The Respondent's case
68Ms Spruce provided an analysis of the case law dealing with the legal status of transsexual and intersex persons. She set out the principal authorities on how a person's legal sex is to be determined at common law commencing with the decision of Ormrod J in Corbett v Corbett [1971] P 83. Corbett concerned the gender of a male to female transsexual in the context of the validity of a marriage.
69The Respondent concedes that the authorities referred to above are not directly relevant to the determination of the meaning of "sex" in Part 5A of the Act. However, Ms Spruce submitted that those authorities are useful for the following purposes:
a. To illustrate the legal context in which Part 5A of the Act was enacted and its purpose;
b. to explain the social and legal context in which a person's "sex" is to be determined at law;
c. to indicate the criteria by which the Applicant's legal "sex" would be determined at common law, absent registration of a "change of sex" by the Applicant under Part 5A of the Act.
70In R v Harris and McGuiness (1989) 17 NSWLR 159 the Court of Criminal Appeal declined to follow Corbett , drawing a distinction between a person's legal sex for the purpose of marriage law as opposed to the criminal law. The Court held that, for the purpose of the criminal law, sex was to be determined by a combination of psychological sex identification and physical attributes existing at the time of the commission of the alleged offence and not by classification based on chromosomal features fixed at birth.
71One of the questions that the Court of Criminal Appeal was asked to determine in Harris and McGuiness (on a stated case from the court below) was "Can a third sex exist for the purposes of legislation in New South Wales which is drafted in terms of male and female". It was ultimately not necessary for the Court to answer that question. However, Matthews J observed:
"...I can see no place in the law for a 'third sex'. Such a concept is a novel one which could cause insuperable 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." (at 194).
72Further, Mathews J expressly approved the decision of the Civil Court of the City of New York in Re Anonymous 293 NYS 2d 834 (1968) and quoted the following extract from the judgment of Judge Pecora in that case (at 837):
"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. Rather the application of a simple formula could and should be the test of gender, and that formula is as follows: Where there is disharmony between the psychological sex and the anatomical sex, the social sex or gender of the individual will be determined by the anatomical sex. Where, however, with or without medical intervention, the psychological sex and the anatomical sex are harmonised then the social sex or gender of the individual should be made to conform to the harmonised status of the individual and, if such conformity requires changes of a statistical nature, then such changes should be made. Of course such changes should be made only in those cases where physiological orientation is complete."
73The approach of the Court in Harris and McGuiness was followed by the Administrative Appeals Tribunal in the case of Re Secretary, Department of Social Security and "HH" .
74In "HH', the applicant applied to the Tribunal for review of a decision of the Social Security Appeals Tribunal to the effect that H should be treated as a woman for the purposes of the Social Security Act 1947 and should therefore qualify for an age pension from the age of 60 years rather than 65 years. H was born a male and subsequently underwent sex reassignment surgery. Since that time H had lived and been known in the community as a woman. Neither "man" nor "woman" was defined in the Social Security Act .
75The Administrative Appeals Tribunal affirmed the decision of the Social Security Appeals Tribunal. President O'Connor and Member Muller stated (at [13]):
"It is impractical for the law to abandon the two-sex assumption. The law must deal with social practicalities and most people are clearly male or clearly female. The time has come to arrive at some standard by which to test a person's sex. There is no unanimity of medical opinion regarding the factors to be considered relevant to the determination."
76The Tribunal concluded that a number of factors were relevant to the determination of a person's sex. A requirement that all these factors agree was unrealistic and reliance on any single factor would be incomplete or would fail to provide a socially useful standard. However, in the case of person who had undergone sex reassignment surgery, the psychological factor, which concentrated on the individual's self-perception, could outweigh other factors, where the person's anatomy now conformed to that self-perception.
77The Tribunal stated (at [23]-[25]):
"Australian society has permitted sex reassignment surgery to take place. The law, in its turn, must acknowledge this fact and accept the medical decisions which have been made. It should also be borne in mind that such surgery is irreversible. A requirement that reassignment surgery be completed before the law recognises the reassigned sex of an individual protects the public against possible fraud and acknowledges that a irreversible medical decision has been made affirming the patient's psychological sex choice. The Tribunal is of the view that only those transsexuals who have undergone sex reassignment surgery should be classified for the purposes of the Social Security Act as their reassigned sex. This is a difficult area and the Department of Social Security will need to have (for ease of administration and to prevent fraud) workable and established criteria upon which to base its decision. ...
78A similar result was reached by the Federal Court in Secretary, Department of Social Security v SRA . The Full Federal Court held that the respondent was not a "wife" for the purposes of the Act. The Court concluded that whilst a post-operative male to female transsexual could be a wife for the purposes of the Act, a preoperative male to female transsexual could not. In so finding, Black CJ considered the ordinary English meaning of a number of words, including "sex" and "sex change" (at 469-471):
"In providing an entitlement to what is called a 'wife's pension' the Act thus reflects the ordinary notion that there are two sexes, each being 'the opposite sex' of the other, and that a wife is a female married person and a husband is a male married person. As I have noted, some of the relevant words and expressions are defined for the purposes of the Act but the words 'woman' and 'female' and the expression 'opposite sex' are not defined. ...
