NSW Registrar Births, Deaths and Marriages v Norrie
[2014] HCATrans 36
[2014] HCATrans 036
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S273 of 2013
B e t w e e n -
NSW REGISTRAR OF BIRTHS, DEATHS AND MARRIAGES
Appellant
and
NORRIE
Respondent
FRENCH CJ
HAYNE J
KIEFEL J
BELL J
KEANE J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 4 MARCH 2014, AT 10.16 AM
Copyright in the High Court of Australia
MR J.K. KIRK, SC: May it please the Court, I appear with my learned friend, MS K.M. RICHARDSON, for the appellant. (instructed by Crown Solicitor (NSW))
MR D.M.J. BENNETT, QC: May it please the Court, I appear with my learned friend, MR A.J. ABADEE, for the respondent. (instructed by DLA Piper Australia)
MS K.L. WALKER: If the Court pleases, I appear with my learned friend, MS E.A. BENNETT, for A Gender Agenda Inc, seeking leave to appear as amicus curiae. (instructed by Human Rights Law Centre)
FRENCH CJ: Ms Walker, A Gender Agenda will have leave to appear as amicus curiae to the extent of the receipt of its written submissions.
MS WALKER: Thank you, your Honour. Might I seek to be excused from the Bar table?
FRENCH CJ: Yes, indeed. Yes, Mr Kirk.
MR KIRK: Please the Court. Your Honours, I will come imminently to the statute which is the focus of attention today. Before I do so, can I seek to identify for your Honours the nub of the Court of Appeal’s decision? If your Honours go to the appeal book at page 148 within Justice Beazley’s judgment, and then paragraph 200 under the heading “Conclusion”, also 201, the last sentence driving home the point about the rejection of a binary classification, and then also paragraph 205.
In our respectful submission, the Court of Appeal erred in its construction in rejecting the binary construction and accepting that categories such as non‑specific may be capable of being registered, and in so doing it erred as a matter of text, purpose and context and consequences and, more generally, we respectfully submit the court erred in confusing issues of personal sexual identity with legal categorisation of sex and I will seek to develop all of those propositions.
Can I come immediately to the Act, and your Honours should have a copy of the Births, Deaths and Marriages Registration Act 1995 (NSW), reprint relevantly from March 2011 to April 2012? Could I take your Honours first to the objects section in section 3 and draw your Honours’ attention to “(a) the registration of births, deaths and marriages”, “(c) the registration of changes of name and the recording of changes of sex”, and then (d), (e) and (f). What we draw from that is that the Act intends to establish a system of formal and official registration, that the register is to be accessible for certain purposes and that includes in relation to changes of sex. In section 4(1), the definitions section, your Honours might note the definition of birth certificate, meaning:
a certificate issued under section 49 as to the particulars contained in an entry in the Register in relation to a person’s birth –
and also “registrable event”, simply to note that it includes “birth” and “change of sex”. If I could take your Honours to section 6 dealing with my client, the Registrar, and your Honours will note the Registrar’s general functions:
(a) to establish and maintain the registers . . .
(a1) to maintain the integrity of the Register –
I think that should include the plural –
and to seek to prevent identity fraud . . . and
(b) to administer the registration system –
Now, I note that in part because one of the points put by the respondent is that it is an implicit duty on my clients to seek to ensure the registers are accurate and truthful and we embrace that and that is implicit in section 6. Next, if I could take your Honours to the provisions dealing with the registration of births which are Part 3 commencing with section 12. Your Honours will note section 12(1):
When a child is born in the State, the responsible person must give notice of birth to the Registrar in a form and manner required by the Registrar, specifying the particulars required by the regulations.
This duty is actually on the hospital or, in some circumstances, the doctor or the midwife, see the definition of “responsible person” in subsection (5). There is then a parallel duty on the parents, in general, found in section 13(1).
FRENCH CJ: We are just going back for a moment, if you do not mind, to 6(a1), you thought that might be a slip for a plural reference but the register is that referred to in Part 8(43), is it not, as defined in the definition provision? We are just talking about the one register?
MR KIRK: That is right.
FRENCH CJ: The plural seems to be a reference to another register under the Relationships Register Act.
MR KIRK: Yes, your Honour is quite right, with respect but that would pick up all relevant registers of birth details and also of change of sex and so forth. If I could go back to section 13(1) – that is, the duty to register the birth – that applies to the parents in general. Your Honours will see that in section 15. We need not dwell over the details. Section 14 indicates the how of registration – again:
in a form and manner required by the Registrar, specifying the particulars required by the regulations.
Section 17:
The Registrar registers a birth by making an entry about the birth in the Register including the particulars required by the regulations.
I will come to the regulations in a moment, but can I note section 17(2):
if the particulars available to the Registrar are incomplete the Registrar may register a birth on the basis of incomplete particulars.
Now, in practice, as it was explained to the Court of Appeal below, this power is sometimes used in relation to children with intersex conditions or intersex children where there is uncertainty and ambiguity as to sex at birth. The way my client deals with that is that, where there is sufficient uncertainty and where the parents do not want to register the sex, my client will accept a form without that detail filled in in the expectation that that particular may later be supplied. In relation to what particulars are required by the regulations, without setting the Act completely aside, could I take your Honours to the regulation?
KIEFEL J: Could I just interrupt? How could a child, when the child becomes an adult, then apply for a change of sex if there is no registration?
MR KIRK: It is a matter of practice. As I am instructed, the practice is that there is an expectation the particular will be supplied in time. I should note that this was noted in passing by Justice Beazley at some part of what I have said at paragraph 15 of her Honour’s judgment at page 125 of the appeal book.
BELL J: Would that be done by an application under section 20?
MR KIRK: In relation to?
BELL J: In relation to the supply of the particulars not supplied at the time of the registration of the birth.
MR KIRK: There is a power of inquiry in the Registrar, which I will come to, so if the particular had not been supplied, it may well be that that power of inquiry in the Registrar could be used to find out the relevant particular.
BELL J: I was just raising, section 20 makes provision for an application to the Registrar for the addition of registrable information.
MR KIRK: Yes.
BELL J: Notably, registrable information for the purposes of section 20 does not include information relating to a person’s change of sex and my question is, in the case of an intersex child, whose birth has been registered without particulars as to sex, does section 20 contemplate that those particulars may be supplied and in circumstances in which there is no requirement for a surgical procedure?
MR KIRK: Yes.
BELL J: The alternative is a person whose birth has been registered in circumstances in which the Registrar has accepted the registration without particulars of sex, might never supply those particulars.
MR KIRK: That is possible but it would not be consistent with the scheme of the Act which does, through the Act and the regulation, ultimately require provision of the information in relation to sex and so, whilst latitude is taken at the beginning, the Registrar, on my understanding, does seek to complete the requirements at some stage.
BELL J: That may be a matter of practice but do you say that it is required under the Act?
MR KIRK: Insofar as the Act and the regulations – and if I might take your Honours now to the regulations.
FRENCH CJ: Just before you go to the regulations, does the Act say anything, divorced from the regulations, which requires the inclusion of a person’s sex in their birth certificate?
MR KIRK: No, is the answer. In this Act, that is required by the regulations and has always been required by the regulations. That seems to date back, as a matter of New South Wales practice, to the beginning. We have referred, in our reply, to the first piece of legislation we can track down which is the 1855 Act. Similarly, in that Act, it left to a matter of specification by the Registrar, I think it was, as to the details to be supplied. But it is also quite clearly implicit in that Act – it is not on our list, so I cannot take your Honours to it – but if your Honours look at that 1855 Act and go, for example, to Schedule C and D, and D dealing with births at sea, it is plainly implicit that it was expected that sex would be recorded. But, as a matter of form, it has always actually been dealt with, so far as we understand, through the regs rather than through the Act.
Can I take your Honours to the regulations? It is the Births, Deaths and Marriages Registration Act 2011. I will come back to the Act in a moment. Relevantly, clause 4 deals with section 12 which is the duty on the hospital or doctor. Your Honours will note (a) as well as various other details and clause 5 deals with the specification for sections 14 and 17 which is the duty on the parents and, again, your Honours will note (a) and, for completeness, also (f) relating to the sex of previous children of either of the parents of the child. If I could take your Honours then back to the Act; I got up to 17. Can I then take your Honours to section 19, which is a power in:
The District Court may, on application by an interested person or on its own initiative, order:
(a) the registration of a birth, or
(b)the inclusion of registrable information about a birth or a child’s parents . . . in the Register.
That is qualified in (1A)(b), that a (1)(b) order only applies where the birth has already been registered under the Act. The relevance of this is that it means that the District Court is one forum in which disputes may come to be resolved about registrable particulars, including potentially sex. I will come back to the significance of that. Can I then take your Honours to Part 8 starting at section 43, which your Honour the Chief Justice has already noted? Section 44 is the power of inquiry I mentioned to your Honour Justice Bell:
The Registrar may conduct an inquiry to find out –
your Honours will note –
(b) particulars of a registrable event, or
(c)whether particulars . . . have been correctly recorded in the Register.
Section 45 has some relevance:
The Registrar may correct the Register:
(a) to reflect a finding . . . or
(b)to bring an entry . . . into conformity with the most reliable information available –
That too has some potential relevance to intersex persons in that for some intersex persons at birth they may be categorised as a part of one sex – female, for example – but at puberty certain changes can occur for certain intersex conditions and that may lead to amendment of the Register, and without going through the Part 5A process because the Registrar is capable of being persuaded that on reflection and with the better information available, the sex was not correctly recorded at birth.
Section 46 has some relevance in terms of general access to the register by members of the public or organisations. Relevant criteria in deciding to allow access are set out in subsection (2), and subsection (3) refers to preventing unjustified intrusion on privacy. There is a more specific power in section 47 that:
(1)The Registrar may . . . search the Register for an entry about a particular registrable event.
(2)The applicant must state the reason for the applicant’s interest –
Again, there is relevant criteria in subsection (4), and again, “privacy” is referred to in section 48. Under section 49:
On completing a search . . . the Registrar may issue a certificate:
(a)certifying particulars contained in an entry –
or that there was no entry, and your Honours will note subsection (2) –
A certificate . . . is admissible in legal proceedings as evidence of:
(a)the entry . . . and
(b)the facts recorded in the entry.
For completeness in this Part, I would note section 56, which is review by what was then called the Administrative Decisions Tribunal, which is how the matter has worked its way up to this Court. If I can take your Honours then back to Part 5A, can I start with the heading of the Part, which is “Change of sex”. The heading is part of the Act pursuant to section 35(1) of the Interpretation Act 1987 (NSW). That indicates a concern about, obviously, change of sex.
Can I note briefly sections 32B through to 32D, along with 32E and 32F, which were provisions introduced in the original Part 5A in 1996 which relate to alterations to the Registrar of Births in New South Wales; in other words, where the birth was registered in New South Wales. Your Honours will note 32B(1)(a), for example. Those provisions are mirrored in the provisions introduced in 2008, or substantially mirrored, I should say, being relevantly 32DA through to 32DD, along with 32J, and I will focus on those provisions. They are the ones at issue because the respondent was born in Scotland, not in New South Wales, so there was no register of birth of the respondent in New South Wales.
Turning to 32DA, this is eligibility for application. Subsection (1) deals with an application by the person themselves; if they are 18 or above they need to be a citizen or a permanent resident, they need to have lived in New South Wales for at least a year, they need to have undergone a sex affirmation procedure, which I will come back to, not be married and birth not registered under this Act or a corresponding law under another State or Territory. They then:
may apply to the Registrar, in a form approved by the Registrar, for the registration of the person’s sex in the Register.
Subsection (2) is in much the same terms but dealing with an application by the parents on behalf of the child to register a change of sex. If I could then take your Honours back to 32A and focus on the definition for the purposes of the Part of “sex affirmation procedure”. Your Honours will note it:
means a surgical procedure –
Pausing there, that distinguishes it from the Gender Reassignment Act considered in AB v Western Australia which also extended to a medical procedure. It has to involve:
the alteration of a person’s reproductive organs carried out [for one of two purposes]:
(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.
As to the reference to “opposite sex” in (a), the Court of Appeal accepted that that notion of “opposite sex” presupposed a binary classification. To have an opposite presupposes one opposing the other. I will not take your Honours to it, but it is paragraphs 185 and 246. Their Honours gave much emphasis to subparagraph (b) which does not use the word “opposite”. Their Honours emphasised two matters. Firstly, the absence of the word “opposite” before “sex” and their Honours took that to mean that “sex” was being used in a broader sense. Again, I will just give references, see, for example, paras 186, 244 and 247.
Secondly, their Honours focused on the word “ambiguities” which their Honours took, particularly Justice Sackville, I think, to be a legislative acknowledgement of the existence of ambiguity in relation to “sex” that ties to the issue of intersex persons and I will come back to deal separately with intersex persons and carefully, so I will not deal with that now. If I might note briefly in response to the Court of Appeal’s views at this stage, it does mean that “sex” has a different meaning in (a) and (b). Furthermore, in our respectful submission, the Court of Appeal did not give ‑ ‑ ‑
HAYNE J: Why does it mean a different use of that term when it appears in a different collocation?
MR KIRK: Yes, that was the way the Court of Appeal put it, that the opposite qualifies the sex. It does mean that there is a different sense of sex being referred to within (a) and (b); “opposite sex” presupposing binary in (a), not presupposing binary in (b). In our respectful submission, the Court of Appeal did not give sufficient weight to the notion of correcting or eliminating ambiguities.
