NSW Registrar Births, Deaths and Marriages v Norrie

The High Court of Australia considered an appeal from the Full Federal Court concerning the registration of a birth certificate for a person who identified as neither male nor female. The appellant, the Registrar of Births, Deaths and Marriages for New South Wales, sought to refuse the registration of a birth certificate for Norrie, who identified as "non-binary" and sought to have this recorded on their birth certificate. Norrie had previously been assigned male at birth and had undergone gender reassignment surgery.

The central legal issue before the High Court was whether the Registrar had the power to record a sex other than "male" or "female" on a birth certificate, and if so, under what circumstances. This involved an interpretation of the *Births, Deaths and Marriages Registration Act 1995* (NSW) and the common law. Specifically, the court had to determine if the Act permitted the recording of a sex that did not align with the biological sex assigned at birth or the sex recognised after medical intervention, and whether the common law recognised a third sex category for registration purposes.

The High Court, by majority, held that the *Births, Deaths and Marriages Registration Act 1995* (NSW) did not confer power on the Registrar to record a sex other than "male" or "female" on a birth certificate. The majority reasoned that the Act, in its current form, contemplated a binary understanding of sex for registration purposes. While acknowledging the evolving understanding of gender identity, the court found that any departure from the existing statutory framework would require legislative intervention. The common law principles regarding the determination of sex were also considered, with the court concluding that they did not support the recognition of a non-binary sex for the purposes of birth registration under the relevant New South Wales legislation.

The appeal was allowed, and the orders of the Full Federal Court were set aside. The High Court directed that the Registrar was not obliged to register Norrie's birth certificate with the notation "non-binary".