Norrie v NSW Registrar of Births, Deaths and Marriages

(2013) 84 NSWLR 697; [2013] NSWCA 145

NSW Court of Appeal

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Interrogate

Catchwords

1. Statutory Interpretation
2. › Construction of statutory terms
3. › Meaning of 'sex'
4. › Whether 'sex' bears binary meaning of male or female
5. › Whether ambulatory construction permits recognition of non-binary sex
6. › Births, Deaths and Marriages Registration Act 1995 (NSW), ss 32A, 32DA, 32DC
1. Administrative Law
2. › Jurisdiction
3. › Appeal on question of law
4. › Whether construction of statutory term is question of law
5. › Administrative Decisions Tribunal Act 1997 (NSW), s 119(1)
1. Statutory Interpretation
2. › Extrinsic material
3. › Use of second reading speeches, dictionary definitions, academic material and other Acts in construction of statute
4. › Interpretation Act 1987 (NSW), s 34
5. › Evidence Act 1995 (NSW), s 144
1. Statutory Interpretation
2. › Beneficial and remedial legislation
3. › Fair, large and liberal interpretation
4. › Legislation protecting or enforcing human rights
5. › Interpretation Act 1987 (NSW), s 33

Quick Take

The Registrar of Births, Deaths and Marriages has power under s 32DC of the Births, Deaths and Marriages Registration Act 1995 (NSW) to register a change of sex to a category that is neither male nor female. The word 'sex' in Part 5A of the Act does not bear a binary meaning confined to 'male' or 'female'. The definition of 'sex affirmation procedure' in s 32A, particularly paragraph (b) referring to surgery to 'correct or eliminate ambiguities relating to the sex of the person', demonstrates legislative recognition that sex is not necessarily binary.