First, that suggests that the purpose is a movement towards clarification and, furthermore, that that presupposes or assumes, in our respectful submission, that there are clear categories towards which the clarification can be directed. It is not about recognising ambiguities; it is about correcting or eliminating them.
KIEFEL J: Yes, but the elimination or correction would depend upon the sex in which you started with.
MR KIRK: Yes, that is true.
KIEFEL J: That does not presuppose that it is only binary.
MR KIRK: It is true, and I will come back to this, that the recognition of ambiguities in (b) is a recognition, or can be taken as a recognition, that there is, in fact, some ambiguity potentially between male and female, in particular vis-à-vis intersex persons.
FRENCH CJ: Can you say anything more about (b) than that it is consistent with a construction that sex referred to there is referred to in a binary sense and ambiguity refers to ambiguity as to whether a person is male or female? I say consistent with but not necessarily required by.
MR KIRK: Yes.
FRENCH CJ: In other words, you accept that a different construction is open?
MR KIRK: Open in relation to section 32A, incorporating (b), yes, and so then the question comes for this Court, which construction is the appropriate one and the one likely to be intended, and that is why I need to refer to the broader text, purpose, context and consequences.
KIEFEL J: Is there a larger question here about the perspective from which both (a) and (b) are to be adjudged, that is, from whose perspective? In relation to (a) the words:
for the purpose of assisting a person to be considered to be a member of the opposite sex –
Considered by whom? Is this a social question? Is it just a question of outward appearance, which might suggest it is a social perspective, and (b) “to correct or eliminate ambiguities” might suggest that the ambiguities are something subjective to the person, it is something they are attempting to achieve, which would set it apart from the social and perhaps more objective appearance question in (a)?
MR KIRK: That may be right, your Honour, and I recognise that that overlaps with some of the issues touched upon in AB v Western Australia, of course.
KIEFEL J: Yes.
MR KIRK: I am not sure that directly arises for consideration here because as I will seek to come to shortly, the legal result of a change of sex is a change of legal status, namely, from recognition as being male to female or vice versa.
HAYNE J: That starts from the premise that sex is binary. Is that not the premise that you have to establish, not assume?
MR KIRK: Well, that sex is binary, in our respectful submission, first, is an assumption deep in the law in that the respondent has not been able to point to any case, save one, which appears to support recognition of any more than binary categories – that case being In the Marriage of C and D which I will come to. Secondly, that assumption is one reflected in a myriad of New South Wales statutes which we have referred to in our written submissions and also the Court of Appeal referred to.
Thirdly, picking up on that point, those statutes and, indeed, to some extent the general law, gave legal significance in some circumstances to being male or female, it is a legal status, and it comes back to the point that there is no case, save In the Marriage of C and D and possibly a Canadian case which I will come to, which offer any support for the notion that there is any other legal status relating to sex than male or female.
HAYNE J: The reference to legal status, again, disguises the adoption of a premise. The premise that is disguised is that there is something called the legal status of sex, divorced from, separate from particular users in a particular piece of legislation. Now, you may be right – I do not know – but it seems to me that the burden of your argument must fall upon demonstration of the premise, not assuming it and then asserting consequences follow from the assumption. Maybe the premise is right; I do not know.
MR KIRK: Yes. Can I come back to deal with the status point. I will deal with that shortly, if I may, your Honour, and seek to found it in the statute. I have dealt with sex affirmation procedure. If I could then turn to 32DB, which deals with the documents to accompany an application to register a change of sex. Your Honours will see in (a) that it is:
statutory declarations by 2 doctors, or by 2 medical practitioners . . . verifying that the person the subject of the application has undergone a sex affirmation procedure ‑ ‑ ‑
HAYNE J: Just pausing there, that is identifying that this is an issue in which medical opinion is relevant – that is to say, it is more than what the uninformed layperson observes from physical appearance. Is that right?
MR KIRK: Yes, your Honour, and it is medical evidence of a particular character. It is medical evidence about the individual and whether that individual has undergone a sex affirmation procedure.
KIEFEL J: But implicitly it is more than that as well, is it not, because it is on the basis of the information provided that the Registrar is to determine whether to register or not, and implicitly what the Registrar must be registering is the result of the procedure. The procedure is merely the condition, which is dealt with in the declaration. But implicitly it must be the result of the procedure or, I should say, the result in a physical sense or the desired outcome as recognised by medical opinion, as Justice Hayne has referred to.
MR KIRK: The relevant verb is “undergone”, so that they have undergone a surgical procedure of the relevant kind. It does not in terms speak to the results of that procedure. So, for example, it may be that the procedure has not been as successful in correcting or eliminating ambiguities as may have been hoped. There may thus be some overlap in this statute and the statute considered in the AB Case.
All that is required is evidence that they have undergone the procedure. What is not required is any evidence as to their identity, their social identity, how they identify in terms of a sexual or gender category, let alone any evidence as to linguistic or common acceptance of particular categories of sex, let alone evidence as to medical acceptance of particular categories of sex.
KIEFEL J: Herein lies the large gap in the statute, I think, because if the only fact to be considered is whether or not the procedure has been undertaken, how is the Registrar to determine whether to accede to what is sought as a change of sex or to refuse to do so?
MR KIRK: Because, in our submission, it is meant to be a relatively simple procedure. It is not a hole in the statute, in our respectful submission. It recognises that the Parliament has set up what is meant to be a fairly simple, non‑intrusive, respectful procedure, that if a person wishes to record a change of sex and they have two doctors who say they have undergone the relevant procedure and they have the other relevant documents – and I will explain those in a second – then that is enough.
KIEFEL J: But the procedure may not tell you whether it is binary.
MR KIRK: Indeed.
KIEFEL J: The procedure may not tell you what the true outcome is.
MR KIRK: There is no requirement to provide any evidence as to what other categories of sex might be registered. The premise here, in our respectful submission, is that there are two categories. It is either one or the other. It is relatively simple. That is why you have a simple, respectful, non‑intrusive process.
FRENCH CJ: Procedure is defined in terms of purpose, not in terms of outcome. All the doctors tell you about is that there has been a procedure for that purpose.
MR KIRK: Yes. I am not disputing that.
FRENCH CJ: What is the consequence of that, in terms of our understanding of the notion of sex in the context of your proposition that it is binary?
MR KIRK: We are not disputing that it does not go necessarily to result and so that may get one to a situation, like in AB v Western Australia, where a person has taken certain steps but not necessarily all available steps, or it may be that some steps have not been as successful as hoped. But it was clear in AB v Western Australia that despite that, a person under that legislation could be registered as having changed sex from one to the other. That was the operative premise in AB v Western Australia.
FRENCH CJ: That was gender reassignment, was it not?
MR KIRK: Yes, yes.
FRENCH CJ: That is a bit different.
MR KIRK: Furthermore, of course, in Western Australia, as I pointed out earlier, the equivalent definition, which is a little different but overlapping, encompasses medical procedure. It is not limited to surgical procedure. So that would encompass, potentially, drug treatment, for example, whereas the New South Wales statute does not encompass that.
KIEFEL J: In some statues – and I think it was the case in AB – it has been accepted that the requirement that some surgical or medical procedure is undertaken is a kind of affirmation by the person themselves about the sex that they consider themselves to be, some commitment upon which it can be seen that they have made. If it is meant to say no more than – the medical evidence is said to say no more than it has been undertaken, that may be consistent with this statute’s approach.
MR KIRK: Yes.
KIEFEL J: But it would seem in terms of the documentation that the medical specialists actually signed – I am looking at AB 18 and there is another one at 20 – the medical practitioners are asked to support the application of the person for a change of sex to that which the person has identified. So the medical practitioners are asked to certify whether they consider the surgical procedure undertaken is in a way consistent with that sexual identity which the person seeks.
MR KIRK: Well, your Honour, this form is one provided by the Registrar under the powers in the Act. What it provides, as your Honours will see between lines 20 and 30, is that the person – the doctor is confirming from documents produced to him or her, if we can confirm the identity, and then confirmation that the person has undergone a sex affirmation procedure in terms reflective of 32A and indeed 32DC, and then says:
I support the application of [the person] to have their birth record altered . . . showing the sex now to be –
KIEFEL J: In this case non‑specific ‑ ‑ ‑
MR KIRK: Yes, although, your Honours ‑ ‑ ‑
KIEFEL J: ‑ ‑ ‑ that is what the doctor is saying.
MR KIRK: Sorry, your Honour.
KIEFEL J: That is what the doctor is saying.
MR KIRK: Yes, although your Honour will also note under the line, “female/male”, although I accept that is put there by my client in exercise of the relevant powers. But it is not surprising, in our respectful submission, that this form is taking account of the nature of the change of sex that the applicant seeks and in a sense that is all that that says.
It leaves open what sex can be changed to, and one would not want to give too much weight either way, in fact no weight at all really, to how the Registrar has established the form in construing the statute. For that reason I do not place great weight on “female/male” being in the brackets.
FRENCH CJ: What is the status of the doctor’s statement of support for the application, having regard for 32DB which seems only to contemplate a statutory declaration that the person has undergone a sex affirmation procedure? Is this statement of support something which comes out of the regulations?
MR KIRK: No. Could I take your Honours to the regulation clause 10 which I should note feeds into 32DB(b). So these are the other requirements, the regulations require, that the application has to be accompanied by documents being (a) a signed statement by each of the two doctors, et cetera, about sighting proof of the identity, and then secondly, documentary proof to the Registrar’s satisfaction of some jurisdictional facts.
KIEFEL J: I am sorry, which clause are you reading from?
MR KIRK: Sorry, your Honour, clause 10 of the regulation.
KIEFEL J: Thank you.
MR KIRK: So that all that is required is that the doctors, et cetera, have sighted proof of identity and then separately from that there has to be documentary proof of jurisdiction.
FRENCH CJ: The statement of support is there in the form, provided by the Registrar but it does not have any statutory significance.
MR KIRK: I think that is right. I was dealing with DB. Can I then deal with DC which is the formal decision‑making power and duty, back in the Act:
(1)The Registrar is to determine an application under section 32DA by registering the person’s change of sex or refusing to register the person’s change of sex.
Your Honours will note that what is being registered is the change of sex, not sex simpliciter.
KEANE J: Why is that appropriate given that 32DA, which is the application in response to which these powers are being exercised, expressly provides for the registration of the person’s sex?
MR KIRK: Because that, although it does not refer to change of sex in 32DA(1), it is plain that what this part is directed to is illustrated by the heading, is “change of sex”. The absence of reference to change of sex in 32DA(1) may be contrasted with 32B(1) which refers to:
alteration of the record of the person’s sex in the registration of the person’s birth.
So your Honour will recall that DA and so forth deal with where there is no birth ‑ ‑ ‑
KEANE J: ‑ ‑ ‑ previous registration.
MR KIRK: Correct. Correct. So in a sense it is recording, new to New South Wales, the sex. It is the first time sex has been recorded in New South Wales, but the whole purpose of the application and of this path is to enable a person to record a change of sex. There is no other imperative otherwise for a person recording their sex, under the NSW Act.
KIEFEL J: How do you say the Registrar determines the application?
MR KIRK: By reference to the materials provided.
KIEFEL J: Well, that would have to be a medical opinion, particularly in the case of 32AB, would it not? How is the Registrar to know what ambiguities have been corrected unless medical opinion tells the Registrar?
MR KIRK: The Registrar does not need to know that, and your Honours would have seen from the form that in fact that information is not requested. All that is required is a very simple verification that the person has undergone a sex affirmation procedure.
FRENCH CJ: So what the Registrar has is a request, plus the doctor’s statutory declaration that a sex affirmation procedure has been carried out, without any information at all as to outcome or any opinion as to outcome?
MR KIRK: Yes.
FRENCH CJ: Under 32DC, there is reference to requiring “the applicant to provide such particulars relating to the change of sex as may be prescribed the regulations”, but I cannot pick up in the regulations anything that responds to 32DC(2).
MR KIRK: I think it is just clause 10. I think that is as high as it goes, your Honour.
FRENCH CJ: That talks about 32DB, I think.
MR KIRK: That is right.
FRENCH CJ: So it is pretty slim pickings from the Registrar’s point of view in terms of the basis of his or her decision.
MR KIRK: Correct. It is very much based on, essentially, if a person opts to make this significant change and they have gone through the relevant sex affirmation procedure and they have the fairly simple documentary proof, that is enough.
FRENCH CJ: But you say all they can ask for is male or female.
MR KIRK: Yes, that is right. Were anything else to be possible, one would have expected the Act to deal with it, and it just does not deal with it at all.
KIEFEL J: But you say that the Registrar does not even have to know the nature of the procedure, what was actually undertaken.
MR KIRK: Correct.
KIEFEL J: I just do not see how the Registrar can answer the question, unless you imply into this Act something about medical opinion.
MR KIRK: The relevant medical opinion is simply a record of observation verifying that the procedure has taken place, which in a sense may not be so much an opinion as a fact.
KIEFEL J: So if someone comes along and says here is a certificate which says I have undertaken a procedure, it does not tell you anything, on your binary approach, I wish to have my sex changed in the register from male to female.
MR KIRK: Yes.
KIEFEL J: The Registrar says, yes, okay or no, not. On what basis? This is supposed to be a reviewable decision.
MR KIRK: Yes. On the basis of the information provided.
KIEFEL J: But there is no information.
MR KIRK: It is very limited information.
KIEFEL J: There is no information, except for the request, on what you have said.