Although the Social Security Act is concerned with social policy and being remedial legislation should not receive a narrow or pedantic construction, the settled rules of construction apply and ordinary words used in the Act should receive their ordinary and natural meaning unless, in accordance with the accepted rules of statutory construction, there is good reason to prefer some other meaning."
79The Respondent also referred to the decision of Charles J in W v W [2001] 2 WLR 674. In that case, the respondent was an intersex person who was born with both male and female physical characteristics, but had subsequently had gender reassignment surgery to assist her to be considered a female. She then married the applicant, a male. The question before the Court was whether the marriage was void because it was not a marriage between a man and a woman.
80Charles J held that in the case of an intersex person "the decision as to the whether the individuals involved are female (or male) for the purposes of marriage should be made having regard to their development and all of the factors listed in Corbetts' case, namely.. . : (i) chromosomal factors; (ii) gonadal factors (i.e. presence or absence of testes or ovaries); (iii) genital factors (including internal sex organs); (iv) psychological factors; (v) hormonal factors, and (vi) secondary sexual characteristics (such as the distribution of hair, breast development, physique etc). Another way of putting this is that the decision as to whether the person is male or female for the purposes of marriage can be made with the benefit of hindsight looking back from the date of the marriage or if earlier the date when the decision is made."
81His Honour concluded that the respondent was a female at the time of and for the purposes of her marriage to the applicant.
82With respect to the Applicant's reference to the "case" of " Chris Somers ", the Respondent noted an article published in the West Australian newspaper on 11 January 2003, which states that after several months of negotiation with the Department of Foreign Affairs and Trading, intersex person Alex MacFarlane was issued a passport identifying Alex as neither male nor female, but simply as X.
83However, Ms Spruce contends that there is no requirement under the Australian Passports Act 2005 (Cth). that a person's "sex" be stated on their passport. Section 53(1) of that Act provides that "Australian travel documents must be issued in forms approved by the Minister". Section 53(2) stipulates that the name of the person to whom an Australian travel document is issued must appear on the document but no other particulars are required by the Act. Consequently, whether a person may record their sex on a passport as "X", or need record any sex at all, is a matter within the discretion of the Minister.
84With respect to registration of a change of sex under the Act, Ms Spruce submits that the purpose the registration is not merely to enable a person who has had a "change of sex" to give expression to and obtain formal recognition of their self-identity. She argues that registration has a broader social purpose and broader consequences than those immediately felt by the individual.
85She referred to section 32J of the Act which provides that a person who registers a change of sex under Part 5 is, for the purposes of, but subject to, any law of New South Wales, a person of the sex so registered. She argued that the effect of that section is significant. Registration is not merely a matter of publicly recognising a person's private sexual identity - it confers a legal status upon a person. It has the consequence that the individual who registers a change of sex is thereafter recognised by law as the sex registered for the purpose of all NSW laws, unless a contrary law provides otherwise.
86Ms Spruce submits that the consequence of this is that the Applicant, in seeking to register her sex as "non-specific" or "not specified", is asking the Tribunal to recognise as a matter of law that in New South Wales there is (at least) a third (and possibly more) legal "sex"(es), in addition to "male" or "female".
87At present, the law in New South Wales remains predicated on an assumption that all people can be classified into two distinct and plainly identifiable sexes, male and female. Ms Spruce concedes that that state of affairs may well be out of step, perhaps even significantly so, with current medical and scientific views. However, she submits that it is by no means unusual for the law to be out of step with medicine or science.
88She further submits that the purpose of identifying a person's "sex" at law is fundamentally different from the purpose of identifying a person's sex medically or scientifically. As Mathews J stated in R v Harris , "the fundamental purpose of the law ... is the regulation of the relations between persons, and between persons and the state or community" (at 192).
89Ms Spruce referred to a number of NSW and Commonwealth legislative provisions that are premised on a binary division between the sexes into "male" and "female". She argued that if the Applicant were to be registered under the Act as a sex other than male or female, she would fall outside those provisions. She contends that it cannot have been Parliament's intention, in enacting Part 5A of the Act, to allow persons to register a "third sex" but for those persons to immediately thereafter to find themselves in a legal no man's land. She further submits that many of the provisions referred to were enacted after the insertion of Part 5A into the Act in 1996 and that it would be surprising if Parliament, having created a mechanism for the legal recognition of a third sex, thereafter continued to legislate on the basis that there are only two sexes, male and female.
90She further submits that, consequently, "it is impractical for the law to abandon the two-sex assumption. The law must deal with social practicalities and most people are clearly male or clearly female": HH at [13].
91For these reasons the Respondent submits the correct and preferable decision is that "sex" in Part 5A of the Act means "male" or "female" only and that Parliament did not intend, by the enactment of that Part, to create a third legal sex.