High Court 'Norrie Case' builds on existing bad laws

Hard cases make bad law according to the old legal maxim. Laws allowing transsexuals and persons whose sex may be ambiguous, to change the sex recorded on their birth certificates, certainly fall into this category. The recent decision in NSW Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11in my view adds to existing bad laws, which were drafted especially to meet the (hard case) needs of these individuals.

In NSW, legal changes were set in motion, when the Births, Deaths and Marriages Registration Act 1995 was amended by the Transgender (Anti-Discrimination and Other Acts Amendment) Act 1996. The amendments made provision for the alteration (on request) of the Births' Register to record a change of sex, where a person has undergone a sex affirmation procedure.

Two aspects of changing a person's sex under the amended Act are interesting. Firstly, in these special cases (but not for the vast majority of us that have not undergone sex change surgery) individuals' sex seems to be largely self-chosen, since whether or not a change of sex is recorded is entirely dependent on whether such a change has been formally applied for. Secondly, the legislation contains the limitation (S32DC) that "an alteration of the record of a person's sex must not be made if the person is married".

The recent High Court decision was based largely on further interpretation of the relevant NSW Act. The Court extended the interpretation of the NSW legislation, by also allowing the recording of the sex of a person to be altered to an additional "non-specific" category, as opposed to the previous simple choice between male or female.

To address the issues raised, it is useful to canvass what determines a person's sex in the first instance. The science of biology is not a bad place to start.

In biology we are led to believe that a person's sex fundamentally is defined by their chromosomes, which play a key role in the formation of an embryo's sex organs. Females have two X chromosomes (XX) and males have an X and Y (XY). In practical terms, societies instead use a secondary and more common means of determining sex (including for the purpose of recording on birth certificates) based on the presence at birth of particular sex organs. (Hermaphroditism is a very rare complication in this regard).

To biologically change one's fundamental sexual makeup, it would be necessary to alter the chromosomal identity of every single cell in the body, which as far as I know is not yet scientifically possible. My understanding is that sex change/affirmation surgery and related hormone treatments can partially mask a person's underlying biological sex but these measures are not capable of reversing the underlying chromosomal identity or some key physical features. For this reason, science would appear to suggest that it is not possible medically to fundamentally change a person's biological sex, which is something determined at conception and retained for life.

For compassionate reasons, I am not against allowing transsexuals and those of "non-specific sex" to change their officially recorded sex because of their social need or personal identity concerns. The best way to achieve this is to issue some sort of sex reassignment certificate following a sex-change operation (similar to what is granted following divorce). This would date no earlier than the day of the procedure, and would achieve the same end as altering birth certificates. It would not, however, falsify the historical record.

The integrity of historical facts recorded on birth certificates is crucial to good administration. Common sense, as well as accepted record-keeping practices, suggest that a Birth Certificate should accurately reflect a person's sex at the time of birth. To do otherwise would be a fraud on all those relying on it. To make an analogy, it would similarly be fraudulent to alter the date of birth of an older person merely to reflect their level of fitness or that they feel "young-at-heart".

Overall, it was NSW law allowing the retrospective falsification of birth certificates that has made the law an ass in this case. Let's not blame the High Court.