MR KIRK: The request, the two statutory declarations from the doctors ‑ ‑ ‑
KIEFEL J: But it does not say what procedure has been undertaken.
MR KIRK: No, that is true. As I have said, it is a simple, essentially opt‑in procedure.
KIEFEL J: But we have to make a statute work. How do we make it work?
MR KIRK: It works in the way that I have articulated. It is not a complex procedure and it works in practice.
KIEFEL J: It works in practice because the Registrar asks for medical opinion. That might tell you what the Registrar at least thinks he needs to know, or she.
MR KIRK: The Registrar has prescribed the forms that your Honour is seeing.
KEANE J: Which invite the medical practitioners to make a statement supporting the application of a person to have their birth record altered showing the sex now to be, and you get two medical practitioners and there is no dispute: the facts that the Registrar gets, or the opinions, the medical opinions which the statute contemplates will be obtained, speak to what effect? Why does the Registrar go further? Why is not that the end of it? These are the facts on which the Registrar registers.
MR KIRK: But if that means registration of a new category of sex not hitherto recognised in law and not picked up ‑ ‑ ‑
HAYNE J: We are back to begging questions, are we not, Mr Kirk?
MR KIRK: But I am coming to that, your Honour. I am going through the sections. Perhaps I might move on. I have dealt with DC. Can I deal with DD:
This section applies if the Registrar registers a person’s change of sex under section 32DC.
The Registrar must, on application by or on behalf of the person, issue a certificate certifying the particulars contained in the entry in the Register.
That then takes you to sections 32I and J. Section I deals with the situation relating to an application to alter a birth record, so that is the 32B to D situation. Section J deals with the situation where the person did not have their birth registered in New South Wales. The two sections are immaterially the same terms, starting with I:
A person the record of whose sex is altered under this Part is, for the purposes, but subject to, any laws of New South Wales, a person of the sex as so altered.
Sub (2), so, too:
A person to whom an interstate recognition certificate –
And sub (3) defines that and the reg indicates that all other seven States and Territories are prescribed for relevant purposes. Section 32J is similar, or much the same:
A person the record of whose sex is registered under this Part is, for the purposes of, but subject to, any law of New South Wales, a person of the sex so registered.
Again, potential for interstate recognition – in fact, only Western Australia has been prescribed in the regulation because only Western Australia has the equivalent, what you might call loosely extra territorial aspects, where the person was not registered at birth in that State.
Now, focusing on I and J, this is the legal consequence – this specifies the legal consequence of registration and what subsection (1) of each provides is that for the purposes of New South Wales law only, that person is taken to be a member of the sex so registered. So, in other words, there has been an alteration of the category in which they are placed for legal purposes, namely, for the purposes of any law of New South Wales, albeit always subject to any particular provision to the contrary which overrides the particular allocation.
BELL J: Is it right to describe it as an alteration in the case of a decision under section 32DC?
MR KIRK: It is likely to be accurate, your Honour, yes, in that it crystallises and clarifies that that person is now taken to be – for the purposes of New South Wales law – a member of that sex. To put that in a little bit of context, if I may, can I take your Honours to AB v Western Australia briefly, which is in 244 CLR 390?
HAYNE J: With a view to demonstrating what proposition relevant to the construction of this Act?
MR KIRK: To put my answer to Justice Bell’s question in context as to the significance of this sort of change of sex certificate. If your Honours look at paragraphs 1 to begin with at page 396 of the Court’s judgment, your Honours will note first sentence about the struggle of the common law, about:
the attribution of gender to persons who believe that they belong to the opposite sex.
The second‑last sentence:
Self-perception is not the only difficulty with which transsexual persons must contend. They encounter legal and social difficulties, due in part to the official record of their gender at birth being at variance with the gender identity which they have assumed.
Then jumping to paragraph 3 –
In Re T McMullin J observed –
et cetera. That is what the Act does. It is a declaration admissible in court, as I showed to your Honours, declaring to the world for the purposes of New South Wales law, this person is now taken to be a member of this sex.
The rights, duties and privileges, et cetera, of being a part of that sex are to be found in the other laws, and potentially those of other States and Territories who give mutual recognition to the certificate. Although differentiation according to sex has much diminished, naturally enough, in our legal system over the last century, there are still statutes which differentiate for a range of reasons according to sex, and we have given a range of examples in our submissions at paragraph 39. They relate broadly to provision of certain services, benefits, entitlements, some criminal law and criminal process in investigation‑type provisions.
That linkage between a change of sex or a recognition certificate and other New South Wales law points to two points, in our respectful submission. First, that being the legal significance of a recorded change and there being no other provision in New South Wales law identified which recognises more than two sexes – and I will come to section 38A of the Anti‑Discrimination Act in a moment – leaving that aside, there is no provision the respondent has identified in New South Wales recognising more than two sexes. That linkage suggests the presupposition of Part 5A is that there are two sexes as dealt with in New South Wales law, and this is meant to record a change from one category to the other.
KIEFEL J: Could I just take you back for a moment to what we were discussing before about the basis upon which the Registrar deals with it? Is it your argument that what is involved is simply a registration of a claim to a change based upon the fact of a procedure, an unspecified procedure, on the basis that a person would not nominate the wrong sex to be registered, and that this can only work in your binary approach because it is only one or the other?
MR KIRK: Yes.
KIEFEL J: That still leaves the possibility that there will be mistakes in registration, but you say that this is how it is supposed to work. It is simply a claim, fact of procedure. The person gets what they want if there is a certificate of procedure.
MR KIRK: Yes. There are two possibilities.
KIEFEL J: But it only works on your binary approach?
MR KIRK: Yes, indeed.
HAYNE J: Well, let us just look at that a moment, shall we? Let us go back to the definition of “sex affirmation procedure”. The condition for the engagement of these provisions is that the person concerned has undergone such a procedure. Is that right?
MR KIRK: Yes.
HAYNE J: The procedure has the characteristics there identified. One operation of that definition is an operation carried out “to correct or eliminate”, that is, for the purpose of correcting or eliminating. Would that be a fair reading?
MR KIRK: That appears – the words are not used but it may well be wrapped up in the word “to”.
HAYNE J: Yes, “correct or eliminate ambiguities”. Let it be assumed, that following the conducting of that surgery, the person concerned regards themselves as still remaining in a position of ambiguity. Your submission is that that person cannot take advantage of the registration provisions to say, in effect, although I have undergone a sex affirmation procedure to resolve ambiguities I need it now officially recognised that I remain ambiguous. That is not an available construction. Why would we reject it?
MR KIRK: For a whole range of reasons which I am seeking to put but including that the words of 32A(b) speak of correcting or eliminating ambiguities. That presupposes, as I have already accepted, that the starting point may be some degree of ambiguity but the relevant purpose is to seek to correct or eliminate ambiguities. It should be recalled that the requirement here is for a surgical procedure to, relevantly, correct or eliminate ambiguities.
HAYNE J: That is the purpose of the procedure, yes?
MR KIRK: If the Parliament had intended to allow recognition of some ambiguous category in circumstances where it has recognised the existence of peoples with ambiguity, why would it require surgery before such a person is recognised? To suggest that the Parliament intended to recognise the existence of such people but say you have to go through surgery before we will allow you to have that category recognised is not a construction which would likely be imputed to the Parliament, in our respectful submission.
HAYNE J: What I am suggesting to you is that a construction should be given to the words that will enable them to cope with two different kinds of result: one, where the person concerned regards the surgery as having – what is the word – corrected or removed – the ambiguity, but also as dealing with the circumstance where the person concerned has undergone the surgery but regards the result as not correcting or eliminating the ambiguity.
MR KIRK: In our respectful submission, if the Parliament had intended to recognise such a category it would not have required surgery first. I will come back, if I may, and develop that.
FRENCH CJ: Is that consistent to the answer you gave to the question I put to you before whether there was a construction open with respect to (b), other than one dependent upon a binary understanding of sex and I thought you accepted that there was an alternative construction open.
MR KIRK: In relation to (b), namely, that it is not binary? No, I am accepting, your Honour, that Parliament in 32A(b) has recognised the existence of some ambiguity - the category of persons often called “intersex” persons.
FRENCH CJ: There are two ways of reading that. One is to say there are two sexes, male or female, and a particular person’s sex may be ambiguous because of certain anatomical features. Another way of reading it is that correction or elimination of ambiguities relating to sex is not – ambiguities are not confined to ambiguities relating to male or female.
MR KIRK: Well, ambiguities of its nature means ambiguities in some respect and that raises the question in what respect – obviously, sex – but the natural reading of that is ambiguities relating to whether they are male or female.
FRENCH CJ: All right. Well, the answer to the question I put to you earlier is that the reference to sex there, on your construction, is only to a binary notion and no other construction is open.
MR KIRK: Yes, I think that logic follows, with respect. One provision referred to and given particular emphasis by Justice Sackville, as a sort of counter to the argument I was just putting, was section 38A of the Anti‑Discrimination Act and your Honours can find that in the appeal book most conveniently at pages 156 to 157, paragraph 251. Section 38A is a definition section, in effect, of a transgender person. I will let your Honours review that. Your Honours will note in (c) Justice Sackville has highlighted the words “being of indeterminate sex”, and then in paragraphs 252 and 253 his Honour attributed some significance to that fact; see the first sentence of 253 in particular.
Now, this section, 38A and, indeed, the relevant part of the Anti‑Discrimination Act, was introduced by the same legislation in 1996 as introduced Part 5A of the Act in question, so it was very much in the Parliament’s consciousness when it was enacted. We do not dispute, consistently with the submissions I have put, that the Parliament was cognisant in the legislation of ambiguity or indeterminacy in some persons, but your Honours will note in subsection (c) even there it is speaking about a person:
who, being of indeterminate sex, identifies as a member of a particular sex –
so it is moving away from the fact of indeterminacy to the matter of their identification. Furthermore, the word “indeterminate” does not describe a category but a difficulty in identifying the category.
FRENCH CJ: You say that reads “who, being neither male nor female”?
MR KIRK: Yes, or where there is some ambiguity as to such. The Anti‑Discrimination Act, furthermore, has quite a different purpose to the Registration Act, it seeks to protect persons regardless of their legal status who fit into this category and give them certain protections under the law. If the Parliament had intended in the Registration Act to recognise indeterminacy or something like it as a category, again, it could readily have provided such. That links back to the point I was seeking to make ‑ ‑ ‑
KEANE J: Why would not one naturally understand that persons in respect of whom there are ambiguities relating to the sex of the person are the sorts of persons who are persons of indeterminate sex?
MR KIRK: Within 38AC? I accept that.
KEANE J: So that the Parliament, when legislating these provisions, 32DA and so forth, acted on the footing that it understood that there are people of indeterminate sex and made provision contemplating the registration of the sex of persons who had undergone procedures to correct or eliminate ambiguities relating to their sex.
MR KIRK: Yes.
KEANE J: It is not too much to think, is it, that the Parliament understood that sometimes those operations do not succeed?
MR KIRK: That is probably right.
KEANE J: So why would not one understand the provisions of Part 5A, 32DA and following, as providing for the registration of a sex being indeterminate – that is to say, someone who was of indeterminate sex who underwent a surgical procedure that did not work?
MR KIRK: Indeterminate itself, as I put a minute ago, presupposes some other categorisation and, relevantly, of male/female. There is indeterminacy as to whether they are in one or the other.
KEANE J: Sorry, why does it not contemplate that it is not accurate to say that it is one or the other and that is why it is indeterminate?
MR KIRK: But it presupposes that the relevant categories are one or the other, and your Honour just put to me it may suggest it is not accurate to say one or the other. It is still does not identify a third category. It does not say well, you can have a third category, call it intersex, call it androgynous, call it a range of other possible labels, but it is indeterminate; it cannot be distinguished.
FRENCH CJ: That would be consistent with a view that a binary concept of sex describes two categories only – male or female – but does not describe all persons.
MR KIRK: Or perhaps that some people are in between such that it is difficult ‑ ‑ ‑
FRENCH CJ: On your view, if they are not male, they are not female, they do not have a sex.
MR KIRK: No. There can be difficulties in allocating, but ultimately an allocation is made for a range of legal purposes, and it may depend on particular statutory contexts, but many laws – less than in the past but many laws – still require a determination of sex.
FRENCH CJ: Is the premise of that that everybody has to be capable of being labelled male or female?
MR KIRK: Yes.
FRENCH CJ: So the binary concept exhausts the universe of possibilities for legal purposes, on your submission.
MR KIRK: Yes, and as has been stated in a couple of cases, and we have given references in our written submissions, judges – at least a couple of judges, I think, who have struggled with this have said the task of the law is to allocate, and that can be difficult. One of the advantages of this sort of legislative regime is to facilitate that happening fairly easily and with a clear piece of paper so the person can then say, well, here is what I am.
HAYNE J: At some point in the development of your argument will you come, please, to the best example you have of legislation which requires binary classification?
MR KIRK: We have given a range of examples. Some are in our submissions, but some of those are picked up by Justice Beazley ‑ ‑ ‑
HAYNE J: I am after your best classification, Mr Kirk.
MR KIRK: I am at page 139 of the appeal book, paragraph 126 - the Court Security Act, dealing with the second one. It is a typical Act about a search by a person of the same sex. The example given in (3) is similar; (4) is an example of an assumption of a binary universe. So too is (5), which is a particular aspect of landlord and tenant law in New South Wales.
