotomy might be replaced by a sexual trichotomy.

In Norrie v New South Wales Registrar [2014] HCA 11, Norrie,
a Sydneysider, who underwent male-to-female gender reassignment surgery in 1989 then post-operatively identified as neither man nor woman, argued that ‘hir’ (Norrie’s preferred pronoun) should be recorded as ‘non-specific’.
NSW’s Registrar had agreed to do this in 2009, but reneged
on the agreement in early
2010. Norrie appealed.

Norrie’s case ultimately arrived at the Australian High Court, where the Registrar asserted
that his statutory powers did not, on a strict reading, allow him to register a person’s sex as anything other than male or female. ‘Unacceptable confusion’ would result from undoing
the binary division of sex, the Registrar urged: Norrie would
be left (ironically) in a ‘legal no-man’s land’, excluded from many of NSW’s apparently gender-specific laws that covered men and women
but not those of neither sex.

Australia’s High Court, however, held that the law did not require a person’s inaccurate registration as male or female if they were not clearly either sex after a surgical attempt to correct gender ‘ambiguities’.

Furthermore, the court noted that the Registrar had been unable to find a single statute that would not ‘operate as intended’ if Norrie’s sex was recorded as ‘non-specific’.

Indian court

Less than a fortnight after Norrie secured gender non-specificity, a wider recognition of the third sex came from India. In National Legal Services Authority v Union of India (Writ Petition No 400 of 2012; Writ Petition No 604 of 2013), the Indian Supreme Court considered the legal status of the sub-continent’s millions of hijras (India’s traditional transgender population).

After reviewing hijras’ history, from their Vedic origins through to their criminalisation under colonial rule, and comparative and international law on gender, the court determined that “recognising [hijras] as a third gender, they would be able to enjoy their human rights, to which they are largely deprived of for want of recognition”.

Although not the first courts in the world to recognise a sex other than male or female (Nepal’s Supreme Court did so in 2007), these decisions represent a significant legal development. Germany, New Zealand, South Africa, Argentina, Nepal, Pakistan and Bangladesh have, to a greater or lesser extent, all legally recognised a third sex too. What about English law?

Birth certificates, the decennial census and passports contain two options: man or woman. Male-to-female and female-to-male transgender people may be registered as
the opposite sex to their birth sex under the Gender Recognition Act 2004.

However, the 2004
Act is predicated on, and supportive of, the opposition
of male and female as it only allows for a change of sex from one to the other and not to a third alternative.

Even the Equality Act 2010 offers no protection to those who do not, or aspire to, identify themselves, as male or female. The UK’s estimated 30,000 intersex persons who have no desire to become either male or female cannot be considered protected ‘transsexuals’ and are not, therefore, covered by discrimination law.

Could this gap in discrimination law fall foul
of the European Convention
on Human Rights? And would a refusal to allow intersex persons an anatomically accurate official record of their sex violate article 8’s right to private life?

Moreover, does the requirement that one be crammed into either the
‘M’ or ‘F’ gender box to wed conceivably violate article
12’s right to marry?

And does the surgical ‘normalisation’ of intersex babies’ genitalia – an outcome, perhaps, needed to register a child as either male or female – breach article 3’s prohibition on inhuman treatment? SJ

Richard Easton is a solicitor at GT Stewart Solicitors