The formal recognition of sex identity

Abstract

Until March 2014, it was widely assumed that a person's sex could only be recorded in the Australian state and territory Registers of Births, Deaths and Marriages as either female or male. This assumption is no longer accurate, following two significant developments. In March 2014, the Australian Capital Territory amended its Births, Deaths and Marriages Registration Act to allow the registration of a person's sex as unspecified, indeterminate or intersex. In April 2014, the High Court handed down its much anticipated decision in NSW Registrar of Births, Deaths and Marriages v Norrie, which interpreted the New South Wales Births, Deaths and Marriages Registration Act to allow the registration of a person's sex following sex affirmation surgery as 'non-specific'. This article describes the Australian legislation relating to registration of sex, and considers the implications of these developments, including the consequences for Australian marriage law, which continues to define marriage narrowly as the union of a man and a woman.