BELL J: If one goes to the Crimes (Administration of Sentences) Regulation, one finds that female inmates are to be kept separate from male inmates except in such circumstances and under such supervision as the Commissioner determines. One assumes that makes provision to deal with people who may be transgender or the like.
MR KIRK: Yes.
BELL J: There are some provisions of that kind concerned to respect the privacy and integrity of people subject to the administration of criminal justice, but one would hardly suggest that those would create difficulties of the kind that you suggest in your submissions. Coming back to Justice Hayne’s point, what is your best argument in terms of present legislation in New South Wales that, as you say, requires a distinction be drawn between male or female?
MR KIRK: I must confess, I have not done a complete top 10 of best examples, but there are a number. In our written submissions at page 9, our primary submissions, paragraph 39, we have given other examples, and looking at footnote 19, for example, as being where there is express reference to “male/female”. Your Honours will note the Law Enforcement (Powers and Responsibilities) Act, or LEPRA, as it is often called, which is to do with police powers. The Court Security Act, we have mentioned; some reference to the Children (Education and Care Services) Regulation ‑ ‑ ‑
HAYNE J: What I am really searching for is you show me an Act that is rendered unworkable if this respondent is registered in the fashion that is sought.
MR KIRK: All those statutes presuppose male/female categorisation ‑ ‑ ‑
HAYNE J: They may. It is a matter of common English expression that we speak of our universe sometimes a little too simply. At some point, not on your feet if needs be, Mr Kirk, but can you point me to any statute in New South Wales that is rendered unworkable if someone in the position of the respondent is registered in the fashion sought by the respondent?
MR KIRK: It may be that it is best done with a note, if I might have leave to do that within seven days. I might just seek the Court’s leave in that respect to put in a note within seven days.
FRENCH CJ: Let us hear what you have to say and then ‑ ‑ ‑
MR KIRK: Yes. But what these list of sections - in footnote 19 and then also in footnote 20 we have given references to opposite sex in various statutes - illustrate is the working assumption of the New South Wales’ Parliament and of the regulation makers of New South Wales has been that there is a binary universe and, indeed, that was not disputed, in a sense, by the Court of Appeal. If I could take your Honours to page 147 of the appeal book at paragraph 191 in Justice Beazley’s judgment, just under line 40, her Honour notes in the first sentence:
There has not yet been a general adoption by the Legislature of the wider conception of sex and gender discussed in these reasons. That does not necessarily mean that the word “sex” in Pt 5A is to be given the same meaning –
There is a reference to Harrison v Melhem which her Honour discussed earlier at paragraph 117 which is the notion of language in different statutes having the same meaning. Then in the fourth line, her Honour says:
However, the narrow operation of the principle discussed in that case indicates the unlikelihood that s 32DA should be construed so as to be consistent with other legislation in which “sex” is used in a binary sense. Any difficulties caused by the existence of such legislation, where a person does not identify with either sex, is a matter for consideration by the legislature and/or law reform bodies.
That indicates, in our respectful submission, an acceptance that difficulties may arise but suggesting that that can be sorted out later. The notion that that can be sorted out later by the Parliament or by law reform bodies does not properly give weight to the consequences of the construction where those consequences affect the likelihood of the construction.
BELL J: Mr Kirk, I think you have acknowledged that nowadays comparatively few pieces of legislation and subordinate legislation draw the binary distinction for which you contend. Your footnote 19 to paragraph 39 of your submissions is extensive and would appear to be a reasonably complete survey. It includes, for example, the combat sports regulation that requires in the case of a female combatant, that she may wear a lightweight sports‑type brassiere. I mean, if this is the high point of submissions about the error of the Court of Appeal in failing to correctly deal with the difficulty of other legislation, it does not strike me as your high point.
MR KIRK: I do not think it is my high point, your Honour. I did not before and I certainly do not now. It is a relevant point though and it feeds back to 32I and 32J which comes back to the questions your Honour Justice Hayne was asking of me. The legal significance of change of sex finds its foundation in 32I and 32J for the purposes of New South Wales law. That is what is intended to be done and it produces a certificate which is admissible in a court in New South Wales as proof of the facts recorded therein.
KIEFEL J: It could also be taken to be for the purposes of how the person can operate within New South Wales law where they are able to assert an identity that they are comfortable with. It could be speaking of a social policy purpose.
MR KIRK: It could be, but the fact that the culmination of the part is 32I and J specifying, well, this is the effect of the certificates indicates the purpose is to deal with that issue of local status, consistently with what this Court noted in paragraph 3 of AB referring back to what Justice McMullin, I think, said in Re T that there are difficulties.
Re T, a 1975 New Zealand case, was where a person, apparently the same person as was named Harris in the Harris Case, as it happens, sought a declaration from the New Zealand court as to her sex and Justice McMullin said “I cannot give you that declaration. This needs to be dealt with by legislation”. That is the context in which these sorts of provisions have been enacted.
KIEFEL J: Mr Kirk, as I understand it, your argument for a binary approach relies entirely upon the reference in section 32A to the opposite sex in the sense that there is no other express reference of this male/female approach except in section 32A.
MR KIRK: We would also give some weight, or seek to give some weight, to the notion of change of sex in 32DC and also in the heading to Part 5A which, in our submission, presupposes (a) that you are changing, so you are not going from ambiguous to ambiguous, you are changing and (b) that there are categories clearly identified to which you can change.
KIEFEL J: But change of sex might simply be changing from what has already been recorded to something else because we are talking about a public record so it is assuming the existence of a public record which the person wants to change because of all the things that flow. But importantly, for the purpose of my question, your argument requires section 32A in a way to control the construction of the requirements of 32DA and 32DC which are respectively concerned with a claim and an application – a claim to have a – to be registered for a particular sex and the decision to register.
MR KIRK: I am not sure we would say “controls”, your Honour. We seek to –
KIEFEL J: Strongly influences?
MR KIRK: They all have to be read together. As I said, I would also emphasise the words “change of sex” in DC and DC deals with a situation, as your Honour knows, where there is no birth record in New South Wales, so it is the first relevant record being created but still what is recorded is a change of sex.
KIEFEL J: But your argument, nevertheless, is that the legislation operates simply upon a claim and the fact of a procedure and the Registrar acts upon the proof of those two things. There is no other information provided.
MR KIRK: And the limited other documentary evidence that we have referred to.
KIEFEL J: Well, if 32A then does not tell us very much about this binary approach that might mean that someone is not able to claim and have whatever they ask in relation to their sex registered. So can I take you back then to section 32A to see what it really tells us? It tells us only, does it not, the purpose for which a person carries out the surgical procedure and you will recall that I asked you at the outset what we are to make of the words “considered to be a member of the opposite sex” in (a) and “ambiguities relating to the sex of the person” in (b).
Could not (a) be read to say, simply, my purpose in undertaking the procedure which I have undertaken was because I wanted social recognition based upon my appearance so that I can be considered in public to be either male or female, and in (b), I have undertaken the procedure because I sought to eliminate aspects relating to my body which are not necessarily observed but affect how I feel about my sexual identity? That is the purpose for which I undertook the surgical procedure. Here is the certificate, I have had a surgical procedure which qualifies as a sex affirmation procedure by reference to my purpose and now I wish to be registered as indeterminate.
MR KIRK: Well, your Honour has given examples. I am not sure, with respect, that they are necessarily exhaustive examples. For example, in relation to (b) your Honour spoke about the person’s feelings. No doubt there are motivations there, and very personal motivations, for taking the step.
KIEFEL J: This comes back to what I was asking at the outset. From what perspective are we to construe what (a) and (b) is saying? The first one is obviously talking about an objective appearance and (b) in relation to ambiguity can only be how a person perceives themselves to be, is that not right? It might not relate at all to external indicia of sex.
MR KIRK: I am not sure that is right, with respect, because the surgical procedure is to alter a person’s reproductive organs. They might be internal organs, true, not necessarily external, but the surgical procedure is on the person’s reproductive organs, and it is in that context that there is reference to the purpose of correcting or eliminating ambiguities, so it is very much directed to the sex organs.
FRENCH CJ: Can I just come back to the question that Justice Hayne was putting to you earlier and assume that you find within seven days a statute which plainly requires – or plainly operates only upon the premise of a binary concept of sex? It works on the premise that the universe is ‑ people are divided into two categories, male or female. Why should not one regard that as anything more than a law which requires allocation and if it be inconsistent with Part 5A it comes under the notion of “subject to” in 32I(1)?
MR KIRK: Because one comes back to the purpose of these provisions and what 32I and 32J indicate that the legal effect, as I have put, is that for the purposes of New South Wales law that person is now a person of the sex as so altered. In other words, this is kind of a – it is a registration statute, it is a foundational statute in New South Wales law, it gives a person a particular status which then feeds into the rest of New South Wales law. As I have put earlier, the respondent has not identified any other New South Wales law, leaving aside 38A which I have dealt with of the Anti‑Discrimination Act, which recognises any other category, so it would make no sense to provide that purpose if one divorces it from the legal system in which it operated.
Can I make a broader point which in a sense is – which we have got in our written submissions but also prompted a little bit by some of the questions. One does have to be careful as AGA, if I can call them that, A Gender Agenda, bring out very usefully, with respect, in their written submissions to differentiate the various notions at play here because there are distinct overlapping, contested terms here.
The Court of Appeal tended to use gender and sex and gender identity and sexual identity as interchangeable matters. That is not consistent with the sort of usage AGA talks about or is talked about, for example, in the Commonwealth guidelines which the respondent has referred to, where sex is generally taken to refer to biological sex and gender is a term much more contested but is often used to mean the characteristics taken to be, stereotypically or otherwise, associated with a particular sex including both physical and cultural characteristics and including characteristics a person may choose to emphasise, for example, the manner of their dress.
The Court of Appeal regularly spoke of sexual identity and we have gathered the references, paragraph 34 of our written submissions. Now, sexual identity is a much broader notion than sex or gender. It encompasses, for example, sexual orientation and one does not need to look far in modern Australia to see there is a wide range of sexual identities, that is, distinct from sex. At a deeper level, in our submission, there is a confusion in the approach of the Court of Appeal between issues of personal and social identity, including sexual identity and gender identity, and legal status. This Act deals with legal status. It is not dealing with how a person chooses to identify which may fall into a myriad of categories of sexual identity.
I have said I will deal a bit more carefully with intersex person. Can I now deal with that topic because it is a matter the Court of Appeal gave some emphasis to in its decision? Now, my client has accepted throughout the course of these proceedings that there are people, intersex persons, for whom there can be a degree of biological ambiguity due a range of congenital conditions, and the existence of such persons presents challenges to the law and to society.
But that challenge does not support the construction adopted here. Indeed, if anything, it goes the other way. It confuses categories to suggest that one would have to have surgery as a precondition to becoming intersex. Intersex conditions are congenital conditions, at least on the definition that Professor Greenberg used which was picked up by the Court of Appeal. It is not something one becomes, it is something one is. It pre‑exists any sex affirmation procedure and, as I have already put, to suggest that the Parliament might have intended to recognise and give a new status to intersex people but require them to have a surgical procedure first, is not a construction which should lightly be adopted. As I have also noted, Part 5A deals with change of sex, not pre‑existing sex.
I have to correct one thing we said in our reply submissions, just to be accurate. In our reply submissions at paragraph 3, we suggested that the respondent had not previously submitted that she is an intersex person. Now, we omitted some words and I apologise for that. What we meant to say is, not suggest that she is an intersex person in that sort of sense used by Professor Greenberg, namely someone with a congenital condition.
We do accept that the respondent had submitted below that there was an even broader notion of intersex person which would encompass her. It was noted by the Court of Appeal that the respondent was not intersex in that sense used by Professor Greenburg and picked up, indeed, by AGA – see, for example, Justice Beazley at paragraph 206, Justice Sackville at paragraph 228.
Even if a category of intersex or androgynous or indeterminate were to be recognised, that would not support this type of case, in our respectful submission, but furthermore and critically, the submissions of AGA illustrate why, if there is to be any such recognition, it should only take place after very careful deliberation and discussion with those affected. AGA notes that the majority of intersex persons prefer to be identified as male or female. It notes correctly that much of the language here is contested and there is no consensus as to what label might be appropriate. AGA opposes recognition of intersex as a category.
The difficulty of these issues, and the controversiality of these issues, even within what might be called the community of intersex persons, is illustrated by what has happened in the ACT, where the ACT Law Reform Advisory Council – we note this in our reply – did a report on this topic and some closely related ones at length. It recommended the introduction of a category of intersex as capable of registration, but that recommendation has not been picked up by the ACT Government in the following Bill, which is referred to in the respondent’s submissions.
That leads to this point which, in our respectful submission, is critical. True it is, as I have said in answer to questions, the Act does not in terms require registration of sex at birth. But since 1855, in our submission, it has been understood that that is one of the particulars to be registered. The respondent has argued and we accept, as I put earlier, that the Act requires accuracy and truth in registration of details. If there are other categories of sex open under the Act, under Part 5A, the natural knock‑on consequence would be that those categories are also open at birth. If those categories are open at birth, and if my client is obliged to be accurate, then my client will be obliged to use labels such as “intersex”, “indeterminate”, “androgynous” and so forth.
At the moment there is a delicate balance where the parents may opt for male or female, in consultation with their doctors, or they may leave it blank. To impose a label on a child of that kind is not likely to aid them in their development and imposes a burden, potentially, on parents already likely to be deeply troubled. It is not the sort of thing, in our respectful submission, likely to have been intended by a legislative side wind because the Act does not define sex.
BELL J: Making provision for a person under Part 5A to have recorded in the register that their sex is non‑specific would not require the Registrar to change his practice respecting the non‑supply of particulars attending the birth of a child?
MR KIRK: We submit that it would.
BELL J: Why?
MR KIRK: Because what we are analysing in this case is the meaning of “sex” in the Act.
HAYNE J: Either the administration of the Act now undertaken by the Registrar is in accordance with law, or it is not. I would not have thought that the administration of the Act now undertaken by the Registrar contravened the Act.
MR KIRK: I am not suggesting for a moment that it does.
HAYNE J: Then if that is so, why does a construction of this division affect the continued administration of the Act in accordance with law in the fashion in which it has hitherto been administered?
MR KIRK: Because if the concept of “sex” in the references in the Act are construed as not being limited to male or female, then the same construction would naturally be taken to apply to the requirement to register sex at birth.
BELL J: Where do we find the requirement in the Act to register sex at birth?
MR KIRK: As I indicated earlier it is not stated in the Act. It is stated in the regulations. It simply uses the word “sex”, as I showed your Honour earlier, in clauses 4 and 5. That has been the legislative practice it seems since 1855.
BELL J: The Act is to be read subject to the regulation?
MR KIRK: No, but the regulation would be construed consistently with the Act. So the reference to “sex” in the regulation would naturally be construed – remembering we are dealing with the same thing, remembering that Part 5A in its first half deals with alteration of the record of sex in the birth register. It is the same category. It is the register of sex. It is the particular of sex.
BELL J: Mr Kirk, I am just taking up with you the question of the requirement to register sex under the Act as distinct from the provision made in the 2011 regulations.
MR KIRK: And in all regulations. I have accepted, I think three times now, your Honour, that it is not found in the Act, it is found in the regulations. But the Act has always contemplated, as a matter of history, that sex would be recorded.
BELL J: So that contemplation in consequence of a construction of the provisions of Part 5A would dictate that the Registrar changed the existing practice?
MR KIRK: It may well have to because it means that there is no longer a binary classification of the universe. There are other categories available, and if those categories extend to “non‑specific” or “indeterminate” or “androgynous”, then in our submission the Registrar would be obliged to say “This child is indeterminate, and I am obliged to record the truth”, so that category must be recognised.
HAYNE J: On the face of it, Mr Kirk – I do not want there to be some misunderstanding, but on the face of it, I am taking this submission as an in terrorem submission advanced by the Registrar who is charged with the administration of the Act in accordance with law. The Registrar submits that the current administration of the Act does accord with law and I did not understand anybody to controvert it. It is, I think, unusual for a person in the position of the Registrar to then advance a submission in terrorem.
MR KIRK: No, your Honour, we are not seeking to advance this submission in terrorem. We are seeking to draw out the great complexity of the consequences and that is why, for example, in the ACT despite the Law Reform Committee’s recommendation that the Government has not chosen to recommend that route to the Assembly. These are very difficult, controversial issues. They cause divisions even within the intersex community – if I can use that term.
It is not the sort of thing likely to have been dealt with by a side wind. All I am seeking to point out is that if the word “sex” is construed as not to be binary in the Act that will almost certainly be taken to affect the construction of sex in the regulation with consequences for registration of births – remembering as I have already put, that Part 5A deals with alteration – in 32B to D – of that very record. It is the same thing.
Indeed, to come back in a sense to qualify my three times reiteration of the point about sex only being in the regulations, that is true but the Act in 32B to D presupposes that the regulation so requires and has at all material times so required because that is what is the subject of the alteration, the entry into the birth register of sex. The respondents in their written submissions ‑ ‑ ‑
BELL J: There is no entry in the register respecting a person’s sex. The person undergoes a sex affirmation procedure and applies to have their sex recorded, for example, as female. That would be an alteration in the register, would it not?
MR KIRK: If there had been no record in the first place, no, because if your Honour looks to 32B(1) the words are “for alteration of the record of the person’s sex”.
BELL J: The record of the person’s sex in the register is that there is no record.
MR KIRK: In our respectful submission, the word “alteration” suggests that there is a record which has been altered as opposed to the sort of power your Honour pointed out to me earlier ‑ ‑ ‑
BELL J: Under 20.
MR KIRK: ‑ ‑ ‑ in section 20 about addition of register all information. So that distinction has been drawn by the Parliament. I was just about to make the further point, your Honours, that the respondent has – and, indeed, the Court of Appeal referred to developing understanding of intersex conditions in medicine and, no doubt, that is true. On the other hand, as the respondent points out, the knowledge of the existence of such conditions goes back to ancient times. It is not new that there some indeterminacy for some people in terms of whether they are male or female.
I mentioned earlier – or submitted earlier, I should say – that only one case – and, arguably, another – has attributed clear, legal significance to there being more than two categories of sex. I will not take your Honours to it but that is the case of In the Marriage of C and D (falsely called C) (1979) 35 FLR 340 where, as your Honours would know, a judge of the Family Court of Australia in 1979 nullified the marriage of a person we would now call intersex on the basis that they were neither male nor female and thus not capable of entering a marriage when marriage was understood in the Hyde v Hyde sense.
That case has, with respect, rightly been much criticised. In the United Kingdom, just to give your Honours a reference, that approach has not been followed. The reference is to a similar case called W v W (2001) – I am not sure how to say the citation, but it is the Official Family Reports FAM 111 or 2 WLR 674. Can I take your Honours ‑ ‑ ‑
HAYNE J: That may be contrasted with the earlier decision of Justice Ormrod in Corbett v Corbett [1971] P 83 where his Lordship went through a very elaborated discussion of the position of intersex persons and noted, particularly at 105 that:
The fundamental purpose of law is the regulation of the relations between persons, and between persons and the state or community.
The only example his Lordship identified as dependent upon a binary classification was marriage as defined in the Hyde v Hyde sense of marriage between man and woman. His Lordship examined a number of other examples where such classification was not pertinent.
MR KIRK: Yes, and that reference to the fundamental purpose of the law being the regulation of relations, et cetera, is – not that I want to place a lot of reliance on this case, but it is consistent with a submission that I have made about status. That part of the case is picked up and approved, if I can take your Honours to a judgment, in Justice Mathews’ decision in R v Harris (1988) 17 NSWLR 158. Now, your Honours would appreciate, if you look at the head note, because I could not find a clear quotation of the provision in question, but it refers there to section 81A of the Crimes Act which provided for the offence of procuring or attempting to procure the commission of an indecency by “a male person” – it is actually by “another male person”. So, both persons have to be male.
In this case, Justice Carruthers dissented, Chief Justice Street agreed with Justice Mathews. The issue related – it was a case stated from the District Court, I think – to two persons who were male to female transsexuals. One of them, Harris, was post‑operative, the other one McGuiness, I think, was pre‑operative. If I could take your Honours just to a couple of points of her Honour Justice Mathews’ decision, at page 173 her Honour commences her discussion of Corbett v Corbett. At page 176, just under letter E, her Honour refers to In the Marriage of C and D and then says at about point 8:
This decision has been strongly criticised. It has been pointed out that the three criteria referred to by Ormrod J . . . were not congruent in this case as they were in Corbett.
Then quotes a reviewer, Ms Bailey, and we note in particular that quite correctly Ms Bailey notes that the respondent notes in C and D could “marry no one” in the approach taken by the judge in that case.
I refer to another possible case which may recognise some kind of indeterminate category. If your Honours turn to page 177, the next page, around letter F there is a reference to a Canadian case of M v M from 1984. I might let your Honours just read that over the page. Your Honours will note what Justice Mathews says about it halfway between C and D:
I have grave reservations as to the correctness of this decision . . . Instead, McQuaid J elevated the wife’s gender identity disharmony into a physical incapacity. The result, if correct, would have the most far reaching consequences for transsexuals. It would mean that no transsexual could ever contract a valid marriage . . . One is forced to the conclusion that insufficient thought has been given to the consequences of decisions such as this so far as this numerically small and socially almost invisible group is concerned ‑
which, in our respectful submission, echoes the concern to be very careful about consequences here. Then after more discussion of some American cases, if I could take your Honours to page 181, there is a reference to one of those American cases between E and F Re Anonymous 1968, a decision of the Civil Court of the City of New York. This is actually a birth certificate case where an application had been made for, in effect, an amended birth certificate.
HAYNE J: What are we meant to be getting out of this traverse of the cases?
MR KIRK: I am taking your Honours to this one case which picks up another couple. The point I am seeking to make about it is that to move away from a binary view and to accept the possibility of a third or more sexes is to potentially leave those in the third sex in what this American judge called a “no‑man’s land”, that is to say, a middle ground where they are outside the operation of the law. If your Honours turn over to page 182, quoting the judge in that case – briefly, it was a transsexual case but I note the sentence at B:
the transsexual, anatomically, does not present the same problem as that of the pseudo‑hermaphrodite –
and then the next paragraph –
It has been suggested that there is some middle ground between the sexes, a ‘no‑man’s land’ for those individuals who are neither truly ‘male’ nor truly ‘female’. Yet the standard is much too fixed for such far‑out theories.
Then his Honour goes on to deal with how to deal with the issue, in his view, of recognition of sex of transsexual persons.
FRENCH CJ: Just come back to 32A(b) for a moment. Does that contemplate the existence of persons who are not unambiguously male or female but seek a sex affirmation procedure in order to become one or the other, on your submission?
MR KIRK: To correct or eliminate ambiguities to more clearly become ‑ ‑ ‑
FRENCH CJ: In other words, does it contemplate a class of person whom one could not say unambiguously is male or female in your universe?
MR KIRK: No, it contemplates that there may be ambiguities. They may be more on one side or the other, but there may be ambiguities.
FRENCH CJ: I am just looking at the feedback of this; looking to your earlier submissions in relation to consequences for registration of birth. In the case of a person who is not unambiguously male or female, what does the Registrar do?
MR KIRK: Well, as I sought to explain, often the parents will make a choice at the time.
FRENCH CJ: Yes, I am just asking this, assuming - what is the Registrar’s duty?
MR KIRK: The duty is to accurately record the required particulars
FRENCH CJ: Yes.
MR KIRK: “Accurately” is an implication, but I do not think there is any dispute.
FRENCH CJ: One of those is the sex, under regulation 8(1)(a).
MR KIRK: Correct. If that cannot be accurately recorded at the time of birth because of uncertainty, then my client allows some room for clarification over time, because some of these conditions manifest in a particular way around puberty, for example.
FRENCH CJ: Let us assume the case of a persistent ambiguity which could only be corrected by some surgical procedure ‑ ‑ ‑
MR KIRK: Well, as I put earlier ‑ ‑ ‑
FRENCH CJ: ‑ ‑ ‑ as 32DA(b) assumes that.
MR KIRK: That is right, and to correct or eliminate ambiguities, as I put earlier, presupposes to move to clarity.
FRENCH CJ: The point I was trying to put to you was that there is an assumption in 32DA about somebody who is not one or the other.
MR KIRK: There is an assumption that there are people for whom there is ambiguity. They may be more on one line or the other; there may be a very high degree of ambiguity, but yes, I have accepted there is an assumption of ambiguity, that ambiguity can exist.
FRENCH CJ: So what does the Registrar do at birth if the parents say, “We want the sex to be designated”? Does the Registrar take his best shot or does he write down “ambiguous”?
MR KIRK: No – well, I am not sure I can answer that.
FRENCH CJ: Talking in terms of regulations and the statutory structure.
MR KIRK: The Registrar works, on my instructions, on a binary assumption, but allows room for clarification over time and so will not necessarily require registration straightaway, but to answer your Honour’s specific question, if the parents said, “We want a sex put down”, the Registrar would naturally say, “Well, what sex?” If there was some dispute, for example, between the parties as to that - and that is not impossible - it could end up in the District Court and the District Court might resolve that, pursuant to the section I pointed out earlier. The District Court needs to know how to resolve that, but I will come to that point shortly. If I can go back briefly to Harris, can I show your Honours one last bit of her Honour Justice Mathews’ analysis?
HAYNE J: To tell us what? What is the proposition you are seeking to make?
MR KIRK: I have already put it once, your Honour. I will put it again, that there is in the law no – there has hitherto been no recognition in the law, in New South Wales statute or in any of these cases, with the exception of C and D and perhaps M v M, of any third category. If your Honour was to go to page 192 at E, just to make good something I said earlier, there is a reference to what Justice Ormrod said in Corbett, and your Honours would know her Honour otherwise did not follow Corbett. Then if your Honours turn to page 193, between D and F your Honours will see the questions that were stated for the Court of Criminal Appeal. Question (ii):
In relation to the appellant Harris alone:
(a)Can a third sex exist for the purposes of legislation in New South Wales which is drafted in terms of male and female.
That was a reference back to the criminal provision at issue which referred to male. Her Honour gives the answer between F and G in relation to the first set of questions. To summarise, in essence, post-operative transsexuals who have brought their genital features into conformity with their psychological sex can be recognised as members of that sex.
Then over the page at 194, first full paragraph:
it is unnecessary to consider question (ii)(a) or (ii)(b). However, I think I should comment that I can see no place in the law for a “third sex”. Such a concept is a novel one, which could cause superable difficulties in the application of existing legal principles. It would also relegate transsexuals to a legal “no man’s land”. This I think could only operate to their considerable detriment.
That is the proposition I seek to draw from the case.
KIEFEL J: I notice, Mr Kirk, in the written submissions of A Gender Agenda Inc at paragraph 46 a reference to section 8(a) of the Interpretation Act 1987 (NSW) which provides that:
a word or expression that indicates one or more particular genders shall be taken to indicate every other gender.
MR KIRK: Yes. We have addressed that in our reply, to deal with it briefly. A Gender Agenda goes on to suggest, I think in the next paragraph, that this indicates that Parliament had before 1996 adopted a less rigid approach to sex and gender in legislation than we have argued. That ignores the fact, in our respectful submission, that 8(a) in the Interpretation Act is about construction of statutes. It is not about legal status or registration. It deals with statutory references to sex not intended to have particular significance; in other words, where the reference to sex was not intended to delineate the right or duty in some particular way.
Section 8(a) also encompasses bodies corporate in what might be sex‑based references to gender in particular legislation and, in our submission, that generic 1996 provision does not aid construction of this Registration Act which is, as I put earlier, the foundation Act for much of the application of New South Wales law.
That leads me to the second last topic, the indeterminacy of the Court of Appeal’s construction, topic 5 in our outline. The fact that the Act does not define sex or change of sex leads to two possibilities as to the Parliament’s intent. Broadly, one, that the Parliament understood or presupposed there were two clear categories so it was not necessary to specify or, two, that the Parliament intended to enable registration of, and attribution of legal status to, other categories.
If the latter had been intended, the Parliament would either have specified the categories or provided criteria to determine the categories. It did not do either. All that it required is that very, very limited form of proof I have pointed out to your Honours and discussed with your Honours. What then are the criteria for recognition of more than the binary categories? If I can take your Honours to what their Honours said, first at appeal book, page 149, paragraph 204 in Justice Beazley’s judgment:
The material before the Court did not indicate that any specific term has come into common usage –
The last sentence –
Whether that will be sufficient evidence on a hearing of Norrie’s application will be a matter of her legal advisors to assess and the Tribunal to determine.
I have already shown your Honours paragraph 205 talking about other possibilities. Her Honour appears to treat the issue as a matter of common usage being a linguistic matter. If your Honours could then turn to page 155 in Justice Sackville’s judgment, first at paragraph 242, in the first sentence, his Honour said:
I do not think it is necessary to determine whether an argument based simply on the changing linguistic use of the word “sex” should be accepted –
Then at page 159 at paragraph 277, beginning “The Tribunal in the present case”, his Honour Justice Sackville appears to see it more as a matter depending on medical opinion as to what would be a recognisable category. Then Justice Preston on page 160 at paragraph 282 agreed with both of their Honours, and then at paragraphs 289 to 290 on page 161 seems to focus back on the language and the current ordinary meaning.
One of the difficulties with focusing on current ordinary meaning was noted by Justice Beazley back at page 146, paragraphs 177 to 178 and, with respect, those comments are significant. In a situation where the Parliament has not specified any express criteria for recognition of sex, where the Court of Appeal cannot agree on what criteria are implied and, in any case, where whatever criteria are implied will involve contested and controversial choices, it is very difficult to see how my client, a public servant, or the Tribunal or the District Court is meant to make these highly contestable, contested, controversial judgments as to what types of sexual category should be recognised. It is most unlikely, in our submission, that the Parliament would have set them this task without saying so and without guidance.
The respondent suggests that is a floodgates argument. It is not. It is an argument of indeterminacy of criteria and category. The respondent has not herself identified clear criteria for what categories can or should be recognised, and it is muddied all the more by an emphasis on personal identity, which is found in the respondent’s submissions, in our respectful submission.
The point is driven home in a sense by the AGA submissions which essentially ask this Court to legislate so as to rule out all options, including non‑specific as sought by the respondent, save for the three options of unspecified, not specified, or not stated. AGA has not pointed to any particular statutory foundation for those and it seems to concede that they are not really categories of sex at all – see paragraph 60 of its written submissions – because they not actually identifying sex. If Part 5A deals, as it does with change of sex one needs to identify what sex is being changed to. To simply say it is unspecified or not specified or not stated is not to identify what sex has been changed to. It is to not answer the question.
To deal with a related point, Justice Preston invoked the principle at page 160, paragraph 288, that a statute is always speaking, but that, as his Honour noted, is a connotation, denotation‑type of argument and so it still leaves the question what are the essential characteristics or features which pick up different denotations from time to time. It drives one back to the criteria.
FRENCH CJ: Well, those sorts of terms are consistent with a construction that says sex is a binary term but does not exhaust the universe and outside male and female there are things which are neither, in other words, cannot be stated to be one or the other.
MR KIRK: It still leaves the question how does my client or the Tribunal or the District Court identify what those categories are in this highly contested area.
FRENCH CJ: If they are not categories – that is what I am putting to you – if the only categories of sex are male or female, the AGA submission might be – using those terms – seen as consistent with a proposition that male and female do not exhaust the universe of persons and that there are people of whom it can be said that they are neither and thereby accurately attracting some such designation as non‑specific or not specified or none of the above.
MR KIRK: Yes. But, that does not, in our respectful submission, answer the point that what is being recorded is the change of sex.
HAYNE J: Yes, well, the change is responding to a claim made by the claimant, a claim made by a claimant in circumstances where whatever existing records exist in respect of that claimant do not satisfy that person.
MR KIRK: Yes, but what is being recorded, your Honour, under DA is registration of the person’s sex and under DC it is the person’s specifically change of sex. What is being recorded is their sex, not a non‑answer to identification of their sex.
That leads me to my final topic, briefly – ordinary meaning and legislative history. In relation to ordinary meaning – I have already spoken many times about the assumption of Parliament manifesting the other
statutes. Her Honour Justice Beazley at page 134 of the appeal book refers, between paragraphs 84 and 90, to various dictionary definitions. The only dictionary definition which offered any support is extracted at paragraph 88 which is what her Honour called:
the current version of the Oxford English Dictionary –
which was the online version of the dictionary. As we note in our written submissions, in the 2007 edition of the Shorter Oxford English Dictionary, that “extended use” category in (1)(b) was not found, so it appears to have come in between 2007 and 2013. That does not support the construction, nor does the Macquarie Dictionary definition, nor does the reference to cases such as SRA, quoted at paragraph 86 of her Honour’s reasons.
Furthermore, in our written submissions, we deal with the legislative history in the second reading speeches. Suffice it to say, there is nothing in either the 1996 Minister’s second reading speech or the 2008 second reading speech indicating that the amendments would allow for recognition of sexes beyond male or female. Rather, there is a focus on recognition of sex changes, particularly of transgender persons.
In our respectful submission, the identification of the two categories of sex, male/female, is a fundamental principle or at least assumption of the general system of law. If the Parliament had meant to depart from it, it would have addressed it. It would have thought about the consequences. If it had intended to depart from it, when and if that occurs, it can expect to be done with a clear intent after careful and considered debate where the other categories or the criteria of those categories are dealt with in terms, and where the legal consequences are spelt out. None of that has been dealt with here. Unless I can assist your Honours any further.
FRENCH CJ: Thank you, Mr Kirk. Yes, Mr Bennett.
MR BENNETT: If the Court pleases. Your Honours, there are a number of very short points which really determine this case. The first is this. My learned friend has made two concessions in the course of his argument - both, with respect, correct concessions. One is that one of the purposes of legislation of this type is the recording of the truth. The second is that there are people who are neither male nor female. My learned friend concedes the existence of congenital intersex persons.
If one puts those two together, that determines the case because once one accepts that there is a category of people who are neither male nor female, and once one accepts that the purpose of the Act is to record the truth, why would one superimpose on the Act, as my learned friend does, an implication that the Registrar is bound to record an untruth? It would be amazing interpretation of legislation of this kind. That is the first very short point. I will say more about it as I develop my submissions.
The second very short point is that, as Justice Kiefel pointed out and as the AGA has helpfully reminded us in its submissions, there is a provision in section 8(a) of the Interpretation Act (NSW). Your Honours, that provision is set out in the submissions of the amicus curiae on the very last page, if your Honours have those submissions. The pages are not numbered, but it is right at the very end. Your Honours see that section 8 provides:
In any Act or instrument:
(a) a word or expression –
in this case the word “sex” –
that indicates one or more particular genders shall be taken to indicate every other gender –
Now, this is not talking about the third being companies, being the neuter gender, because that is dealt with in (d) and (e) – particularly (d). So it assumes that there are – the word “every” – that there were more than two genders. Of course, one gets that anyhow because a word that indicates one or more particular genders, so if the word indicates two genders, it is taken to indicate every other gender.
So one could not have a much clearer statement ‑ and this precedes the relevant legislation – so one could not have a much clearer statement that if my learned friend is right, if the word “sex” in the relevant provision is a word that would normally have a binary meaning of male and female, then it is “a word or expression that indicates” two particular genders and it is “taken to indicate every other gender”. It could not be clearer, that is the end of the case.
Now, my learned friend seeks to avoid that by saying that is not the purpose of the provision, but what else can be the purpose, what else can it mean? As I say, it certainly is not dealing only with the question of companies because that is dealt with in paragraph (d). So those are the two very short starting points. The third slightly broader one is the starting point that this is beneficial legislation designed to achieve social objectives and should not be read down and limited so as to cut down some of those objectives.
Now, having started with that introduction, may I come back to the first one? Now, as I have said, I do not need to spend a lot of time establishing the existence of people who are neither male nor female. The word “hermaphrodite”, of course, goes back a long way and your Honours may know the Greek mythological legend which is that Hermaphroditus – to give him his Latin name – was the son, male, of Hermes and Aphrodite. He fell in love with a nymph, whose name I forget but I can be reminded of, and the nymph prayed to be united with him and the gods took that rather literally and united the two of them in one body, having the characteristics of a male and a female, and that was the origin of the word “hermaphrodite”. The significance for present purposes arises when one comes to taxonomy later because, of course, the original hermaphrodite was a person who was not a hermaphrodite at birth, according to the legend, but became one later on by some theistic equivalent of a sex change operation.
Now, my friend suggested there is only one case which recognises that. Your Honours, we have a lot more than that and they are listed in our submissions in paragraph 10.5 of our principal submissions. We have listed six cases. We have listed a number of pieces of legislation and proposed legislation and we have referred above that to various dictionary definitions, text books on the subject and, indeed, common general knowledge, if I can take a concept from patent law and apply it in this slightly more esoteric area.
Your Honour, in relation to the cases, I will just very briefly show your Honours what they say by way of recognition. The first is, of course, the decision of this Court in AB v Western Australia 244 CLR 390. It is at tab 5 in the appellant’s volume of authorities and in paragraph 23 of the judgment of the Court – it was the case, of course, about different legislation and about a transsexual. We are not concerned with those aspects, but having referred to a preference for the approach of Justice of Appeal Buss, in that case, the Court goes on to say:
the sex of a person is not, and a person’s gender characteristics are not, in every case unequivocally male or female.
Now, just stopping there, that is a clear dictum in this Court stating unequivocally the opposite to what my learned friend submits. It goes on to refer to:
the definition of “reassignment procedure” –
in the Western Australian legislation which, as my friend says, overlaps our definition which –
makes plain, a person’s gender characteristics may be ambiguous.
As, or course, does our definition. The definition appears in paragraph 7 of the judgment in that case, and your Honours see:
A “reassignment procedure” is defined to mean (25):
“a medical or surgical procedure (or a combination of such procedures) to alter the genitals and other gender characteristics of a person, identified by a birth certificate as male or female, so that the person will be identified as a person of the opposite sex and includes, in relation to a child, any such procedure (or combination of procedures) to correct or eliminate ambiguities in the child’s gender characteristics.”
That is taken by this Court to mean that it refers to people who are neither exclusively male or exclusively female. It uses the word “opposite” as our does and I might, in passing, refer to that issue because my learned friend and, indeed, one of the judgments in the Court of Appeal, seems to assume that the word “opposite” implies a binary concept. We would submit that it does not at all and I have a few banal examples – east is the opposite of west. But directions are not binary, there are many other directions.
Black is the opposite of white but there are many other colours and, indeed, many shades of grey. Good is the opposite of bad but many people are in between. Tall is the opposite of short but many people are in between. The fact that a word has an opposite does not mean that it is binary. Indeed, one talks about opposite sides of a square but that does not mean that there are only two sides.
There can either be a spectrum – if one talks about opposite points on a spectrum, I suppose, or opposite ends of a spectrum. There can either be a spectrum or there can be other items which fall between the two. But there is nothing binary about the word “opposite” and everyone seems to assume that it implies something binary. It does not.
If one wants to use a word that describe something binary, the way to do it is the way the Tasmanian Act did it. We contrast the language of that Act. That appears in the Births, Deaths and Marriages RegistrationAct 1999 (Tas) which is at tab 2 of my learned friend’s volume. Your Honours will see on page 6 in section 3 of that Act, there is a definition of “sexual reassignment surgery” and your Honours will see that that is defined as:
a surgical procedure involving the alteration of a person’s reproductive organs carried out –
(a)for the purpose of assisting the person to be considered a member of the opposite sex –
That, clearly is – I am sorry; I have read the wrong paragraph. The section I should have taken your Honours to was section 28D, which is at page 14. I apologise for that, I went to the wrong section. Section 28D says:
If a change of sex is registered under this Part in respect of any person, a birth certificate issued by the Registrar for the person is to show the person’s sex as registered with a notation that the person was previously registered as of the other sex.
Now, that implies something binary. If a client lived in Tasmania rather than New South Wales I would have a harder job in putting the argument that I am putting to the Court, but of course we contrast that with the legislation in this case.
FRENCH CJ: The definition of sexual reassignment surgery, I think, in the Tasmanian Act is identical in terms, is it not, to the definition of sex affirmation procedure?
MR BENNETT: Yes, it is, your Honour, but that legislation postdates ours and it is not of enormous relevance, except as an illustration of the fact that there are words one can use which show that something is binary and “opposite”, we would submit, is not one of them, for the reasons I have given. Now, going to the cases, my learned friend concedes the second case in our favour – In the Marriage of C and D (1979) 35 FLR at page 340, and it is tab 8 in my learned friend’s authorities. The passages we would direct your Honours to are, first, in the middle of page 342 – this is before paragraph numbering in judgments – the long paragraph in the middle of the page, the last three or four lines of that paragraph, Justice Bell says:
I do not consider that I need to go into any further details concerning the tragic life of the husband in this case but that to say he has been diagnosed as an hermaphrodites verus; in other words a true hermaphrodite.
That seems to be a combination of Latin and Greek, “hermaphrodites”, but we will not worry about that. He goes on to talk about what hermaphroditus verus is, it is “most uncommon” and so on. But the important point is that it is a recognition of a class and that is made clear in the last paragraph of the judgment at page 345 where his Honour says:
I am satisfied on the evidence that the husband was neither man nor woman but was a combination of both, and a marriage . . . could not have taken place –
et cetera. So that is, as my learned friend correctly concedes, a case very clearly recognising the existence, for legal purposes, of people who are neither the one nor the other. The case of The Department v SRA, which is at tab 6 of that volume, 43 FCR 299, does contain, in a different part of the judgments, a reference to an acknowledgement of the intermediate category. It is on page 315 in the judgment of Justice Lockhart and your Honours will see on that page at point 3 of the page his Honour says:
Transsexuals are frequently confused with transvestites, homosexuals or intersexuals (hermaphrodites and pseudo‑hermaphrodites).
He then goes on to define these terms, and three paragraphs down says:
An intersexual is a person with gonads or genitalia of both sexes –
As your Honours note, no reference to birth there, a point I will come to later –
whereas transsexuals have the biological bodies and functions of a normal member of their initial sex. Transsexuals are not hermaphrodites, nor are hermaphrodites transsexuals.
So, again, a clear judicial recognition of the existence of people who are somewhere between male and female. The next one is the House of Lords, Bellinger v Bellinger [2003] 2 AC 467 at tab 6 of our authorities and your Honours will see that at page 472 in paragraph 6, Lord Nicholls says this:
In the vast majority of cases these indicia in an individual all point in the same direction. There is no difficulty in assigning male or female gender to the individual. But nature does not draw straight lines. Some people have the misfortune to be born with physiological characteristics which deviate from the normal in one or more respects, and to lesser or greater extent. These people attract the convenient shorthand description of inter-sexual.
Again, a clear recognition of that category. May I next remind your Honours of the decision of the Supreme Court of Nepal in a case at tab 7 of our submissions? Its name is the “Decision of the Supreme Court on the Rights of Lesbian, Gay, Bisexual, Transsexual and Intersex (LGBTI) People”. That contains a number of passages recognising what we are saying. Page 266 the questions are posed:
After making perusing of the case file and hearing the arguments presented by the learned counsels representing both the sides, the bench has to resolve the following questions:
a.Whether or not the present writ petition filed in regards to the rights of homosexuals and the people of third gender, considered as minority . . . falls under the category -
et cetera. Then on page 268 at point 6:
Since our traditional society has recognized only two types of sexes i.e. male and female. A dominant role has been provided to these two sexes ‘male’ and ‘female’ in society. There exist practices of treating the people of third sex differently. The Court should take this matter into the judicial notice . . .
All human beings including the child, the aged, women, men, disabled, incapacitated, third genders etc. are Nepali citizens . . . constitutes the nation . . . The third gender are still considered as disadvantaged class of citizens because of the social perception towards them -
At the top of page 271, the paragraph that comes over the page, the last sentence:
There are people having the identity of ‘third gender’ in minority in the society other than the ‘male’ and ‘female’, which are categorized as the mainstream on the basis of gender identity.
Halfway down that page:
The other category of sexual minority are intersexuals who are born naturally with the both genetic sex organs of male and female. The number of such people is very few. Their gender is determined on the basis of their sexual orientation when they become adult.
Intersexuality is defined on page 272 and that is sufficient. It is again an enlightened decision which clearly recognises the existence of the third category and it is appropriate in what is described as the Asian century to cite a decision of that court to this Court for the first time. The final case is the Canadian Human Rights Tribunal of Ontario in Hogan v Ontario (2006) HRTO. It is tab 8 in our authorities. I will not spend a lot of time on that except to remind your Honours of the passage at page 125. Sorry, paragraph [125], I am sorry, which said:
The common usage of the words “sex” and “gender” are synonymous enough in ordinary usage to be used interchangeably for the ground “sex” in the Code . . . In the majority’s view, the absence of a specific sex falls within the rubric of the term sex, just as atheism can fall within the ground of creed or religion. Gender ambiguity as in transsexualism or intersexed is a form of sex. Because a person is mentally or anatomically not definitely male or female does not diminish one’s status as a person.
So there is a recognition there in the Human Rights Tribunal of Ontario. So one has a more than won the case in which this recognition exists. There is also, as we have said in paragraph 10.6 of our principal submissions, increasing legislative and parliamentary recognition, and again if your Honours go to our volume of authorities, at tab 2 we have the Sex Discrimination Act (Cth) which in section 4 defines “intersex status”. It is:
the status of having physical, hormonal or genetic features that are:
(a) neither wholly female nor wholly male; or
(b) a combination of female and male; or
(c) neither female nor male.
So it is a very broad ‑ ‑ ‑
FRENCH CJ: Now, all these references are directed to a proposition which I suppose might be called a proposition of legislative fact that the terms “male” and “female” do not describe the universe of all persons.
MR BENNETT: Precisely.
FRENCH CJ: Then there is a step beyond that that the term “sex” includes categories of persons who are neither male nor female. Is that part of your submission?
MR BENNETT: Yes, your Honour. We surmount that second part by putting the first together with my friend’s correct concession that the Act is concerned with the Registrar recording the truth and, once one puts the two together, his submission amounts to saying the Registrar is bound by an implication in the Act to record a lie which simply cannot be right.
That is the way we use this material to establish the fact and, for what it is worth, legal recognition of the fact in cases and in legislation. I will not spend a lot of time on the ACT legislation at tab 3, this is an amendment Bill, but the importance of it appears at the second last page of the schedule to the Bill, which is an amendment to the Legislation Act 2001 (ACT), which adds a new section 169B:
References to intersex people
An intersex person is a person who has a physical, hormonal or genetic features that are—
(a) not fully female or fully male; or
(b) a combination of male or female; or
(c) not female or male.
So, again, a very broad definition and a recognition of what we are seeking to establish.
FRENCH CJ: That might be a convenient moment, Mr Bennett.
MR BENNETT: Yes, certainly, your Honour.
FRENCH CJ: Court will adjourn until 2.15.
AT 12.43 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2:14 PM:
FRENCH CJ: Yes, Mr Bennett.
MR BENNETT: If your Honours please. Your Honours, there are two references I should add to this morning’s submissions. The correct name of the Nepalese case is Pant v Nepal (2008) NJA Law Journal 262. The other matter from this morning – I did not remember the name of the nymph. Her name was Salmacis. She was combined with Hermaphroditus to form a person with both characteristics.
Your Honours, I was just going through legislation which recognises the people who are neither male nor female. The most important, of course, for our purposes is the State Anti-Discrimination Act 1977 and it is section 38A(c). That section, in defining the word “transgender” includes as one of the categories, a person:
who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex –
The amendment adding that section appeared in the same Act as the one which added the sections which this Court is construing today. So the Births, Deaths and Marriages Registration Act and the Anti‑Discrimination Act were amended by the same Act which rejoices in the name of the Transgender (Anti‑Discrimination and other Acts Amendment) Act 1996.
My learned friend referred to the Oxford English Dictionary and suggested that it was only the very latest ones which had any acknowledgement. I can hand up some copies of an extract from the Oxford English Dictionary of 1914 and your Honours will see that the definition of “Sex” in the bottom of the middle column, moving over to the third column at the very end, says:
d. Used occas. with extended notion. The third sex –
who are eunuchs. Now, the importance is not who is included in the third sex but the ‑ ‑ ‑
HAYNE J: Nor the 1873 quotation that is given in illustration, I trust.
MR BENNETT: Yes. The important thing is the recognition that it is not a binary concept. That is all we want to use it for. It is important, we submit, that there be a broad approach to the construction of beneficial legislation of this nature. I would remind your Honours of paragraphs 1.1 and 1.2 of our outline of oral submissions; I will not read them, but I fully adopt them.
It is of interest that the problem of legislation which may be designed because of a particular mischief in mind, going beyond that mischief is not one which is new, and the general approach is that one does not seek to confine general words in legislation their reference to the particular mischief.
There is a very good example of that in a case which I hand up to your Honours in the Supreme Court of the United States called Oncale v Sundowner Offshore Services Incorporated (1998) 523 US 75. This concerned the question of whether sexual harassment could apply to a man sexually harassing a man in the workplace. There is a short passage in the judgment of the court at paragraph 6 where their Honours say:
We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male‑on‑male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.
Now, that general statement applies, of course, equally in Australia and, in my respectful submission, it is applicable here. One does not just look at this legislation and say this is concerned with people who are undergoing a transition from male to female or female to male; one says, well, what does the language fairly pick up beyond that, and we submit for the reasons I have given this clearly does.
Now, there are four short matters I want to put in answer to submissions made by my learned friend this morning. The first is he emphasises the words “correct or eliminate ambiguities” and says aha, it is not to create ambiguities. Ergo, he says, it does not apply to a person who after the operation is somewhere between male and female. There are two answers to that submission. The first is that the intention might be to correct or eliminate but the result might be to create. So the reference to correct or eliminate is a reference to the purpose of the operation, not necessarily its result.
The second answer to the submission is that if one had an intersexual who was exactly or very close to halfway between male and female, and that person identified as intersexual, wished to be considered an intersexual, but had one characteristic which was strongly one way, that might well be seen by that person as an ambiguity or anomaly, or whatever the appropriate word is, something the person might wish to have removed. So there is nothing surprising in the fact that one might intend to come out at the end of the operation somewhere between the two.
KIEFEL J: What you have just said suggests that the word “ambiguity” is to do with a person’s perception of themselves rather than some kind of objective assessment.
MR BENNETT: Well, the language of the provision rather suggests that, your Honour. It talks about being considered as, let us go to the section, yes, for the purpose of assisting a person to be “considered” to be a member of the opposite sex.
KIEFEL J: It is in paragraph 1.2 of your outline, you say that is social recognition.
MR BENNETT: Yes.
KIEFEL J: But that (b) seems to be coming from a different angle.
MR BENNETT: Well, your Honour, we would submit that there is no reason not to construe (b) as including the concept of recognition and self‑recognition and so on. These concepts are very much involved in this area, as has been pointed out many times. I will deal with this a little more when I get to the question of taxonomy and the question of whether you have to be born intersexual to be one. But we would submit that the general purpose of the provision is concerned with a person’s self‑perception and the perceptions of society and what is regarded as an ambiguity by one person may not be regarded as one by another.
The second submission I need to answer is my learned friend said why did the legislation require surgery if it was intended to cover this situation where at the end of it one was halfway. The answer to that is this. First, surgery demonstrates a commitment. It is a very clear way of demonstrating a commitment. There is the power in section 20, if there is no surgery, which is referred to in a number of questions which Justice Bell asked my learned friend.
If there is a medical change – taking drugs results in a change of sex – perhaps, one could use section 20 or perhaps one can simply say well, Parliament did not cover everything. It was covering the things it was thinking of and perhaps was not too keen to encourage hormonal drugs for the purpose of affecting sex changes. But whatever the reason, it is not inconsistent with our submissions.
The third matter my learned friend put was that it would be very difficult for the Registrar to deal with the complexities of this situation and how is the Registrar to determine and so on. We would submit it is no harder than many things the Registrar has to do. Perhaps the hardest of all is where there is a dispute about paternity or someone files a registration of birth suggesting that some famous person is the father and the Registrar wants to have that tested before putting that on the registry. There are a lot of situations where the Registrar has a difficult job. He is an important public servant, he or she has a difficult job, and sometimes it requires judgements. So be it.
The fourth matter is my learned friend referred to the consequences for other legislation. He was pressed by your Honours to give his strongest example and was unable to do so, perhaps because there are not any really strong examples. There was a very useful paragraph in the submissions of AGA in paragraph 52 of their submissions. I will not take your Honours to it but it deals with what may well be thought to be the strongest example one could find, section 61H of the Crimes Act, which defines sexual intercourse and refers, among other things, to:
sexual connection occasioned by the penetration to any extent of the genetalia (including a surgically constructed vagina) of a female person or the anus of any person –
The point made in the AGA submission is that if you have a person who is neither male nor female but who has a surgically constructed vagina, for the purpose of that legislation you could regard the person as being female or pro tanto female perhaps, for that purpose. No doubt with other legislation there were ways of dealing with it.
Some of the examples my friend gives involve strip searches, which are required by various legislation to be done by a person of the same sex. That can be dealt with fairly easily. The best way is probably the way dealt with in what I think we have referred to in a footnote, the correction or guidelines of the State of Victoria which says, in effect, if you have an intersex person and you have to do a strip search, you give the person the choice of whether the person is given the strip search by a male or female.
Maybe in an ideal world you would try and find an intersex police officer, but assuming you could not that, that solution is a fairly obvious and readily available one. Other legislation has to accommodate itself to this legislation which defines what one is and may define one as something other than male or female, in the light, of course, of section 8(a) of the Interpretation Act.
The other point to be made here, of course, is that there is not much legislation left which applies differently to men and women, to males and females. There are a few examples left. They are probably a bit anomalous and rapidly disappearing, but certainly areas like superannuation and landlord and tenant and so on one would expect to gradually disappear completely.
The next matter which is a matter which we submit does not really arise in the appeal but it has been raised by the appellant and by AGA is the question of what description is appropriate in the case of my client. We submit the Court does not need to get into that. The order of the Court of Appeal referred the matter back to the ADT for the determination of that question and it can be determined there.
FRENCH CJ: The task was more or less set out at paragraph 205, I think, of the judgment of President Beazley, was it not, 149? It seemed to involve a kind of investigative process with the formulation of categories or a category which could be described as a sex.
MR BENNETT: Yes, I have had some discussions with my learned friends from AGA and I am authorised to tell the Court that they are content with “non‑specific” although that was not what they indicated was the preference in the written submissions. If your Honours regard it as appropriate they are prepared to send a letter to the Court making that correction to their written submissions.
KIEFEL J: But the Court of Appeal adopted the approach of remitting the matter on the basis that there were no findings made. There were some findings, were there not?
MR BENNETT: There were sufficient findings, your Honour, but we are content for the matter to be remitted. It is not a matter this Court needs to be concerned about. But I only want to say this. There seems to have been this general assumption in a lot of the definitions that the word “intersex” is confined to people who are born intersexual. We would submit that notwithstanding that there is no real reason for making that distinction.
If a person is a transsexual, the person has become a man or a woman, depending on which way the procedure was carried out. Such a person, a person who has undergone a transsexual procedure, is entitled to say, “I am now a woman” or “I am now a man”. Why should not a person who has become intersexual be entitled to say, “I am now intersexual”? It would seem, as a matter of logic, that that should follow.
It is a bit like the phrase “naturalised Australian”. If a person who has been naturalised is asked his or her nationality, the answer is Australian. The person may choose to say “naturalised Australian” which explains how the person got to that situation and that is an additional descriptor the person may or may not add but the person’s nationality is Australian. It is a bit the same with transsexual.
A transsexual is, or has become, male or female. To describe the person as transsexual is permissible but it just gives additional information. It says how you got there but it is not in itself a gender or sex, unlike “intersexual” which is, and we would submit, as a matter of logic, there is no reason why intersexual could not include a transsexual, a person who becomes intersexual.
Now, that submission is the one which A Gender Agenda disagreed with, and as I say, it does not arise if your Honours do not consider it necessary to go into the question of what descriptor is appropriate in the case of my client. As I say, my client’s ultimate preference is for “intersex”, but is content with “non-specific”. The phrases that were suggested of “unspecified” and “not specified” are inappropriate because
they simply indicate that you have not told the Registrar-General what you are, rather than that you are something in between.
But words like “intermediate” and “indeterminate” and so on are appropriate, and as I say, A Gender Agenda is prepared to accept “non‑specific”. But I do not want to say any more about the question of taxonomy. We submit it does not really arise. But I do seek leave for A Gender Agenda to send a letter to the Court just correcting that aspect of their submissions.
FRENCH CJ: They are in the position of an amicus, and they really put their submissions on that basis. They are not a party to the proceedings, so I do not think we need to ‑ ‑ ‑
MR BENNETT: No, they are not, your Honour. It is just that my learned friend made something of the difference between us and them, and having resolved that difference, in a sense, they should be entitled to tell the Court that. I am not suggesting that they have leave to put on argument. It is a simply a letter telling the Court that they are now content with the – and it is only if your Honours get to that issue which we say does not arise.
FRENCH CJ: I really do not think we are going to be assisted by knowing what their attitude is. They have put some submissions to assist us.
MR BENNETT: If your Honour pleases. The final matter is to remind your Honours that on the grant of special leave, there was a special order as to costs. If your Honours please.
FRENCH CJ: Thank you, Mr Bennett. Yes, Mr Kirk.
MR KIRK: Thank you, your Honour. Can I deal with the points raised by my learned friend in the order in which he raised them in substance? My learned friend started with two points he said were short points to resolve the case, and he referred to what he called my concessions about recording the truth and the existence of intersex persons.
To speak of recording the truth in the way my learned friend does is to beg the question, what are the permissible categories? To assert it is all a matter of truth is not to answer that question, and particularly with the respondent’s submissions it seems to come down to how people such as the respondent self‑identify. In other words, it is a matter of sexual identity, much broader than sex.
In relation to nomenclature, which my learned friend raised at the beginning and the end of his submissions, the respondent claimed below and initially the category of non‑specific. My learned friend, as I understood him, now suggests that the respondent prefers the term “intersex”. That illustrates the enormous uncertainty and indeterminacy of the respondent’s case. The respondent, as the Court of Appeal indicated, is not intersex in that Professor Greenberg definition.
That is a definition which AGA, which represents intersex people, appears content to adopt. AGA, which represents intersex people, objects to the label “intersex” being used and I referred to what had occurred in the ACT where the committee recommended that label but the government after further consultation did not put it in the Bill. It illustrates the great difficulty here, and dealing with the criteria for ascertaining what categories might be permissible, my learned friend has still not supplied any.
What he says is my client has a hard job. That is to throw one’s hands in the air and say “Well, we do not know how to do it” – the respondent that is – “but the appellant can figure it out”. Our point on this goes to intent. In an area which is where the language is highly controversial and contested, where the issues overlap and have been contested for decades, where the consequences are unpredictable and significant to people’s lives, if the Parliament had intended to allow registration of other than the two main categories it would not simply have cast my client adrift in a sea without any guidance, or the Tribunal or the District Court.
Our point on intent in that respect echoes what this Court said in AB v Western Australia – relevantly at paragraph 38 – I will not take your Honours to it – but where this Court rejected a concern, or a view, expressed by Chief Justice Martin that part of the necessary assessment had to have regard to community expectations and value judgments and at paragraph 38 the Court said, no, that is not the sort of role being designated to the Board here. Nor, is it in relation to my client, or the Tribunal or the District Court.
My learned friend referred to section 8(a) of the Interpretation Act. I have dealt with that save only to add it is a construction provision about where there are references to gender, not sex actually but gender in particular legislation. It does not create or purport to create new categories of registration of sex.
In relation to the cases, my learned friend sought to disagree with our proposition that there is only one or perhaps two cases in support and took your Honours to some cases. Can I start first and take your Honours back briefly to SRA 43 FCR 299 and my learned friend took your Honours to a passage which referred to the existence of intersex persons, the existence of which I have accepted and which I have accepted the Parliament implicitly acknowledged in section 38A of the Anti-Discrimination Act and, indeed, in Part 5A.
What my learned friend did not take your Honours to in SRA, invoking it in support, is Chief Justice Black at pages 301 to 302, really the last paragraph, about point 8 of 301, where his Honour referred to the ordinary notion of two sexes:
The words are of course ordinary English words.
Then over the page, his Honour refers to some dictionary definitions. My learned friend did not take your Honours to Chief Justice Black at page 306 at about point 4:
Nevertheless, a line has to be drawn somewhere -
and then down to the end of that paragraph, and as is implicit in that paragraph and as your Honours would appreciate, the holding of the full court in SRA reflecting the approach of the Court of Appeal in Harris, was to distinguish, to draw a line between pre‑operative and post‑operative transsexuals as to where the gender line, or the sex line I should say, may have been crossed.
Nor did my learned friend take your Honours to Justice Lockhart at page 313. There is a heading, halfway down “The principal questions” and then a paragraph beginning “Transsexualism is not new” and then in the fifth line, his Honour said:
Most societies have ordered their laws and affairs on the assumption that people can be classified into two distinct and plainly identifiable sexes . . . Medical advances and other technical developments in the fields of physiology and psychology have seriously challenged the traditional assumptions that men and women are two rigidly distinct sexes.
Then the last two sentences of the paragraph:
It is not surprising that the law has approached the problems conservatively and with apprehension.
And so forth to the end of that paragraph. Then my learned friend took your Honours to the House of Lords decision in Bellinger [2003] 2 AC 467. My learned friend took your Honours to paragraph 6 on page 472 but only read half of paragraph 6, ending just above E on the “shorthand description of inter-sexual” and not the rest of the paragraph. Your Honours will see the reference to W v W, which is the case about an intersexual person who married and which did not follow the C and D type approach. Nor did my learned friend take your Honours to paragraph 28 within the same speech of Lord Nicholls.
FRENCH CJ: What Mr Bennett was relying upon these cases for and legislation to which he took us – and I think I put a question to him about it – was, in substance, to establish as what I think I called a legislative fact, the existence of a category of person that could not be described as either male or female, which is one question. The question of construction which divides you is whether that category can be described as a “sex” or a “species of sex”.
MR KIRK: For the purposes of the New South Wales Act?
FRENCH CJ: Yes.
MR KIRK: Yes, precisely.
FRENCH CJ: So I do not know that diving into the minutiae of what was said in these judgments gets us beyond that proposition.
MR KIRK: I have already indicated in my primary submissions, it has not disputed the existence of those persons. Indeed, it is legislatively, implicitly acknowledged. But that does not answer the question as your Honour has phrased the question, with respect, correctly. The quote from Bellinger at paragraph 28, however, does, in our respectful submission, reinforce the point I was seeking to make earlier about legal status.
As to the Nepalese case, I will simply say this briefly and with great respect to that court, it was a very high level, rather abstract overview of a number of issues which, with respect, rather appear to have been mixed together – namely, sex, gender, transgender issues, intersex issues, sexual orientation issues, same‑sex marriage issues and the actual, legal order was an order that the government form a committee to study those issues. As for Hogan, the Ontario case, that was simply an issue about whether discrimination against a transgender or transsexual person might fall within sex discrimination and that does not aid resolution of the issues in this case either.
After lunch, my learned friend took your Honours to the Supreme Court decision in Oncale v Sundowner and dealt with the issue of what he called the legislation going beyond the mischief. This appeared, at least potentially, to be a concession that none of this may have been intended. Well, given the complexity of the issues, the uncertainty of the results – and I will not repeat my list over and over again – if it is to be done, it should be done carefully after careful deliberation and discussion with those affected and that has not occurred.
This is not the sort of area you simply read words and say this encompasses that or the other. There is on any view at the least, on the best version of the respondent’s case, an ambiguity. One then has to resolve that ambiguity to ascertain, to use the metaphor, the Parliament’s intent. In this difficult area, that is not a likely construction that the Parliament intended. There are issues to be dealt with by a side wind simply because it did not define “sex”.
In relation to the textual issues, my friend took your Honours back to 32A(b) in the definition of “sex affirmation procedure” and said that the intention of the person may be “to correct or eliminate ambiguities” but the result may be to create ambiguity. That point does not aid understanding, in our submission, because 32A(b) is directed to action to correct or eliminate the ambiguity, suggesting that the purpose which is sought to be given some recognition is seeking to fall more clearly within some categories, by implication categories which can be clearly identified. My learned friend made a point about what if a person – sorry, your Honour.
HAYNE J: But the consequence of your submission is that the person who undergoes that surgery, who remains in the state of ambiguity, must be forced into one of two competing categories.
MR KIRK: That is right and, with respect, the key word in what your Honour just put to me was “remains”. As I put earlier, if Parliament had meant to recognise after all these millennia of knowledge of its existence and give particular legal status to intersex people, formerly called “hermaphrodites” or “pseudo-hermaphrodites”, et cetera, it would not have required them to undergo surgery. The position of intersex people cannot be used in the way the Court of Appeal used it and my learned friend seeks to use it, because if the Parliament had meant to recognise that, it would have done so directly and not required surgery.
Finally, a small point. My learned friend in relation to textual matters referred to section 20 as enabling recording of a change of sex, for example, if that had occurred through use of drugs or other medical procedures which are not surgical. That is not permissible because under section 20(3) registrable information for the purposes of the section “does
not include information relating to a person’s change of sex”. So, in other words, there can be information added if there is a gap in the record but you cannot use that section to change over the record of the sex.
Your Honours, I raised the issue earlier of the note. One other relevant issue to that is that over lunch we have discovered a handful of
other New South Wales Acts which draw distinctions between male and female which, unfortunately, did not make it into the footnote. It would be tedious to read them out. May I respectfully renew a request to put in a brief note of no more than, say, four pages which (a) identifies a few additional references ‑ ‑ ‑
FRENCH CJ: This is a list of statutes, is it?
MR KIRK: Yes.
FRENCH CJ: That should be on one page, should it not?
MR KIRK: Well, yes.
FRENCH CJ: It is just a short note.
MR KIRK: Within 7 days and we will do that, your Honours. Unless I can assist your Honours any further.
FRENCH CJ: Thank you.
MR BENNETT: We reply to that, if necessary, your Honour. If there is some reason that we want to submit that one of those Acts is not ‑ ‑ ‑
FRENCH CJ: Yes, very well, Mr Bennett. The Court will reserve its decision. The Court adjourns until 10.15 tomorrow.
AT 2.53 PM THE MATTER WAS ADJOURNED
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